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Kartar Singh Vs. The Union of India | of principles of natural justice as necessary documents were not supplied to the appellant and (31 that this is not a case which the High Court should have dismissed in limine,9. The learned Counsel for the respondent, Mr. Dhebar, sought permission to produce some additional documents but we did not accede to his request because the order of the Central Board of Revenue places reliance only on the four facts or inferences mentioned in the order and no reference was made therein to any other documents.10. It seems to us that the order of the Central Board of Revenue is liable to be quashed on the ground that no reasonable tribunal could arrive at the finding arrived at by the Central Board of Revenue. The learned Counsel points out that the first fact relied on is that Kartar Singh gave shelter to Mukand Singh, He says that either the word “shelter” has been used loosely, or if it has not been used loosely, there is no evidence to show that Kartar Sirgh knew that Mukand Singh was a person concerned in importing contraband gold. He further says that nothing follows from the second fact mentioned in the order because there is no proof that the appellant knew that the magazines contained contraband gold. He further urged that there is no evidence that these foreign magazines are usually employed for concealment of gold and that the appellant knew about this fact. He further says that the fourth fact relied on equally does not show that he knew that any parcels had been addressed to him. Mukand Singh might have told his confederates to address the parcels in the name of the appellant without having secured his consent. He further says that the Board had accepted his version that he was never in correspondence with Mukand Singh.11. There is force in the above contentions. In Radha Krishan Bhatia v. Union of India it was held, as stated in the head-note, that “the mere finding of fact recorded by the Collector of Customs in this case about the smuggled gold being recovered from the person of the appellant was not sufficient to conclude that the appellant was ‘concerned’ in the illegal importation of the smuggled gold into the country and therefore liable for penalty under Section 167(8) of the Act.” That case was a stronger case for the Customs authorities. In this case no evert act on the part of Kartar Singh has been alleged or proved, and it is difficult to say that the four facts relied on can necessarily lead a reasonable tribunal to the conclusion that the appellant was concerned in the importation of gold within Section 167(8) of the Sea Customs Act.12. The learned Counsel for the respondent contends that the orders passed by the Central Board of Revenue and the Government of India are administrative orders and cannot be quashed under art 226 of the Constitution. This point is, however, concluded against him by a number of decisions of this Court. In Shawnwanrai Indrasanrai Ltd. v. Collector of Customs S. K. Das, J., speaking for the Court, overruled a similar contention. He observed at p. 829 as follows:“The other point relates to the view expressed by the High Court in the order under appeal that an order of confiscation or penalty under the Sea Customs Act is a mere administrative or executive act, in respect of which no application for a writ of certiorari lies. It is necessary to state that the point is now concluded by two recent decisions of this Court. In F. W. Roy v. Collector of Customs this Court held that the imposition of a fine under s. 167(8) of the Sea Customs Act was really a quasijudicial act and in the later decision of Leo Roy Frey v. The Superintendent District Jail, Amritsar. It has been held that in imposing confiscation and penalties under the Sea Customs Act, the Collector acts judicially. Therefore, the view that an order of confiscation or penalties under the Sea Customs Act is a mere administrative or executive act is no longer tenable.”13 The learned Counsel relies on a decision of the Calcutta High Court in Sugan Chand Sarsogi v Commissioner of Income tax, Calcutta, relating to Section 33A(2) of the Income-tax Act. but that decision was overruled by this Court in Dwarka Nath v. Income tax Officer.14. The learned Counsel then contends that the appellant should have come up in appeal under art. 136 of the Constitution if he desired to challenge the order on its merits. He says that in view of British India Steam Navigation Co. Lid. v. Jasjit Singh, Additional Collector of Customs, only a point of jurisdiction can be raised. He relies on the following observations of Gajendragadkar, C. J.“We have heard all these matters together because they raise the same question which was raised for our decision by the appellant in C. A. No. 770 of 1962. If these matters had not been placed together for hearing along with the said civil appeal, we would not have entertained them, except C.A. No. 299 of 1963. This latter appeal has been brought against the decision of the Calcutta High Court and the only point which could have been argued by the appellant would be one of jurisdiction, since the appellant had moved the said High Court under art. 226, and that too against the order of the Collector of Customs.”It seems to us that what the learned Chief Justice was saying was that on the facts of that case the only point which could have been argued would be one of jurisdiction. Apparently, on the facts of that case no other point could have arisen. But it is now well-established that under art. 226 point other than of jurisdiction can also be gone into.15. In view of our decision on the first point raised by the learned Counsel for the appellant it is not necessary to discuss the other point raised by him. | 1[ds]9. The learned Counsel for the respondent, Mr. Dhebar, sought permission to produce some additional documents but we did not accede to his request because the order of the Central Board of Revenue places reliance only on the four facts or inferences mentioned in the order and no reference was made therein to any otherIt seems to us that the order of the Central Board of Revenue is liable to be quashed on the ground that no reasonable tribunal could arrive at the finding arrived at by the Central Board ofthis case no evert act on the part of Kartar Singh has been alleged or proved, and it is difficult to say that the four facts relied on can necessarily lead a reasonableto the conclusion that the appellant was concerned in the importation of gold within Section 167(8) of the Sea Customsseems to us that what the learned Chief Justice was saying was that on the facts of that case the only point which could have been argued would be one of jurisdiction. Apparently, on the facts of that case no other point could have arisen. But it is nowthat under art. 226 point other than of jurisdiction can also be gone into.15. In view of our decision on the first point raised by the learned Counsel for the appellant it is not necessary to discuss the other point raised by him. | 1 | 2,657 | 249 | ### Instruction:
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of principles of natural justice as necessary documents were not supplied to the appellant and (31 that this is not a case which the High Court should have dismissed in limine,9. The learned Counsel for the respondent, Mr. Dhebar, sought permission to produce some additional documents but we did not accede to his request because the order of the Central Board of Revenue places reliance only on the four facts or inferences mentioned in the order and no reference was made therein to any other documents.10. It seems to us that the order of the Central Board of Revenue is liable to be quashed on the ground that no reasonable tribunal could arrive at the finding arrived at by the Central Board of Revenue. The learned Counsel points out that the first fact relied on is that Kartar Singh gave shelter to Mukand Singh, He says that either the word “shelter” has been used loosely, or if it has not been used loosely, there is no evidence to show that Kartar Sirgh knew that Mukand Singh was a person concerned in importing contraband gold. He further says that nothing follows from the second fact mentioned in the order because there is no proof that the appellant knew that the magazines contained contraband gold. He further urged that there is no evidence that these foreign magazines are usually employed for concealment of gold and that the appellant knew about this fact. He further says that the fourth fact relied on equally does not show that he knew that any parcels had been addressed to him. Mukand Singh might have told his confederates to address the parcels in the name of the appellant without having secured his consent. He further says that the Board had accepted his version that he was never in correspondence with Mukand Singh.11. There is force in the above contentions. In Radha Krishan Bhatia v. Union of India it was held, as stated in the head-note, that “the mere finding of fact recorded by the Collector of Customs in this case about the smuggled gold being recovered from the person of the appellant was not sufficient to conclude that the appellant was ‘concerned’ in the illegal importation of the smuggled gold into the country and therefore liable for penalty under Section 167(8) of the Act.” That case was a stronger case for the Customs authorities. In this case no evert act on the part of Kartar Singh has been alleged or proved, and it is difficult to say that the four facts relied on can necessarily lead a reasonable tribunal to the conclusion that the appellant was concerned in the importation of gold within Section 167(8) of the Sea Customs Act.12. The learned Counsel for the respondent contends that the orders passed by the Central Board of Revenue and the Government of India are administrative orders and cannot be quashed under art 226 of the Constitution. This point is, however, concluded against him by a number of decisions of this Court. In Shawnwanrai Indrasanrai Ltd. v. Collector of Customs S. K. Das, J., speaking for the Court, overruled a similar contention. He observed at p. 829 as follows:“The other point relates to the view expressed by the High Court in the order under appeal that an order of confiscation or penalty under the Sea Customs Act is a mere administrative or executive act, in respect of which no application for a writ of certiorari lies. It is necessary to state that the point is now concluded by two recent decisions of this Court. In F. W. Roy v. Collector of Customs this Court held that the imposition of a fine under s. 167(8) of the Sea Customs Act was really a quasijudicial act and in the later decision of Leo Roy Frey v. The Superintendent District Jail, Amritsar. It has been held that in imposing confiscation and penalties under the Sea Customs Act, the Collector acts judicially. Therefore, the view that an order of confiscation or penalties under the Sea Customs Act is a mere administrative or executive act is no longer tenable.”13 The learned Counsel relies on a decision of the Calcutta High Court in Sugan Chand Sarsogi v Commissioner of Income tax, Calcutta, relating to Section 33A(2) of the Income-tax Act. but that decision was overruled by this Court in Dwarka Nath v. Income tax Officer.14. The learned Counsel then contends that the appellant should have come up in appeal under art. 136 of the Constitution if he desired to challenge the order on its merits. He says that in view of British India Steam Navigation Co. Lid. v. Jasjit Singh, Additional Collector of Customs, only a point of jurisdiction can be raised. He relies on the following observations of Gajendragadkar, C. J.“We have heard all these matters together because they raise the same question which was raised for our decision by the appellant in C. A. No. 770 of 1962. If these matters had not been placed together for hearing along with the said civil appeal, we would not have entertained them, except C.A. No. 299 of 1963. This latter appeal has been brought against the decision of the Calcutta High Court and the only point which could have been argued by the appellant would be one of jurisdiction, since the appellant had moved the said High Court under art. 226, and that too against the order of the Collector of Customs.”It seems to us that what the learned Chief Justice was saying was that on the facts of that case the only point which could have been argued would be one of jurisdiction. Apparently, on the facts of that case no other point could have arisen. But it is now well-established that under art. 226 point other than of jurisdiction can also be gone into.15. In view of our decision on the first point raised by the learned Counsel for the appellant it is not necessary to discuss the other point raised by him.
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9. The learned Counsel for the respondent, Mr. Dhebar, sought permission to produce some additional documents but we did not accede to his request because the order of the Central Board of Revenue places reliance only on the four facts or inferences mentioned in the order and no reference was made therein to any otherIt seems to us that the order of the Central Board of Revenue is liable to be quashed on the ground that no reasonable tribunal could arrive at the finding arrived at by the Central Board ofthis case no evert act on the part of Kartar Singh has been alleged or proved, and it is difficult to say that the four facts relied on can necessarily lead a reasonableto the conclusion that the appellant was concerned in the importation of gold within Section 167(8) of the Sea Customsseems to us that what the learned Chief Justice was saying was that on the facts of that case the only point which could have been argued would be one of jurisdiction. Apparently, on the facts of that case no other point could have arisen. But it is nowthat under art. 226 point other than of jurisdiction can also be gone into.15. In view of our decision on the first point raised by the learned Counsel for the appellant it is not necessary to discuss the other point raised by him.
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State of M.P. & Another Vs. Kedia Great Galeon Ltd. & Another | and others v. KCT Drinks Ltd., (2003) 4 SCC 748 , had occasion to consider the M.P. Excise Act, 1915 , Section 27. In the above case condition 8 of the licence provides that the licensee shall pay the full cost of excise supervisory staff posted at the premises of the licensee. Although, judgment of Lilasons was cited before three-Judge Bench but, however, this Court upheld Clause 8 of the licence and laid down following in paragraphs 7 and 11:7.In view of Sections 18 and 27, the State Government is entitled to accept payment of a sum in consideration of grant of any lease in lump sum in addition to any duty leviable under the Act on terms and conditions which are mentioned in the licence deed. Condition 8 of the licence provides that the licensee shall pay the full cost of excise supervisory staff posted at the premises of KCT Drinks, Mandideep, District Raisen. 11.In view of the aforesaid settled legal position, the condition empowering the State Government to recover the actual cost of supervisory staff posted at the premises of the respondent cannot be said to be in any way illegal or ultra vires as it constitutes the price or consideration which the Government charges to the licensee for parting with its privilege and granting licence. In this view of the matter, the impugned judgment and order passed by the High Court requires to be set aside. 48. Learned counsel for the appellants has also rightly placed reliance on judgment of this Court in Government of Andhra Pradesh v. M/s. Anabeshahi Wine and Distilleries Pvt. Ltd., (1988) 2 SCC 25. In the above case, this Court held that the demand with regard to establishment charges was valid and legal. 49. In view of above, we fail to see as to how the judgment of this Court in Lilasonss case can be relied by the High Court for declaring the demand as void. 50. There is one more aspect of the matter which needs to be considered. The demand which has been claimed from the respondent pertains to 3 years. The details of the demand have been mentioned in the notice dated 23rd March, 1999, which are to the following effect: chart 51. The High Court in paragraph 8 of the judgment has noticed the details of demand and it has also held the demand to be arbitrary and unreasonable. In paragraph 8, the High Court has stated as follows:8. The demand is arbitrary and unreasonable even otherwise. The very fact that the establishment charges to the extent of 5% ought to be borne by the State goes to show that the expenses on the establishment are supposed to be within reasonable limits. In another decision in Bihar Distilleries, 1997(2) R.C.R (Civil) 136 : (AIR 1997 SC 1208 ) the Apex Court has held that the State will be entitled to levy reasonable regulatory fees to defray the cost of the staff posted in the distillery. It is, however, significant to read the impugned notice (Annexure P/2). The total income of the distillery during the relevant years 199596 to 199798 is shown to Rs. 8,63,250/. As against this, the demand towards establishment charges over and above 5% has been shown at Rs. 13,24,189.50. The total expenses shown in the establishment are more than 150% of the total income of the distillery. On the face of it, the demand is arbitrary and unreasonable. On the face of it, the demand is arbitrary and unreasonable. It is liable to be struck down on this count leave aside the question of validity of the Rule 4(41). 52. The High Court has observed that establishment charges to the extent of 5% ought to be borne by the State goes to show that the expenses on the establishment are supposed to be within reasonable limits and demand appears to be arbitrary and unreasonable. But a perusal of the writ petition indicates that no sufficient foundation was laid in the writ petition to enter into the issue as to whether the demand is arbitrary and unreasonable. From the details of the demand as noted above, it is further clear that in the demand for the year 199697 expenditure on salary was shown as Rs. 4,36,897/but no figure pertaining to the Revenue of the said year is mentioned, whether the distillery could function during the relevant period and without there being any Revenue how the expenditure on salary is fastened on respondent, is not explained. 53. Learned counsel for the respondent has further stated before us that the State of Madhya Pradesh has abandoned the Statutory Scheme as contained in Rule 4(41) and subsequently fixed amount of establishment charges included in the licence fee. Learned counsel for the State has, however, refuted the above submission of the learned counsel of the respondent. Learned counsel for the respondent has also referred to Section 28A, which has been substituted by Madhya Pradesh Act No.24 of 2000, which is to the following effect:Section 28A. Payment of supervision charges-The State Government may by general or special order in writing direct the manufacture, import, export, transport, storage, sale, purchase, use, collection or cultivation of any intoxicant, denatured spirituous preparations or hemp shall be under the supervision of such Excise staff as the Excise Commissioner may deem proper to appoint in this behalf and that the person manufacturing, importing, exporting, transporting, storing, selling purchasing, using, collecting or cultivating the intoxicant or denatured spirituous preparations shall pay to the State Government towards supervision charges as levy as may be imposed by the State Government in this behalf: Provided that the State Government may exempt any class of person or any institution from paying the whole or any part of such levy. 54. Section 28A being not in existence during the relevant period for which demand has been raised, it is not necessary for us to consider the effect and consequence of Section 28A in so far as the present case is concerned. However, | 1[ds]22. Those who come forward to seek the above privilege of the State to manufacture or sell the liquor have to abide by the statutory regulations and terms and conditions of the licence. The privilege is not thrust upon anyone rather it is sought by intending persons or parties by participating in auctions for settling such right or by obtaining licence for such privilege in accordance with the statutory provisions.32. Learned counsel for the Respondents has also placed reliance on the judgment of this Court in Godrej Sara Lee Limited v. Assistant Commissioner (AA) and Another, (2009) 14 SCC 338 , in support of the proposition that when the order of an statutory authority is questioned on the ground that same suffers from lack of jurisdiction, the fact that no specific prayer has been made is inconsequential. In above case, following was held in Para 12Para 13:12.It is true that the appellant, in its writ petition, has not made a specific prayer that the said Notification dated 2112006 was ultra vires or otherwise illegal but, as indicated hereinbefore, a specific ground in that behalf had been taken in respect thereof13. Even otherwise, in our opinion, the question as to whether the said notification could have a retrospective effect or retroactive operation being a jurisdictional fact, should have been determined by the High Court in exercise of its writ jurisdiction under Article 226 of the Constitution of India as it is well known that when an order of a statutory authority is questioned on the ground that the same suffers from lack of jurisdiction, alternative remedy may not be a bar. (See Whirlpool Corpn. v. Registrar of Trade Marks and Mumtaz Post Graduate Degree v. Vice-Chancellor.). The ratio of the aforesaid judgment is contained in para 13. This Court has laid down that when an order of the statutory authority is questioned on the ground that the same suffers from the lack of jurisdiction alternative remedy was not a bar and Whether the notification dated 21.1.2006 could have a retrospective effect or retroactive operation being a jurisdiction affect, the High Court ought to have determined the question in exercise of its jurisdiction34. The present is not a case where the District Excise Officer who has issued the notice of demand lacks jurisdiction nor there was any issue of retrospective or retroactive operation. The above case in no manner helps the respondents.35. The second case relied by the counsel for the respondent is Girimallappa v. Special Land Acquisition Officer M and MIP and Another, 2013(2) R.C.R.(Civil) 844 : 2013(3) Recent Apex Judgments (R.A.J.) 101 : (2012) 11 SCC 548 36. In the above case, against an order passed by the Reference Court, a Land Acquisition Appeal was filed before the District Judge, seeking enhancement of the compensation at the rate of Rs. 24000 per acre. In the appeal before the High Court no specific amount was demanded37. The District Judge allowed the claim of Rs. 24000 per acre against which further appeal was filed before the High Court. Before this Court, it was contended that the High Court should not have preferred technicalities over substantial justice in awarding the compensation. Following was laid down in Para 1313. It was not a case where an order could be challenged on the ground that the same is a nullity for want of competence of the issuing authority and proper pleadings including appropriate grounds challenging the same have been taken, but no prayer has been made for quashing the said order. In such an eventuality the order can be examined only after considering the statutory provisions invoked therein. The court may reach a conclusion that the order suffers from lack of jurisdiction14. In case, the petitioner was serious about the matter, he could have amended the memo of appeal and that application could have been considered sympathetically by the High Court as held by this Court in Harcharan v. State of Haryana. The facts mentioned in this petition depict an entirely different picture and it gives an impression as if the High Court had not enhanced the compensation though demanded by the petitioner for want of payment of court fees which he could not afford to pay due to paucity of funds.above case also in no manner helps the respondents.38. There is an another reason due to which, the above submission of learned counsel for the respondents cannot be accepted. As noted above although, in Para 9 of the Writ Petition, petitioner have pleaded that in view of the judgment of M/s. Lilasons Rule 4(41) of the 1995 Rules is non est and void. But, there was no specific prayer in the writ petition. The reason for not making the specific prayer declaring Rule 4(41) as ultra vires was not an omission or by oversight. The pleadings on the record disclose a reason for the above. In the counter-affidavit filed on behalf of the State to the Writ Petition brought on record as Annexure P. 3 in Para 2 following statement has been made by the State:The demand made by the respondent is proper and cannot be struck down. However, if the petitioner wish to challenge the vires of Rule 4(41), the same can be challenged only before the Constitutional Bench.. Learned Single Judge, while deciding the writ petition has also in Para 7 made the following observations:In view of the aforesaid legal position, the Rule 4(41) of the present Rules, 1995 also appeared to be ultra vires the M.P. Excise Act and beyond the rule making power of the State. However, since no such prayer is made by the petitioners in the petition and no order in this behalf can be passed under the Rules by this Bench at Indore. I leave this question here only. However, the ratio of the decisions in Lilasons and Kedia Distilleries (supra) renders the demand notice(Annexure P.2) as void.. Thus from the above, it is clear that under the Rules of the High Court, the Bench hearing the writ petition at Indoor was not competent to pass the order, declaring Rules ultra vires. The statement in the counter-affidavit, as noted above indicates that there was some specific bench for hearing constitutional issues regarding vires of the Rules. Thus had the writ petitioner intended to challenge the vires of the rules, he had to file the writ petition for appropriate relief before the Bench having roster to decide the vires. Thus, it is clear that writ petitioner never intended to challenge the vires of the Rules, which is apparent from the reasons, as noted above. We are thus of the considered opinion that the something which writ petitioner never intended or prayed for cannot be looked into in this appeal.42. In Lilasons case, Rule 22 of the M. P. Brewery Rules 1970 was questioned. Rule 22 of the aforesaid Rules has been extracted in Para 2 of the judgment which is to the following effect:2.Vires of Rule 22 of the Madhya Pradesh Brewery Rules, 1970 framed under Section 62 of the Madhya Pradesh Excise Act, 1915 stands questioned. That rule says:22. Excise Commissioner to appoint officer in charge of brewery.- Every brewery shall be placed by the Excise Commissioner under the charge of an Excise Inspector to be designated as officer in charge of the brewery. The Excise Commissioner will further appoint such other officers of the Excise Department as he may deem fit to the charge of breweries. The pay of all such officers shall be met by the Government; provided that when the annual charges exceed five per cent of the duty leviable on the issues made from the brewery to districts within the State, the excess shall be realised from the brewer.. This Court after noticing Rule 22 and the provisions of M.P. Excise Act, 1915, Sections 18, 25, 27 and 28, recorded its conclusion in paragraphs 8 and 9 which are extracted below:8.Now is the demand a further duty and hence a further tax or is it a further fee or consideration for transferring the right, is the pointed question. In Bimal Chandra Banerjee v. State of M.P., this Court had the occasion to examine some of the provisions of the Act inclusive of Sections 27 and 62(2) (h). Under the conditions of licence of the then appellants they were required to make compulsory payment of excise duty on the quantity of liquor which they failed to take delivery of, since those conditions prescribed the minimum quantity of liquor which they had to purchase from the Government. Releasing them from such obligation, this Court ruled as follows: (SCC p.471, para 12)Neither Section 25 nor Section 26 nor Section 27 nor Section 62(1) nor clauses (d) and (h) of Section 62(2) empower the rule-making authority viz. the State Government to levy tax on excisable articles which have not been either imported, exported, transported, manufactured, cultivated or collected under any licence granted under Section 13 or manufactured in any distillery established or any distillery or brewery licensed under the Act. The legislature has levied excise duty only on those articles which come within the scope of Section 25. The rule-making authority has not been conferred with any power to levy duty on any articles which do not fall within the scope of Section 25. Therefore it is not necessary to consider whether any such power can be conferred on that authority. Quite clearly the State Government purported to levy duty on liquor which the contractors failed to lift. In so doing it was attempting to exercise a power which it did not possessNo tax can be imposed by any bye-law or rule or regulation unless the statute under which the subordinate legislation is made specially authorises the imposition even if it is assumed that the power to tax can be delegated to the executive. The basis of the statutory power conferred by the statute cannot be transgressed by the rule-making authority. A rule-making authority has no plenary power. It has to act within the limits of the power granted to itThe ratio in Banerjee case was followed in State of M.P. v. Firm Gappulal and then again in a case from Uttar Pradesh in Excise Commissioner, U.P. v. Ram Kumar. Now if the exaction under Rule 22 of the Brewery Rules is an exaction not authorised under Section 25 and is being made as if additional excise duty, the three cases afore-quoted would nip the demand outright. But if it is an additional payment under Section 27 as consideration for the grant of licence, or a further fee or condition of licence, as contended by the respondent-State then it may have to be sustained. It would be relevant to take note of another decision of this Court in Panna Lal v. State of Rajasthan at this stage in which the contractual obligation of the licensee to pay the guaranteed or stipulated sum mentioned in the licence was held not to be dependent on the quantum of liquor held by him and no excise duty was held charged or chargeable on undrawn liquor under the licence. The aforesaid case cannot advance the defence of the State for there is no lump sum payment stipulated as such in the instant licence. The licence only mentions that the licensee would be bound by the Brewery Rules. The High Court in that situation went on to lean on Sections 62(2)(h) and 28 when discovering there was no express provision in the Act for realisation of charges in respect of pay of officers posted for control of breweries. But when we analyse the latter part of Rule 22, the following position emerges:(i) The pay of all such officers shall be met by the Government; [the Government owns the responsibility](ii) if the annual charges do not exceed 5 per cent of the duty leviable on the issue made from the brewery to districts within the State, nothing is realisable from the brewer;(iii) 5 per cent of the duty has been considered enough from which to reimburse the Government for the pay of such officers; and(iv) in case the annual charges exceed 5 per cent of the duty leviable then the excess shall be realised from the brewer, i.e., to reimburse the Government for the pay of all such officers9.The excise duty collected goes to the coffers of the State. The pay of officers has to come out from coffers of the State. Five per cent of the duty leviable is assessed to meet the pay of such officers, which the Government, but for the rule, is otherwise supposed to meet. This part of the rule is purely internal between the Government and its officers. The licensee is least concerned as to how the excise duty leviable would be appropriated. It is only in the case of a shortfall when the excess is sought to be realised from the brewer that he gets affected. Now what is this excess? It is obviously the sum which falls short of the duty leviable. In other words it is this for the brewer: You have not lifted enough quantities of beer and sent them to districts within the State. Thus the State has not earned enough excise duty resulting in a shortfall in its 5%. That does not go to meet the annual expenses of the officers. Therefore you meet the shortfall, without lifting the goods. Therefore, the shortfall partakes of the same colour and content. It cannot for a moment be suggested that when there is a shortfall, the demand is as if of an additional fee or consideration and not additional excise duty. It is obvious from the language of the rule that in the event of the excise duty leviable falling short of the expected five per cent to meet the pays of the officers cannot be met therefrom, the State has all the same to pay. The measure goes to recoup the State of the charges by demanding a sum equal to the duty leviable to that extent without lifting excisable articles. On this understanding arrived at the demand is hit, in our view, by the ratio of Banerjee case, Firm Gappulal case and Ram Kumar case and cannot be sustained. Rule 22 to that extent is ultra vires the Act and beyond the rule-making power of the State.. The basis of judgment of Lilasonss case (supra) was the judgment in Bimal Chandra Banerjee v. State of Madhya Pradesh Etc., 1970(2) SCC 467. In Bimal Chandra Banerjees case this Court had occasion to examine the provisions of Madhya Pradesh Excise Act, 1915 inclusive of Sections 27 and 62(2)(h). From paragraph 8 of the judgment, as quoted above, it is clear that compulsory payment of excise duty on the quantity of liquor which could not be lifted by the licensee was held to be illegal. In Bimal Chandra Banerjees case it was held that rule making authority has not been conferred with any power to levy duty on any articles which do not fall within the scope of Section 25 and the Legislature has levied excise duty only on those articles which come within the scope of Section 25, i.e., those excisable articles which have been manufactured under any licence. After referring Banerjees case, Lilasons relied on to two other judgments, namely, State of M.P. v. Firm Gapulal, (1976) 1 SCC 791 and Excise Commissioner, U.P. v. Ram Kumar, (1976) 3 SCC 540. Both the above cases laid down the same proposition.46. Section 28, as noticed above, has been amended by M.P. Act No.6 of 1995 and after amendment in Section 28 by the aforesaid Amendment Act, the contents of Section 28 have entirely been changed and Section 28 as noticed by Lilasons cannot be relied on for finding out as to whether demand under Rule 4(41) is beyond the scope of Section 28.47. A three-Judge Bench of this Court in State of M.P. and others v. KCT Drinks Ltd., (2003) 4 SCC 748 , had occasion to consider the M.P. Excise Act, 1915 , Section 27. In the above case condition 8 of the licence provides that the licensee shall pay the full cost of excise supervisory staff posted at the premises of the licensee. Although, judgment of Lilasons was cited before three-Judge Bench but, however, this Court upheld Clause 8 of the licence and laid down following in paragraphs 7 and 11:7.In view of Sections 18 and 27, the State Government is entitled to accept payment of a sum in consideration of grant of any lease in lump sum in addition to any duty leviable under the Act on terms and conditions which are mentioned in the licence deed. Condition 8 of the licence provides that the licensee shall pay the full cost of excise supervisory staff posted at the premises of KCT Drinks, Mandideep, District Raisen11.In view of the aforesaid settled legal position, the condition empowering the State Government to recover the actual cost of supervisory staff posted at the premises of the respondent cannot be said to be in any way illegal or ultra vires as it constitutes the price or consideration which the Government charges to the licensee for parting with its privilege and granting licence. In this view of the matter, the impugned judgment and order passed by the High Court requires to be set aside.49. In view of above, we fail to see as to how the judgment of this Court in Lilasonss case can be relied by the High Court for declaring the demand as void.52. The High Court has observed that establishment charges to the extent of 5% ought to be borne by the State goes to show that the expenses on the establishment are supposed to be within reasonable limits and demand appears to be arbitrary and unreasonable. But a perusal of the writ petition indicates that no sufficient foundation was laid in the writ petition to enter into the issue as to whether the demand is arbitrary and unreasonable. From the details of the demand as noted above, it is further clear that in the demand for the year 199697 expenditure on salary was shown as Rs. 4,36,897/but no figure pertaining to the Revenue of the said year is mentioned, whether the distillery could function during the relevant period and without there being any Revenue how the expenditure on salary is fastened on respondent, is not explained.54. Section 28A being not in existence during the relevant period for which demand has been raised, it is not necessary for us to consider the effect and consequence of Section 28A in so far as the present case is concerned.19. Justice Y. V. Chandrachood, speaking through a Constitution Bench in Har Shankar and Others v. The Deputy Excise and Taxation Commissioner and Others, (1975) 1 SCC 737 , referring to various earlier Constitution Benches of this Court laid down following in Para 4545. In Nagendra Nath Bora v. Commissioner of Hills Division and Appeals, Assam, the decisions in Cooverjees case (supra) and Kidwais case(supra) were cited by a Constitution Bench as laying down the proposition that there was no inherent right in a citizen to sell liquor and that the control and restriction over the consumption of intoxicating liquors was necessary for the preservation of public health and morals and to raise revenue47. These unanimous decisions of five Constitution Benches uniformly emphasized after a careful consideration of the problem involved that the State has the power to prohibit trades which are injurious to the health and welfare of the public, that elimination and exclusion from business is inherent in the nature of liquor business, that no person has an absolute right to deal in liquor and that all forms of dealings in liquor have, from their inherent nature, been treated as a class by themselves by all civilized communities. The contention that the citizen had either a natural or a fundamental right to carry on trade or business in liquor thus stood rejected.. This Court in the above Constitution Bench has also held that one of the main purposes of selling the exclusive rights of liquor is to raise the Revenue. Following was stated in para 51:...After referring to the decisions in Cooverjees case (supra) and Krishna Kumar Narulas case (supra) it was observed that one of the important purposes of selling the exclusive right to vend liquor was to raise revenue and since the Government had the power to sell exclusive privileges there was no basis for contending that the owner of the privileges could not decline to accept the highest bid if he thought that the price offered was inadequate. Hegde, J. speaking for the Division Bench observed:(SCC p. 44, Para 13)The fact that the Government was the seller does not change the legal position once its exclusive right to deal with those privileges is conceded. If the Government is the exclusive owner of those privileges, reliance on Article 19(1)(g) or Article 14 becomes irrelevant. Citizens cannot have any fundamental right to trade or carry on business in the properties or rights belonging to the Government nor can there be any infringement of Article 14, if the Government tries to get the best available price for its valuable rights.. While delving into the nature of licence fee charged for granting the privilege to manufacture/sale intoxicant, Constitution Bench further laid in para 59:The amount charged to the licensees is not a fee properly so-called nor indeed a tax but is in the nature of the price of a privilege, which the purchaser has to pay in any trading or business transactions.. Those who come forward to seek the above privilege of the State to manufacture or sell the liquor have to abide by the statutory regulations and terms and conditions of the licence. The privilege is not thrust upon anyone rather it is sought by intending persons or parties by participating in auctions for settling such right or by obtaining licence for such privilege in accordance with the statutory provisions. | 1 | 8,375 | 4,060 | ### 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:
and others v. KCT Drinks Ltd., (2003) 4 SCC 748 , had occasion to consider the M.P. Excise Act, 1915 , Section 27. In the above case condition 8 of the licence provides that the licensee shall pay the full cost of excise supervisory staff posted at the premises of the licensee. Although, judgment of Lilasons was cited before three-Judge Bench but, however, this Court upheld Clause 8 of the licence and laid down following in paragraphs 7 and 11:7.In view of Sections 18 and 27, the State Government is entitled to accept payment of a sum in consideration of grant of any lease in lump sum in addition to any duty leviable under the Act on terms and conditions which are mentioned in the licence deed. Condition 8 of the licence provides that the licensee shall pay the full cost of excise supervisory staff posted at the premises of KCT Drinks, Mandideep, District Raisen. 11.In view of the aforesaid settled legal position, the condition empowering the State Government to recover the actual cost of supervisory staff posted at the premises of the respondent cannot be said to be in any way illegal or ultra vires as it constitutes the price or consideration which the Government charges to the licensee for parting with its privilege and granting licence. In this view of the matter, the impugned judgment and order passed by the High Court requires to be set aside. 48. Learned counsel for the appellants has also rightly placed reliance on judgment of this Court in Government of Andhra Pradesh v. M/s. Anabeshahi Wine and Distilleries Pvt. Ltd., (1988) 2 SCC 25. In the above case, this Court held that the demand with regard to establishment charges was valid and legal. 49. In view of above, we fail to see as to how the judgment of this Court in Lilasonss case can be relied by the High Court for declaring the demand as void. 50. There is one more aspect of the matter which needs to be considered. The demand which has been claimed from the respondent pertains to 3 years. The details of the demand have been mentioned in the notice dated 23rd March, 1999, which are to the following effect: chart 51. The High Court in paragraph 8 of the judgment has noticed the details of demand and it has also held the demand to be arbitrary and unreasonable. In paragraph 8, the High Court has stated as follows:8. The demand is arbitrary and unreasonable even otherwise. The very fact that the establishment charges to the extent of 5% ought to be borne by the State goes to show that the expenses on the establishment are supposed to be within reasonable limits. In another decision in Bihar Distilleries, 1997(2) R.C.R (Civil) 136 : (AIR 1997 SC 1208 ) the Apex Court has held that the State will be entitled to levy reasonable regulatory fees to defray the cost of the staff posted in the distillery. It is, however, significant to read the impugned notice (Annexure P/2). The total income of the distillery during the relevant years 199596 to 199798 is shown to Rs. 8,63,250/. As against this, the demand towards establishment charges over and above 5% has been shown at Rs. 13,24,189.50. The total expenses shown in the establishment are more than 150% of the total income of the distillery. On the face of it, the demand is arbitrary and unreasonable. On the face of it, the demand is arbitrary and unreasonable. It is liable to be struck down on this count leave aside the question of validity of the Rule 4(41). 52. The High Court has observed that establishment charges to the extent of 5% ought to be borne by the State goes to show that the expenses on the establishment are supposed to be within reasonable limits and demand appears to be arbitrary and unreasonable. But a perusal of the writ petition indicates that no sufficient foundation was laid in the writ petition to enter into the issue as to whether the demand is arbitrary and unreasonable. From the details of the demand as noted above, it is further clear that in the demand for the year 199697 expenditure on salary was shown as Rs. 4,36,897/but no figure pertaining to the Revenue of the said year is mentioned, whether the distillery could function during the relevant period and without there being any Revenue how the expenditure on salary is fastened on respondent, is not explained. 53. Learned counsel for the respondent has further stated before us that the State of Madhya Pradesh has abandoned the Statutory Scheme as contained in Rule 4(41) and subsequently fixed amount of establishment charges included in the licence fee. Learned counsel for the State has, however, refuted the above submission of the learned counsel of the respondent. Learned counsel for the respondent has also referred to Section 28A, which has been substituted by Madhya Pradesh Act No.24 of 2000, which is to the following effect:Section 28A. Payment of supervision charges-The State Government may by general or special order in writing direct the manufacture, import, export, transport, storage, sale, purchase, use, collection or cultivation of any intoxicant, denatured spirituous preparations or hemp shall be under the supervision of such Excise staff as the Excise Commissioner may deem proper to appoint in this behalf and that the person manufacturing, importing, exporting, transporting, storing, selling purchasing, using, collecting or cultivating the intoxicant or denatured spirituous preparations shall pay to the State Government towards supervision charges as levy as may be imposed by the State Government in this behalf: Provided that the State Government may exempt any class of person or any institution from paying the whole or any part of such levy. 54. Section 28A being not in existence during the relevant period for which demand has been raised, it is not necessary for us to consider the effect and consequence of Section 28A in so far as the present case is concerned. However,
### Response:
1
### Explanation:
M.P. Excise Act, 1915 , Section 27. In the above case condition 8 of the licence provides that the licensee shall pay the full cost of excise supervisory staff posted at the premises of the licensee. Although, judgment of Lilasons was cited before three-Judge Bench but, however, this Court upheld Clause 8 of the licence and laid down following in paragraphs 7 and 11:7.In view of Sections 18 and 27, the State Government is entitled to accept payment of a sum in consideration of grant of any lease in lump sum in addition to any duty leviable under the Act on terms and conditions which are mentioned in the licence deed. Condition 8 of the licence provides that the licensee shall pay the full cost of excise supervisory staff posted at the premises of KCT Drinks, Mandideep, District Raisen11.In view of the aforesaid settled legal position, the condition empowering the State Government to recover the actual cost of supervisory staff posted at the premises of the respondent cannot be said to be in any way illegal or ultra vires as it constitutes the price or consideration which the Government charges to the licensee for parting with its privilege and granting licence. In this view of the matter, the impugned judgment and order passed by the High Court requires to be set aside.49. In view of above, we fail to see as to how the judgment of this Court in Lilasonss case can be relied by the High Court for declaring the demand as void.52. The High Court has observed that establishment charges to the extent of 5% ought to be borne by the State goes to show that the expenses on the establishment are supposed to be within reasonable limits and demand appears to be arbitrary and unreasonable. But a perusal of the writ petition indicates that no sufficient foundation was laid in the writ petition to enter into the issue as to whether the demand is arbitrary and unreasonable. From the details of the demand as noted above, it is further clear that in the demand for the year 199697 expenditure on salary was shown as Rs. 4,36,897/but no figure pertaining to the Revenue of the said year is mentioned, whether the distillery could function during the relevant period and without there being any Revenue how the expenditure on salary is fastened on respondent, is not explained.54. Section 28A being not in existence during the relevant period for which demand has been raised, it is not necessary for us to consider the effect and consequence of Section 28A in so far as the present case is concerned.19. Justice Y. V. Chandrachood, speaking through a Constitution Bench in Har Shankar and Others v. The Deputy Excise and Taxation Commissioner and Others, (1975) 1 SCC 737 , referring to various earlier Constitution Benches of this Court laid down following in Para 4545. In Nagendra Nath Bora v. Commissioner of Hills Division and Appeals, Assam, the decisions in Cooverjees case (supra) and Kidwais case(supra) were cited by a Constitution Bench as laying down the proposition that there was no inherent right in a citizen to sell liquor and that the control and restriction over the consumption of intoxicating liquors was necessary for the preservation of public health and morals and to raise revenue47. These unanimous decisions of five Constitution Benches uniformly emphasized after a careful consideration of the problem involved that the State has the power to prohibit trades which are injurious to the health and welfare of the public, that elimination and exclusion from business is inherent in the nature of liquor business, that no person has an absolute right to deal in liquor and that all forms of dealings in liquor have, from their inherent nature, been treated as a class by themselves by all civilized communities. The contention that the citizen had either a natural or a fundamental right to carry on trade or business in liquor thus stood rejected.. This Court in the above Constitution Bench has also held that one of the main purposes of selling the exclusive rights of liquor is to raise the Revenue. Following was stated in para 51:...After referring to the decisions in Cooverjees case (supra) and Krishna Kumar Narulas case (supra) it was observed that one of the important purposes of selling the exclusive right to vend liquor was to raise revenue and since the Government had the power to sell exclusive privileges there was no basis for contending that the owner of the privileges could not decline to accept the highest bid if he thought that the price offered was inadequate. Hegde, J. speaking for the Division Bench observed:(SCC p. 44, Para 13)The fact that the Government was the seller does not change the legal position once its exclusive right to deal with those privileges is conceded. If the Government is the exclusive owner of those privileges, reliance on Article 19(1)(g) or Article 14 becomes irrelevant. Citizens cannot have any fundamental right to trade or carry on business in the properties or rights belonging to the Government nor can there be any infringement of Article 14, if the Government tries to get the best available price for its valuable rights.. While delving into the nature of licence fee charged for granting the privilege to manufacture/sale intoxicant, Constitution Bench further laid in para 59:The amount charged to the licensees is not a fee properly so-called nor indeed a tax but is in the nature of the price of a privilege, which the purchaser has to pay in any trading or business transactions.. Those who come forward to seek the above privilege of the State to manufacture or sell the liquor have to abide by the statutory regulations and terms and conditions of the licence. The privilege is not thrust upon anyone rather it is sought by intending persons or parties by participating in auctions for settling such right or by obtaining licence for such privilege in accordance with the statutory provisions.
|
M/s. Haabia Advertising India Pvt. Ltd Vs. United India Insurance Co. Ltd. & Another | 1. Leave granted. 2. Heard learned counsel for the parties. 3. The appellant is an Advertising Company. It is engaged in the business of putting up advertisements through hoardings and sky-signs at Visakhapatnam. In 1994, the appellant filed complaint under Section 17 of the Consumer Protection Act, 1986 (for short, "the Act") for award of compensation to the tune of Rs.20 lakhs by stating that the hoardings which were insured were illegally removed by the authorities. By an order dated 8.8.2001, the Andhra Pradesh State Consumer Disputes Redressal Commission (for short, ‘the State Commission) held that there was no deficiency of service and dismissed the complaint. The National Consumer Disputes Redressal Commission (for short, "the National Commission") confirmed the order of the State Commission by observing that after having availed the remedy by filing writ petition and contempt petition before the High Court, the petitioner (appellant herein) is not entitled to relief under the Act. 4. In our view, the reason assigned by the National Commissions for refusing to entertain the claim of the appellant is legally untenable and the impugned order is liable to be set aside because the writ petition and contempt petition filed by the appellant against the Municipal Corporation in the matter of alleged illegal removal of hoardings etc. do not have direct bearing on its claim for award of compensation. 5. | 1[ds]In our view, the reason assigned by the National Commissions for refusing to entertain the claim of the appellant is legally untenable and the impugned order is liable to be set aside because the writ petition and contempt petition filed by the appellant against the Municipal Corporation in the matter of alleged illegal removal of hoardings etc. do not have direct bearing on its claim for award of compensation. | 1 | 261 | 76 | ### 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. Leave granted. 2. Heard learned counsel for the parties. 3. The appellant is an Advertising Company. It is engaged in the business of putting up advertisements through hoardings and sky-signs at Visakhapatnam. In 1994, the appellant filed complaint under Section 17 of the Consumer Protection Act, 1986 (for short, "the Act") for award of compensation to the tune of Rs.20 lakhs by stating that the hoardings which were insured were illegally removed by the authorities. By an order dated 8.8.2001, the Andhra Pradesh State Consumer Disputes Redressal Commission (for short, ‘the State Commission) held that there was no deficiency of service and dismissed the complaint. The National Consumer Disputes Redressal Commission (for short, "the National Commission") confirmed the order of the State Commission by observing that after having availed the remedy by filing writ petition and contempt petition before the High Court, the petitioner (appellant herein) is not entitled to relief under the Act. 4. In our view, the reason assigned by the National Commissions for refusing to entertain the claim of the appellant is legally untenable and the impugned order is liable to be set aside because the writ petition and contempt petition filed by the appellant against the Municipal Corporation in the matter of alleged illegal removal of hoardings etc. do not have direct bearing on its claim for award of compensation. 5.
### Response:
1
### Explanation:
In our view, the reason assigned by the National Commissions for refusing to entertain the claim of the appellant is legally untenable and the impugned order is liable to be set aside because the writ petition and contempt petition filed by the appellant against the Municipal Corporation in the matter of alleged illegal removal of hoardings etc. do not have direct bearing on its claim for award of compensation.
|
Bombay Gas Co. Ltd Vs. Jagannath Pandurang & Others | the Judicial Committee in Surapati Ray and others v. Ram Narayan Mukherjee and others, 50 I.A. 155. In that decision the question arose under S. 110 of the Code of Civil Procedure, 1908, regarding the validity of the certificated granted by the High Court. Though the rent claimed in the suits was less than Rs. 10,000 the High Court had granted a certificate of fitness on the ground that the value of the subject-matter was over Rs. 10,000. The objection taken before the Judicial Committee regarding the validity of the certificated on the ground that the subject-matter was below the appealable value, was rejected as follows :".......... The subject-matter in dispute relates to a recurring liability and is in respect of a property considerably above the appealable value. The certificate in the circumstances is quite in order".37. It is to be noted that the liability which was being denied as due to the landlord, by way of rent from the lands in question was in respect of the properties in question and it was on that basis that the certificate was held to be valid.38. Both the above decisions of the judicial Committee have no application to the facts of the present case on hand. The principle is that a claim made by one party and resisted by another is ordinarily the subject-matter of the dispute in the trial Court and continues to be the subject-matter in the appellate Courts. In the case before us the claims for overtime wages and weekly off wages before the authorities were for a specified period. The claims for the identical periods were the subject-matter in the appeals before the Court of Small Causes. The High Court had also to consider the correctness of the decision of the Court of Small Causes regarding the claims made by the workmen for the particular periods. The appellant was not entitled to notionally add on to the amount originally claimed by the workmen for particular periods, any further amounts on the ground that they must be considered to have accrued due to the workmen till the date of the judgment of the High Court. If the subsequent additions made to the original claim are accepted and correct, then the position would be that if it is an ordinary civil litigation, the subject-matter of the suit and its value would vary with the length of time during which the suit may be pending in the Courts. Such a position is not warranted by the provisions of Art. 133(1) as laid down by this Court in Chhitarmal v. M/s. Shah Pannalal Chandulal, (1965) 2 S.C.R. 751. If in the proposed appeal to this Court there is no claim or question raised respecting property, other than the subject matter of dispute, cl. (a) of Art. 133(1) will apply. That clause has not been invoked in this case by the High Court.39. It is not possible to accept the contention of Mr. Sorabji that as the appellant will have to face from its workmen in future claims similar to the one recognised by the High Court, there is involved a claim or question in respect of property of the value of not less than Rs. 20,000 in addition to or other than the subject-matter of appeal. In the first place, this contention proceeds on the assumption that the judgment of the High Court directs the appellant to pay in future amounts not less than Rs. 20,000. This assumption is basically erroneous, as there is no such direction given by the High Court. The payment of wages as for overtime or weekly off days will depend upon several circumstances. If overtime work is not taken, then no payment need be made. If overtime work is taken for a lesser time, then the amount to be paid will also be less.40. In our opinion, this is not a case where the decision of the High Court, apart from dealing with the subject-matter in dispute before it, has the effect of affecting the rights of the appellant, regarding other properties, including money. We may give an instance where a final judgment may have an impact or affect properties, other than the subject-matter in dispute. In a suit for mandatory injunction directing a defendant to vacate a land, the subject-matter of the suit may be only of the value of Rs. 1,500, but the decree granted by the High Court may result in the defendant therein being obliged to remove buildings worth more than Rs. 20,000 so as to give vacant possession of the land in accordance with the decision of the High Court. In such a case, though the value of the subject-matter in dispute before the High Court may be only Rs. 1,500, the judgment can be considered to involve indirectly a claim or question respecting property (in this case the buildings) of the value of not less than Rs. 20,000. Such a case may attract Art. 133(1)(b). The position before us is entirely different. The judgment of the High Court has only adjudicated upon the subject-matter of the specified claim of the workmen which was, as mentioned earlier, for a particular period. That judgment does not involve directly or indirectly, apart from the subject-matter of the writ petition, any claim or question respecting property or money of the value of Rs. 20,000 and more. In this view, we are of the opinion that the certificate granted by the High Court under Art. 133(1)(b) is not valid and proper.41. In the view that we take that the certificate granted by the High Court is not valid and that the appeal brought on such a certificate is not sustainable, we do not express any opinion on the merits, though arguments were heard on the same.42. As the certificate issued by the High Court under Art. 133(1)(b) is not proper and valid, the only course open to us is to revoke the certificate and set aside the order of the High Court granting the same. | 1[ds]16. From the above, it will be seen that the High Court has not given any indication as to how it issued the certificate under Art. 133(1)(b). But one thing is clear that it did not grant the certificate on the basis of the claim made by the appellant either under cl. (a) or cl. (c) Art. 133(1). On the basis of the claims made by the workmen as overtime wages and weekly off days wages for the particular periods, the appellant had calculated at the same rate for even subsequent periods till the date of the judgment of the, High Court and claimed that the amount or value in dispute in appeal to this Court is over Rs. 26,822.09. The appellant had also raised a point in its further affidavit before the High Court that it will have to meet in future also claims from its workmen and as such it will have to face a recurring liability. On this basis the appellant has raised a plea that the judgment of High Court involves directly or indirectly a claim or question respecting property of the value of Rs. 20,000 and more. In view of the fact that the High Court has granted the certificate under Art. 133(1)(b), it has to be presumed that it has accepted the appellants plea that a certificate could be granted under the said clause when there is a recurring liability, which, if calculated for subsequent years will be at least Rs. 20,000 and more. TheEven on the basis of the valuation worked out by the appellant, it is seen that the claim for overtime wages which was filed before the Additional Authority was valued only at Rs. 18,221.25 as per the amended claim at 1 1/2 times of wages, though according to the respondents the amount of claim does not exceed Rs. 10,660. Similarly, the claim for weekly off wages filed by another set of workmen before the Third Additional Authority, even as per the appellants calculation was only Rs. 6,675.84. The claim for overtime wages and weekly off wages, each of them taken separately does not exceed Rs. 20,000. Though the appeals against the decision of the two authorities were filed before the Court of small Causes, it is to be noted that separate appeals were filed by different workmen and the appellants in respect of these two different categories of claims. Though the Court of Small Causes disposed of all the appeals by a common judgment, nevertheless, the claim in respect of overtime wages was dealt with apart and different from claim for weekly of wages. Even before the High Court, though one writ petition was filed by all the workmen, the claims under two different heads for overtime wages and weekly off wages were dealt with separately by the High Court. It is not as if that the reasons given by the High Court for upholding the claims for overtime wages automatically resulted on the allowing of the claim for weekly off wages also. In fact entirely different considerations apply for the two different sets of claims and that has been kept in view by the High Court. Though, ultimately, the High Court has delivered only a common judgment, nevertheless, the decision related to two different sets of claims, each having nothing in common with the other. Therefore, it was not open to the appellant to ask this Court to proceed on the basis that there was only one single and common claim dealt with by the High Court in its judgment. Therefore, there was no question of any consolidation of all the claims before the High Court. In this view, it will be seen that, even according to the calculations made by the appellant, the value of the subject matter of the claim with respect to overtime wages can only be the same as was before the Additional Authority, namely, Rs. 18,221.25, which is less than Rs. 20,000. Similarly, the amount or value of the claim which was adjudicated upon by the High Court in respect of weekly off wages was also of the same value as Rs. 6,675-84. As was the case before the Third Additional Authority, which claim is also less than Rs. 20,000. Therefore, considering the matter from this point of view, it is clear that the value of the subject-matter of the claim before the High Court in respect of each of these matters was less than Rs. 20,000.The appellant, as mentioned earlier, has calculated at the same rate as claimed for overtime wages and weekly off wages for subsequent years up to the date of the judgment of the High Court and has stated that so calculated the amount or value of the subject-matter of the claim relating to weekly off wages exceeds Rs. 30,000. Similarly, the amount or value of the subject-matter of the claim of overtime wages exceeds Rs. 20,000 and hence it is stated that the judgment of the High Court involves directly or indirectly a claim or question respecting property of the value of Rs. 20,000 and more.From the facts in that case it is clear that the High Court was dealing with the question whetherthe decision of the High Court will have far reaching effect on the other properties of the appellant therein, though those properties were not thesubject-matter of disputein the appeal.This decision in fact emphasises quite rightly that to attract cl. (b) of Art. 133(1) one has to look to the effect of the judgment sought to be appealed against on other properties which are not thesubject-matter of disputeand are not comprised as such in the litigation.Similarly, the decision of the Madras High Court in Commissioner of Income-tax, Madras v. S. L. Mathias, A.I.R. 1938 Mad. 352, is also of no assistance to the appellant. The facts of the said decision show that the High Court was of the view that there is a difference of opinion between the High Courts on the effect of the proviso 2 to S.4(2) of the Indian Income-Tax Act, 19221922. The High Court was of the view that "there can be no doubt that the question involved is a substantial question of law", and on this basis granted a certificate of fitness. It is clear that the High Court granted the certificate on the ground that there was a substantial question of law involved in the appeal and as such it was a fit one for appeal to the Judicial Committee.32. Mr. Sorabji then referred us to the decision of the Madras High Court in G. Appuswamy Chettiar and another v. R. Sarangapani Chettiar and others, (1965) 1 I.L.R. Mad. 361. In that case the suit was for a declaratory relief regarding the invalidity of the adoption of a particular person. The certificate was asked for on the ground that the decision of the High Court involves directly or indirectly a claim or question respecting property of the value of Rs. 20,000 and more. It was accepted by the High Court that if leave to appeal was not granted to the petitioners therein, they will lose an estate worth more than Rs. 68,000 though the estate itself was not directly thesubject-matter of disputeeither in the trial Court or the High Court. The High Court further held that in a suit for a declaration of adoption a claim made by the reversioners to the property cannot be considered to be too remote. It is on this ground that the certificate was granted. It is clear from the judgment of the High Court that final decision of the high court in that case did affect the rights of the petitioners therein to properties of the value of more than Rs. 68,000. It is on that basis that the certificate was granted under Art. 133(1)(b).In our opinion, the decisions relied on by Mr. Sorabji do not support his contention that the certificate granted by the High Court, in the case before us, under Art. 133(1)(b) is proper and valid. In fact the said decisions clearly bring out the distinction between cls. (a) and (b) of Art. 133(1) and they lay down that only when the judgment or final order affects property which is not the subject-matter of the litigation Art. 133(1)(b) will apply. Those decisions are in conformity with the principles laid down by this Court in Chhitarmal v. M/s. Shah Pannalal Chandulal, (1965) 2 S.C.R. 751.34. It is clear that interest, unless granted by the decree of the trial Court, cannot be notionally added to inflate the value of the claim in the appeal so as to make it appear that on the date of the judgment of the High Court the value is not less than Rs. 20,000. On the same principle, we have already pointed out that mesne profits, which have not been decreed by the trial Court, cannot be added to the original claim made in the suit, so as to enable a party to plead that the value in the proposed appeal on the date of the judgment of the High Court is more than Rs. 20,000.35. We may refer to the decision of the Judicial Committee in Moti Chand and others v. Ganga Parshad Singh and another, 29 I.A. 40, where interest awarded under the decree of the trial Court was taken into account for the purpose of considering the value in the appeal before the High Court. The suit was for recovery of a certain amount together with interest. The trial Court passed a decree for Rs. 9,496 and awarded interest to the plaintiff at Rs. 570 per year on the decreed amount, until realisation. By the time the High Courts decree was made, the amount at issue had reached to Rs. 10,636 with further contingent increment. Under S. 596 of the old Civil Procedure Code, certificate was asked for from the High Court for leave to appeal to the Judicial Committee. The High Court declined to grant the certificate on the ground that the amount or value of the subject-matter of the suit in the Court of first instance was not Rs. 10,000 as required by the said section, though the amount or value of the matter in dispute on appeal to Her Majesty in Council was above Rs. 10,000. No doubt, this decision is not on the question regarding matters covered by cl. (b) of Art. 133(1). But we are only referring to this decision to show that interest can be taken into account for the purpose of considering the value in an appeal, provided the decree itself has awarded interest.We may also refer to the decision of the Judicial Committee in Surapati Ray and others v. Ram Narayan Mukherjee and others, 50 I.A. 155. In that decision the question arose under S. 110 of theCode of Civil Procedure, 1908, regarding the validity of the certificated granted by the High Court. Though the rent claimed in the suits was less than Rs. 10,000 the High Court had granted a certificate of fitness on the ground that the value of the subject-matter was over Rs. 10,000. The objection taken before the Judicial Committee regarding the validity of the certificated on the ground that the subject-matter was below the appealable value, was rejected as followsThe subject-matter in dispute relates to a recurring liability and is in respect of a property considerably above the appealable value. The certificate in the circumstances is quite in order".It is to be noted that the liability which was being denied as due to the landlord, by way of rent from the lands in question was in respect of the properties in question and it was on that basis that the certificate was held to be valid.38. Both the above decisions of the judicial Committee have no application to the facts of the present case on hand. The principle is that a claim made by one party and resisted by another is ordinarily the subject-matter of the dispute in the trial Court and continues to be the subject-matter in the appellate Courts. In the case before us the claims for overtime wages and weekly off wages before the authorities were for a specified period. The claims for the identical periods were the subject-matter in the appeals before the Court of Small Causes. The High Court had also to consider the correctness of the decision of the Court of Small Causes regarding the claims made by the workmen for the particular periods. The appellant was not entitled to notionally add on to the amount originally claimed by the workmen for particular periods, any further amounts on the ground that they must be considered to have accrued due to the workmen till the date of the judgment of the High Court. If the subsequent additions made to the original claim are accepted and correct, then the position would be that if it is an ordinary civil litigation, the subject-matter of the suit and its value would vary with the length of time during which the suit may be pending in the Courts. Such a position is not warranted by the provisions of Art. 133(1) as laid down by this Court in Chhitarmal v. M/s. Shah Pannalal Chandulal, (1965) 2 S.C.R. 751. If in the proposed appeal to this Court there is no claim or question raised respecting property, other than the subject matter of dispute, cl. (a) of Art. 133(1) will apply. That clause has not been invoked in this case by the High Court.It is not possible to accept the contention of Mr. Sorabji that as the appellant will have to face from its workmen in future claims similar to the one recognised by the High Court, there is involved a claim or question in respect of property of the value of not less than Rs. 20,000 in addition to or other than the subject-matter of appeal. In the first place, this contention proceeds on the assumption that the judgment of the High Court directs the appellant to pay in future amounts not less than Rs. 20,000. This assumption is basically erroneous, as there is no such direction given by the High Court. The payment of wages as for overtime or weekly off days will depend upon several circumstances. If overtime work is not taken, then no payment need be made. If overtime work is taken for a lesser time, then the amount to be paid will also be less.40. In our opinion, this is not a case where the decision of the High Court, apart from dealing with the subject-matter in dispute before it, has the effect of affecting the rights of the appellant, regarding other properties, including money. We may give an instance where a final judgment may have an impact or affect properties, other than the subject-matter in dispute. In a suit for mandatory injunction directing a defendant to vacate a land, the subject-matter of the suit may be only of the value of Rs. 1,500, but the decree granted by the High Court may result in the defendant therein being obliged to remove buildings worth more than Rs. 20,000 so as to give vacant possession of the land in accordance with the decision of the High Court. In such a case, though the value of the subject-matter in dispute before the High Court may be only Rs. 1,500, the judgment can be considered to involve indirectly a claim or question respecting property (in this case the buildings) of the value of not less than Rs. 20,000. Such a case may attract Art. 133(1)(b). The position before us is entirely different. The judgment of the High Court has only adjudicated upon the subject-matter of the specified claim of the workmen which was, as mentioned earlier, for a particular period. That judgment does not involve directly or indirectly, apart from the subject-matter of the writ petition, any claim or question respecting property or money of the value of Rs. 20,000 and more. In this view, we are of the opinion that the certificate granted by the High Court under Art. 133(1)(b) is not valid and proper.In the view that we take that the certificate granted by the High Court is not valid and that the appeal brought on such a certificate is not sustainable, we do not express any opinion on the merits, though arguments were heard on the same.42. As the certificate issued by the High Court under Art. 133(1)(b) is not proper and valid, the only course open to us is to revoke the certificate and set aside the order of the High Court granting the same. | 1 | 9,063 | 3,105 | ### 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 Judicial Committee in Surapati Ray and others v. Ram Narayan Mukherjee and others, 50 I.A. 155. In that decision the question arose under S. 110 of the Code of Civil Procedure, 1908, regarding the validity of the certificated granted by the High Court. Though the rent claimed in the suits was less than Rs. 10,000 the High Court had granted a certificate of fitness on the ground that the value of the subject-matter was over Rs. 10,000. The objection taken before the Judicial Committee regarding the validity of the certificated on the ground that the subject-matter was below the appealable value, was rejected as follows :".......... The subject-matter in dispute relates to a recurring liability and is in respect of a property considerably above the appealable value. The certificate in the circumstances is quite in order".37. It is to be noted that the liability which was being denied as due to the landlord, by way of rent from the lands in question was in respect of the properties in question and it was on that basis that the certificate was held to be valid.38. Both the above decisions of the judicial Committee have no application to the facts of the present case on hand. The principle is that a claim made by one party and resisted by another is ordinarily the subject-matter of the dispute in the trial Court and continues to be the subject-matter in the appellate Courts. In the case before us the claims for overtime wages and weekly off wages before the authorities were for a specified period. The claims for the identical periods were the subject-matter in the appeals before the Court of Small Causes. The High Court had also to consider the correctness of the decision of the Court of Small Causes regarding the claims made by the workmen for the particular periods. The appellant was not entitled to notionally add on to the amount originally claimed by the workmen for particular periods, any further amounts on the ground that they must be considered to have accrued due to the workmen till the date of the judgment of the High Court. If the subsequent additions made to the original claim are accepted and correct, then the position would be that if it is an ordinary civil litigation, the subject-matter of the suit and its value would vary with the length of time during which the suit may be pending in the Courts. Such a position is not warranted by the provisions of Art. 133(1) as laid down by this Court in Chhitarmal v. M/s. Shah Pannalal Chandulal, (1965) 2 S.C.R. 751. If in the proposed appeal to this Court there is no claim or question raised respecting property, other than the subject matter of dispute, cl. (a) of Art. 133(1) will apply. That clause has not been invoked in this case by the High Court.39. It is not possible to accept the contention of Mr. Sorabji that as the appellant will have to face from its workmen in future claims similar to the one recognised by the High Court, there is involved a claim or question in respect of property of the value of not less than Rs. 20,000 in addition to or other than the subject-matter of appeal. In the first place, this contention proceeds on the assumption that the judgment of the High Court directs the appellant to pay in future amounts not less than Rs. 20,000. This assumption is basically erroneous, as there is no such direction given by the High Court. The payment of wages as for overtime or weekly off days will depend upon several circumstances. If overtime work is not taken, then no payment need be made. If overtime work is taken for a lesser time, then the amount to be paid will also be less.40. In our opinion, this is not a case where the decision of the High Court, apart from dealing with the subject-matter in dispute before it, has the effect of affecting the rights of the appellant, regarding other properties, including money. We may give an instance where a final judgment may have an impact or affect properties, other than the subject-matter in dispute. In a suit for mandatory injunction directing a defendant to vacate a land, the subject-matter of the suit may be only of the value of Rs. 1,500, but the decree granted by the High Court may result in the defendant therein being obliged to remove buildings worth more than Rs. 20,000 so as to give vacant possession of the land in accordance with the decision of the High Court. In such a case, though the value of the subject-matter in dispute before the High Court may be only Rs. 1,500, the judgment can be considered to involve indirectly a claim or question respecting property (in this case the buildings) of the value of not less than Rs. 20,000. Such a case may attract Art. 133(1)(b). The position before us is entirely different. The judgment of the High Court has only adjudicated upon the subject-matter of the specified claim of the workmen which was, as mentioned earlier, for a particular period. That judgment does not involve directly or indirectly, apart from the subject-matter of the writ petition, any claim or question respecting property or money of the value of Rs. 20,000 and more. In this view, we are of the opinion that the certificate granted by the High Court under Art. 133(1)(b) is not valid and proper.41. In the view that we take that the certificate granted by the High Court is not valid and that the appeal brought on such a certificate is not sustainable, we do not express any opinion on the merits, though arguments were heard on the same.42. As the certificate issued by the High Court under Art. 133(1)(b) is not proper and valid, the only course open to us is to revoke the certificate and set aside the order of the High Court granting the same.
### Response:
1
### Explanation:
also refer to the decision of the Judicial Committee in Surapati Ray and others v. Ram Narayan Mukherjee and others, 50 I.A. 155. In that decision the question arose under S. 110 of theCode of Civil Procedure, 1908, regarding the validity of the certificated granted by the High Court. Though the rent claimed in the suits was less than Rs. 10,000 the High Court had granted a certificate of fitness on the ground that the value of the subject-matter was over Rs. 10,000. The objection taken before the Judicial Committee regarding the validity of the certificated on the ground that the subject-matter was below the appealable value, was rejected as followsThe subject-matter in dispute relates to a recurring liability and is in respect of a property considerably above the appealable value. The certificate in the circumstances is quite in order".It is to be noted that the liability which was being denied as due to the landlord, by way of rent from the lands in question was in respect of the properties in question and it was on that basis that the certificate was held to be valid.38. Both the above decisions of the judicial Committee have no application to the facts of the present case on hand. The principle is that a claim made by one party and resisted by another is ordinarily the subject-matter of the dispute in the trial Court and continues to be the subject-matter in the appellate Courts. In the case before us the claims for overtime wages and weekly off wages before the authorities were for a specified period. The claims for the identical periods were the subject-matter in the appeals before the Court of Small Causes. The High Court had also to consider the correctness of the decision of the Court of Small Causes regarding the claims made by the workmen for the particular periods. The appellant was not entitled to notionally add on to the amount originally claimed by the workmen for particular periods, any further amounts on the ground that they must be considered to have accrued due to the workmen till the date of the judgment of the High Court. If the subsequent additions made to the original claim are accepted and correct, then the position would be that if it is an ordinary civil litigation, the subject-matter of the suit and its value would vary with the length of time during which the suit may be pending in the Courts. Such a position is not warranted by the provisions of Art. 133(1) as laid down by this Court in Chhitarmal v. M/s. Shah Pannalal Chandulal, (1965) 2 S.C.R. 751. If in the proposed appeal to this Court there is no claim or question raised respecting property, other than the subject matter of dispute, cl. (a) of Art. 133(1) will apply. That clause has not been invoked in this case by the High Court.It is not possible to accept the contention of Mr. Sorabji that as the appellant will have to face from its workmen in future claims similar to the one recognised by the High Court, there is involved a claim or question in respect of property of the value of not less than Rs. 20,000 in addition to or other than the subject-matter of appeal. In the first place, this contention proceeds on the assumption that the judgment of the High Court directs the appellant to pay in future amounts not less than Rs. 20,000. This assumption is basically erroneous, as there is no such direction given by the High Court. The payment of wages as for overtime or weekly off days will depend upon several circumstances. If overtime work is not taken, then no payment need be made. If overtime work is taken for a lesser time, then the amount to be paid will also be less.40. In our opinion, this is not a case where the decision of the High Court, apart from dealing with the subject-matter in dispute before it, has the effect of affecting the rights of the appellant, regarding other properties, including money. We may give an instance where a final judgment may have an impact or affect properties, other than the subject-matter in dispute. In a suit for mandatory injunction directing a defendant to vacate a land, the subject-matter of the suit may be only of the value of Rs. 1,500, but the decree granted by the High Court may result in the defendant therein being obliged to remove buildings worth more than Rs. 20,000 so as to give vacant possession of the land in accordance with the decision of the High Court. In such a case, though the value of the subject-matter in dispute before the High Court may be only Rs. 1,500, the judgment can be considered to involve indirectly a claim or question respecting property (in this case the buildings) of the value of not less than Rs. 20,000. Such a case may attract Art. 133(1)(b). The position before us is entirely different. The judgment of the High Court has only adjudicated upon the subject-matter of the specified claim of the workmen which was, as mentioned earlier, for a particular period. That judgment does not involve directly or indirectly, apart from the subject-matter of the writ petition, any claim or question respecting property or money of the value of Rs. 20,000 and more. In this view, we are of the opinion that the certificate granted by the High Court under Art. 133(1)(b) is not valid and proper.In the view that we take that the certificate granted by the High Court is not valid and that the appeal brought on such a certificate is not sustainable, we do not express any opinion on the merits, though arguments were heard on the same.42. As the certificate issued by the High Court under Art. 133(1)(b) is not proper and valid, the only course open to us is to revoke the certificate and set aside the order of the High Court granting the same.
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Commissioner Of Customs, Mumbai Vs. M/S Clariant (India) Limited, Worli | the present case the respondent had waived the show cause notice.3. By order dated 15.12.1994 passed by the adjudicating authority, it was held that there was no mutuality of interest between the respondent company and M/s Sandoz Quinn, and that the fees payable were not includible in the assessable value of the raw material.4. Aggrieved by the decision of the adjudicating authority the Department carried the matter in appeal to the Collector of Customs (A). It was urged on behalf of the Department that the two companies were related and that the fees were includible in the assessable value of the capital goods.5. By order dated 31.12.1997 passed by the Collector of Customs (A) it was held that the technical know how charges were required to be loaded to the value of raw materials. It was further held that though the two companies were related their relationship did not influence the value of the capital goods. It was further held that since the said two companies were related valuation should be done under rule 4(2)(a) and (b) in the matter of computing the assessable value of the raw material.6. Aggrieved by the decision of the Collector of Customs (A) the respondent herein went in appeal to CEGAT. By the impugned judgment it was held that both the companies are related to each other. The Tribunal recorded the admission made by the advocate for respondents that the two companies are related to each other. The Tribunal found that the appellate authority had confused the valuation of capital goods with valuation of improved raw materials. It was further held that the only issue before the appellate authority was regarding valuation of capital gods and therefore, it had erred in going into the larger question of adding DM 5,00,000 to the cost of raw materials. According to the Tribunal this was never an issue before the appellate authority. In the circumstances, the Tribunal concluded that the said amount should not be added to the cost of the raw material.7. At this stage it may be noted that the Department is seeking to invoke Rule 4(2)(a) and (b) of the Customs Valuation Rules, 1988 on the footing that the said two companies are related, and that the payment of fees was the condition for importation of the quality raw material. 8. The only question which arises for determination in the present civil appeal is whether the Tribunal was justified, on the facts and circumstances of the case, in holding that the addition of DM 5,00,000 to the cost of the raw material was never in issue before the adjudicating authority, and therefore, its finding to that extent was beyond the appeal.9. We do not agree with the approach of the Tribunal for the following reasons. Firstly, in the present matter the adjudicating authority proceeded on the basis that the above two companies were not related to each other. The entire finding of the adjudicating authority is based on the premise that the two companies are not related. That premise got eliminated when, before the appellate authority, the advocate for the assessee fairly stated that the respondent company and M/s Sandoz Quinn were related. Secondly, in the present case three agreements were entered into by respondent herein with three different companies, one of which was M/s Sandoz Quinn. Once it is conceded on behalf of the respondents that the two companies are related the matter takes a different complexion. It is in this light that the matter needs de novo reconsideration. The first two agreements pertain to import of seeds. The third agreement pertains to technical collaboration. The third agreement provides for import of quality raw material for manufacture of leather chemical products. Therefore, the question as to whether the said payment of DM 5,00,000 was the condition for import of quality raw material needs to be examined, particularly in the light of the relationship between the parties.10. In the case of Union of India v. Mahindra & Mahindra Ltd. 1995 (76) ELT 481 the question arose as to how the Department should interpret an agreement between the buyer and seller in the context of valuation under the Customs Valuation Rules, 1988. It was held that ordinarily the Department should proceed on the basis of the apparent tenor of the agreement. However, it was up to the Revenue, on examination of the relevant circumstances to allege and prove, that the apparent was not real. In that case also the Department was required to consider technical know how agreement between the Indian manufacturer and foreign collaborator. In that case the Department contended that there was nexus between payment for know how transfer and import of engines. The assessee succeeded before this Court in that case and one of the main reasons for the success of the assesse was that this Court found that Mahindra & Mahindra were not related to the foreign collaborator.11. In the present case that is not so. The respondent here had conceded before the appellate authority that the two companies are related. We make it clear that merely because the two parties are related to each other will not amount to under valuation per se. It will depend on the facts and circumstances of each individual case.12. For the above reasons we set aside the impugned judgment of the Tribunal and remand the matter to the adjudicating authority which will decide the matter de novo in accordance with the Customs Valuation Rules, 1988. The adjudicating authority will not only go by apparent tenor of the agreement, but also examine the necessary facts and decide the matter in accordance with law. We do not wish to express any opinion as to whether Rule 4(2)(a) or Rule 4(2)(b) or Rule 4(3) (b) is applicable in this case. It will all depend on the facts to be established in this case and the adjudicating authority has to decide amount the applicability of the relevant rule in this case. We express no opinion in that regard. | 1[ds]9. We do not agree with the approach of the Tribunal for the following reasons. Firstly, in the present matter the adjudicating authority proceeded on the basis that the above two companies were not related to each other. The entire finding of the adjudicating authority is based on the premise that the two companies are not related. That premise got eliminated when, before the appellate authority, the advocate for the assessee fairly stated that the respondent company and M/s Sandoz Quinn were related. Secondly, in the present case three agreements were entered into by respondent herein with three different companies, one of which was M/s Sandoz Quinn. Once it is conceded on behalf of the respondents that the two companies are related the matter takes a different complexion. It is in this light that the matter needs de novo reconsideration. The first two agreements pertain to import of seeds. The third agreement pertains to technical collaboration. The third agreement provides for import of quality raw material for manufacture of leather chemical products. Therefore, the question as to whether the said payment of DM 5,00,000 was the condition for import of quality raw material needs to be examined, particularly in the light of the relationship between the parties.10. In the case of Union of India v. Mahindra & Mahindra Ltd. 1995 (76) ELT 481 the question arose as to how the Department should interpret an agreement between the buyer and seller in the context of valuation under the Customs Valuation Rules, 1988. It was held that ordinarily the Department should proceed on the basis of the apparent tenor of the agreement. However, it was up to the Revenue, on examination of the relevant circumstances to allege and prove, that the apparent was not real. In that case also the Department was required to consider technical know how agreement between the Indian manufacturer and foreign collaborator. In that case the Department contended that there was nexus between payment for know how transfer and import of engines. The assessee succeeded before this Court in that case and one of the main reasons for the success of the assesse was that this Court found that Mahindra & Mahindra were not related to the foreign collaborator.11. In the present case that is not so. The respondent here had conceded before the appellate authority that the two companies are related. We make it clear that merely because the two parties are related to each other will not amount to under valuation per se. It will depend on the facts and circumstances of each individual case.12. For the above reasons we set aside the impugned judgment of the Tribunal and remand the matter to the adjudicating authority which will decide the matter de novo in accordance with the Customs Valuation Rules, 1988. The adjudicating authority will not only go by apparent tenor of the agreement, but also examine the necessary facts and decide the matter in accordance with law. We do not wish to express any opinion as to whether Rule 4(2)(a) or Rule 4(2)(b) or Rule 4(3) (b) is applicable in this case. It will all depend on the facts to be established in this case and the adjudicating authority has to decide amount the applicability of the relevant rule in this case. We express no opinion in that regard. | 1 | 1,471 | 617 | ### 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 present case the respondent had waived the show cause notice.3. By order dated 15.12.1994 passed by the adjudicating authority, it was held that there was no mutuality of interest between the respondent company and M/s Sandoz Quinn, and that the fees payable were not includible in the assessable value of the raw material.4. Aggrieved by the decision of the adjudicating authority the Department carried the matter in appeal to the Collector of Customs (A). It was urged on behalf of the Department that the two companies were related and that the fees were includible in the assessable value of the capital goods.5. By order dated 31.12.1997 passed by the Collector of Customs (A) it was held that the technical know how charges were required to be loaded to the value of raw materials. It was further held that though the two companies were related their relationship did not influence the value of the capital goods. It was further held that since the said two companies were related valuation should be done under rule 4(2)(a) and (b) in the matter of computing the assessable value of the raw material.6. Aggrieved by the decision of the Collector of Customs (A) the respondent herein went in appeal to CEGAT. By the impugned judgment it was held that both the companies are related to each other. The Tribunal recorded the admission made by the advocate for respondents that the two companies are related to each other. The Tribunal found that the appellate authority had confused the valuation of capital goods with valuation of improved raw materials. It was further held that the only issue before the appellate authority was regarding valuation of capital gods and therefore, it had erred in going into the larger question of adding DM 5,00,000 to the cost of raw materials. According to the Tribunal this was never an issue before the appellate authority. In the circumstances, the Tribunal concluded that the said amount should not be added to the cost of the raw material.7. At this stage it may be noted that the Department is seeking to invoke Rule 4(2)(a) and (b) of the Customs Valuation Rules, 1988 on the footing that the said two companies are related, and that the payment of fees was the condition for importation of the quality raw material. 8. The only question which arises for determination in the present civil appeal is whether the Tribunal was justified, on the facts and circumstances of the case, in holding that the addition of DM 5,00,000 to the cost of the raw material was never in issue before the adjudicating authority, and therefore, its finding to that extent was beyond the appeal.9. We do not agree with the approach of the Tribunal for the following reasons. Firstly, in the present matter the adjudicating authority proceeded on the basis that the above two companies were not related to each other. The entire finding of the adjudicating authority is based on the premise that the two companies are not related. That premise got eliminated when, before the appellate authority, the advocate for the assessee fairly stated that the respondent company and M/s Sandoz Quinn were related. Secondly, in the present case three agreements were entered into by respondent herein with three different companies, one of which was M/s Sandoz Quinn. Once it is conceded on behalf of the respondents that the two companies are related the matter takes a different complexion. It is in this light that the matter needs de novo reconsideration. The first two agreements pertain to import of seeds. The third agreement pertains to technical collaboration. The third agreement provides for import of quality raw material for manufacture of leather chemical products. Therefore, the question as to whether the said payment of DM 5,00,000 was the condition for import of quality raw material needs to be examined, particularly in the light of the relationship between the parties.10. In the case of Union of India v. Mahindra & Mahindra Ltd. 1995 (76) ELT 481 the question arose as to how the Department should interpret an agreement between the buyer and seller in the context of valuation under the Customs Valuation Rules, 1988. It was held that ordinarily the Department should proceed on the basis of the apparent tenor of the agreement. However, it was up to the Revenue, on examination of the relevant circumstances to allege and prove, that the apparent was not real. In that case also the Department was required to consider technical know how agreement between the Indian manufacturer and foreign collaborator. In that case the Department contended that there was nexus between payment for know how transfer and import of engines. The assessee succeeded before this Court in that case and one of the main reasons for the success of the assesse was that this Court found that Mahindra & Mahindra were not related to the foreign collaborator.11. In the present case that is not so. The respondent here had conceded before the appellate authority that the two companies are related. We make it clear that merely because the two parties are related to each other will not amount to under valuation per se. It will depend on the facts and circumstances of each individual case.12. For the above reasons we set aside the impugned judgment of the Tribunal and remand the matter to the adjudicating authority which will decide the matter de novo in accordance with the Customs Valuation Rules, 1988. The adjudicating authority will not only go by apparent tenor of the agreement, but also examine the necessary facts and decide the matter in accordance with law. We do not wish to express any opinion as to whether Rule 4(2)(a) or Rule 4(2)(b) or Rule 4(3) (b) is applicable in this case. It will all depend on the facts to be established in this case and the adjudicating authority has to decide amount the applicability of the relevant rule in this case. We express no opinion in that regard.
### Response:
1
### Explanation:
9. We do not agree with the approach of the Tribunal for the following reasons. Firstly, in the present matter the adjudicating authority proceeded on the basis that the above two companies were not related to each other. The entire finding of the adjudicating authority is based on the premise that the two companies are not related. That premise got eliminated when, before the appellate authority, the advocate for the assessee fairly stated that the respondent company and M/s Sandoz Quinn were related. Secondly, in the present case three agreements were entered into by respondent herein with three different companies, one of which was M/s Sandoz Quinn. Once it is conceded on behalf of the respondents that the two companies are related the matter takes a different complexion. It is in this light that the matter needs de novo reconsideration. The first two agreements pertain to import of seeds. The third agreement pertains to technical collaboration. The third agreement provides for import of quality raw material for manufacture of leather chemical products. Therefore, the question as to whether the said payment of DM 5,00,000 was the condition for import of quality raw material needs to be examined, particularly in the light of the relationship between the parties.10. In the case of Union of India v. Mahindra & Mahindra Ltd. 1995 (76) ELT 481 the question arose as to how the Department should interpret an agreement between the buyer and seller in the context of valuation under the Customs Valuation Rules, 1988. It was held that ordinarily the Department should proceed on the basis of the apparent tenor of the agreement. However, it was up to the Revenue, on examination of the relevant circumstances to allege and prove, that the apparent was not real. In that case also the Department was required to consider technical know how agreement between the Indian manufacturer and foreign collaborator. In that case the Department contended that there was nexus between payment for know how transfer and import of engines. The assessee succeeded before this Court in that case and one of the main reasons for the success of the assesse was that this Court found that Mahindra & Mahindra were not related to the foreign collaborator.11. In the present case that is not so. The respondent here had conceded before the appellate authority that the two companies are related. We make it clear that merely because the two parties are related to each other will not amount to under valuation per se. It will depend on the facts and circumstances of each individual case.12. For the above reasons we set aside the impugned judgment of the Tribunal and remand the matter to the adjudicating authority which will decide the matter de novo in accordance with the Customs Valuation Rules, 1988. The adjudicating authority will not only go by apparent tenor of the agreement, but also examine the necessary facts and decide the matter in accordance with law. We do not wish to express any opinion as to whether Rule 4(2)(a) or Rule 4(2)(b) or Rule 4(3) (b) is applicable in this case. It will all depend on the facts to be established in this case and the adjudicating authority has to decide amount the applicability of the relevant rule in this case. We express no opinion in that regard.
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Birla Jute Manufacturing Company and Another Vs. State of Madhya Pradesh and Others | Appellant 1 herein is a company (hereinafter referred to as "the Company") registered under the Companies Act and has a factory in the district of Satna in the State of Madhya Pradesh where it is manufacturing cement. On the basis of agreement between the Company and the State of Madhya Pradesh, the State of Madhya Pradesh is supplying raw water directly from the river to the appellants factory. Dispute in this case is at what rule the Company is liable to pay the water charges. In the year 1983, the Company was served with three notices of demand. The first demand notice dated 2-2-1983 was for Rs. 43, 45, 050.11 for the period 1-8-1969 to 31-3-1981. The second demand was dated 2-2-1983 for the period 1-4-1981 to 31-3-1982. The third demand is dated 8-9-1986 for Rs. 21, 78, 812.15 for the period 14-3-1986 to 31-8-1986. Under the first demand water charges were assessed at the rate of Rs. 1.50 per 1000 gallons with late fee and surcharge. The second demand was for late payment and surcharge. The third demand was at the rate of Rs. 2.20 per 1000 litres, which is equal to Rs. 10 per 1000 gallons. It is relevant to mention here that on 3-8-1982 the Company entered into an agreement wherein it undertook to pay water charges at the rate of Rs. 2.25 per 4540 litres with effect from 1-4-1981 and for the period prior to 1-4-1981, the Company gave an undertaking that they would accept the rate fixed by the State Government from time to time. After giving the said undertaking the appellant challenged the aforesaid three demands by means of a petition under Article 226 of the Constitution before the High Court of Madhya Pradesh. The High Court was of the view that the third demand for the period 14-3-1986 to 31-8-1986 was unreasonable as it was found that the rate on the basis of which the demand was raised was excessive. The High Court found that the respondent was not entitled to late-payment charges and surcharge. Consequently, the first and second demands were also set aside because the demands included late payment and surcharge. The High Court was of the further view that the appellant Company is bound by the undertaking given by it and the Company is liable to pay water charges at the rate of Rs 1.50 per 1000 gallons prior to 1-4-1981 and Rs. 2.25 per 1000 gallons after 1-4-1981. The High Court further directed respondents to fix a reasonable rate for untreated water, after hearing the appellant, for the period 14-3-1986 to 31-8-1986. Although the appellant got the substantial relief from the High Court, yet it has chosen to file this appeal. Learned counsel, appearing for the appellant urged that the undertaking given by the appellant Company was under duress and, therefore, it is not an undertaking in the eyes of law and the appellant is not liable to pay the water charges under such circumstances. There is no material before us to come to this conclusion that the undertaking given by the appellant was under duress. On the contrary we find that the appellant had given the solemn undertaking voluntarily. We, therefore, find no merit in the appeal. | 0[ds]There is no material before us to come to this conclusion that the undertaking given by the appellant was under duress. On the contrary we find that the appellant had given the solemn undertaking voluntarily. We, therefore, find no merit in the appeal. | 0 | 589 | 52 | ### 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:
Appellant 1 herein is a company (hereinafter referred to as "the Company") registered under the Companies Act and has a factory in the district of Satna in the State of Madhya Pradesh where it is manufacturing cement. On the basis of agreement between the Company and the State of Madhya Pradesh, the State of Madhya Pradesh is supplying raw water directly from the river to the appellants factory. Dispute in this case is at what rule the Company is liable to pay the water charges. In the year 1983, the Company was served with three notices of demand. The first demand notice dated 2-2-1983 was for Rs. 43, 45, 050.11 for the period 1-8-1969 to 31-3-1981. The second demand was dated 2-2-1983 for the period 1-4-1981 to 31-3-1982. The third demand is dated 8-9-1986 for Rs. 21, 78, 812.15 for the period 14-3-1986 to 31-8-1986. Under the first demand water charges were assessed at the rate of Rs. 1.50 per 1000 gallons with late fee and surcharge. The second demand was for late payment and surcharge. The third demand was at the rate of Rs. 2.20 per 1000 litres, which is equal to Rs. 10 per 1000 gallons. It is relevant to mention here that on 3-8-1982 the Company entered into an agreement wherein it undertook to pay water charges at the rate of Rs. 2.25 per 4540 litres with effect from 1-4-1981 and for the period prior to 1-4-1981, the Company gave an undertaking that they would accept the rate fixed by the State Government from time to time. After giving the said undertaking the appellant challenged the aforesaid three demands by means of a petition under Article 226 of the Constitution before the High Court of Madhya Pradesh. The High Court was of the view that the third demand for the period 14-3-1986 to 31-8-1986 was unreasonable as it was found that the rate on the basis of which the demand was raised was excessive. The High Court found that the respondent was not entitled to late-payment charges and surcharge. Consequently, the first and second demands were also set aside because the demands included late payment and surcharge. The High Court was of the further view that the appellant Company is bound by the undertaking given by it and the Company is liable to pay water charges at the rate of Rs 1.50 per 1000 gallons prior to 1-4-1981 and Rs. 2.25 per 1000 gallons after 1-4-1981. The High Court further directed respondents to fix a reasonable rate for untreated water, after hearing the appellant, for the period 14-3-1986 to 31-8-1986. Although the appellant got the substantial relief from the High Court, yet it has chosen to file this appeal. Learned counsel, appearing for the appellant urged that the undertaking given by the appellant Company was under duress and, therefore, it is not an undertaking in the eyes of law and the appellant is not liable to pay the water charges under such circumstances. There is no material before us to come to this conclusion that the undertaking given by the appellant was under duress. On the contrary we find that the appellant had given the solemn undertaking voluntarily. We, therefore, find no merit in the appeal.
### Response:
0
### Explanation:
There is no material before us to come to this conclusion that the undertaking given by the appellant was under duress. On the contrary we find that the appellant had given the solemn undertaking voluntarily. We, therefore, find no merit in the appeal.
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Commissioner Of Income-Tax, Gujarat Vs. Kantilal Nathuchand Sami | set off against his other income, or carried forward and set off in accordance with the provisions of S. 24.We do not think that this proviso refers to the loss incurred by a registered firm in speculative business which is not to be taken into account when computing the total income of the registered firm under S. 23 (1), (3) and (4) of the Act. Section 29 (5) (a) clearly applies only to the total income of the firm which has been assessed under sub-s. (1) sub-s. (3) or sub-s. (4) of S. 23, and does not apply to any other income or loss. If speculative business of a firm has resulted in profit, that profit, as we have indicated earlier, would be taken into account when determining the total income of that firm. But if there be a net loss in all speculative businesses taken together, that loss is not to be taken into account when computing the total income, and consequently, that loss would be outside the scope of S. 23 (5) (a) also. The first proviso to S. 23 (5) (a) cannot be, therefore, held to be applicable to loss in speculative business kept apart under the first proviso to S. 24 (1).6. Coming to sub-section (2) of S. 24 on which reliance was placed by learned counsel for the Commissioner, we find that, instead of supporting the interpretation sought to be put on behalf of the Commissioner on the second proviso to S. 24 (1), it supports the view which we have arrived at on interpretation of the language of S. 24 (1) and its provisos. Clause (i) of S. 24 (2) lays down that where the loss was sustained by an assessee in a business consisting of speculative transactions, it shall be set off only against the profits and gains, if any, of any business in speculative transactions carried on by him in that year. This is a general provision which is applicable to loss in speculative business suffered by any assessee, including a firm and the limitation that it places is that speculative loss, kept apart under S. 24 (1) and not set off against the income, profits and gains of that earlier year, is only to be set off in a subsequent year, if there are profits in speculative transactions of the same business. This provision is also, however, governed by some provisos, including proviso (c) which lays down that:"nothing herein contained shall entitle any assessee, being a registered firm to have carried forward and set off any loss which has been apportioned between the partners under the proviso to sub-s. (1), or entitle any assessee, being a partner in an unregistered firm which has not been assessed under the provisions of clause (b) of sub-s. (5) of S. 23 to have carried forward and set off against his own income any loss sustained by the firm".This proviso is again divisible into two parts. One part relates to the case of an unregistered firm and lays down an absolute prohibition against setting off of loss carried forward in the assessment of a partner of an unregistered firm, which has been assessed as a separate unit, by omitting to apply the provisions of Cl. (b) of sub-s. (5) of S. 23. This part, thus, does not envisage that, in the case of such an unregistered firm, there would be any loss which could be apportioned between the partners. In the case of a registered firm, however, the provision made is in different language. It lays down that "nothing herein contained shall entitle any assessee, being a registered firm, to have carried forward and set off any loss which has been apportioned between the partners, under the proviso to sub-s. (1)". Thus, it prohibits a claim being made by a registered firm as such to set off loss in the future year against profits in that year, which loss has been apportioned between the partners under the proviso to S. 24 (1). That loss would be the loss taken into account in computing the total income under S. 23 in view of the principal clause of S. 24 (1) read with the first proviso to it and will, thus, exclude the speculative loss which is not taken into account. The language of this part of the proviso clearly envisages that there could be loss which has not been apportioned between the partners of a registered firm, so that the registered firm can claim to have it carried forward and set off in future year. Clearly, that can only be the loss in speculative business of the registered firm which is not taken into account when computing the total income of the Firm under S. 23, in view of S. 24 (1). No question could have arisen of the Legislature recognising the possibility of a firm claiming set off of any loss incurred in an earlier year if, as contended on behalf of the Commissioner, even the loss in speculative business were to be apportioned between the partners under the second proviso to S. 24 (l). On the interpretation sought to be placed on behalf of the Commissioner, loss, other than loss in speculative business, has to be set off against the income, profits and gains under any head of the assessee in view of S. 24 (1) read with its first proviso, while loss in speculative business would also have to be apportioned under the second proviso leaving no loss been un-apportioned between the partners. The fact that proviso (c) to S. 24 (2) envisages the existence of loss which has not been apportioned between the partners clearly strengthens our view that the second proviso to S. 24 (1) does not cover loss in speculative business, and consequently, does not permit that loss to be apportioned between the partners. Thus, S. 24 (2) also leads to the same conclusion which we have arrived at above on the interpretation of the language of S. 24 (1). | 1[ds]In interpreting this provision the purpose of S. 24(1) and (2) has to be kept in view. Under the Act, the Income-tax Officer has to determine the total income of an assessee under Section 23 (1), (3), or (4) of the Act. In determining this, total income, under all the various heads enumerated in S. 6 has to be taken into account. Sections 7 to 10 and 12 lay down the principles on which the income under these various heads is to be computed. In the case of income from business, profession or vocation, the income has to be computed under S. 10 (1) of the Act. Section 10 (2) of the Act lays down certain deductions which have to be made in computing the profits and gains from business, profession or vocation. It is during this computation to be made by the Income-tax Officer under S. 23 of the income from business profession or vocation in accordance with S. 10 (1) of the Act that the Income-tax Officer is further required to apply the provisions of S. 24. Section 24 is, thus, a provision laying down the manner of computation of total income. The principal clause of S. 24 (1) lays down that if there be a loss of profits or gains in any year under any of the heads mentioned in Section 6, that loss has to be set off against the income, profits or gains of the assessee under any other head in that year. If this provision had stood by itself without any provisions, the result would have been that all losses incurred by an assessee under any of the heads mentioned in S. 6 would be adjusted against profits under all other heads and then the total income of the assessee would be worked out on that basis. The first proviso to this sub-section, however, lays down an exception to this general rule contained in the principal clause. The exception relates to income from business consisting of speculative transactions, and places the limitation that losses sustained in speculative transactions are not to be taken into account in computing the profits and gains chargeable under the head "Profits and gains of business, profession or vocation, except to the extent that they will be set off against profits and gains in any other business which itself consists of speculative transactions. The effect of the proviso is that if there are profits in speculative business, those profits are added to income under other heads mentioned in S. 6 for purposes of computing the total income of the assessee in order to determine the tax under S. 23 of the Act. On the other hand, losses in speculative business are not to be taken into account when computing the total income, except to the extent to which they can be set off against profits from other speculative business. The first proviso, thus clearly limits the applicability of the principal clause of S. 24 (1); and, when applied, it governs the manner in which the total income of the assessee is to be computed. In the case before us, the Income-tax Officer was clearly right in the assessment years 1958-59 and 1959-60 in not setting off the losses in the speculative business against the income earned in those years either from property or from ready business in kappas.3. Then comes the second proviso, and it is clear from the language of this proviso that it does not deal with the computation of the income of the assessee for purposes of determining the total income. This second proviso was incorporated in order to indicate the personality of the assessee for the purpose of applying the principal clause of S. 24 (1) taken together with the first proviso. No difficulty could arise in applying the principal clause and the first proviso together in the case of individuals, companies. Hindu undivided families, etc.; but a provision was needed for cases where the assessee happened to be a firm. This necessity arose because of the special manner laid down in S. 23 itself for assessing the income of a firm. That Section lays down different rules for assessment of unregistered firms and registered firm. In the case of an unregistered firm, the total income computed by the Income-tax Officer for determining the tax can be assessed by apportioning that income between the partners, and determining the tax payable by each partner on the basis of such assessment, including his income from other sources; as laid down in S. 23 (5) (b) of the Act. In the alternative, the Income-tax Officer may choose to assess an unregistered firm as a unit by itself, and in that case, the tax is determined as payable by the firm as a unit, so that the provisions of S. 23 (5) (b) are not applied. The second proviso to S. 24 (1) lays down that in such a case where an unregistered firm is not assessed under the provisions of clause (b) of sub-section (5) of S. 23 "any such loss shall be set off only against the income, profits and gains of the firm and not against the income, profits and gains of any of the partners of the firm." It is clear that the expression "any such loss" in this part of the second proviso can only refer to the loss computed for purposes of applying the principal clause of S. 24 (1) taken together with the first proviso. That will, therefore, be the loss suffered by the unregistered firm in businesses other than speculative business. The loss incurred in the speculative business by the unregistered firm is, thus, to be ignored. If this part of the second proviso were to be interpreted as laying down that the loss mentioned therein includes the loss from speculative business the effect would be that the provision contained in the first proviso would be completely nullified. The effect of the first proviso is that when setting off the loss of profits and gains under one head against income, profits and gains under any other head in accordance with the principal clause, the loss suffered in speculative business is not to be taken into account and is to be kept apart. If the word "loss in the first part of the second proviso were to be interpreted as including the loss in speculative business also, the result would be that the loss excluded under the first proviso would be included in the assessment of total income under the second proviso. In the circumstances, the only interpretation that can be placed on the words "any such loss" in this part of the second proviso is that this expression refers to the loss as determined for purposes of the principal clause of S. 24 (1) read with the first proviso, and, thus, does not comprise within it loss incurred in speculative business referred to in the first proviso.4. Then comes the second part of the second proviso which prescribes the personality of the assessee to which the provisions of S. 24 are to be applied in cases where the assessee is a registered firm. Under this part, the loss, which cannot be set off against other income, profits and gains of the registered firm, is to be apportioned between the partners of the firm and they alone are entitled to have the amount of the loss set off under this Section. Clearly, in this part also, the words "any loss" must refer to the loss computed for purposes of the principal clause taken together with the first proviso and will, therefore not comprise in it the loss in speculative business which is not to be taken into account under the first proviso. The aspect of this provision, which is of importance, is that under it, the income-tax Officer is required to take two steps. The first is that the loss, which cannot be set off against other income, profits and gains of the registered firm, has to be apportioned between the partners of the firm, and then he has to give effect to the right of the partners to have the amounts of the loss set off under this Section. Once again, if this part of the second proviso were interpreted to include within it the loss in speculative business which is not to be taken into account under the first proviso, the effect of giving a wider meaning to the words "any loss" in it would be that the same loss in speculative business would, after apportionment be set off against income, profits and gains under other heads in computing the total income of the partners. The result would be that the effect of the first proviso would again be nullified by this part of the second proviso. Consequently, the correct interpretation must be that the words "any loss" in this part of the second proviso also refers to the loss computed for the purposes of the principal clause of S. 24 (1) taken together with the first proviso, so that it must also exclude the loss in speculative business which is not to be taken into account when computing the total income of the assessee. The language used in the second proviso, thus, itself leads to the conclusion that the decision arrived at by the High Court was correct even though on a differentdo not think that this proviso refers to the loss incurred by a registered firm in speculative business which is not to be taken into account when computing the total income of the registered firm under S. 23 (1), (3) and (4) of the Act. Section 29 (5) (a) clearly applies only to the total income of the firm which has been assessed under sub-s. (1) sub-s. (3) or sub-s. (4) of S. 23, and does not apply to any other income or loss. If speculative business of a firm has resulted in profit, that profit, as we have indicated earlier, would be taken into account when determining the total income of that firm. But if there be a net loss in all speculative businesses taken together, that loss is not to be taken into account when computing the total income, and consequently, that loss would be outside the scope of S. 23 (5) (a) also. The first proviso to S. 23 (5) (a) cannot be, therefore, held to be applicable to loss in speculative business kept apart under the first proviso to S. 24the case of a registered firm, however, the provision made is in different language. It lays down that "nothing herein contained shall entitle any assessee, being a registered firm, to have carried forward and set off any loss which has been apportioned between the partners, under the proviso to sub-s. (1)". Thus, it prohibits a claim being made by a registered firm as such to set off loss in the future year against profits in that year, which loss has been apportioned between the partners under the proviso to S. 24 (1). That loss would be the loss taken into account in computing the total income under S. 23 in view of the principal clause of S. 24 (1) read with the first proviso to it and will, thus, exclude the speculative loss which is not taken into account. The language of this part of the proviso clearly envisages that there could be loss which has not been apportioned between the partners of a registered firm, so that the registered firm can claim to have it carried forward and set off in future year. Clearly, that can only be the loss in speculative business of the registered firm which is not taken into account when computing the total income of the Firm under S. 23, in view of S. 24 (1). No question could have arisen of the Legislature recognising the possibility of a firm claiming set off of any loss incurred in an earlier year if, as contended on behalf of the Commissioner, even the loss in speculative business were to be apportioned between the partners under the second proviso to S. 24 (l). On the interpretation sought to be placed on behalf of the Commissioner, loss, other than loss in speculative business, has to be set off against the income, profits and gains under any head of the assessee in view of S. 24 (1) read with its first proviso, while loss in speculative business would also have to be apportioned under the second proviso leaving no loss been un-apportioned between the partners. The fact that proviso (c) to S. 24 (2) envisages the existence of loss which has not been apportioned between the partners clearly strengthens our view that the second proviso to S. 24 (1) does not cover loss in speculative business, and consequently, does not permit that loss to be apportioned between the partners. Thus, S. 24 (2) also leads to the same conclusion which we have arrived at above on the interpretation of the language of S. 24 (1).(1).6. Coming to(2) of S. 24 on which reliance was placed by learned counsel for the Commissioner, we find that, instead of supporting the interpretation sought to be put on behalf of the Commissioner on the second proviso to S. 24 (1), it supports the view which we have arrived at on interpretation of the language of S. 24 (1) and its provisos. Clause (i) of S. 24 (2) lays down that where the loss was sustained by an assessee in a business consisting of speculative transactions, it shall be set off only against the profits and gains, if any, of any business in speculative transactions carried on by him in that year. This is a general provision which is applicable to loss in speculative business suffered by any assessee, including a firm and the limitation that it places is that speculative loss, kept apart under S. 24 (1) and not set off against the income, profits and gains of that earlier year, is only to be set off in a subsequent year, if there are profits in speculative transactions of the same business. This provision is also, however, governed by some provisos, including proviso (c) which lays downherein contained shall entitle any assessee, being a registered firm to have carried forward and set off any loss which has been apportioned between the partners under the proviso to(1), or entitle any assessee, being a partner in an unregistered firm which has not been assessed under the provisions of clause (b) of(5) of S. 23 to have carried forward and set off against his own income any loss sustained by theproviso is again divisible into two parts. One part relates to the case of an unregistered firm and lays down an absolute prohibition against setting off of loss carried forward in the assessment of a partner of an unregistered firm, which has been assessed as a separate unit, by omitting to apply the provisions of Cl. (b) of(5) of S. 23. This part, thus, does not envisage that, in the case of such an unregistered firm, there would be any loss which could be apportioned between the partners. Inthe case of a registered firm, however, the provision made is in different language. It lays down that "nothing herein contained shall entitle any assessee, being a registered firm, to have carried forward and set off any loss which has been apportioned between the partners, under the proviso to(1)". Thus, it prohibits a claim being made by a registered firm as such to set off loss in the future year against profits in that year, which loss has been apportioned between the partners under the proviso to S. 24 (1). That loss would be the loss taken into account in computing the total income under S. 23 in view of the principal clause of S. 24 (1) read with the first proviso to it and will, thus, exclude the speculative loss which is not taken into account. The language of this part of the proviso clearly envisages that there could be loss which has not been apportioned between the partners of a registered firm, so that the registered firm can claim to have it carried forward and set off in future year. Clearly, that can only be the loss in speculative business of the registered firm which is not taken into account when computing the total income of the Firm under S. 23, in view of S. 24 (1). No question could have arisen of the Legislature recognising the possibility of a firm claiming set off of any loss incurred in an earlier year if, as contended on behalf of the Commissioner, even the loss in speculative business were to be apportioned between the partners under the second proviso to S. 24 (l). On the interpretation sought to be placed on behalf of the Commissioner, loss, other than loss in speculative business, has to be set off against the income, profits and gains under any head of the assessee in view of S. 24 (1) read with its first proviso, while loss in speculative business would also have to be apportioned under the second proviso leaving no loss beenbetween the partners. The fact that proviso (c) to S. 24 (2) envisages the existence of loss which has not been apportioned between the partners clearly strengthens our view that the second proviso to S. 24 (1) does not cover loss in speculative business, and consequently, does not permit that loss to be apportioned between the partners. Thus, S. 24 (2) also leads to the same conclusion which we have arrived at above on the interpretation of the language of S. 24 (1). | 1 | 3,718 | 3,340 | ### 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:
set off against his other income, or carried forward and set off in accordance with the provisions of S. 24.We do not think that this proviso refers to the loss incurred by a registered firm in speculative business which is not to be taken into account when computing the total income of the registered firm under S. 23 (1), (3) and (4) of the Act. Section 29 (5) (a) clearly applies only to the total income of the firm which has been assessed under sub-s. (1) sub-s. (3) or sub-s. (4) of S. 23, and does not apply to any other income or loss. If speculative business of a firm has resulted in profit, that profit, as we have indicated earlier, would be taken into account when determining the total income of that firm. But if there be a net loss in all speculative businesses taken together, that loss is not to be taken into account when computing the total income, and consequently, that loss would be outside the scope of S. 23 (5) (a) also. The first proviso to S. 23 (5) (a) cannot be, therefore, held to be applicable to loss in speculative business kept apart under the first proviso to S. 24 (1).6. Coming to sub-section (2) of S. 24 on which reliance was placed by learned counsel for the Commissioner, we find that, instead of supporting the interpretation sought to be put on behalf of the Commissioner on the second proviso to S. 24 (1), it supports the view which we have arrived at on interpretation of the language of S. 24 (1) and its provisos. Clause (i) of S. 24 (2) lays down that where the loss was sustained by an assessee in a business consisting of speculative transactions, it shall be set off only against the profits and gains, if any, of any business in speculative transactions carried on by him in that year. This is a general provision which is applicable to loss in speculative business suffered by any assessee, including a firm and the limitation that it places is that speculative loss, kept apart under S. 24 (1) and not set off against the income, profits and gains of that earlier year, is only to be set off in a subsequent year, if there are profits in speculative transactions of the same business. This provision is also, however, governed by some provisos, including proviso (c) which lays down that:"nothing herein contained shall entitle any assessee, being a registered firm to have carried forward and set off any loss which has been apportioned between the partners under the proviso to sub-s. (1), or entitle any assessee, being a partner in an unregistered firm which has not been assessed under the provisions of clause (b) of sub-s. (5) of S. 23 to have carried forward and set off against his own income any loss sustained by the firm".This proviso is again divisible into two parts. One part relates to the case of an unregistered firm and lays down an absolute prohibition against setting off of loss carried forward in the assessment of a partner of an unregistered firm, which has been assessed as a separate unit, by omitting to apply the provisions of Cl. (b) of sub-s. (5) of S. 23. This part, thus, does not envisage that, in the case of such an unregistered firm, there would be any loss which could be apportioned between the partners. In the case of a registered firm, however, the provision made is in different language. It lays down that "nothing herein contained shall entitle any assessee, being a registered firm, to have carried forward and set off any loss which has been apportioned between the partners, under the proviso to sub-s. (1)". Thus, it prohibits a claim being made by a registered firm as such to set off loss in the future year against profits in that year, which loss has been apportioned between the partners under the proviso to S. 24 (1). That loss would be the loss taken into account in computing the total income under S. 23 in view of the principal clause of S. 24 (1) read with the first proviso to it and will, thus, exclude the speculative loss which is not taken into account. The language of this part of the proviso clearly envisages that there could be loss which has not been apportioned between the partners of a registered firm, so that the registered firm can claim to have it carried forward and set off in future year. Clearly, that can only be the loss in speculative business of the registered firm which is not taken into account when computing the total income of the Firm under S. 23, in view of S. 24 (1). No question could have arisen of the Legislature recognising the possibility of a firm claiming set off of any loss incurred in an earlier year if, as contended on behalf of the Commissioner, even the loss in speculative business were to be apportioned between the partners under the second proviso to S. 24 (l). On the interpretation sought to be placed on behalf of the Commissioner, loss, other than loss in speculative business, has to be set off against the income, profits and gains under any head of the assessee in view of S. 24 (1) read with its first proviso, while loss in speculative business would also have to be apportioned under the second proviso leaving no loss been un-apportioned between the partners. The fact that proviso (c) to S. 24 (2) envisages the existence of loss which has not been apportioned between the partners clearly strengthens our view that the second proviso to S. 24 (1) does not cover loss in speculative business, and consequently, does not permit that loss to be apportioned between the partners. Thus, S. 24 (2) also leads to the same conclusion which we have arrived at above on the interpretation of the language of S. 24 (1).
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### Explanation:
into account when computing the total income of the Firm under S. 23, in view of S. 24 (1). No question could have arisen of the Legislature recognising the possibility of a firm claiming set off of any loss incurred in an earlier year if, as contended on behalf of the Commissioner, even the loss in speculative business were to be apportioned between the partners under the second proviso to S. 24 (l). On the interpretation sought to be placed on behalf of the Commissioner, loss, other than loss in speculative business, has to be set off against the income, profits and gains under any head of the assessee in view of S. 24 (1) read with its first proviso, while loss in speculative business would also have to be apportioned under the second proviso leaving no loss been un-apportioned between the partners. The fact that proviso (c) to S. 24 (2) envisages the existence of loss which has not been apportioned between the partners clearly strengthens our view that the second proviso to S. 24 (1) does not cover loss in speculative business, and consequently, does not permit that loss to be apportioned between the partners. Thus, S. 24 (2) also leads to the same conclusion which we have arrived at above on the interpretation of the language of S. 24 (1).(1).6. Coming to(2) of S. 24 on which reliance was placed by learned counsel for the Commissioner, we find that, instead of supporting the interpretation sought to be put on behalf of the Commissioner on the second proviso to S. 24 (1), it supports the view which we have arrived at on interpretation of the language of S. 24 (1) and its provisos. Clause (i) of S. 24 (2) lays down that where the loss was sustained by an assessee in a business consisting of speculative transactions, it shall be set off only against the profits and gains, if any, of any business in speculative transactions carried on by him in that year. This is a general provision which is applicable to loss in speculative business suffered by any assessee, including a firm and the limitation that it places is that speculative loss, kept apart under S. 24 (1) and not set off against the income, profits and gains of that earlier year, is only to be set off in a subsequent year, if there are profits in speculative transactions of the same business. This provision is also, however, governed by some provisos, including proviso (c) which lays downherein contained shall entitle any assessee, being a registered firm to have carried forward and set off any loss which has been apportioned between the partners under the proviso to(1), or entitle any assessee, being a partner in an unregistered firm which has not been assessed under the provisions of clause (b) of(5) of S. 23 to have carried forward and set off against his own income any loss sustained by theproviso is again divisible into two parts. One part relates to the case of an unregistered firm and lays down an absolute prohibition against setting off of loss carried forward in the assessment of a partner of an unregistered firm, which has been assessed as a separate unit, by omitting to apply the provisions of Cl. (b) of(5) of S. 23. This part, thus, does not envisage that, in the case of such an unregistered firm, there would be any loss which could be apportioned between the partners. Inthe case of a registered firm, however, the provision made is in different language. It lays down that "nothing herein contained shall entitle any assessee, being a registered firm, to have carried forward and set off any loss which has been apportioned between the partners, under the proviso to(1)". Thus, it prohibits a claim being made by a registered firm as such to set off loss in the future year against profits in that year, which loss has been apportioned between the partners under the proviso to S. 24 (1). That loss would be the loss taken into account in computing the total income under S. 23 in view of the principal clause of S. 24 (1) read with the first proviso to it and will, thus, exclude the speculative loss which is not taken into account. The language of this part of the proviso clearly envisages that there could be loss which has not been apportioned between the partners of a registered firm, so that the registered firm can claim to have it carried forward and set off in future year. Clearly, that can only be the loss in speculative business of the registered firm which is not taken into account when computing the total income of the Firm under S. 23, in view of S. 24 (1). No question could have arisen of the Legislature recognising the possibility of a firm claiming set off of any loss incurred in an earlier year if, as contended on behalf of the Commissioner, even the loss in speculative business were to be apportioned between the partners under the second proviso to S. 24 (l). On the interpretation sought to be placed on behalf of the Commissioner, loss, other than loss in speculative business, has to be set off against the income, profits and gains under any head of the assessee in view of S. 24 (1) read with its first proviso, while loss in speculative business would also have to be apportioned under the second proviso leaving no loss beenbetween the partners. The fact that proviso (c) to S. 24 (2) envisages the existence of loss which has not been apportioned between the partners clearly strengthens our view that the second proviso to S. 24 (1) does not cover loss in speculative business, and consequently, does not permit that loss to be apportioned between the partners. Thus, S. 24 (2) also leads to the same conclusion which we have arrived at above on the interpretation of the language of S. 24 (1).
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Asraf Alli Vs. M/s. Naveen Hotels Ltd. & Another | coupled with Exh.P-8 to P-10, it is evident that the petitioner was running poultry farm. According to the petitioner he was earning Rs.5000-00 per month. Taking into consideration the age, date of accident and the avocation undertaken by the petitioner, I consider his monthly earnings at Rs.3,000/- as against Rs.5,000/- claimed by the petitioner. Since the disability suffered by the petitioner is 70% on account of amputation of left lower limb, loss of earnings per month will be Rs.3000 x 70/100 = Rs.2100/- and for 12 months it will be Rs.2100 x 12 = Rs.25,200/-. Since the petitioner was aged 15 years, the proper multiplier as reported in ILR 1996 Kar. on page No.2127 will be 18. Hence, Rs.25,200/- x 18 = Rs.4,53,600/- and that will be net loss of earnings and I award that amount for the same." 4. An appeal was preferred there against by the owner of the vehicle, i.e., Respondent No.1 and Respondent No.2 jointly. Later on, however, the Respondent No.1 was relegated to the position of the respondent in the said appeal. The High Court, by reason of the impugned judgment, reduced the amount of compensation under the head ‘loss of future income, stating: "By taking note of the aforesaid judgment of this Court and the submission of the learned counsel for the insured in so far as the "loss of future earning capacity" is concerned, the Tribunal could not have taken the notional income at Rs.3,000/-, but it should have been taken at Rs.15,000/- per annum and based on such figure, if we work out, the "loss of future earning capacity" comes to Rs.67,500/- and this we substitute in the place of Rs.4,53,600/-." 5. Ms. Kiran Suri, learned counsel appearing for the appellant, would contend that the High Court ignored the fact that the appellant, although minor at the relevant time, had been running a poultry farm and as his monthly income could be assessed by the Tribunal at Rs.3,000/- per month and, thus, the High Court committed a serious error in computing the same at Rs.15,000/- per annum. It was urged that the loss of future earning capacity has wrongly been calculated at Rs.67,500/- and even on the said basis the amount of compensation should have been calculated t Rs.1,80,000/-.6. Mr. A.K. Raina, learned counsel appearing on behalf of Respondent No.1, however, would submit that appellant being a minor, the High Court has rightly refused to hold that he has been able to establish that his income at Rs.3,000/- per month.7. The fact that an accident had taken place on 14.9.1998 is not in dispute. It is also not in dispute that in the said accident appellant had suffered grievous injuries. PW3, Dr. Basavaraj Dodamani, in his evidence stated that appellant had been walking with the help of crutches and his left lower limb had been amputated below knee with 3" stump but there was an old scar on right heel and it was on that basis the disability of the appellant was calculated at 70% in respect of lower limb. 8. In computing the amount of compensation, the court may in a given case take the benefit of the structured formula as envisaged in the table appended to the Second Schedule of the Motor Vehicles Act, 1988, Note 5 whereof reads as under: "5. Disability in non-fatal accidents:The following compensation shall be payable in case of disability to the victim arising out of non-fatal accidents:Loss of income, if any, for actual period of disablement not exceeding fifty two weeks. PLUS either of the following:--(a) In case of permanent total disablement the amount payable shall be arrived at by multiplying the annual loss of income by the Multiplier applicable to the age on the date of determining the compensation, or(b) In case of permanent partial disablement such percentage of compensation which would have been payable in the case of permanent total disablement as specified under item (a) above.Injuries deemed to result in Permanent Total Disablement/Permanent Partial Disablement and percentage of loss of earning capacity shall be as per Schedule I under Workmens Compensation Act, 1923." 9. Appellant was admitted as an indoor patient on 25.9.1998 and was discharged on 26.10.1998. If the principle akin to the Second Schedule appended to the 1988 Act is to be applied, the learned Tribunal must be held to have applied the same correctly. The High Court has not assigned any reason in support of its judgment. It did not enter into the correctness of the findings of fact arrived at by the Tribunal in regard to the income of the deceased. The Tribunal held that the income of the appellant was Rs.3,000/- per month not on a notional basis but on actual basis. The High Court, in exercise of its jurisdiction under Section 173 of the Act either could have affirmed the said finding or reversed the same but for the said purpose it was required to consider the merit of the matter. The High Court, in our opinion, has proceeded on a wrong premise that the Tribunal had fixed the income of the appellant at Rs.3,000/- per month on a notional basis. 10. However, if the Second Schedule appended to the Act is to be applied, the correct multiplier in the case of the appellant, he being aged about 15 years, was 15 and not 18. 11. Item (19) of Part II of Schedule I of the Workmens Compensation Act, 1923 provides for list of injuries, deemed to result in permanent partial disablement, which reads, thus: "(19) Amputation below middle thigh to 8.89 cms. below knee 60%" Hence, the ‘percentage of loss of earning capacity should be treated as 60% of the monthly income instead of 70% as treated by the Tribunal. In that view of the matter, the total amount of compensation payable to the appellant under the head ‘loss of future earning capacity would be Rs.3,24,000/- (Rupees three lac twenty four thousand only), the annual income being Rs.21,600/- and the multiplier being 15. 12. | 1[ds]The fact that an accident had taken place on 14.9.1998 is not in dispute. It is also not in dispute that in the said accident appellant had suffered grievous injuries. PW3, Dr. Basavaraj Dodamani, in his evidence stated that appellant had been walking with the help of crutches and his left lower limb had been amputated below knee with 3" stump but there was an old scar on right heel and it was on that basis the disability of the appellant was calculated at 70% in respect of lowerwas admitted as an indoor patient on 25.9.1998 and was discharged on 26.10.1998. If the principle akin to the Second Schedule appended to the 1988 Act is to be applied, the learned Tribunal must be held to have applied the same correctly. The High Court has not assigned any reason in support of its judgment. It did not enter into the correctness of the findings of fact arrived at by the Tribunal in regard to the income of the deceased. The Tribunal held that the income of the appellant was Rs.3,000/- per month not on a notional basis but on actual basis. The High Court, in exercise of its jurisdiction under Section 173 of the Act either could have affirmed the said finding or reversed the same but for the said purpose it was required to consider the merit of the matter. The High Court, in our opinion, has proceeded on a wrong premise that the Tribunal had fixed the income of the appellant at Rs.3,000/- per month on a notionalif the Second Schedule appended to the Act is to be applied, the correct multiplier in the case of the appellant, he being aged about 15 years, was 15 and notthe ‘percentage of loss of earning capacity should be treated as 60% of the monthly income instead of 70% as treated by the Tribunal. In that view of the matter, the total amount of compensation payable to the appellant under the head ‘loss of future earning capacity would be Rs.3,24,000/- (Rupees three lac twenty four thousand only), the annual income being Rs.21,600/- and the multiplier being 15. | 1 | 1,459 | 390 | ### 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:
coupled with Exh.P-8 to P-10, it is evident that the petitioner was running poultry farm. According to the petitioner he was earning Rs.5000-00 per month. Taking into consideration the age, date of accident and the avocation undertaken by the petitioner, I consider his monthly earnings at Rs.3,000/- as against Rs.5,000/- claimed by the petitioner. Since the disability suffered by the petitioner is 70% on account of amputation of left lower limb, loss of earnings per month will be Rs.3000 x 70/100 = Rs.2100/- and for 12 months it will be Rs.2100 x 12 = Rs.25,200/-. Since the petitioner was aged 15 years, the proper multiplier as reported in ILR 1996 Kar. on page No.2127 will be 18. Hence, Rs.25,200/- x 18 = Rs.4,53,600/- and that will be net loss of earnings and I award that amount for the same." 4. An appeal was preferred there against by the owner of the vehicle, i.e., Respondent No.1 and Respondent No.2 jointly. Later on, however, the Respondent No.1 was relegated to the position of the respondent in the said appeal. The High Court, by reason of the impugned judgment, reduced the amount of compensation under the head ‘loss of future income, stating: "By taking note of the aforesaid judgment of this Court and the submission of the learned counsel for the insured in so far as the "loss of future earning capacity" is concerned, the Tribunal could not have taken the notional income at Rs.3,000/-, but it should have been taken at Rs.15,000/- per annum and based on such figure, if we work out, the "loss of future earning capacity" comes to Rs.67,500/- and this we substitute in the place of Rs.4,53,600/-." 5. Ms. Kiran Suri, learned counsel appearing for the appellant, would contend that the High Court ignored the fact that the appellant, although minor at the relevant time, had been running a poultry farm and as his monthly income could be assessed by the Tribunal at Rs.3,000/- per month and, thus, the High Court committed a serious error in computing the same at Rs.15,000/- per annum. It was urged that the loss of future earning capacity has wrongly been calculated at Rs.67,500/- and even on the said basis the amount of compensation should have been calculated t Rs.1,80,000/-.6. Mr. A.K. Raina, learned counsel appearing on behalf of Respondent No.1, however, would submit that appellant being a minor, the High Court has rightly refused to hold that he has been able to establish that his income at Rs.3,000/- per month.7. The fact that an accident had taken place on 14.9.1998 is not in dispute. It is also not in dispute that in the said accident appellant had suffered grievous injuries. PW3, Dr. Basavaraj Dodamani, in his evidence stated that appellant had been walking with the help of crutches and his left lower limb had been amputated below knee with 3" stump but there was an old scar on right heel and it was on that basis the disability of the appellant was calculated at 70% in respect of lower limb. 8. In computing the amount of compensation, the court may in a given case take the benefit of the structured formula as envisaged in the table appended to the Second Schedule of the Motor Vehicles Act, 1988, Note 5 whereof reads as under: "5. Disability in non-fatal accidents:The following compensation shall be payable in case of disability to the victim arising out of non-fatal accidents:Loss of income, if any, for actual period of disablement not exceeding fifty two weeks. PLUS either of the following:--(a) In case of permanent total disablement the amount payable shall be arrived at by multiplying the annual loss of income by the Multiplier applicable to the age on the date of determining the compensation, or(b) In case of permanent partial disablement such percentage of compensation which would have been payable in the case of permanent total disablement as specified under item (a) above.Injuries deemed to result in Permanent Total Disablement/Permanent Partial Disablement and percentage of loss of earning capacity shall be as per Schedule I under Workmens Compensation Act, 1923." 9. Appellant was admitted as an indoor patient on 25.9.1998 and was discharged on 26.10.1998. If the principle akin to the Second Schedule appended to the 1988 Act is to be applied, the learned Tribunal must be held to have applied the same correctly. The High Court has not assigned any reason in support of its judgment. It did not enter into the correctness of the findings of fact arrived at by the Tribunal in regard to the income of the deceased. The Tribunal held that the income of the appellant was Rs.3,000/- per month not on a notional basis but on actual basis. The High Court, in exercise of its jurisdiction under Section 173 of the Act either could have affirmed the said finding or reversed the same but for the said purpose it was required to consider the merit of the matter. The High Court, in our opinion, has proceeded on a wrong premise that the Tribunal had fixed the income of the appellant at Rs.3,000/- per month on a notional basis. 10. However, if the Second Schedule appended to the Act is to be applied, the correct multiplier in the case of the appellant, he being aged about 15 years, was 15 and not 18. 11. Item (19) of Part II of Schedule I of the Workmens Compensation Act, 1923 provides for list of injuries, deemed to result in permanent partial disablement, which reads, thus: "(19) Amputation below middle thigh to 8.89 cms. below knee 60%" Hence, the ‘percentage of loss of earning capacity should be treated as 60% of the monthly income instead of 70% as treated by the Tribunal. In that view of the matter, the total amount of compensation payable to the appellant under the head ‘loss of future earning capacity would be Rs.3,24,000/- (Rupees three lac twenty four thousand only), the annual income being Rs.21,600/- and the multiplier being 15. 12.
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### Explanation:
The fact that an accident had taken place on 14.9.1998 is not in dispute. It is also not in dispute that in the said accident appellant had suffered grievous injuries. PW3, Dr. Basavaraj Dodamani, in his evidence stated that appellant had been walking with the help of crutches and his left lower limb had been amputated below knee with 3" stump but there was an old scar on right heel and it was on that basis the disability of the appellant was calculated at 70% in respect of lowerwas admitted as an indoor patient on 25.9.1998 and was discharged on 26.10.1998. If the principle akin to the Second Schedule appended to the 1988 Act is to be applied, the learned Tribunal must be held to have applied the same correctly. The High Court has not assigned any reason in support of its judgment. It did not enter into the correctness of the findings of fact arrived at by the Tribunal in regard to the income of the deceased. The Tribunal held that the income of the appellant was Rs.3,000/- per month not on a notional basis but on actual basis. The High Court, in exercise of its jurisdiction under Section 173 of the Act either could have affirmed the said finding or reversed the same but for the said purpose it was required to consider the merit of the matter. The High Court, in our opinion, has proceeded on a wrong premise that the Tribunal had fixed the income of the appellant at Rs.3,000/- per month on a notionalif the Second Schedule appended to the Act is to be applied, the correct multiplier in the case of the appellant, he being aged about 15 years, was 15 and notthe ‘percentage of loss of earning capacity should be treated as 60% of the monthly income instead of 70% as treated by the Tribunal. In that view of the matter, the total amount of compensation payable to the appellant under the head ‘loss of future earning capacity would be Rs.3,24,000/- (Rupees three lac twenty four thousand only), the annual income being Rs.21,600/- and the multiplier being 15.
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The Ahmedabad Mfg. & Calicoprinting Co., Ltd Vs. S. C. Mehta, Income-Tax Officerand Another | the Indian Income-tax (Amendment) Act, 1953., In both the cases there was a final assessment of the incomes of partners in registered firms. Later the assessment of the registered firms took place and it was found that the share of income of the partners was larger than what had been assessed. Under s. 35 (1), as it stood before sub-s. (5) was introduced, rectification could be made in respect of a mistake apparent from the record and the records of the firms could not be read with those of the partners to find an error in the latter. There was thus an impasse. It was ruled by the Privy Council in Commissioner of Income-tax v. Khemchand Ramdas((1938) L. R. 65 I. A. 236, 248.), at p. 248 : "............... When once a final assessment, is arrived at, it cannot, in their Lordships opinion, be reopened except in circumstances detailed in section 34 and 35 of the Act........... and within the time limited by those acts." Therefore, unless the original s. 35 allowed such rectification there was no help. Often the firms final assessment dragged on for years and by the time that assessment was done the time limited by (sub.s.1) had already run out. Parliament therefore stepped in with an amendment which was to commence on April 1, 1952. Two matters were provided by sub-s. (5). Firstly, the result of the assessment of the firm showing that the partners income was not properly included in their own assessments, was to be deemed to disclose an error in the record of the partners assessment and secondly, the period of four years instead of being computed from the order of assessment made against the partners as under sub-s. (1) was to be computed from the date of the final order passed in the case of the firm.No doubt this. power could be exercised from 1-4-1952 but the question that had to be considered was whether it could be exercised only to reopen the assessment of partners of a firm if, and only if, the order in the assessment of the firm was passed after the amendment came into force. In dealing with the matter in Habibullahs case([1962] Supp. 2 S.C.R. 716.) this Court referred to the finality which attaches to a final assessment as stated by the Privy Council. This Court then referred to the date of the commencement of sub-s. (5) which was fixed retrospectively as 1-4-1952 and held that the sub-section could not be used to reopen assessments which had become final before the commencement of the new sub- section, contrasting its language with that of sub-s. (6) which wits, simultaneously introduced. In Habibullahs case (1) the dates were :- Partners assessment for 1946-47 on 22-2-1950 -do -do- 1947-48 on -do- Registered firms assessment for 46-47 on 31-10-1950 -do- -do- 1947-48 on 30- 6- 1951 Sub-s.(5) to s. 35 introduced from 1-4-1952 Order under s. 35 (5) on 27-3-1954If sub-s. (5) could be used in this case it is plain that the four years period had not passed between31-10-1950 (;which was the earlier assessment) and 27-3-1954 when the rectification was made. No doubt, the two assessments of the firm were also before 1-4-1952 but the sub-section has nowhere said that the power was only to be exercised if the assessment of the firm was after that date. Such a meaning is also difficult to imply. Under a fiction created after 1-4-1952 the assessment of the partners disclosed a mistake and if the fiction and the rest of the sub-section were to be given their full and logical effect the assessment of the partners could, be reopened and rectified. But it was held otherwise by this Court. The main reason was that the partners assessments had become final before 1-4-1952, that under the law, as it then stood, there was no error in their record, and Sub-s.(5) having been enacted retrospectivity from 1-4-1952 could not be given more retrospectivity That the firms assessment was also before 1-4-1952 was not given as a reason and in any event it was not very relevant. It neither added to nor detracted from the finality (such as it was on 22-2-1952) on the Partners assessment. The law obviously mentioned the final order in the firms assessement as the starting point in view of the length time the firms assessments take to reach their own finality. But there was nothing to show that this new terminus a quo must be after 1-4-1952 before sub-s(5) could be used. The words of the sub-section were entirely indifferent to this aspect In Atmala Nagrajs Case (1) the assessment of the was also completed before partners (22-1-1952) 1-4-1952 and had become final subject however to section 34 and 35. No doubt the assessment of the firm was completed after 1-4-1952 but this distinction made no difference to the finality such as had been gained on 22-1- 1952.We do not naturally express a final opinion on sub-s. (5). We must leave that to a future case. We must, however, say that the two earlier cases may have to be reconsidered on some future occasion. When the occasion comes the questions to ask would be 1. Did finality attach in Habibullahs case ((1962] Supp. 2 S.C.R. 716.) to the partners assessment under the law as it then stood from 22.2-1950 (partners assessment) or from 31-10-1950 and 30-6-1951 (the firms assessment) ? 2. Was there no finality in so far as the partners assessment was concerned in Atmala Nagarajs case ([1962] 46 I.T.R. 609) between 22-1-1952 (partners assessment) and 1-4-1952 (the commencement of sub-s. (5)) ? 3. Was the finality of the partners assessment, if any, controlled in the one case by the fact that the assessment of the firm was before 1-4-1952 and in the other by the fact that the assessment of the firm was after 1-4-1952 We have detailed these questions because they high-light the only point of difference between the two cases. We express no opinion of these questions. | 0[ds]7. There is no doubt that the words "subsequently " and "in any year" mean in any year subsequently to the year in which the rebate was granted. They would, therefore, clearly include a year before thesubsection came intoforce. But it is said that these words should in view of the rule be read as not including a year before thesubsection came intoforce as they also include years subsequent to the coming into force of theand are therefore ambiguous.I am unable to accept this contention. I find no ambiguity. If the intention was that the subsection would apply only when the amount was availed of for declaration of dividends after it was enacted then the words ""subsequently" and "in any year" were wholly unnecessary. Without these words thewould have read, "and the amount is availed of for declaring dividends." There would then be no doubt that it was intended to operate only prospectively. But the legislature used some more words. It must have done so with some purpose. What that purpose was if it was not to give theretrospective operation, I failed to see. I am unable to read the words "subsequently" and "in any year" as otiose and as indicating no different intention. Therefore, it seems to me that the language of the subsection plainly requires it to have a retrospective operation. The subsection is properly applicable to this case.8. There is another consideration leading me to the view that the presumption against retrospective operation does not arise here. It was said in Pardo v. Bingham that it was not an invariable rule that a s could not have a retrospective operation unless so expressed in its very terms, and that it was necessary to look to the general scope and purview of the statute and at the remedy sought to be applied and consider what was the former state of the law and what it was that the legislature contemplated. It is quite plain that in providing for the grant of rebate on undistributed profits by the , Finance Acts of 1948 to 1955 the legislature wanted to encourage the employment of the profit made in a business in the business itself. The object presumably was to expand the industries of the country. This involved a long term employment of the, profits in the business. It could not have been the intention of the legislature to grant rebate when a company only kept the profits for a short time with itself and having earned the rebate distributed the profits without the industry having had any real benefit of them. I think should state here that the provisions for the grant of rebate did not require that dividend was not to be declared at all. The object was to encourage a reasonable division of the profits between the shareholders and the industry. Allowance of rebate was provided for on that part of the profits which was left for employment in the industry after reasonable dividends had been distributed to the shareholders. The rebate was allowed on a graded scale depending on the amount of profits which was not distributed as dividends.Now the system of granting rebates started inIt was stopped inThe subsection was brought into force on April 1, 1956, that is, seven years after the system had first been started. Theprovided for withdrawal of the rebate when the amount on which it had been granted was availed of in declaring dividends. It is fairly clear from this that the legislature did not approve of these amounts being utilised in declaration of dividends.9. It is also not too much to suppose that there had been many previous cases of such utilisation of profits for if it had not happened earlier, there is no reason to think that the legislature anticipated the evil happening in future and passed the law to stop it. In view of the large number of years that had passed between the time when the allowance of rebate commenced and the time when thesubsection was brought intoforce, it can be imagined that a very large number of cases of distribution of profits on which rebate had been allowed, had already taken place. I find it difficult to think that many cases remained after April 1, 1956, where a company which intended to utilise the amounts on which rebate had been granted in the declaration of dividends, had not already done so.10. There is no dispute that by(10) the legislature intended to penalise a case where subsequent to its enactment, the amount on which rebate had been granted was utilised in declaration of dividends. Now is there any reason to think that the legislature did not want to impose the penalty also on those who had earlier utilised the amount in declaration of dividends ? There was no special merit in these latter cases, And I also think that they formed the majority of the cases. The grant of rebate having been stopped after March 31, 1956, there was no occasion to provide for cases of such grant thereafter. All these circumstances lead me to the. view that the intention of the legislature was to penalise the cases of utilisation of amounts on which rebate had been granted in payment of dividends which had happened before thesubsection came intoforce. The remedy which the subsection provided would largely fail in any other view. The general scope and purview of the subsection and a consideration of the evil which it was intended to remedy lead me to the opinion that the intention of the legislature clearly was that the subsection should apply to the facts that we have in this case.As to S. K. Habibullahs case I do not think that much assistance can be had from it. It applied the rule of presumption against a statute having a retrospectiveto which rule, of course, there is no dispute to(5) of s. 35. Now cases on the construction of one statute are rarely of value in construing another statute, for each case turns on the language with which it is concerned and statutes are not often expressed in the same language. The language used in(5) and (10) seems to me to be wholly different. There is nothing in S. K. Habibullahs case (1) to indicate that in the opinion of the learned judges deciding it there were any words which would indicate that(5) was to have a retrospective operation. In my view,(10) contains such words.11. Furthermore, I do not find that the other considerations to which I have referred, arose for discussion in that case. In my view, the two cases are entirely different.12. I therefore, think that(10) of s. 35 properly applies to this case. In my view, the appeal should be dismissed withx Act imposes a charge of tax for a year at a time and that year is the year of assessment. The charge is in respect of a previous year which is commonly known as the year of account. The rate at which the tax is to be charged is enacted by an annual Finance Act for each assessment year. The assessment year is the Financial Year. From the nature of things an amendment of theAct, made in the middle of the assessment, year, if made to operate from the beginning of the, assessment year, operates on incomes which had been earned before. Since an amendment cannot be. allowed to operate from theeach such amendment is made to, comprise a whole assessment year whether it be the assessment year then running. or an earlier or a later assessment, year. Amendments are thus .give retrospective. operation from the first day of April in the same, or a preceding, or prospective operation for a future assessment year. Ordinarily, the law, as it stands on the 1st of April in any assessment year, applies to, assessments in that year. but the law may expressly or by necessary implication give itself a greater retrospective operation.The date on which the amendment comes into force is the date of the commencement of the amendment. It is read as amended from that date. Under ordinary circumstances, an Act does not have retrospective operation on substantial rights which have become fixed before the date of the commencement of, the Act. But this rule is not unalterable. The legislature may affect substantial rights by enacting laws which are expressly retrospective or by, using language which has that necessary result. And this language may give an enactment more retrospectivity than what the commencement clause gives to any of its provisions. When this happens the provisions thus made retrospective expressly or by necessary intendment, operate from a date earlier than the date of commencement and affect rights which, but for such operation, would have continued undisturbed.19. It must be remembered,that if theAct prescribes a period during which the, tax due in any particular assessment year may be assessed, then on the expiry of that period the Department cannot make an assessment. Where no period is prescribed the assessment can be completed at any time but once completed it is final.20. Once a final assessment has been made, it can only be reopened to rectify a mistake apparent from the record (s. 35) or to reassess where there has been an escapement of assessment of income for one reason or another (s. 34). Both these sections which enable reopening of back assessments provide their own periods of time for action but all these periods of time, whether for the first assessment or for rectification, or for reassessment, merely create a bar when that time passes against the machinerytax Act for the assessment and levy of the tax. They do not create an exemption in favour of the assessee or grant an absolution on the expiry of the period. The liability is not enforceable but the tax may a in be come eligible if the bar is removed and theis brought within the jurisdiction of the said machinery by reason of a new power. This is, of course subject to the condition that the law must say that such is the jurisdiction, either expressly orimplication. If the language of the law has that clear meaning, it must be given that effect and where the language expressly so declares or clearly implies it, the retrospective operation is not controlled by the commencement clause.The amendment, with which we are concerned, was made by the Finance Act, 1956 (18 of 1956). By s. 2, it dealt with the year beginning on the 1st day of April, 1956, and fixed the rates of taxes, for the assessment year commencing on that date. It also amended theAct by ss. 3 to 35. Section 28 then prescribed the dates of commencement of these sections. It read :"28. Commencements of amendments to Act 11 ofamendments made in theAct, by section 4 and clause (b) of section 15 shall be deemed to have come into force on the 1st day of April 1955, and the amendments made by section 3 to 27 inclusive shall come into force on the 1st day of April, 1956."(10) was introduced into s. 35 of theAct by s. 19 of this Act. If there was nothing more in the language of theto give it operation from an earlier date it would have operated only from 1st April, 1956, but the language of thegives it additional retrospectively and says so in such clear and unambiguous language as to leave no doubt. There is no room for the application of Lord justice Bowmens dictum in. Reid v. Reid ((1886) 31 Ch. D. 409.) that even in construing a section which is to a certain extent retrospective, the maxim that statutes are prospective only, ought to be borne in mind as applicable whenever the line is reached at which the words of the section cease to be plain.21. The topic of s. 35 is rectification of mistakes apparent from the record.(10) introduced a new basis for rectification in s. 35 which already prescribed a period of four yearsorder of assessment and the new subsection enabled rectification to be made in new circumstances and within a new time limit. Those circumstances when analyzed, furnish the key to the retrospectivity of the section. We shall begin by quoting only the material portion of thatwhich has been quoted in full earlier "Where, in any of the assessmentsthe years beginning onthe 1st day of April of the years 1948 to 1955 inclusive, a rebate ofwas allowed......... and subsequently the amount on which the rebate ofwas allowed... is availed of .......for declaring dividends in any year...... the, amount .....shall be deemed to have been, made the subject, of incorrect relief and the Incomete the tax as if the recomputation is a rectification of a mistake apparent from the record within the, meaning of this section and. the provisions ofsubsection (1) shall applyaccordingly, the period of four years being reckoned from the end of the financial year in Which. the amount on which rebate ofWas allowed was, availed of for declaring dividends."The purport of this newwas the recall of rebate which had. been allowed in any of the assessments948 tounder certain. circumstances.22. At the very start, thetakes one to assessment years to which S. 28 which prescribed the commencement as 1did not take one to. We do not accept the argument of the learned counsel for the assessee company that the mention of the years is merely a repetition of a historical fact for ready reference. The words "in any of the assessmentstc. II show in respect ofwhich, assessments rectification, would be possible.The years are mentioned individually by usingthe word "any". The law. speaking in 1956 was thusspeaking of all the assessment years individuallygoing.back to 1st April, 1948. ;The language wasclearly one of retrospectivity and the suggestion, that there is no intent behind these words and that they merely refer to a historical fact isnot acceptable to us. This conclusion is further fortified by the words :"and subsequently the amount.... .... is availed of for declaring.. dividends in any year.." Having mentioned the years individually in the opening part, an event is mentioned which is subsequent, namely, declaration of dividend from an amount on which rebate was allowed. "Subsequently" here obviously means subsequent to "any. of the assessmentsthe years beginning onthe 1st day of April of the years55 inclusive", not necessarily subsequent to the Amending Act. The declaration of the dividends must be after the grant of the rebate.23. That is the only condition and it does not import the date of commencement of the subsection in any way . Then comes the operative part and it is this. If in the earlier assessment in any of the years mentioned a rebate was allowed and subsequently in any year there was a declaration of dividend utilising the amount on which the rebate Was given, the amount so utilised should be deemed to be the subject of incorrect relief. This fiction comes into force frombut it is not stated that the circumstances in which it comes into being should also be afteron no doubt is to be used frombut it is to be used retrospectively to recall rebate on amounts which the law deems to have been the subject of an incorrect relief in the past. The recalling of the rebate is after the enactment of(10) but theconditions for the exercise of the power may be before or after the commencement of theThe only curb on the exercise of the power is that theOfficer may go back a period of four years reckoned from the end of the financial year in which the declaration of dividend was made to the date when the action is taken.In the present case, this is so. The assessee company declared dividends in the calendar year 1952. The assessment year was4. The letter written on March 18, 1958, asking the assessee company to show cause was within the four years reckoned from the end of the financial yearin which the amount on Which rebate ofwas availed of for declaring dividends. It complied with the letter of theSince the power commenced. onthe utmost reach of theOfficer would be the end of the assessment year A 1952. Any declaration of dividend after 1st day of April, 1952, out of accumulated profits of any of the years in which rebate was earned would be within time for the recall of the rebate. But a declaration prior towould be beyond the power of theOfficer to recall. This meaning is the only meaning which the plain words of the section can bear. Any other meaning might make sub.s. (10) unworkable because no company., , with the knowledge that rebate would be recalled, would like to declare dividends after April 1, 1956, out of amountson which rebate was earned. If the other meaning was attributed,(10) might well be a dead letter. Thewas obviously the result of noting how rebates were earned and later were being utilized to fill the pockets of the shareholders. The amendment met this situation and did it in very clear terms.24. It remains to consider, the decisions of this court in Habibullahs case ([1962] Supp, 2 S.C.R. 716) and Atmala Nagarajs case ([1962] 46 I. T. R. 609.). In those two cases this Court was called upon to interpret subs. (5) quoted above which was introduced as from April 1 1952, by the Indian(Amendment) Act, 1953., In both the cases there was a final assessment of the incomes of partners in registered firms. Later the assessment of the registered firms took place and it was found that the share of income of the partners was larger than what had been assessed. Under s. 35 (1), as it stood before(5) was introduced, rectification could be made in respect of a mistake apparent from the record and the records of the firms could not be read with those of the partners to find an error in the latter. There was thus an impasse. It was ruled by the Privy Council in Commissioner ofv. Khemchand Ramdas((1938) L. R. 65 I. A. 236, 248.), at p. 248 : "............... When once a final assessment, is arrived at, it cannot, in their Lordships opinion, be reopened except in circumstances detailed in section 34 and 35 of the Act........... and within the time limited by those acts." Therefore, unless the original s. 35 allowed such rectification there was no help. Often the firms final assessment dragged on for years and by the time that assessment was done the time limited by (sub.s.1) had already run out. Parliament therefore stepped in with an amendment which was to commence on April 1, 1952. Two matters were provided by(5). Firstly, the result of the assessment of the firm showing that the partners income was not properly included in their own assessments, was to be deemed to disclose an error in the record of the partners assessment and secondly, the period of four years instead of being computed from the order of assessment made against the partners as under(1) was to be computed from the date of thefinal order passed in the case of thefirm.No doubt this. power could be exercised frombut the question that had to be considered was whether it could be exercised only to reopen the assessment of partners of a firm if, and only if, the order in the assessment of the firm was passed after the amendment came into force. In dealing with the matter in Habibullahs case([1962] Supp. 2 S.C.R. 716.) this Court referred to the finality which attaches to a final assessment as stated by the Privy Council. This Court then referred to the date of the commencement of(5) which was fixed retrospectively asand held that thecould not be used to reopen assessments which had become final before the commencement of the new subsection, contrasting its language with that of(6) which wits, simultaneously introduced. In Habibullahs case (1) the dates were :Partners assessment for48 onRegistered firms assessment for | 0 | 11,194 | 3,738 | ### Instruction:
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the Indian Income-tax (Amendment) Act, 1953., In both the cases there was a final assessment of the incomes of partners in registered firms. Later the assessment of the registered firms took place and it was found that the share of income of the partners was larger than what had been assessed. Under s. 35 (1), as it stood before sub-s. (5) was introduced, rectification could be made in respect of a mistake apparent from the record and the records of the firms could not be read with those of the partners to find an error in the latter. There was thus an impasse. It was ruled by the Privy Council in Commissioner of Income-tax v. Khemchand Ramdas((1938) L. R. 65 I. A. 236, 248.), at p. 248 : "............... When once a final assessment, is arrived at, it cannot, in their Lordships opinion, be reopened except in circumstances detailed in section 34 and 35 of the Act........... and within the time limited by those acts." Therefore, unless the original s. 35 allowed such rectification there was no help. Often the firms final assessment dragged on for years and by the time that assessment was done the time limited by (sub.s.1) had already run out. Parliament therefore stepped in with an amendment which was to commence on April 1, 1952. Two matters were provided by sub-s. (5). Firstly, the result of the assessment of the firm showing that the partners income was not properly included in their own assessments, was to be deemed to disclose an error in the record of the partners assessment and secondly, the period of four years instead of being computed from the order of assessment made against the partners as under sub-s. (1) was to be computed from the date of the final order passed in the case of the firm.No doubt this. power could be exercised from 1-4-1952 but the question that had to be considered was whether it could be exercised only to reopen the assessment of partners of a firm if, and only if, the order in the assessment of the firm was passed after the amendment came into force. In dealing with the matter in Habibullahs case([1962] Supp. 2 S.C.R. 716.) this Court referred to the finality which attaches to a final assessment as stated by the Privy Council. This Court then referred to the date of the commencement of sub-s. (5) which was fixed retrospectively as 1-4-1952 and held that the sub-section could not be used to reopen assessments which had become final before the commencement of the new sub- section, contrasting its language with that of sub-s. (6) which wits, simultaneously introduced. In Habibullahs case (1) the dates were :- Partners assessment for 1946-47 on 22-2-1950 -do -do- 1947-48 on -do- Registered firms assessment for 46-47 on 31-10-1950 -do- -do- 1947-48 on 30- 6- 1951 Sub-s.(5) to s. 35 introduced from 1-4-1952 Order under s. 35 (5) on 27-3-1954If sub-s. (5) could be used in this case it is plain that the four years period had not passed between31-10-1950 (;which was the earlier assessment) and 27-3-1954 when the rectification was made. No doubt, the two assessments of the firm were also before 1-4-1952 but the sub-section has nowhere said that the power was only to be exercised if the assessment of the firm was after that date. Such a meaning is also difficult to imply. Under a fiction created after 1-4-1952 the assessment of the partners disclosed a mistake and if the fiction and the rest of the sub-section were to be given their full and logical effect the assessment of the partners could, be reopened and rectified. But it was held otherwise by this Court. The main reason was that the partners assessments had become final before 1-4-1952, that under the law, as it then stood, there was no error in their record, and Sub-s.(5) having been enacted retrospectivity from 1-4-1952 could not be given more retrospectivity That the firms assessment was also before 1-4-1952 was not given as a reason and in any event it was not very relevant. It neither added to nor detracted from the finality (such as it was on 22-2-1952) on the Partners assessment. The law obviously mentioned the final order in the firms assessement as the starting point in view of the length time the firms assessments take to reach their own finality. But there was nothing to show that this new terminus a quo must be after 1-4-1952 before sub-s(5) could be used. The words of the sub-section were entirely indifferent to this aspect In Atmala Nagrajs Case (1) the assessment of the was also completed before partners (22-1-1952) 1-4-1952 and had become final subject however to section 34 and 35. No doubt the assessment of the firm was completed after 1-4-1952 but this distinction made no difference to the finality such as had been gained on 22-1- 1952.We do not naturally express a final opinion on sub-s. (5). We must leave that to a future case. We must, however, say that the two earlier cases may have to be reconsidered on some future occasion. When the occasion comes the questions to ask would be 1. Did finality attach in Habibullahs case ((1962] Supp. 2 S.C.R. 716.) to the partners assessment under the law as it then stood from 22.2-1950 (partners assessment) or from 31-10-1950 and 30-6-1951 (the firms assessment) ? 2. Was there no finality in so far as the partners assessment was concerned in Atmala Nagarajs case ([1962] 46 I.T.R. 609) between 22-1-1952 (partners assessment) and 1-4-1952 (the commencement of sub-s. (5)) ? 3. Was the finality of the partners assessment, if any, controlled in the one case by the fact that the assessment of the firm was before 1-4-1952 and in the other by the fact that the assessment of the firm was after 1-4-1952 We have detailed these questions because they high-light the only point of difference between the two cases. We express no opinion of these questions.
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subsequently the amount.... .... is availed of for declaring.. dividends in any year.." Having mentioned the years individually in the opening part, an event is mentioned which is subsequent, namely, declaration of dividend from an amount on which rebate was allowed. "Subsequently" here obviously means subsequent to "any. of the assessmentsthe years beginning onthe 1st day of April of the years55 inclusive", not necessarily subsequent to the Amending Act. The declaration of the dividends must be after the grant of the rebate.23. That is the only condition and it does not import the date of commencement of the subsection in any way . Then comes the operative part and it is this. If in the earlier assessment in any of the years mentioned a rebate was allowed and subsequently in any year there was a declaration of dividend utilising the amount on which the rebate Was given, the amount so utilised should be deemed to be the subject of incorrect relief. This fiction comes into force frombut it is not stated that the circumstances in which it comes into being should also be afteron no doubt is to be used frombut it is to be used retrospectively to recall rebate on amounts which the law deems to have been the subject of an incorrect relief in the past. The recalling of the rebate is after the enactment of(10) but theconditions for the exercise of the power may be before or after the commencement of theThe only curb on the exercise of the power is that theOfficer may go back a period of four years reckoned from the end of the financial year in which the declaration of dividend was made to the date when the action is taken.In the present case, this is so. The assessee company declared dividends in the calendar year 1952. The assessment year was4. The letter written on March 18, 1958, asking the assessee company to show cause was within the four years reckoned from the end of the financial yearin which the amount on Which rebate ofwas availed of for declaring dividends. It complied with the letter of theSince the power commenced. onthe utmost reach of theOfficer would be the end of the assessment year A 1952. Any declaration of dividend after 1st day of April, 1952, out of accumulated profits of any of the years in which rebate was earned would be within time for the recall of the rebate. But a declaration prior towould be beyond the power of theOfficer to recall. This meaning is the only meaning which the plain words of the section can bear. Any other meaning might make sub.s. (10) unworkable because no company., , with the knowledge that rebate would be recalled, would like to declare dividends after April 1, 1956, out of amountson which rebate was earned. If the other meaning was attributed,(10) might well be a dead letter. Thewas obviously the result of noting how rebates were earned and later were being utilized to fill the pockets of the shareholders. The amendment met this situation and did it in very clear terms.24. It remains to consider, the decisions of this court in Habibullahs case ([1962] Supp, 2 S.C.R. 716) and Atmala Nagarajs case ([1962] 46 I. T. R. 609.). In those two cases this Court was called upon to interpret subs. (5) quoted above which was introduced as from April 1 1952, by the Indian(Amendment) Act, 1953., In both the cases there was a final assessment of the incomes of partners in registered firms. Later the assessment of the registered firms took place and it was found that the share of income of the partners was larger than what had been assessed. Under s. 35 (1), as it stood before(5) was introduced, rectification could be made in respect of a mistake apparent from the record and the records of the firms could not be read with those of the partners to find an error in the latter. There was thus an impasse. It was ruled by the Privy Council in Commissioner ofv. Khemchand Ramdas((1938) L. R. 65 I. A. 236, 248.), at p. 248 : "............... When once a final assessment, is arrived at, it cannot, in their Lordships opinion, be reopened except in circumstances detailed in section 34 and 35 of the Act........... and within the time limited by those acts." Therefore, unless the original s. 35 allowed such rectification there was no help. Often the firms final assessment dragged on for years and by the time that assessment was done the time limited by (sub.s.1) had already run out. Parliament therefore stepped in with an amendment which was to commence on April 1, 1952. Two matters were provided by(5). Firstly, the result of the assessment of the firm showing that the partners income was not properly included in their own assessments, was to be deemed to disclose an error in the record of the partners assessment and secondly, the period of four years instead of being computed from the order of assessment made against the partners as under(1) was to be computed from the date of thefinal order passed in the case of thefirm.No doubt this. power could be exercised frombut the question that had to be considered was whether it could be exercised only to reopen the assessment of partners of a firm if, and only if, the order in the assessment of the firm was passed after the amendment came into force. In dealing with the matter in Habibullahs case([1962] Supp. 2 S.C.R. 716.) this Court referred to the finality which attaches to a final assessment as stated by the Privy Council. This Court then referred to the date of the commencement of(5) which was fixed retrospectively asand held that thecould not be used to reopen assessments which had become final before the commencement of the new subsection, contrasting its language with that of(6) which wits, simultaneously introduced. In Habibullahs case (1) the dates were :Partners assessment for48 onRegistered firms assessment for
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ANIL KUMAR Vs. BRANCH MANAGER, NATIONAL INSURANCE COMPANY LTD. | Abhay Manohar Sapre, J.1. This appeal is filed by the claimant against the final judgment and order dated 19.03.2015 passed by the High Court of Karnataka Bench at Dharwad in Misc. First Appeal No. 24385 of 2011(MV) whereby the High Court dismissed the appeal filed by the claimant (appellant herein) and affirmed the judgment and award dated 12.04.2011 passed by the Member, MACTII, Bellary in M.V.C. No.711 of 2010.2. Few relevant facts need to be mentioned hereinbelow to appreciate the question involved in the appeal.3. The appellant was working as a cleaner in a lorry bearing Regn. No.AP21/ V4682 belonging to respondent No.2 herein. At the relevant time, it was insured with respondent No.1. On 05.12.2004, at about 1.00 p.m. near VGM Factory, Belgal Road, Bellary, when the appellant was standing in front of the abovementioned lorry for the purpose of loading iron ore, the driver of the lorry moved the vehicle without giving any signal or horn and dashed it against him. As a result of which, the appellant sustained facture of both pelvic bones with rapture of urethra and abdomen injuries and other grievous injuries all over his body. The appellant was then taken to VIMS Hospital, Bellary for the medical treatment. The appellant claimed to have spent a substantial sum towards his medical treatment. Due to the aforementioned injuries sustained by the appellant, he has become permanently disabled to do the work which he was doing before the accident. At the time of accident, the appellant was 25 years of age and earning Rs.4000/per month.4. The appellant filed a claim petition bearing M.V.C. No.711 of 2010 before the MACTII at Bellary under Section 173 of the Motor Vehicles Act, 1988 and claimed compensation from the respondents. It was contested by the respondents. By award dated 12.04.2011, the Tribunal partly allowed the appellants claim petition. It was held that the monthly income of the appellant claimant was Rs.4000/, that the accident occurred due to sole negligence of the driver of offending vehicle, that the appellant sustained partial but permanent disability in the whole body to the extent of 25% and that the age of the appellant was 25 years on the date of accident. The Tribunal then applied the multiplier of 18 and accordingly awarded a sum of Rs.2,16,000/towards loss of future income, Rs.75,000/towards pain and sufferings, Rs.25,000/towards medical expenses, Rs.15,000/towards future medical expenses and Rs.12,000/towards loss of income during laid up period. So far as the liability was concerned, the Tribunal held that the policy was a package policy equivalent to comprehensive policy, which covers the risk of cleaner also.5. The Tribunal accordingly awarded a total compensation of Rs.3,43,000/with interest payable at the rate of 8% p.a. from the date of claim petition till payment against the respondents jointly and severally.6. Being aggrieved by the award passed by the Tribunal, the appellantClaimant filed M.F.A. No.24385 of 2011(MV) for enhancement of the compensation before the High Court. The Insurance Company (respondent No.1 herein) also felt aggrieved and filed M.F.A. No.23729 of 2011 (MV) before the High Court for setting aside the award passed by the Tribunal.7. The High Court, by order dated 19.03.2015, dismissed both the appeals.8. Aggrieved by the impugned order, the appellant claimant has filed this appeal by way of special leave in this Court. So far as the Insurance Company respondent No.1 herein is concerned, they have not filed any appeal against the impugned order.9. The short question, which arises for consideration in this appeal, is whether any case is made out on facts/evidence for further enhancement of the compensation awarded by the Tribunal to the appellant (claimant).10. Having heard the learned counsel for the parties and on perusal of the record of the case, we are inclined to allow the appeal in part and accordingly enhance the compensation awarded by the Tribunal to the extent indicated infra.11. In our considered opinion, the High Court erred in dismissing the claimants appeal and thus committed an error in not further enhancing the compensation. In other words, the appellant was able to make out a case for further enhancement in the quantum of compensation awarded by the Tribunal and, therefore, he is entitled for enhancement in the award of compensation on the grounds mentioned below.12. First, the appellant (claimant) was a young unmarried boy of 25 years at the time of accident and did not suffer with any kind of ailment; Second, the appellant had sustained fracture of both pelvic bones with rapture of urethra and abdomen injuries for which he underwent four operations and suffered partial but permanent disability in his body which reduced his movement capacity to a larger extent; Third, the appellant due to partial but permanent disability also lost his job; Fourth, he spent a substantial sum for his medical treatment; and lastly, since the appellant is not still able to move freely due to disabilities suffered by him, he is entitled to be suitably compensated by awarding him monetary compensation.13. Learned counsel for the respondent (Insurance Company) urged that no case for any further enhancement in the compensation is made out and that the High Court was, therefore, justified in upholding the award of the Tribunal.14. We do not agree with the submission urged by the learned counsel for respondent No.1Insurance Company for the abovementioned reasons given by us.15. I | 1[ds]11. In our considered opinion, the High Court erred in dismissing the claimants appeal and thus committed an error in not further enhancing the compensation. In other words, the appellant was able to make out a case for further enhancement in the quantum of compensation awarded by the Tribunal and, therefore, he is entitled for enhancement in the award of compensation on the grounds mentioned below.First, the appellant (claimant) was a young unmarried boy of 25 years at the time of accident and did not suffer with any kind of ailment; Second, the appellant had sustained fracture of both pelvic bones with rapture of urethra and abdomen injuries for which he underwent four operations and suffered partial but permanent disability in his body which reduced his movement capacity to a larger extent; Third, the appellant due to partial but permanent disability also lost his job; Fourth, he spent a substantial sum for his medical treatment; and lastly, since the appellant is not still able to move freely due to disabilities suffered by him, he is entitled to be suitably compensated by awarding him monetary compensation.Learned counsel for the respondent (Insurance Company) urged that no case for any further enhancement in the compensation is made out and that the High Court was, therefore, justified in upholding the award of the Tribunal.We do not agree with the submission urged by the learned counsel for respondent No.1Insurance Company for the abovementioned reasons given by us.In our considered opinion, the High Court erred in dismissing the claimants appeal and thus committed an error in not further enhancing the compensation. In other words, the appellant was able to make out a case for further enhancement in the quantum of compensation awarded by the Tribunal and, therefore, he is entitled for enhancement in the award of compensation on the grounds mentioned below., the appellant (claimant) was a young unmarried boy of 25 years at the time of accident and did not suffer with any kind of ailment; Second, the appellant had sustained fracture of both pelvic bones with rapture of urethra and abdomen injuries for which he underwent four operations and suffered partial but permanent disability in his body which reduced his movement capacity to a larger extent; Third, the appellant due to partial but permanent disability also lost his job; Fourth, he spent a substantial sum for his medical treatment; and lastly, since the appellant is not still able to move freely due to disabilities suffered by him, he is entitled to be suitably compensated by awarding him monetary compensation.e do not agree with the submission urged by the learned counsel for respondent No.1Insurance Company for the abovementioned reasons given by us.In the light of the foregoing discussion and the grounds mentioned above, which found acceptance to the Tribunal, we are of the considered opinion that the appellant is entitled for a further sum of Rs.5,00,000/in lump sum in addition to what has been awarded by the Tribunal, i.e., Rs.3,43,000/.In other words, the appellant (claimant) is now entitled to claim a total sum of Rs.8,43,000/from the respondents jointly and severally by way of compensation for the injuries sustained, partial and permanent disability occurred, medical expenses incurred and loss occasioned due to injuries sustained by him in the accident.We, however, do not award interest on the enhanced sum of Rs.5,00,000/, which we have awarded to the appellant. In this view of the matter, the appellant is entitled to claim interest only on the sum of Rs.3,43,000/at the rate of 8 % awarded by the Tribunal. | 1 | 993 | 647 | ### 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:
Abhay Manohar Sapre, J.1. This appeal is filed by the claimant against the final judgment and order dated 19.03.2015 passed by the High Court of Karnataka Bench at Dharwad in Misc. First Appeal No. 24385 of 2011(MV) whereby the High Court dismissed the appeal filed by the claimant (appellant herein) and affirmed the judgment and award dated 12.04.2011 passed by the Member, MACTII, Bellary in M.V.C. No.711 of 2010.2. Few relevant facts need to be mentioned hereinbelow to appreciate the question involved in the appeal.3. The appellant was working as a cleaner in a lorry bearing Regn. No.AP21/ V4682 belonging to respondent No.2 herein. At the relevant time, it was insured with respondent No.1. On 05.12.2004, at about 1.00 p.m. near VGM Factory, Belgal Road, Bellary, when the appellant was standing in front of the abovementioned lorry for the purpose of loading iron ore, the driver of the lorry moved the vehicle without giving any signal or horn and dashed it against him. As a result of which, the appellant sustained facture of both pelvic bones with rapture of urethra and abdomen injuries and other grievous injuries all over his body. The appellant was then taken to VIMS Hospital, Bellary for the medical treatment. The appellant claimed to have spent a substantial sum towards his medical treatment. Due to the aforementioned injuries sustained by the appellant, he has become permanently disabled to do the work which he was doing before the accident. At the time of accident, the appellant was 25 years of age and earning Rs.4000/per month.4. The appellant filed a claim petition bearing M.V.C. No.711 of 2010 before the MACTII at Bellary under Section 173 of the Motor Vehicles Act, 1988 and claimed compensation from the respondents. It was contested by the respondents. By award dated 12.04.2011, the Tribunal partly allowed the appellants claim petition. It was held that the monthly income of the appellant claimant was Rs.4000/, that the accident occurred due to sole negligence of the driver of offending vehicle, that the appellant sustained partial but permanent disability in the whole body to the extent of 25% and that the age of the appellant was 25 years on the date of accident. The Tribunal then applied the multiplier of 18 and accordingly awarded a sum of Rs.2,16,000/towards loss of future income, Rs.75,000/towards pain and sufferings, Rs.25,000/towards medical expenses, Rs.15,000/towards future medical expenses and Rs.12,000/towards loss of income during laid up period. So far as the liability was concerned, the Tribunal held that the policy was a package policy equivalent to comprehensive policy, which covers the risk of cleaner also.5. The Tribunal accordingly awarded a total compensation of Rs.3,43,000/with interest payable at the rate of 8% p.a. from the date of claim petition till payment against the respondents jointly and severally.6. Being aggrieved by the award passed by the Tribunal, the appellantClaimant filed M.F.A. No.24385 of 2011(MV) for enhancement of the compensation before the High Court. The Insurance Company (respondent No.1 herein) also felt aggrieved and filed M.F.A. No.23729 of 2011 (MV) before the High Court for setting aside the award passed by the Tribunal.7. The High Court, by order dated 19.03.2015, dismissed both the appeals.8. Aggrieved by the impugned order, the appellant claimant has filed this appeal by way of special leave in this Court. So far as the Insurance Company respondent No.1 herein is concerned, they have not filed any appeal against the impugned order.9. The short question, which arises for consideration in this appeal, is whether any case is made out on facts/evidence for further enhancement of the compensation awarded by the Tribunal to the appellant (claimant).10. Having heard the learned counsel for the parties and on perusal of the record of the case, we are inclined to allow the appeal in part and accordingly enhance the compensation awarded by the Tribunal to the extent indicated infra.11. In our considered opinion, the High Court erred in dismissing the claimants appeal and thus committed an error in not further enhancing the compensation. In other words, the appellant was able to make out a case for further enhancement in the quantum of compensation awarded by the Tribunal and, therefore, he is entitled for enhancement in the award of compensation on the grounds mentioned below.12. First, the appellant (claimant) was a young unmarried boy of 25 years at the time of accident and did not suffer with any kind of ailment; Second, the appellant had sustained fracture of both pelvic bones with rapture of urethra and abdomen injuries for which he underwent four operations and suffered partial but permanent disability in his body which reduced his movement capacity to a larger extent; Third, the appellant due to partial but permanent disability also lost his job; Fourth, he spent a substantial sum for his medical treatment; and lastly, since the appellant is not still able to move freely due to disabilities suffered by him, he is entitled to be suitably compensated by awarding him monetary compensation.13. Learned counsel for the respondent (Insurance Company) urged that no case for any further enhancement in the compensation is made out and that the High Court was, therefore, justified in upholding the award of the Tribunal.14. We do not agree with the submission urged by the learned counsel for respondent No.1Insurance Company for the abovementioned reasons given by us.15. I
### Response:
1
### Explanation:
11. In our considered opinion, the High Court erred in dismissing the claimants appeal and thus committed an error in not further enhancing the compensation. In other words, the appellant was able to make out a case for further enhancement in the quantum of compensation awarded by the Tribunal and, therefore, he is entitled for enhancement in the award of compensation on the grounds mentioned below.First, the appellant (claimant) was a young unmarried boy of 25 years at the time of accident and did not suffer with any kind of ailment; Second, the appellant had sustained fracture of both pelvic bones with rapture of urethra and abdomen injuries for which he underwent four operations and suffered partial but permanent disability in his body which reduced his movement capacity to a larger extent; Third, the appellant due to partial but permanent disability also lost his job; Fourth, he spent a substantial sum for his medical treatment; and lastly, since the appellant is not still able to move freely due to disabilities suffered by him, he is entitled to be suitably compensated by awarding him monetary compensation.Learned counsel for the respondent (Insurance Company) urged that no case for any further enhancement in the compensation is made out and that the High Court was, therefore, justified in upholding the award of the Tribunal.We do not agree with the submission urged by the learned counsel for respondent No.1Insurance Company for the abovementioned reasons given by us.In our considered opinion, the High Court erred in dismissing the claimants appeal and thus committed an error in not further enhancing the compensation. In other words, the appellant was able to make out a case for further enhancement in the quantum of compensation awarded by the Tribunal and, therefore, he is entitled for enhancement in the award of compensation on the grounds mentioned below., the appellant (claimant) was a young unmarried boy of 25 years at the time of accident and did not suffer with any kind of ailment; Second, the appellant had sustained fracture of both pelvic bones with rapture of urethra and abdomen injuries for which he underwent four operations and suffered partial but permanent disability in his body which reduced his movement capacity to a larger extent; Third, the appellant due to partial but permanent disability also lost his job; Fourth, he spent a substantial sum for his medical treatment; and lastly, since the appellant is not still able to move freely due to disabilities suffered by him, he is entitled to be suitably compensated by awarding him monetary compensation.e do not agree with the submission urged by the learned counsel for respondent No.1Insurance Company for the abovementioned reasons given by us.In the light of the foregoing discussion and the grounds mentioned above, which found acceptance to the Tribunal, we are of the considered opinion that the appellant is entitled for a further sum of Rs.5,00,000/in lump sum in addition to what has been awarded by the Tribunal, i.e., Rs.3,43,000/.In other words, the appellant (claimant) is now entitled to claim a total sum of Rs.8,43,000/from the respondents jointly and severally by way of compensation for the injuries sustained, partial and permanent disability occurred, medical expenses incurred and loss occasioned due to injuries sustained by him in the accident.We, however, do not award interest on the enhanced sum of Rs.5,00,000/, which we have awarded to the appellant. In this view of the matter, the appellant is entitled to claim interest only on the sum of Rs.3,43,000/at the rate of 8 % awarded by the Tribunal.
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Rajah S. V. Jagannath Rao Vs. Commissioner Of Income-Tax, Hyderabad | consider the third question. In the assessment year 1957 Fasli, a, sum of Rs. 14,390 was claimed as --expenses under S. 14 (5) (a) or S. 14 (5) (b) of the Hyderabad Income-tax Act. A sum of Rs. 33,079 was similarly claimed for the assessment year 1358 Fasli. The sum of Rs.14,390 has been shown in the assessment year as spent on account of "domestic servants, drummers and other paraphernalia", which the Income-tax Officer treated as personal expenditure. The sum of Rs. 38,079 for the following year consisted of these items :(a) Stables and elephants Rs. 16,907(b) Festivals JatrasRs. 789(c) Charity and subscriptions Rs. 11,233(d) Body Guards Rs. 9,150Rs. 38,07910. The Income-tax Appellate Tribunal allowed these expenses as being admissible under cls. (a) and (b) of S. 14 (5). No reasons were given by the Tribunal for coming to this conclusion. The High Court answered the question against the assessee without advertence to the two clauses. The reason given by the High Court was as follows :"The jagirdar, however anxious he be to maintain his dignity, cannot claim deductions of money so spent professedly unless there be orders in exercise of prerogative powers of the grantor authorising such expenditures. For example, he may be authorised by the Sanad creating his tenure to maintain elephants or bodyguards. These expenditures would then, though personal, be necessary and legal, because of the constitutional position of the grantor when the tennure was created and continued. But the statement of the case should show the legal basis upon which deductions are allowed. If the assessee was entitled to maintain elephants, stables, paraphernalia, etc., under the grants, he should have filed them before the Income-tax authorities. Evidently this has not been done; at any rate there is no mention of the fact on the statement of the case. In the result, the answer to the question is in the negative."11. The relevant provisions of the law may now .be read. Section 14 (5) as translated by Messrs. Ramchandra Rao Kurtadikar and B. V. Subbarayudu reads as follows:"In respect of income from land-revenue paid to the Jagirdar by the holder of any non-Khalsa land in lieu of the use or possession thereof and in respect of any income derived by giving over Abkari trees for extracting sendhi or toddy and from Baithak which under proviso 2 and Explanation respectively of cl. (4) of S. 2, is deemed to be non-agricultural income, such income, profits and gains shall be computed after making the following allowances ;(a) All such expenses not being his private or personal expenses which the assessee may incur in relation to such land or the inhabitants thereof towards management or superintendence or on works of public welfare.(b) Such necessary expenditure as the assessee may incur under any law.(c) Five per cent. of the income chargeable to tax towards necessary expenses."The Tribunal, however, pointed out that the English text published by Government Press, Hyderabad, was slightly different. It reads as follows :"14 (5) The income from land revenue paid to jagirdar by the occupier of non-khalsa land for its use or possession, the income that arises from renting of trees for extraction of sendhi or toddy, the income from Abkari rentals and the income which under the provisions of S. 2 (4) is deemed to be non-agricultural income, all such incomes, profits and gains shall be computed after making the following allowances, namely :(a) all such expenditure, not being in the nature of capital, private or personal expenditure, incurred by the assessee in connection with land or its inhabitants for administration or on works of general improvement and benefit ;( b) any compulsory expenditure incurred by such assessee under any law in force ;(c) in respect of compulsory expenditure five per cent. of the income subjected to tax."A literal translation of cl. (a) made by us reads as follows :"All such expenditure which the assessee makes in connection with such land or its inhabitants on administration or works of public welfare, which expenses do not include his private or personal expenses."This shows that the official translation is accurate, and we shall refer to it only.12. The question thus is whether the expenditure in respect of which deduction is claimed can be described to be private or personal expenditure of the assessee, or in connection with land and its administration. The High Court apparently thought that unless it was incumbent upon the jagirdar by reason of his Sanad to maintain bodyguards, elephants, etc., the expenses could not but be regarded as private or personal. In our opinion, the High Court put the burden of proof somewhat strictly upon the assessee. The Tribunal, though it gave no reasons, held that the expenses were incurred in relation to the management. The conclusion is based on some evidence. The maintenance of elephants, stables, bodyguards, etc., is not entirely for the Jagirdars personal or private ends, and cannot be said to be wholly unrelated to the management of the Estate. Such equipage is considered part and parcel of the administration of an estate such as a jagir. Elephants, drummers and bodyguards are used on occasions for administrative purposes, and even if these might be few and far between, the expenditure must be regarded as one incurred in connection with land and its administration. The expenses over drummers (but not over domestic servants) in the first year, and over stables, elephants and bodyguards (but not over festivals and jatras or on charities and subscriptions) in the second year, were deductible. These expenses fall within cl. (a) of S. 14 5. as expenditure in connection with land or its administration, and they amounted to Rs. 26,057 in the year 1358 Fasli.For the year 1357 Fasli, the amount debitable to these items from Rs. 14,390 will have to be determined. The evidence before us is not sufficient to state the exact amount.13. We set aside the answer of the High Court, and answer the third question in the affirmative, to the extent indicated here. | 1[ds]3. The second question mentioned above is covered by the decisions of this Court in Union of India v. Madan Gopal Kabra, 1954 S C R 541: (AIR 1954 SC 158 ) and Rajputana Mining Agencies Ltd. v. Union of India, Civil Appeal No. 26 of 1956, D/- 31-8-1960 : (AIR 1961 S C 56), and was, therefore, rightly answered against theshall, therefore, confine ourselves to the two remaining questions in these appeal. It may be mentioned that the first question also arises in Civil Appeal No. 17 of 1961, and what we say here will govern the disposal pro tanto of that appeal also.It is a little difficult to read into the Income-tax Act any encroachment upon the relations between the holders of Samasthans and Jagirs and the Nizam. Even if the Income-tax Act can be said to affect indirectly those relations, it is manifest that it was passed with the assent of the Ruler, which admittedly was given.It made no difference if the law was passed by a body of men and was sent to the Nizam for his assent, because on his assent, the law was as effective as if made by the Nizam himself. The Nizam could withhold his assent to a law contrary to the Ain if he chose; but once he assented to it, the law derived its vitality, not from the act of the Legislative but from the act of the Nizam. It could not be questioned any more than a Firman issued by the Nizam. The Income-tax Act must, therefore, be regarded as binding upon those affected by its terms, and the question whether it could be introduced in the Legislative Assembly hardly arises. It must be regarded as a law emanating from his Exalted Highness the Nizam, the supreme legislator in the State, whose laws promulgated in any manner were binding upon the subject.The first question was thus answered correctly by the HighHigh Court apparently thought that unless it was incumbent upon the jagirdar by reason of his Sanad to maintain bodyguards, elephants, etc., the expenses could not but be regarded as private or personal. In our opinion, the High Court put the burden of proof somewhat strictly upon the assessee. The Tribunal, though it gave no reasons, held that the expenses were incurred in relation to the management. The conclusion is based on some evidence. The maintenance of elephants, stables, bodyguards, etc., is not entirely for the Jagirdars personal or private ends, and cannot be said to be wholly unrelated to the management of the Estate. Such equipage is considered part and parcel of the administration of an estate such as a jagir. Elephants, drummers and bodyguards are used on occasions for administrative purposes, and even if these might be few and far between, the expenditure must be regarded as one incurred in connection with land and its administration. The expenses over drummers (but not over domestic servants) in the first year, and over stables, elephants and bodyguards (but not over festivals and jatras or on charities and subscriptions) in the second year, were deductible. These expenses fall within cl. (a) of S. 14 5. as expenditure in connection with land or its administration, and they amounted to Rs. 26,057 in the year 1358 Fasli.For the year 1357 Fasli, the amount debitable to these items from Rs. 14,390 will have to be determined. The evidence before us is not sufficient to state the exact amount.13. We set aside the answer of the High Court, and answer the third question in the affirmative, to the extent indicated here. | 1 | 2,967 | 677 | ### 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:
consider the third question. In the assessment year 1957 Fasli, a, sum of Rs. 14,390 was claimed as --expenses under S. 14 (5) (a) or S. 14 (5) (b) of the Hyderabad Income-tax Act. A sum of Rs. 33,079 was similarly claimed for the assessment year 1358 Fasli. The sum of Rs.14,390 has been shown in the assessment year as spent on account of "domestic servants, drummers and other paraphernalia", which the Income-tax Officer treated as personal expenditure. The sum of Rs. 38,079 for the following year consisted of these items :(a) Stables and elephants Rs. 16,907(b) Festivals JatrasRs. 789(c) Charity and subscriptions Rs. 11,233(d) Body Guards Rs. 9,150Rs. 38,07910. The Income-tax Appellate Tribunal allowed these expenses as being admissible under cls. (a) and (b) of S. 14 (5). No reasons were given by the Tribunal for coming to this conclusion. The High Court answered the question against the assessee without advertence to the two clauses. The reason given by the High Court was as follows :"The jagirdar, however anxious he be to maintain his dignity, cannot claim deductions of money so spent professedly unless there be orders in exercise of prerogative powers of the grantor authorising such expenditures. For example, he may be authorised by the Sanad creating his tenure to maintain elephants or bodyguards. These expenditures would then, though personal, be necessary and legal, because of the constitutional position of the grantor when the tennure was created and continued. But the statement of the case should show the legal basis upon which deductions are allowed. If the assessee was entitled to maintain elephants, stables, paraphernalia, etc., under the grants, he should have filed them before the Income-tax authorities. Evidently this has not been done; at any rate there is no mention of the fact on the statement of the case. In the result, the answer to the question is in the negative."11. The relevant provisions of the law may now .be read. Section 14 (5) as translated by Messrs. Ramchandra Rao Kurtadikar and B. V. Subbarayudu reads as follows:"In respect of income from land-revenue paid to the Jagirdar by the holder of any non-Khalsa land in lieu of the use or possession thereof and in respect of any income derived by giving over Abkari trees for extracting sendhi or toddy and from Baithak which under proviso 2 and Explanation respectively of cl. (4) of S. 2, is deemed to be non-agricultural income, such income, profits and gains shall be computed after making the following allowances ;(a) All such expenses not being his private or personal expenses which the assessee may incur in relation to such land or the inhabitants thereof towards management or superintendence or on works of public welfare.(b) Such necessary expenditure as the assessee may incur under any law.(c) Five per cent. of the income chargeable to tax towards necessary expenses."The Tribunal, however, pointed out that the English text published by Government Press, Hyderabad, was slightly different. It reads as follows :"14 (5) The income from land revenue paid to jagirdar by the occupier of non-khalsa land for its use or possession, the income that arises from renting of trees for extraction of sendhi or toddy, the income from Abkari rentals and the income which under the provisions of S. 2 (4) is deemed to be non-agricultural income, all such incomes, profits and gains shall be computed after making the following allowances, namely :(a) all such expenditure, not being in the nature of capital, private or personal expenditure, incurred by the assessee in connection with land or its inhabitants for administration or on works of general improvement and benefit ;( b) any compulsory expenditure incurred by such assessee under any law in force ;(c) in respect of compulsory expenditure five per cent. of the income subjected to tax."A literal translation of cl. (a) made by us reads as follows :"All such expenditure which the assessee makes in connection with such land or its inhabitants on administration or works of public welfare, which expenses do not include his private or personal expenses."This shows that the official translation is accurate, and we shall refer to it only.12. The question thus is whether the expenditure in respect of which deduction is claimed can be described to be private or personal expenditure of the assessee, or in connection with land and its administration. The High Court apparently thought that unless it was incumbent upon the jagirdar by reason of his Sanad to maintain bodyguards, elephants, etc., the expenses could not but be regarded as private or personal. In our opinion, the High Court put the burden of proof somewhat strictly upon the assessee. The Tribunal, though it gave no reasons, held that the expenses were incurred in relation to the management. The conclusion is based on some evidence. The maintenance of elephants, stables, bodyguards, etc., is not entirely for the Jagirdars personal or private ends, and cannot be said to be wholly unrelated to the management of the Estate. Such equipage is considered part and parcel of the administration of an estate such as a jagir. Elephants, drummers and bodyguards are used on occasions for administrative purposes, and even if these might be few and far between, the expenditure must be regarded as one incurred in connection with land and its administration. The expenses over drummers (but not over domestic servants) in the first year, and over stables, elephants and bodyguards (but not over festivals and jatras or on charities and subscriptions) in the second year, were deductible. These expenses fall within cl. (a) of S. 14 5. as expenditure in connection with land or its administration, and they amounted to Rs. 26,057 in the year 1358 Fasli.For the year 1357 Fasli, the amount debitable to these items from Rs. 14,390 will have to be determined. The evidence before us is not sufficient to state the exact amount.13. We set aside the answer of the High Court, and answer the third question in the affirmative, to the extent indicated here.
### Response:
1
### Explanation:
3. The second question mentioned above is covered by the decisions of this Court in Union of India v. Madan Gopal Kabra, 1954 S C R 541: (AIR 1954 SC 158 ) and Rajputana Mining Agencies Ltd. v. Union of India, Civil Appeal No. 26 of 1956, D/- 31-8-1960 : (AIR 1961 S C 56), and was, therefore, rightly answered against theshall, therefore, confine ourselves to the two remaining questions in these appeal. It may be mentioned that the first question also arises in Civil Appeal No. 17 of 1961, and what we say here will govern the disposal pro tanto of that appeal also.It is a little difficult to read into the Income-tax Act any encroachment upon the relations between the holders of Samasthans and Jagirs and the Nizam. Even if the Income-tax Act can be said to affect indirectly those relations, it is manifest that it was passed with the assent of the Ruler, which admittedly was given.It made no difference if the law was passed by a body of men and was sent to the Nizam for his assent, because on his assent, the law was as effective as if made by the Nizam himself. The Nizam could withhold his assent to a law contrary to the Ain if he chose; but once he assented to it, the law derived its vitality, not from the act of the Legislative but from the act of the Nizam. It could not be questioned any more than a Firman issued by the Nizam. The Income-tax Act must, therefore, be regarded as binding upon those affected by its terms, and the question whether it could be introduced in the Legislative Assembly hardly arises. It must be regarded as a law emanating from his Exalted Highness the Nizam, the supreme legislator in the State, whose laws promulgated in any manner were binding upon the subject.The first question was thus answered correctly by the HighHigh Court apparently thought that unless it was incumbent upon the jagirdar by reason of his Sanad to maintain bodyguards, elephants, etc., the expenses could not but be regarded as private or personal. In our opinion, the High Court put the burden of proof somewhat strictly upon the assessee. The Tribunal, though it gave no reasons, held that the expenses were incurred in relation to the management. The conclusion is based on some evidence. The maintenance of elephants, stables, bodyguards, etc., is not entirely for the Jagirdars personal or private ends, and cannot be said to be wholly unrelated to the management of the Estate. Such equipage is considered part and parcel of the administration of an estate such as a jagir. Elephants, drummers and bodyguards are used on occasions for administrative purposes, and even if these might be few and far between, the expenditure must be regarded as one incurred in connection with land and its administration. The expenses over drummers (but not over domestic servants) in the first year, and over stables, elephants and bodyguards (but not over festivals and jatras or on charities and subscriptions) in the second year, were deductible. These expenses fall within cl. (a) of S. 14 5. as expenditure in connection with land or its administration, and they amounted to Rs. 26,057 in the year 1358 Fasli.For the year 1357 Fasli, the amount debitable to these items from Rs. 14,390 will have to be determined. The evidence before us is not sufficient to state the exact amount.13. We set aside the answer of the High Court, and answer the third question in the affirmative, to the extent indicated here.
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SOMASUNDARAM @ SOMU Vs. THE STATE REP. BY THE DEPUTY COMMISSIONER OF POLICE | been found guilty under Section 365 of the IPC. A3, A5, A6 and A8 stand convicted under Section 365 of the IPC with the aid of Section 109 of IPC. All of them have also been convicted under Section 364 of the IPC. In this regard there is a dichotomy involved. The law attaches criminality to the act or omission by a person. Another person may become liable as an abettor, a person who has conspired and thus liable under Section 120B, a person who has shared a common object and thus become vicariously liable and if there be 5 or more persons under Section 141 read with Section 149 or if the principle of vicarious liability embedded in Section 34 of the IPC is attracted. In other words, for a conviction under Section 364 actual abduction is necessary. A person could no doubt be liable under Section 364 read with Section 34 or under Section 364 read with Section 149 or under Section 364 read with Section 109 or if he is found guilty under Section 120B. In this case there is no scope for either 120B or 149. However just as they have been found guilty under Section 365 we would support the conviction under Section 364 in the same manner namely the abduction within the meaning of Section 364. The abduction is alleged to have been taken place on 30.12.2001. Be it remembered, that essence of abduction is forced movement, inter alia, from any place. The offence would be committed by any one who effects such abduction at any or all points of the route. We have already noticed that in a given case, an abduction may attract both sections 364 and 365. The distinguishing feature between the two kinds of abduction, is the difference in the intent with which the abduction, inter alia (as Sections 364 and 365 also deal with kidnapping), is carried out. But so far as the intention attracts both provisions in a given case, conviction under both sections is not impermissible. However, when some of the appellants are convicted under Section 365 simpliciter and others are convicted under Section 365 read with Section 109, then the position of those accused/ appellants in regard to conviction under Section 364 must also be the same. However, this difference in our approach in the matter of conviction under Section 364, cannot advance the case of the appellants, as abduction whether it is with the aid of Section 109 or which is under Section 364 simpliciter, enables the Court to raise the presumption of murder, in the absence of any explanation offered within the meaning of Section 106 of the Evidence Act. In other words, while we would find A4, A11, A15, A16 and A17 guilty under Section 364 which is already found by the courts below, we would support the conviction under Section 364 of other appellants on the basis that they have been actively aided the abduction. In other words they would be guilty under Section 364 read with Section 109 IPC. Also as far as A5, A6, A7, A8, A11 and A14 are concerned, there is the evidence of PW10 that when he saw the deceased in a clear state of wrongful confinement, as he was found tied on the first floor of the factory, A5, A6, A7, A8, A11 and A14 were present. They have also been convicted under Sections 347 and 387 of the IPC. Also, in fact, we have already noted that on 30.12.2001, PW11 has deposed about three cars out of which the deceased emerged out of one of them, viz., the Ford Escort. A4, A11, A16 and A17 have been referred in the evidence of PW 11 as emerging out of the car along with the deceased but it is quite clear that there were more persons than A4, A11, A16 and A17 who were involved in the abduction. In this regard it is profitable to remember that PW3 has witnessed three persons pushing another into a Maruti Van early in the morning on 30.12.2001. No doubt there is also a man on the Motorcycle. Within hours when he is brought to the factory building, he comes out of a Ford Escort. There were two other cars which accompanied it. We must bear in mind that under Section 362 of the IPC, abduction has been defined, inter alia, as compelling a person to go from any place. It, no doubt, also includes, such movement procured by deceitful means. To make it more clear, if we see the plot unravelling, viz., the abduction, the illegal confinement, the death of the deceased and his subsequent cremation, the role of A3, A5, A6, A7, A8 and A14 in aiding the abduction, appears to be made out. It is also clear that A5, A6, A7, A8, A11 and A14 were involved in the wrongful confinement of the deceased. We, no doubt, noticed that as far as A14 is concerned, there is no recovery, as such, effected from him under Section 27 of the Evidence Act and there is essentially the evidence of PW10, as aforesaid. The same is position about A17, whose involvement has been referred to by PW11, the other accomplice. We, however, find that that the accomplice witnesses, who have been relied upon by two courts, are to be treated as credible witnesses and, even in the absence of corroborative evidence, in the facts and circumstances of this case, we see no reason to disturb that conviction. If that is so, even in the absence of any direct evidence relating to murder, the presumption of murder, being committed by the appellants before us, would apply. In fact, the courts below have drawn a presumption about murder being committed. This is a presumption which cannot be said to be drawn without any basis. Having regard to the facts and circumstances before us, we are of the view that it cannot be contended that no case is made out against the appellants. | 1[ds]53. Thus, to sum-up, abetment, as defined is a substantive offence. The punishment for it varies according to different circumstances. If the act which is abetted is done in pursuance to the abetment, the punishment is graver, as can been seen from Section 109 of the IPC, as the punishment is for the offence which is committed based on the abetment. The offence of abetment is punishable even if the act which is abetted is not committed. As noted, Sections 115 and 116 provide for punishment in such cases. There are several other aspects relating to offences including Section 114 of the IPC which provides cumulative punishment for the act abetted and also for the act done54. At the heart of the offence of abetment, however, is the presence of any of the three requirements in Section 107 of the IPC. The key and indispensable elements under the law to constitute abetment is instigation, conspiracy or the intentional aiding by any act or illegal omission, the doing of the thing. The law does not permit the abettor to escape punishment for abetment even if the actual player who commits the offence is not criminally liable for the actual act which results in the commission of an offence (See in this regard, the situation contemplated in illustrations in Explanation III of Section 108 of the IPC). Equally, there need not be meeting of minds between all the persons involved in a conspiracy and it is sufficient if a person is engaged in the conspiracy following which the offence is committed (See Explanation V to Section 108 of the IPC). This means that it is not even necessary that the persons who are engaged in the conspiracy, to even know the identity, leave alone physically meet the other players. There can be any number of persons depending on their guilty mind and acts or omissions which may render them liable61. Thus, there appears to be a contradiction between these provisions. The matter is no longer res integra65. To summarize, by way of culling out the principles which emerge on a conspectus of the aforesaid decisions, we would hold as follows:The combined result of Sections 133 read with illustration (b) to Section 114 of Evidence Act is that the Courts have evolved, as a rule of prudence, the requirement that it would be unsafe to convict an accused solely based on uncorroborated testimony of an accomplice. The corroboration must be in relation to the material particulars of the testimony of an accomplice. It is clear that an accomplice would be familiar with the general outline of the crime as he would be one who has participated in the same and therefore, indeed, be familiar with the matter in general terms. The connecting link between a particular accused and the crime, is where corroboration of the testimony of an accomplice would assume crucial significance. The evidence of an accomplice must point to the involvement of a particular accused. It would, no doubt, be sufficient, if his testimony in conjunction with other relevant evidence unmistakably makes out the case for convicting an accused66. As laid down by this Court, every material circumstance against the accused need not be independently confirmed. Corroboration must be such that it renders the testimony of the approver believable in the facts and circumstances of each case. The testimony of one accomplice cannot be, ordinarily, be supported by the testimony of another approver. We have used the word ordinarily inspired by the statement of the law in paragraph-4 in K. Hashim (supra) wherein in this Court, did contemplate special and extraordinary cases where the principle embedded in Section 133 would literally apply. In other words, in the common run of cases, the rule of prudence which has evolved into a principle of law is that an accomplice, to be believed, he must be corroborated in material particulars of his testimony. The evidence which is used to corroborate an accomplice need not be a direct evidence and can be in the form of circumstantial evidencePURPORT AND VALUE OF SECTION 164 OF CRPC68. Section 164 of the CrPC enables the recording of the statement or confession before the Magistrate. Is such statement substantive evidence? What is the purpose of recording the statement or confession under Section 164? What would be the position if the person giving the statement resiles from the same completely when he is examined as a witness? These questions are not res integra. Ordinarily, the prosecution which is conducted through the State and the police machinery would have custody of the person. Though, Section 164 does provide for safeguards to ensure that the statement or a confession is a voluntary affair it may turn out to be otherwise.69. As to the importance of the evidence of the statement recorded under Section 164 and as to whether it constitutes substantial evidence,we may only to advert to the following judgment, i.e., in George and others v. State of Kerala and another AIR 1998 SC 1376 :In making the above and similar comments the trial Court again ignored a fundamental rule of criminal jurisprudence that a statement of a witness recorded under S. 164, Cr.P.C., cannot be used as substantive evidence and can be used only for the purpose of contradicting or corroborating himIt is, no doubt, true that Justice Arun Mishra has found that it becomes apparent that PW13 clearly stated that the former MLA Balan- the deceased was taking morning walk. The learned Judge concluded that it is apparent that M.K. Balan had been abducted. PW3 has not stated that it was the deceased who was abducted. He has not stated that three persons, who pushed the deceased into the van were from amongst the accused in the case4. However, reading the evidence of PWs 1, 2, 3 and 13, the following is established. The deceased used to go for morning walk. He was indeed sighted by PW13 who also used to go for morning walk. PW3 has indeed witnessed a person being pushed into Maruti Omni Van by three persons and the Van going away followed by the motorcycle5. These facts are established. The evidence of PW10 and PW11 is to be seen next in this regard. PW10 has, inter alia, stated that first and second accused were there at the house of A9 on 30.12.2001. Both of them told A3 that they have brought the MLA [M.K. Balan (deceased)] and only money had to be collected from him. PW11 has stated that on 30.12.2001, he saw three cars at the factory led by a Tata Sumo (recovered at the instance of A9), a Ford Escort Car (recovered at the instance of A4) and finally came the Zen Car (recovered at the instance of A3). Four persons identified as A4, A11, A16 and A17 brought the deceased out of the Ford Car. This takes place within hours of abduction on the same day. PW11 also speaks of three persons coming out of the Zen Car. PW10 also says that on 31.12.2001, he found that the deceased was tied-up with chain and his eyes were covered with a cloth and he had been made to sit on a green steel cot provided by them already. He was wearing black pant and sandal colour t-shirt. He has deposed that it was A5, A6, A7, A8, A10, A11 and A14, who were present. Still further, he says that A3 threatened him that he would kill him and his family members if he discloses anything about the matter. He further stated that we had kidnapped ex-MLA Balan itself, you are nothing to me. Unless PW10 and PW11, PW3 and PW13 are disbelieved, the conclusion is inevitable that the deceased was indeed abducted. The trial court finds that no one else was kidnapped on the same day. The Trial Court finds that A3, A4 to A8, A10, A11 and A14 to A17 kidnapped the deceased (A10 stands acquitted by the High Court)THE CIRCUMSTANCES RELATING TO OBTAINING OF FALSE DEATH CERTIFICATENo doubt, PW32 has deposed in cross-examination that PW33 came to his house and stated that his younger paternal uncle working as a watchman in the company had passed away. He has given the certificate on 02.01.2002. Though, it is not written that it was issued on 02.01.2002, and in P27, it was shown that it was issued on 01.01.2002PW38 has deposed that no person, as shown in the Certificate, died. Then, PW36-Office Assistant In- Charge also supported the prosecution version. It is to be noted that going by the evidence of PW32 and PW33, A3 wanted such a certificate. The evidence of PW19 does support the prosecution case though he may not have identified the 8 persons who came. The Trial Court, noted that he had identified them in the Test Identification Parade. It is clear as daylight that the person cremated on 01.01.2002 by PW19 and PW12 late in night was the deceased under a fake name thoughWHAT THE ACCOMPLICES SAID10. We think it is appropriate that we should consider the evidence of PWs 10 and 11. We have already set out the principles which govern the appreciation of evidence of accomplices. Proceeding on the basis that PWs 10 and 11 are accomplices (though the Counsel for the State has a case that PWs 10 and 11 cannot be considered as accomplices insofar as it related to offence under Section 302 of the IPC), we notice the following11. PW10 was examined on 30.10.2003. We are referring to the date of his deposition only to bear in mind that this is not a case where the witness is examined after a long gap from the date of crime as the murder is alleged to have taken place on 01.01.200212. Let us examine what he has stated. He was doing rice business in Tambaram from 1984 to 1995. From 1995, he ran a business under the name and style of Valluvar Travels from 1985 with Uday Kumar (the ninth accused), his friend. In 1998, he started a wine shop in which PW11 was also a partner. It was in 1999, the ninth accused informed that Krishna Pandi-PW34 was running a vermicelli company in Mudichur. He was facing a loss. PWs 10 and 11 invested in the venture of Krishna Pandi. There is reference to the relationship between PW10 and the ninth accused turning sour. PW10 purchased a Ford Escort car though in the name of one Ranjit Singh with whom he had business connections. The registration number of the car was TN-10F-5555. He speaks about his reconciliation with Uday Kumar. In 2001, Uday Kumar approached him and told him that he was to join ADMK with the help of the A3 for which he had to do certain works. For the same, he needed some houses. A search was mounted for an appropriate house. The third accused comes upon the scene. PWs 10 and 11, along with Uday Kumar-A9 and A3, finally, finalise the vermicelli factory at Mudichur Road. He identified the third accused. Instructions were given by the third accused for a screen to be put up on the windows of the factory building. As ninth accused asked for two cots, PW10 asked for two cots from one Guru, his friend. Chairs from the house of PW10, fan from the house of ninth accused and bedpan were kept in the factory by PW10, A9 and PW11. Screen for the windows was put. Third accused told PW34 to give a weeks leave for the company. Believing that he would get rent, PW10, upon being asked for his Ford Escort car, sent the car to the house of the ninth accused. There is reference to what happened on 05.12.2001. On the said day, he was called by the ninth accused to come over to the residence of the third accused. There were two or three other persons. PWs 10 and 11 followed the ninth accused who went inside the house. Third accused was telling the persons and the ninth accused that the deceased had to be brought and some money to be collected from him. PW10 identifies A4, A6 and A11 as persons who were present at the residence of A3 and who followed them in another car. There is reference to the involvement of A1, A2 and A12. PW10 has identified A5 as the person who came along with A3, A9 and A1 by his Ford Escort car. A1 was shown and he was talked about as a VIP, a very big VIP. PWs 10 and 11 were to get food for him and to do other works. PW10 has spoken about Rs.1,10,000/- being given, as requested by Uday Kumar- A9, as money needed by A3. Money was handed over to A2. PW10 refers to the deceased wearing black colour pant and sandal colour t-shirt. Body was kept on a slab like place. There was no movement in the body. The body was loaded in the van and it started very fast. A5 went on the motor bike. This, in short, is the account by PW10 about what he saw and what he knows about the incident. PW10 identifies A5, A6, A7, A8, A10, A11 and A14 as the persons whom he saw near the deceased when he was tied- up on the first floor of the factory (this is apparently on 31.12.2001). He also identified the four persons who carried the body of the deceased as A6, A7, A8 and A1116. PW10 has this to say in his cross examination:On 30.12.2001 he did not go to the Vermicilli factory [this is a point which is also pressed by counsel for the appellant for the reason that in his chief examination he had said that he had gone to the factory on 30.12.2001]. However, it is pertinent to note that in cross examination itself PW10 has stated that on 30 th at about 8.30 am he went to get the key, from there he went back at 9.30 am. He did not go thereafter [which makes it clear that that PW10 indeed did go on 30 th ] as deposed by him in his cross examination. He, no doubt, says that till he was there a person called M.K. Balan was not brought there. He further says in his cross examination that he had given a cheque for the room rent for the hotel from which he has vacated on 02.01.2002. He states that he did not tell anyone outside about the matter, he had mentioned the police for the first time what he has seen on 01.05.2002. It was due to fear he did not say. He further says that after seeing the Police, his fear had gone. He further states that he denies having met Nakkeran Gopal and discussed with him. He no doubt says that if it is asked whether he is accurately aware of the incident that had happened in the factory from 31.12.2001, he did not know. About 15-20 days before 5.12.2001 he had seen A3. He saw A4 for the first time on 5.12.2001 at the house of the 3 rd accused. He says after hearing A3 telling the persons available there that the Ex. MLA M.K. Balan had to be brought and some money had to be collected from him, it did not strike that it could be a violent act. He further says in cross that all the accused were not to known him earlier. He denies having identified A10 and A14 after they were identified by the Police to him. He says that he had finally shown his house also. His house was also shown to them as he could get commission. There is toilet facility in the Vermicilli factory. (In the re-examination he states that toilet is in the ground floor. The significance of this aspect is that a bedpack was also used when the deceased was kept in the first floor) He further states that he did not ask Krishan Pandi (PW34) how long it is to let out and what is the monthly rent and what is the advance amount and what is the commission for the same, he also did not tell him. He does not know how many workers were working in the factory, he could not approximately also. He does not have the details about men and women who are working in the factory. He was standing at a distance of 50ft. away from the place of occurrence (apparently on 01.01.2002). He next says that if it is asked that why it was not informed to PW34 about the incident witnessed by him when this incident took place, he was not a partner in the factory but then he says that he received the interest amount for the amount given to PW3417. It is time to look what PW11, the other accomplice has deposed. This is for the reason also that there is an argument that PW10 and PW 11, the two accomplices do not even corroborate each otherPW34, AN INDEPENDENT WITNESS?19. It is next necessary to have a look at the testimony of PW34. PW 34 is none other than the owner of the factory and as per the prosecution case PW10 and PW11 came to invest in the business of PW34 when he was undergoing financial problemsIn cross examination, inter alia, he states as follows:He saw A3 on December 10, 12. He further says he has not seen the deceased and he did not know him. On 30.12.2001, at 08.30 A.M., he went to the company office. He did not give the key to anyone. A5 did not allow us to go upstairs and he did not go upstairs. He says that disappearance of the deceased had come as news in papers and TV also. PW10 requested the company premises for meeting and he has told that it will interfere in the business and refused him the place for holding the meeting to which PW10 insisted again. In the records there was nothing to show that PW10 and PW 11 were shareholders21. On the basis of his(A3) arrest on 25.3.2002, he gave a confession statement, which has been recorded in the presence of PW26. His statement led to the discovery of Maruti Zen Car bearing No.TN-02-EZ-99. PW16 has also supported prosecution version and it is from him ultimately the vehicle came to be seized. P20 is the admissible portion. PW16 has identified A3. The Maruti car which has been marked MO12, according to PW16, was taken in November, 2001 by A3 and returned to PW16 only during February, 2002. The relevant aspect of the Maruti car is as follows:PW11 has deposed that on 30.12.2001 at the factory premises, A9 called him over phone and told him to open the gate. Then, he deposes about a Tata Sumo car coming first, followed by Ford Escort Car and a Maruti zen car. The eyes and mouth of the deceased was closed. His hands were tied. The deceased was taken to the first floor. PW11 has identified the four persons who brought the deceased in the position we have described a little earlier. They are A4, A11, A16 and A17. A5 went in the zen car which left the company. He had given further statement on 05.04.2002 wherein he stated that if taken to his office, he will surrender the cassette, and bit paper given by A1 from the near side of his wifes photograph which are marked as MO28 and MO3322. The next circumstance appearing against the third accused which corroborates the testimony of PW10 and PW11, is the circumstance relating to the creation of a false death certificate of the deceased. In our view, the prosecution has, indeed, succeeded in proving the following:At the instance of A3, PW32 (medical practitioner) who was known to PW33 was persuaded to issue a false certificate. The certificate was got issued in the name of a fictional person which is proved by the evidence of PW38 who has deposed that no such person (Rajamani Chettiar) who has been certified to have died by PW32 lived in the residence as reported. PW36-Office Assistant In- Charge of the Burial Ground has deposed that on 02.01.2002, PW19 told him after he (PW36) left, (apparently on the previous day) a body came and the Doctors Certificate would be given on that day. The Certificate is P27. The certificate was, apparently, produced in view of what was requested by PW19, a licence in the cremation ground, PW12 has become hostile but even PW12 has deposed about a person being cremated, on 01.01.2002, in the night and his role along with PW19 in it. The certificate was procured at the instance of A3. It was meant to facilitate the cremation of the dead body on the date of the death. Going by the testimony of PW1, the deceased was around 52 years. We say this because an attempt is made to contend that for a person above 60 years, no certificate is insisted upon to cremate as deposed by PW6. It may be that the age is shown as above 60. The circumstance of A3 creating the document for which purpose A13 was an emissary (A13 has not filed any appeal), goes a long way to strengthen the prosecution case. We see no reason at all not to conclude that the body which was cremated through PW19 and PW12 on 01.01.2002 was that of the deceased. Not only would the cremation and that too under a false name attract the offence under Section 201 of IPC, which deals with the destruction of evidence of committing of offence but it is an important chain in the list of circumstances which unerringly points to the role of A3 and others in the crime of murder also. The circumstance is a vital corroborative link which establishes the case of not only murder but relates back to the abduction. This is for the reason that it will be absurd to believe that the deceased went with the accused voluntarily and willingly, particularly, when the evidence of PW13 and PW3 are also borne in mind. We stand reminded that abduction takes place either when there is force or deceit in causing a person to move from a place under Section 362 of the IPC. PW10 has spoken of seeing the deceased tied and blindfolded in the upstairs portion23. This is a case where the accused have not only carried out a grave crime of murder but they have also attempted to efface the most important evidence relating to the same, viz., the corpus delicti. We reject also the contention that the non-production of the body is fatal to the prosecution case. The evidence of PW32, PW33 and PW36 (the Officer of the Corporation before whom the certificate was produced) and PW38 assumes critical significance. The hand of A3 from the beginning, i.e., from the selection of the factory, arranging of vehicles, confinement and cremation, is crystal clear and his role in the murder is established. It is in this context that evidence of PW10 and PW11 falls to be appreciated. The evidence of PW34 clearly confirms clinchingly the role of A3 and sufficiently corroborates PW10 and PW11. We would arrive at the conclusion even excluding MO28 and MO33 as agreed to by the Counsel for the StateACCUSED NO. 4 (A4)24. A4 was arrested on 09.04.2002. He made a confessional statement-P34 witnessed by PW39. It led to the recovery of Ford Escort White Car TN1075554. PW10 deposed that he bought the same car though in the name of one Ranjit Singh. He further deposes that by the end of November, 2001, A9 called him over phone and asked him for the said Ford car. A9 asked for two or three months. PW10 believing that he will pay the rent, sent the car to the house of A9. The driver of A3-Viji came and took that car. The use of the said car is mentioned by PW10 thereafter by deposing that on 05.12.2001, A3 went out in the said car which had been given by him for rent. He also identified A4 as one among the three persons who followed them on that day. Thereafter, the said car makes its appearance when he speaks about A3 telling A9 to be at the Woodlands Hotel and going along with A1 and A2 in the car. He again speaks about A3 coming alone to the Woodlands Hotel by the same car. Again around 07.00 P.M., A3, A9 and A1 came along with one more person by the same car. That other person is none other than A5. Thereafter, he says, on 30.12.2001, at 05.00 P.M., the driver of A3 had left the car in his office. In his cross-examination, PW10 has deposed that he bought the car for Rs.3,60,000/- from one Advocate Durai Pandi. He, no doubt, admits that it is not in his name25. Passing on to PW11 in connection with the vehicle, PW11 has noted the Ford Escort car on 30.12.2001 as the car from which four persons got down and those persons brought the deceased by closing his eyes and mouth and hands being tied and took him to the first floor. He has marked the Ford Escort Car as MO6. It is this car which stands recovered on the basis of the statement given by A4. This is a case based essentially on circumstantial evidence. The statement made by A4 led to the discovery of the car in the circumstances which have already been explained in the evidence of PW10 and the presence of A4, not only on 05.12.2001 but also on 30.12.2001, has crucial relevance in particular the presence on 30.12.2001. A4 was present along with three others and they emerged out of the very same car, viz., the Ford Escort car, in which, apparently, the deceased was brought. The condition of the deceased, viz., his eyes and mouth being closed and hands being tied and being taken to the first floor, are matters of moment in connecting A4 with the gory episode having its origin in the abduction of the deceased, his illegal confinement and culminating in his murder and cremation.27. PW11 has also spoken about A3 telling them about the person. He identified him. He also says that A3 told that A1 is a VIP and only A5 will do everything for him and that they should not do anything (apparently directly). He notices presence of A5 along with PW10 on 30.12.2001 at the factory. A3 asked A5 whether the company is ready. A3 and A5 told that they were going to the house of A9 and went from there. He speaks about A5 going by the Zen car on 30.12.2001. Thereafter, about half-an-hour later, the Tata Sumo car came. In the same, A5 and three more persons came with the tiffin parcel. These persons have been identified as A6, A15 and A7. On 31.12.2001, by 12 Noon, on being asked by A9, he purchases lunch and medicine and handed over to A5. On 01.01.2002, A5 told PW11 that there was no need for getting dinner in the night. PW11 has also seen A5 going into the company. He also speaks about dhoti brought by A5 used to tie-up the deceased and A5 leaving on a motorcycle. A5, who was arrested on 18.03.2002[the first arrestee in this case], has, in fact, given statement under which he has identified the Maruti Omni Van MO9 bearing No. TN-A-7484, the place (factory) as also the cremation ground. The Maruti Omni Van-MO9 is the Van which was used for abduction of the deceased. PW3 has spoken about a person being pushed into a Maruti Van. The facts discovered based on statement by A5 are very significant, and hence, most relevant, not only in revealing his involvement but unravelling the entire prosecution case. A statement under Section 27 of the Evidence Act is not only about the thing as such which is discovered consequent upon the statement but the knowledge attributable to the person who makes the statement about the matter, discovered, based on the statement. The evidence of PW44 who was a Revenue Inspector and witness to the statement of A5 and identification by A5, helps establishing his clear link and sufficiently corroborates PW10 and PW11. Lastly, PW34 has spoken about the presence of A5 on 30.12.01 and identified him28. What is the evidence, as regards, these accused/ appellants before us? Taking the evidence of the accomplices, PW10 has this to say about them – He says that along with A4, A6 and A11 were present on 05.12.2001 as two out of the three persons present in the residence of A3. He speaks about A3 telling the persons and A9 that Balan had to be brought and some money to be collected from him. He also speaks about the three persons as A4, A6 and A11, following him, PW11, A9 in another car. He further speaks about their involvement when he deposed that on 01.01.2002, A9 asked PW10 to wait at the hotel and he came with a golden colour Maruti van. By 8 P.M. that Maruti van was taken by two persons from A9. Those two persons have been identified as A6 and A11. Presence of A6 and his involvement is further deposed by PW10 when he states that the 6 th accused was standing near the gate of the factory later on 01.01.2002. PW10 and PW11 were asked to go away. He speaks about PW10 and PW11 being scared after the threat by A6. He further identifies A6, A7 and A11 as among the persons who were present near the deceased when he was tied up in the first floor of the factory. He also identified A6, A7, A8 and A11 as the persons who carried the dead body of the deceased. They go in the van with the body. At this juncture, it is apposite to notice PW18 deposing that he is the owner of van bearing No. TN 22-8853. He has deposed to giving the van to A9 on earlier occasions. More importantly, he has deposed to it being taken by A9 on 01.01.2002 at about 10 A.M. and it being returned only on 2.01.2002 and its seizure by the police on 30.03.200229. Turning to PW11, the other accomplice, this is what he has deposed about the involvement of the accused in question. PW11, for whatever it is worth in law, has also identified A6 and A11 as two out of the three persons who were in conversation at the residence of A3 on 05.12.2001. He has also spoken about A3 telling A9 that the deceased had to give some money and it has to be collected by bringing him. He also speaks about A6 and A11, inter alia, following them in another car. He has identified A11 as one among the four persons who brought M.K. Balan in the Ford car on 30.12.2001. He also identified A6 and A7 as among the persons as two out of the three persons who came with A5 in the Tata Sumo car which came again on 30.12.200132. It is relevant to remember that PW10 has identified A6, A7, A8 and A11 as the persons who carried the dead body of the deceased on 01.01.2002. It is also to be borne in mind that PW10 and PW11 have spoken about their body being loaded in a golden colour Maruti van which has also been identified by PW10 as MO7 and bearing the very same registration no. TN 22-B-8853. It is corroborated by the evidence of PW35 (Police Constable). The evidence clinchingly points to A6, A7, A8 and A11 being involved apparently at the behest of A3 and carrying dead body of the deceased on the fateful day in the van and their presence near the place where the deceased came to be cremated. To overlook the testimony of PW10 and PW11 in a case based on circumstantial evidence, being about matters which could not possibly, have been witnessed by any other witnesses other than the accomplices will be asking for the impossible except perhaps concocted evidenceThe evidence of PW10 shows that when he went upstairs, he found that the deceased whose eyes were closed was tied with a chain and he was asked to sit in a green colour steel cot. He has been identified by PW21 and PW35 police officers as one of the four, present near the spot of cremation36. We have noticed that PW11 has identified A11 as one of the persons who brought the deceased in the Ford car to the factory. It is to be remembered that PW11 has identified the accused in the Identification Parade conducted by the Judicial Magistrate. That apart, after arrest, he gave P53-Statement. He has produced the Philips Stereo Cassette Recorder which was recovered under P54-Mahazar marked as MO2. To lend assurance to this circumstance, PW46, working in the Revenue Department, has been examined. The tape-recorder was hidden in the house of A1137. Moreover, PW21 and PW35, Police Constables, have deposed to seeing A11 near the graveyard on 01/02.01.2002. They were standing near MO7. MO7 is the Van in which the deceased was taken from the factory after the murder. It is the Golden Colour Maruti Van bearing No. TN228853. PW11 has, in his deposition, given the same number in his evidence as the number of the Van in which the body of the deceased was taken away from the factory. Therefore, presence of A11, as noted by PW11, from 30.12.2001 till after the murder and near the site of the cremation, as noted by independent witnesses-PW21 and PW35, lend sufficient assurance to the prosecution case against him. PW10 has also deposed to identifying A11 as one of the three persons who were present at the residence of A3 on 05.12.2001. It is on that day A3 said that the deceased had to be brought and some money had to be collected from him38. It must be remembered that the evidence in this case establishes that the deceased was indeed cremated under the name of a fictitious person mentioned in the death certificate issued by PW32 (the medical practitioner). It is also clear that such certificate is procured by A3 through PW33. It is clear that A6, A7, A8 and A11 were clearly involved39. With regard to A14, his involvement in the matter emerges as one of the persons who stood in the upstairs of the building with the deceased when the deceased was in the state of illegal confinement. This, no doubt, is based on the testimony of PW10. No doubt, as far as A14 is concerned, there is no recovery. It is true that there is no direct evidence that the accused abducted or murdered the victim. The case, as already noticed, hinges on circumstantial evidence. We do notice that A10 has been acquitted by the High Court. A10 himself was also named by PW10 as present along with A14 at the time of the illegal confinement. The High Court has, in paragraph 33, assigned cogent reasons for acquitting A10, including, inter alia, that PW11 though had identified A10 in the Test Identification Parade, could not identify him in the Court. The evidence against A14 has been believed in by both the Courts40. A15 is the sole appellant in Criminal Appeal No. 828 of 201341. PW3, the witness to prove the abduction has spoken about a motor cycle following the Omni van. He earlier deposes that he saw three persons were forcing a person to get into the van. A15 gave a statement to the police in the presence of PW44 and another (Mutthu Rekku). The admissible portion of the statement is P50. As per PW44, he stated that he will provide the fashion Hero Honda bearing No. TN-05-C-6475. PW44 says that he identified the motorcycle parked in front of a compound of a house at Gandhiji Street, Bharathi Nagar and also the shoe. PW67 has spoken about recovery of the motor cycle under P51 Mahazer. The motor cycle is MO10 while the shoe is MO1. Justice Arun Mishra confirmed his conviction even after eschewing MO1 shoes. [PW1 the son of the deceased deposed that the shoes showed by the CBCID did not belong to his father]. As regards the motorcycle, PW10 has deposed that A9 wanted an ambassador car and a motor cycle. PW10 got the motorcycle from his friend Akbar which is fashion vehicle and navy blue in colour and gave it to A9. PW10 asked for return of the motorcycle. He marks the motorcycle as MO1042. As noticed, A15 has stated that he got the motorcycle from one Akbar. PW48 is the said Akbar. His name is shown as Shaheed Akbar. In his deposition, he has stated that he was having a fashion motor bike Hero Honda but he states that he purchased through financier. He further states that the Registration No. TN-04-J-1878 blue colour. He further states that PW10 was known to him well. He used to take his vehicle often. Last year, during November, 2001, the said Venu (PW10) apparently, had taken his vehicle and did not return it. The RC book related with the vehicle is with the financier. He has produced and marked as P58 photocopy of the RC of the said motor vehicle. He deposes that motor bike seen by him which belongs to him. He further says that the registration number of the vehicle which he saw, was not in the said motor bike. It is that motor bike which is marked as MO10. No doubt, in the cross, he says that he does not know the wheel base and weight of the bike, inter alia. He has neither issued any notice to PW10 nor had he filed any complaint. He says that he has neither repaid any loan nor received any notice from any financier. MO10 was marked by PW10 and under the statement under Section 27 the vehicle which is seized actually, has the registration no. TN-8-6785 whereas the vehicle which PW48 from whom PW10 took the vehicle for giving it to A3 as requested by A9, bears no. TN-04-J-1878. The evidence of PW48 makes it clear that it is the same vehicle and he does, no doubt, say that the registration number of the vehicle was not in the said motorcycle. This means that the vehicle marked as MO10 is, indeed, the vehicle belonging to PW48. He makes it over to PW10. As requested by A9, PW10 handed it over to A9. It would appear that the registration number, as was originally seen on the motorcycle, has been changed. It is the motorcycle which was apparently seen by PW3 and used at the time of abducting the deceased. The vehicle has been recovered at the instance of A15. Even ignoring the shoe which is recovered on the basis of the statement, we would think that the evidence sufficiently implicates A1543. PW11 has deposed that they were amongst the four persons who brought the deceased in the Ford car on the 30.12.2001. Moreover, no doubt, in cross, he is unable to remember A16 which he persevered with the names of other three. But he does speak of his presence at the factory. Regarding A16, he was taken into custody, and on questioning in the presence of PW47 and another witness, he gave a confessional statement. He stated that if he is taken, he would produce the black bag, cell phone and knife from the house at Villivakkam. P56 is marked as the admissible portion. On being so taken to the place at No.110/57, Nehru Nagar, Villivakkam, he identified a Panasonic Cell Phone, sim card with charger, one black colour carry bag, nine feet long yellow colour nylon rope and two chains. This is besides knife and three locks. Therefore, it cannot be said that there was no corroboration for the role of A16. It is quite clear that A16 was amongst the accused who brought the deceased. His role in the abduction becomes clear. It is also clear that the deceased is not only not alive but was undoubtedly done away by way of murder. Having abducted the deceased, it is clear that the role of A16, as assessed by the Trial Court and further accepted by the High Court, does not require interference44. A17 is again another accused who was one of the four persons identified by PW11 who brought the deceased on 30.12.2001 to the factory. In this case, he was arrested on 01.07.2002. The principle that abduction followed by murder raises a presumption that the abductor was instrumental in murder was rightly invoked by the Trial CourtAQUITTAL OF A12, THE INVOKING OF SECTION 109 OF THE IPC EVEN AGAINST A1 AND A2 – THE ACQUITTAL OF A3 TO A18 UNDER SECTION 120B OF THE IPC45. In this regard, it is necessary to have a closer look at the prosecution case. The case of the prosecution, in substance, is as follows:The first and second accused were close associates. The twelfth accused is the wife of the second accused. The third accused belongs to ADMK party. The other accused except the twelfth accused, were all the henchmen of the third accused. During the month of November 2001, at the instance of the first accused, the twelfth accused had spoken to the third accused over phone posing herself as Sasikala (a leader of the ADMK party). The twelfth accused told the third accused that she had entrusted a work to the first accused for which the third accused was to help him on the same day evening. A1 to A3 conspired and planned as to how to kidnap the deceased and to take money from him. As per their plan on 30.12.2001, the deceased came to be kidnapped (it must be abducted). He was taken to the factory owned by PW34, illegally detained; was tied with the rope and iron chain in a cot. They threatened him to give Rs. 16 crores and the deceased refused to give the same. He was asked to tell what is his property, and thereafter on 01.01.2002, the twelfth accused, spoke over phone in the voice of Sasikala to the third accused saying that if it is possible to get the money or else finish the matter and to meet her with the first accused and the rest of the matter would be informed by the first accused himself and accordingly what was stated by him was recorded in a tape recorder. The accused on the same day evening at about 09 P.M., by strangulation, murdered the deceased and to screen the crime, the accused had taken the body in a vehicle and cremated the body for which purpose a false death certificate was brought from PW32THE ACQUITTAL OF A12 (Accused No.12)46. It must be remembered that A12 came to be charged under Sections 419, 420 and 387 IPC read with 109 of the IPC. There is also a charge under Section 120B of the IPC against her, as already noticed by us. The Trial Court discusses the case against A-12 in the following manner inter alia:It is found that the twelfth accused was an Anglo-Indian lady. On a perusal of P65 which is the confessional statement given by her under Section 164 of The Code of Criminal Procedure, 1973 (hereinafter referred to as the CrPC, for short), the Court found that anyone would come to the conclusion that she was living as per the Indian culture. She is a mother of twins and growing them well. The second accused is her husband. The second accused, as per P65 statement, was suffering a loss and facing financial problems. The second accused fell into the cunning trap of first accused. The second accused forced the twelfth accused to fall into the cunning trap of the first accused. The first and twelfth accused got married out of their love affair. The marriage took place at a temple as per Hindu Rites and Customs. Initially, when first accused asked twelfth accused to talk like Sasikala, she refused. Then the twelfth accused did not talk over phone thereafter. The first accused pushed the second accused into his cunning trap and on account of that the twelfth accused was convinced by the second accused and she has talked over cell phone to the third accused as if Sasikala talked to him. There was a threat by the first accused to the twelfth accused. A2 forced his wife to act and to fall into the cunning trap. The Trial Court further goes on to state that normally in foreign countries, it would be commonly seen that while the husband is committing mistakes and misdeeds, the wife would leave her husband and choose anyone as her husband of her choice as that of changing clothes every day. The Trial Court further finds that it is not the State in our country. When the husband is doing any wrong deeds, the wife would mend her husband in some way or the other and when the wife is trying to mend her husband and she is forced to do the same by her husband, she would do it as what her husband is asking her to do so and she thinks that her husband is as God and thereby she is committing such mistakes. The Trial Court goes on to hold that the twelfth accused that if she told anything about her husband, he would be taken by the Police. As a result of that she had been suffering and on account of the fact that she followed the Tamil culture, she did not whisper anything about her husband. It is clearly seen that the Court goes on to hold that A12 did not do anything to attract the offence under Section 34 with the intention or motive and that she did not feel that she had done anything wrong and she was doing anything only as to what was stated by her husband and then she has been arrayed as A12. The Court goes on to find that she cannot be held guilty under the fourth charge which is framed under Sections 419, 420 and 387 read with Section 109 of the IPC. However, the Court proceeds to find accused Nos. 1 and 2 had committed offences under Sections 419 and 420 of the IPC47. A12 was not labouring under any disability. We may have our reservation about exonerating A12 on the reasoning that as it was perceived to be a part of the duty of the wife in the Indian culture to obey her husband even when the demand of the husband is to commit a criminal act. We notice, however, that not only A12 was acquitted by the Trial Court but the appeal by the State against her acquittal has been dismissed by the High Court. The State has also not challenged her acquittal before this Court. No doubt A12 would be criminally liable for only those acts done with the requisite mens rea. Hence, we say no more48. What is, however, important is that it is not a case where the Court has not believed the version of the prosecution that the twelfth accused did make the calls posing herself as Sasikala49. It is true that arguments have been addressed that there is no evidence to show that A12 knew the voice of Sasikala and contention is seen raised in Section 313 CrPC Statement of A3 that A3 knew the voice of Sasikala. The prosecution would have to prove the negative if it is called upon to prove that A3 did not know the voice of Sasikala. Though it is the duty of the prosecution to prove the case, it may not extend to holding that a matter which could be proved by the defence as something within his knowledge, the accused can sit tight. Further, the case of the prosecution must, at any rate, be judged with reference to the actions of A3 and the other accused who are described as his henchmen. The wealth of evidence, extending even to A3, procuring a totally false death certificate, is formidable. It should be noted that the first charge was essentially framed that A1 to A3 had conspired. A1 and A2 have accepted the verdict and we are not called upon to judge the correctness of their conviction under Section 120B. It may be true that, though, there is a charge against all the accused under Section 120B of the IPC, except A1 and A2, all the other accused stand acquitted under Section 120B of the IPCThe fact that the appellants have been acquitted under Section 120B will not, in our view, extricate them from criminal liability for their acts which would constitute substantive offences under Sections 302, 347 and 387 of the IPCA DEEPER GLANCE AT THE CHARGES; THE EFFECT OF ACQUITTAL OF A1251. The first charge is to the effect that A1, A2 and A3 conspired in November, 2001 to kidnap the deceased and to extract money. It was further agreed to murder him in case he refuses to pay money. Based on the said conspiracy, on 30.12.2001 early morning, he was kidnaped, detained at the factory and murdered on 01.01.2002. Thereby a charge under Section 120B of the IPC was framed against A1 to A18. The second charge is about actual kidnapping (it must be understood as abducting). The abduction is alleged to be done by A4, A7, A10, A11, A14, A15, A16 and A17 in a Maruti Van bearing Registration No. TNA7484. A15 went in a Hero Honda Motorcycle to show the route. The deceased was kept at the factory belonging to PW34. The aforesaid accused were charged under Section 365 of the IPC. For abetment of the said offences, A1 to A3, A5, A6, A8, A9 and A13 to A18 were charged under Section 365 of the IPC read with Section 109 of the IPC for going in a car bearing No. TN10F5555. All the accused, except A12 and A13, were charged under Section 387 for tying the deceased with iron chain and rope in a cot and he was threatened to part with Rs. 16 crores or else execute the documents in regard to his properties. The fourth charge is to the effect that in order to fulfil such conspiracy, and in pursuance to the same, at the instance and the instigation of A1 and A2, A12 spoke to A3 in the voice of Sashikala uttering the words, if possible, to get the amount or else close him and come along with A1 and meet her-A12. Charges were accordingly framed against A12 under Section 419, 420 and 387 of the IPC read with Section 109 of the IPC. The fifth charge was in order to fulfil the object of the said conspiracy, consequent upon the said occurrence, on 01.01.2002, A3, A4, A6 to A8, A10, A11 and A14 to A18 committed the murder of the deceased by tying a rope around the neck and tightening it. Likewise, A1, A2, A5, A9, A12 and A13 were charged under Section 302 of the IPC read with Section 109 of the IPC for abetment of murder. There is a charge under Sections 347 and 364 of the IPC for kidnapping against A3 to A11 and A13 to A18 and A1, A2 and A12 were charged, with the aid of Section 109 of the IPC, under Sections 347 and 364 of the IPC. Charge was also framed against A8, A10, A11 and A13 to A18 under Section 201 of the IPC for cremation of the body and getting the false certificate as if one Rajamani Chettiar had died due to heart ailment52. There is the argument addressed before us that the effect of the acquittal of the appellants under Section 120B of the IPC would be that their conviction under Section 302 of the IPC and other offences cannot be sustained. As we have noted, the charge under Section 120B of the IPC is based on the conspiracy hatched between A1 to A3. No doubt, the charges laid against A1 to A18 under Section 120B of the IPC, is essentially based on the conspiracy between A1 to A3. It is to be noted, however, the charge under Section 302 of the IPC is against A3, A4, A6 to A8, A10, A11 and A14 to A18. It was A1, A2, A5, A9, A12 and A13, who were charged under Section 302 of the IPC read with Section 109 of the IPC53. We agree that for a charge under Section 109 of the IPC, a minimum of two persons are required. There can be any number of accused charged with the aid of Section 109 of the IPC. In order that there is abetment, it is indispensable also that there is a person who abets another. To take an example, a person shoots with his gun on being intentionally aided or instigated in doing so by another. The latter would be guilty under Section 109 of the IPC along with the person who actually carried out the murder by shooting. Thus, there is a principal player and the abettor. The principal player would be guilty for the acts or omissions which amount to offences under the law. The abettor though does not trigger the gun, if we may use the expression, is the moving force behind it and becomes liable as such54. In this case, the Trial Court has proceeded to find the appellants (except A5) guilty of the fifth charge under Section 302 IPC whereas the A1 and A2 have been found guilty of the charge of conspiracy under Section 120B of the IPC. In other words, the idea to commit the offences came into being in the minds of A1 and A2. The other players have been roped in on the basis of their acts which was in tune with the conspiracy hatched by A1 and A2. The acquittal of A12, who has been charged under Section 120B of the IPC and also for offences under Sections 419, 420 and 387 of the IPC read with Section 109 of the IPC would not detract from the criminality of the acts committed by the other accused and, in the facts of this case, we would think that there is no illegality involved in convicting the appellants in the manner done under Section 302 of the IPCThe Trial Court has found that the plan was the brainchild essentially of A1 and A255. We have noticed that the trial Court has essentially proceeded on the basis that the appellants were except A5, charged under Section 302 under the 5 th charge were guilty of the said charge (See paragraph- 167 for the discussion). We have referred to the paragraphs in the judgment of the trial court wherein the trial court has found A3, A4, A6, A7, A8, A9, A10, A11, A14, A15, A16 and A17 guilty under section 302 IPC. It must be noticed that it is without invoking Section 109 of the IPC. However, it so happened, that in the initial portion of the judgment of the trial Court it is mentioned that Section 109 was also invoked along with Section 302 which is inconsistent with the actual charge which was adverted to and findings by the trial Court. It is on this basis apparently that the High Court and this Court also proceeded in the matter. This inconsistency must, in our view, be resolved by holding that the finding is to be understood as one in terms of the 5 th charge as discussed from paragraph 167 onwards of the judgment of the trial Court. We would proceed to hold further that if it is so understood then the criticism levelled that even A1 and A2 are convicted with the aid of Section 109 and there would be no principal player would not hold good. We must appreciate that the first charge is that a conspiracy was woven between accused No.1, 2 and 3 within the meaning of Section 120B. It has not been found acceptable to the trial Court and only A1 and A2 are found guilty under Section 120B of the IPC. The acquittal of A12 as we have noticed, would not deflect from the factum of the conspiracy between A1 and A2. So also, the acquittal of A3 in this regard. We have also touched upon the provisions of explanation 5 to the Section 108 of the IPC. We further notice that A1 and A2 have been convicted under Section 302 read with Section 109. It is to be noticed that accused 1 and 2 have been held guilty under Section 120B56. This means that since accused 1 and 2 are held guilty under Section 120B of the IPC to commit the murder of the deceased, they are to be punished as if they have abetted the said offence. The judgment of the trial Court is to be understood in the said vein. It is true that abetment by conspiracy is only one form of abetment. There can be alternate charges. There can be abetment by instigation and intentional acting even when there is no conspiracy and, therefore, no abetment by conspiracy. The fifth charge against A1, A2, A5, A9, A12 and A13 would be in the form of an alternate charge. We say this as A5 (Appellant before us) in Criminal Appeal No. 2008 of 2017 is charged and found guilty of murder under Section 302 of the IPC read with Section 109 of the IPC. The role of A5, particularly, having regard to the statement under Section 27 of the Evidence Act, leading to recovery of the Van, the discovery of the site of the factory and the cremation ground besides other evidence, cannot be ignored. We have no hesitation in repelling the contention of the appellants on this ground. It is clear that their acquittal under Section 120B of the IPC will not impact their conviction under the other provisionsCERTAIN CONTENTIONS OF A657. PW21 and PW35 have identified A6 in the Test Identification Parade. The contention that there would be possibility of these witnesses being seen before the Parade does not appeal to us. The presence of the Omni Van and A6 besides 3 others on the very date on which murder was committed and near the site of cremation and the fact of cremation of the body being done, is certainly a very important circumstance and not to be ignored as contended. The fact that PW19 has not found it possible to remember A6 though he has identified him in the Test Identification Parade before the Magistrate cannot lead to the obliteration of the evidence relating to the cremation on 01.01.2002 and about 8 persons coming there. The fact that PW 19 has stated that the person identified in MO14 photograph was the person cremated is not liable to be brushed aside. We should also not be oblivious to the principle that in a case of this nature, the total effect of the circumstances, must be borne in mind. It must be safe to believe the accomplice evidence based on other materials available. We find the evidence of PW10 and PW11 credible and the presence and role attributable to A6 cannot be brushed aside. The presence of A6 spoken to by the accomplices on 05.12.2001, 30.12.2001 and, particularly, on 01.01.2002 on which last day in carrying the dead body in the van which is later identified by the police officer at a spot near the cremation ground is certainly a vital circumstance which cannot be brushed aside. The role of A6 in the illegal confinement appears to be established. No doubt there is recovery of MO8 which is attacked on the score that PW 24 has identified A8 as A6. We have dealt with it elsewhere and shall not be detained by itABDUCTION, ILLEGAL CONFINEMENT, MURDER AND CREMATION IN FICTITIOUS NAME58. It is clear that the deceased was abducted on 30.12.2001. It is also established that he was confined illegally at the upstairs portion of the factory at Moudihur owned by PW34. It is clear from the evidence that it was the body of the deceased which was cremated and a fictitious name was used and a certificate issued at the instance of A3(P27) which circumstance is clinching in establishing the prosecution case. As far as the murder is concerned, there is no direct evidence. There is no direct evidence that deceased is murdered by strangulating him. However, it is equally true that on the basis of recovery made at the instance of A16 a nylon rope and chain was recovered which undoubtedly strengthens the prosecution case. There cannot be medical evidence relating to murder in a case where the body stood cremated. We have no hesitation in ignoring the evidence relating to recovery of certain parts of the body of the deceased but that is not sufficient for the accused to persuade us to throw out the prosecution case. A carefully thought out criminal plan has led to the cruel snuffing out of precious life. The players thought it through meticulously by destroying the corpus delicti by cremation59. The abduction followed by murder in appropriate cases can enable a court to presume that the abductor is the murderer. Now the principle is that after abduction, the abductor would be in a position to explain what happened to his victim and if he failed to do so, it is only natural and logical that an irresistible inference may be drawn that he has done away with the hapless victim60. We would think that the aforesaid principle would also apply to those persons who illegally confine the person who stands abducted even if there is no evidence that they have themselves carried out the abduction. Section 387 is heightened form of extortion in which the victim is put in the fear of death or grievous hurt. Section 347 involves wrongful confinement of a person for the purpose of committing extortion. The appellants have been convicted under Sections 347 and 387 of the IPC. This is not an inexorable rule but to be applied based on the factual matrix presented before the court. Where abduction is followed by illegal confinement and still later by death, the inference becomes overwhelming that the victim died at the hands of those who abducted/confined him. Nobody has a case that the deceased died a natural death61. The deceased was brought in a Ford Escort car. He was brought by A4, A11, A16 and A17. It is to be remembered that the case of the prosecution is that except A12, A4 to A18 were the henchmen of A3. We have referred to the evidence against A6, A11 and A16. There are material other than the deposition of PW11. We hold that the accomplices are credible witnesses when the whole circumstances are borne in mind. Their evidence may not be immaculate in character. By their very nature, that is being accomplices, any such claim would be incongruous. But the test is whether it is safe to convict the accused believing such witnesses. We are of the view that as regards the crime and the accused, their testimony brings home the truth, as regards accused who are appellants before us. There is no motive attributed to PW10 and PW11 to falsely implicate. The presumption of murder was rightly drawn62. The role of A15 is clear who was not only been referred to in the accomplice evidence but corroborates his link in the abduction with the recovery of motorcycle at his instance. It has rightfully earned him conviction under Section 365 IPC. There were two cars apart from the Ford Escort on 30.12.2001 at the site of the illegal confinement. From the Maruti Zen, three persons emerged as witnessed by PW11. It is true that PW11 has not identified them. That apart there was also a Tata Sumo, PW11 no doubt identified A5 and A7 apart from A15 as the persons who came back on 30.12.2001 with tiffin after leaving the factory63. The trial Court has convicted A4, A11, A15, A16 and A17 under Section 365 which in our view is unassailable in regard to these accused who are also appellants before us. We do not see any error in the court drawing the presumption that they are also guilty of murdering the deceased64. PW3, it must be remembered has spoken of three men pushing another into a van on 30.12.2001. The van moved and it was followed by a motorcycle. It must be remembered that A15 gave a statement leading to the recovery of a motorcycle. The evidence is relied by the two courts and we see no reason to take a different view65. As far as A3, A5, A6 and A8 are concerned, they stand convicted under Section 365 read with Section 109. Abetting is to be understood in the context of their acting on the conspiracy which stood proved against A1 and A2. No doubt, abetting also takes place when there is instigation or intentional aiding. The role of A3 looms large. It is clear that he organised the whole thing and it commenced with the search for an appropriate house where the victim could be confined after the abduction. His role along with his men in carrying out the crime culminating in the cremation under fictitious name of the abducted person is clear. Not only there is evidence of PW10 and PW11 but other evidence which includes PW32, PW33, PW36 and PW866. As far as A7 and A14 are concerned, they have also been convicted under Section 365 and also under Section 364. The involvement of A7 is clear. He makes his maiden appearance in the accomplice evidence as early as on 05.12.2001. PW10 has witnessed him standing along with certain other accused by the side of the deceased who was then clearly in the state of illegal confinement. He further establishes his complicity by bringing down the body of the deceased on 01.01.2002 along with three others. His role is also corroborated by the testimony of PW21 and PW35, Police officers67. A7 and A14 we would think ought to have been convicted under Section 365 read with Section 109 of the IPC. We notice that A3, A5, A6 and A8 stood convicted under Section 365 read with Section 109. We notice however that the charge as against A7 and A14 was under Section 365. We further notice the charge as against A14 is concerned is also under Section 365 read with Section 109 of the IPC. As already noticed all the appellants have been convicted also under Section 364 of IPC68. In this connection as regards the lack of a charge or defect in a charge is concerned, it is one which is essentially intertwined with the question of prejudice to the accused. See in this regard the judgment of this Court in Willie (William) Slaney v. State of Madhya Pradesh AIR 1956 SC 116 . We do not think that prejudice is caused in this regard in the facts69. It must be noticed that the evidence in this case no doubt through the mouth of PW10 and PW11 who alone have witnessed what truly happened would establish that on 31.12.2001, PW10 saw A5, A6, A7, A8, A11 and A14 when he saw the deceased who was at that time tied up on the first floor. We notice indeed that A10 has been acquitted by the High Court, for which reason, stands given by the High Court. Thus A5, A6, A7, A8, A11 and A14 are persons who can be and have also been convicted in connection with the illegal confinement of the deceased70. A4, A7, A11, A14, A15, A16 and A17 are persons who have been found guilty under Section 365 of the IPC. A3, A5, A6 and A8 stand convicted under Section 365 of the IPC with the aid of Section 109 of IPC. All of them have also been convicted under Section 364 of the IPC. In this regard there is a dichotomy involved. The law attaches criminality to the act or omission by a person. Another person may become liable as an abettor, a person who has conspired and thus liable under Section 120B, a person who has shared a common object and thus become vicariously liable and if there be 5 or more persons under Section 141 read with Section 149 or if the principle of vicarious liability embedded in Section 34 of the IPC is attracted. In other words, for a conviction under Section 364 actual abduction is necessary. A person could no doubt be liable under Section 364 read with Section 34 or under Section 364 read with Section 149 or under Section 364 read with Section 109 or if he is found guilty under Section 120B. In this case there is no scope for either 120B or 149. However just as they have been found guilty under Section 365 we would support the conviction under Section 364 in the same manner namely the abduction within the meaning of Section 364. The abduction is alleged to have been taken place on 30.12.2001. Be it remembered, that essence of abduction is forced movement, inter alia, from any place. The offence would be committed by any one who effects such abduction at any or all points of the route. We have already noticed that in a given case, an abduction may attract both sections 364 and 365. The distinguishing feature between the two kinds of abduction, is the difference in the intent with which the abduction, inter alia (as Sections 364 and 365 also deal with kidnapping), is carried out. But so far as the intention attracts both provisions in a given case, conviction under both sections is not impermissible. However, when some of the appellants are convicted under Section 365 simpliciter and others are convicted under Section 365 read with Section 109, then the position of those accused/ appellants in regard to conviction under Section 364 must also be the same. However, this difference in our approach in the matter of conviction under Section 364, cannot advance the case of the appellants, as abduction whether it is with the aid of Section 109 or which is under Section 364 simpliciter, enables the Court to raise the presumption of murder, in the absence of any explanation offered within the meaning of Section 106 of the Evidence Act. In other words, while we would find A4, A11, A15, A16 and A17 guilty under Section 364 which is already found by the courts below, we would support the conviction under Section 364 of other appellants on the basis that they have been actively aided the abduction. In other words they would be guilty under Section 364 read with Section 109 IPC. Also as far as A5, A6, A7, A8, A11 and A14 are concerned, there is the evidence of PW10 that when he saw the deceased in a clear state of wrongful confinement, as he was found tied on the first floor of the factory, A5, A6, A7, A8, A11 and A14 were present. They have also been convicted under Sections 347 and 387 of the IPC. Also, in fact, we have already noted that on 30.12.2001, PW11 has deposed about three cars out of which the deceased emerged out of one of them, viz., the Ford Escort. A4, A11, A16 and A17 have been referred in the evidence of PW 11 as emerging out of the car along with the deceased but it is quite clear that there were more persons than A4, A11, A16 and A17 who were involved in the abduction. In this regard it is profitable to remember that PW3 has witnessed three persons pushing another into a Maruti Van early in the morning on 30.12.2001. No doubt there is also a man on the Motorcycle. Within hours when he is brought to the factory building, he comes out of a Ford Escort. There were two other cars which accompanied it. We must bear in mind that under Section 362 of the IPC, abduction has been defined, inter alia, as compelling a person to go from any place. It, no doubt, also includes, such movement procured by deceitful means. To make it more clear, if we see the plot unravelling, viz., the abduction, the illegal confinement, the death of the deceased and his subsequent cremation, the role of A3, A5, A6, A7, A8 and A14 in aiding the abduction, appears to be made out. It is also clear that A5, A6, A7, A8, A11 and A14 were involved in the wrongful confinement of the deceased. We, no doubt, noticed that as far as A14 is concerned, there is no recovery, as such, effected from him under Section 27 of the Evidence Act and there is essentially the evidence of PW10, as aforesaid. The same is position about A17, whose involvement has been referred to by PW11, the other accomplice. We, however, find that that the accomplice witnesses, who have been relied upon by two courts, are to be treated as credible witnesses and, even in the absence of corroborative evidence, in the facts and circumstances of this case, we see no reason to disturb that conviction. If that is so, even in the absence of any direct evidence relating to murder, the presumption of murder, being committed by the appellants before us, would apply. In fact, the courts below have drawn a presumption about murder being committed. This is a presumption which cannot be said to be drawn without any basis. Having regard to the facts and circumstances before us, we are of the view that it cannot be contended that no case is made out against the appellants | 1 | 42,376 | 13,649 | ### 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:
been found guilty under Section 365 of the IPC. A3, A5, A6 and A8 stand convicted under Section 365 of the IPC with the aid of Section 109 of IPC. All of them have also been convicted under Section 364 of the IPC. In this regard there is a dichotomy involved. The law attaches criminality to the act or omission by a person. Another person may become liable as an abettor, a person who has conspired and thus liable under Section 120B, a person who has shared a common object and thus become vicariously liable and if there be 5 or more persons under Section 141 read with Section 149 or if the principle of vicarious liability embedded in Section 34 of the IPC is attracted. In other words, for a conviction under Section 364 actual abduction is necessary. A person could no doubt be liable under Section 364 read with Section 34 or under Section 364 read with Section 149 or under Section 364 read with Section 109 or if he is found guilty under Section 120B. In this case there is no scope for either 120B or 149. However just as they have been found guilty under Section 365 we would support the conviction under Section 364 in the same manner namely the abduction within the meaning of Section 364. The abduction is alleged to have been taken place on 30.12.2001. Be it remembered, that essence of abduction is forced movement, inter alia, from any place. The offence would be committed by any one who effects such abduction at any or all points of the route. We have already noticed that in a given case, an abduction may attract both sections 364 and 365. The distinguishing feature between the two kinds of abduction, is the difference in the intent with which the abduction, inter alia (as Sections 364 and 365 also deal with kidnapping), is carried out. But so far as the intention attracts both provisions in a given case, conviction under both sections is not impermissible. However, when some of the appellants are convicted under Section 365 simpliciter and others are convicted under Section 365 read with Section 109, then the position of those accused/ appellants in regard to conviction under Section 364 must also be the same. However, this difference in our approach in the matter of conviction under Section 364, cannot advance the case of the appellants, as abduction whether it is with the aid of Section 109 or which is under Section 364 simpliciter, enables the Court to raise the presumption of murder, in the absence of any explanation offered within the meaning of Section 106 of the Evidence Act. In other words, while we would find A4, A11, A15, A16 and A17 guilty under Section 364 which is already found by the courts below, we would support the conviction under Section 364 of other appellants on the basis that they have been actively aided the abduction. In other words they would be guilty under Section 364 read with Section 109 IPC. Also as far as A5, A6, A7, A8, A11 and A14 are concerned, there is the evidence of PW10 that when he saw the deceased in a clear state of wrongful confinement, as he was found tied on the first floor of the factory, A5, A6, A7, A8, A11 and A14 were present. They have also been convicted under Sections 347 and 387 of the IPC. Also, in fact, we have already noted that on 30.12.2001, PW11 has deposed about three cars out of which the deceased emerged out of one of them, viz., the Ford Escort. A4, A11, A16 and A17 have been referred in the evidence of PW 11 as emerging out of the car along with the deceased but it is quite clear that there were more persons than A4, A11, A16 and A17 who were involved in the abduction. In this regard it is profitable to remember that PW3 has witnessed three persons pushing another into a Maruti Van early in the morning on 30.12.2001. No doubt there is also a man on the Motorcycle. Within hours when he is brought to the factory building, he comes out of a Ford Escort. There were two other cars which accompanied it. We must bear in mind that under Section 362 of the IPC, abduction has been defined, inter alia, as compelling a person to go from any place. It, no doubt, also includes, such movement procured by deceitful means. To make it more clear, if we see the plot unravelling, viz., the abduction, the illegal confinement, the death of the deceased and his subsequent cremation, the role of A3, A5, A6, A7, A8 and A14 in aiding the abduction, appears to be made out. It is also clear that A5, A6, A7, A8, A11 and A14 were involved in the wrongful confinement of the deceased. We, no doubt, noticed that as far as A14 is concerned, there is no recovery, as such, effected from him under Section 27 of the Evidence Act and there is essentially the evidence of PW10, as aforesaid. The same is position about A17, whose involvement has been referred to by PW11, the other accomplice. We, however, find that that the accomplice witnesses, who have been relied upon by two courts, are to be treated as credible witnesses and, even in the absence of corroborative evidence, in the facts and circumstances of this case, we see no reason to disturb that conviction. If that is so, even in the absence of any direct evidence relating to murder, the presumption of murder, being committed by the appellants before us, would apply. In fact, the courts below have drawn a presumption about murder being committed. This is a presumption which cannot be said to be drawn without any basis. Having regard to the facts and circumstances before us, we are of the view that it cannot be contended that no case is made out against the appellants.
### Response:
1
### Explanation:
been found guilty under Section 365 of the IPC. A3, A5, A6 and A8 stand convicted under Section 365 of the IPC with the aid of Section 109 of IPC. All of them have also been convicted under Section 364 of the IPC. In this regard there is a dichotomy involved. The law attaches criminality to the act or omission by a person. Another person may become liable as an abettor, a person who has conspired and thus liable under Section 120B, a person who has shared a common object and thus become vicariously liable and if there be 5 or more persons under Section 141 read with Section 149 or if the principle of vicarious liability embedded in Section 34 of the IPC is attracted. In other words, for a conviction under Section 364 actual abduction is necessary. A person could no doubt be liable under Section 364 read with Section 34 or under Section 364 read with Section 149 or under Section 364 read with Section 109 or if he is found guilty under Section 120B. In this case there is no scope for either 120B or 149. However just as they have been found guilty under Section 365 we would support the conviction under Section 364 in the same manner namely the abduction within the meaning of Section 364. The abduction is alleged to have been taken place on 30.12.2001. Be it remembered, that essence of abduction is forced movement, inter alia, from any place. The offence would be committed by any one who effects such abduction at any or all points of the route. We have already noticed that in a given case, an abduction may attract both sections 364 and 365. The distinguishing feature between the two kinds of abduction, is the difference in the intent with which the abduction, inter alia (as Sections 364 and 365 also deal with kidnapping), is carried out. But so far as the intention attracts both provisions in a given case, conviction under both sections is not impermissible. However, when some of the appellants are convicted under Section 365 simpliciter and others are convicted under Section 365 read with Section 109, then the position of those accused/ appellants in regard to conviction under Section 364 must also be the same. However, this difference in our approach in the matter of conviction under Section 364, cannot advance the case of the appellants, as abduction whether it is with the aid of Section 109 or which is under Section 364 simpliciter, enables the Court to raise the presumption of murder, in the absence of any explanation offered within the meaning of Section 106 of the Evidence Act. In other words, while we would find A4, A11, A15, A16 and A17 guilty under Section 364 which is already found by the courts below, we would support the conviction under Section 364 of other appellants on the basis that they have been actively aided the abduction. In other words they would be guilty under Section 364 read with Section 109 IPC. Also as far as A5, A6, A7, A8, A11 and A14 are concerned, there is the evidence of PW10 that when he saw the deceased in a clear state of wrongful confinement, as he was found tied on the first floor of the factory, A5, A6, A7, A8, A11 and A14 were present. They have also been convicted under Sections 347 and 387 of the IPC. Also, in fact, we have already noted that on 30.12.2001, PW11 has deposed about three cars out of which the deceased emerged out of one of them, viz., the Ford Escort. A4, A11, A16 and A17 have been referred in the evidence of PW 11 as emerging out of the car along with the deceased but it is quite clear that there were more persons than A4, A11, A16 and A17 who were involved in the abduction. In this regard it is profitable to remember that PW3 has witnessed three persons pushing another into a Maruti Van early in the morning on 30.12.2001. No doubt there is also a man on the Motorcycle. Within hours when he is brought to the factory building, he comes out of a Ford Escort. There were two other cars which accompanied it. We must bear in mind that under Section 362 of the IPC, abduction has been defined, inter alia, as compelling a person to go from any place. It, no doubt, also includes, such movement procured by deceitful means. To make it more clear, if we see the plot unravelling, viz., the abduction, the illegal confinement, the death of the deceased and his subsequent cremation, the role of A3, A5, A6, A7, A8 and A14 in aiding the abduction, appears to be made out. It is also clear that A5, A6, A7, A8, A11 and A14 were involved in the wrongful confinement of the deceased. We, no doubt, noticed that as far as A14 is concerned, there is no recovery, as such, effected from him under Section 27 of the Evidence Act and there is essentially the evidence of PW10, as aforesaid. The same is position about A17, whose involvement has been referred to by PW11, the other accomplice. We, however, find that that the accomplice witnesses, who have been relied upon by two courts, are to be treated as credible witnesses and, even in the absence of corroborative evidence, in the facts and circumstances of this case, we see no reason to disturb that conviction. If that is so, even in the absence of any direct evidence relating to murder, the presumption of murder, being committed by the appellants before us, would apply. In fact, the courts below have drawn a presumption about murder being committed. This is a presumption which cannot be said to be drawn without any basis. Having regard to the facts and circumstances before us, we are of the view that it cannot be contended that no case is made out against the appellants
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Tejkumar Balakrishna Ruia Vs. A.K.Menon | suddenly inherit some assets. This would become a method to defeat the object of the Act and could not be permitted. The Special Court then dealt with the provisions of Section 3(3) and held that the words therein "on and from the date of the notification" meant that all assets which were available on the date of the notification and all assets which became available from and after that date stood attached. The term property had a wide connotation and included present and future property. Thus, if some notified party inherited or was gifted some property or earned some income subsequent to being notified, such property or income would stand attached and be available for distribution under the Act. 4. The Act was preceded by an ordinance which established the Special Court for trial of offences relating to transactions in securities that had been entered into between 1-4-1991 and 6-6-1992. Section 3, sub-section (1) empowered the Central Government to appoint one or more custodians under the Act. By reason of sub-section (2), the custodian could, on being satisfied on information received that any person had been involved in any offence relating to transactions in securities between the stated dates, notify the name of such person in the Official Gazette. Sub-section (3) reads thus. "3. (3) Notwithstanding anything contained in the Code and any other law for the time being in force, on and from the date of notification under sub-section (2), any property, moveable or immovable, or both, belonging to any person notified under that sub-section shall stand attached simultaneously with the issue of the notification." * The custodian could, by reason of sub-section (4), deal with property attached under sub-section (3) in such manner as the Special Court directed Section 4(1) empowered the custodian, if he was satisfied, after such enquiry as he thought fit, that any contract or agreement entered into at any time between the stated dates in relation to any property of the notified person had been entered into fraudulently or to defeat the provisions of the Act, to cancel such contract or agreement, whereupon such property stood attached under the Act. Sections 7, 8 and 9 deal with the jurisdiction of the Special Court in criminal proceedings. Section 9-A deals with the jurisdiction of the Special Court in civil proceedings relating to property that stands attached and arising out of transactions in securities between the stated dates in which a notified person was involved as a party, broker, intermediary or in any other manner. Section 11 deals with the discharge of liabilities and subsection (1) states that the Special Court may make such order as it may deem fit directing the custodian in the matter of disposal of attached properties; sub-section (2) sets out the order in which liabilities are to be paid or discharged. Section 13 states that the Act has effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force or in any instrument having effect by virtue of any law or in any decree or order of any court, tribunal or other authority. 5. In our view, the terms of sub-section (3) of Section 3 are clear. By reason thereof, the property that belongs to a notified person stands attached simultaneously with the issue of the notification that makes him a notified party. The words "on and from the date of notification" indicate the point of time at which the attachment takes effect; this is reiterated by the words "shall stand attached simultaneously with the issue of the notification". This also indicates that no separate notification or order in regard to the attachment is necessary. 6. Neither the words "on and from the date of notification" nor the word property lead to the conclusion that what is attached is not only that property which the notified person owned or was possessed of on the date of the notification but also all such property as he might acquire at any time thereafter. The intention to attach property which did not belong to the notified person on the date of the notification but which he might acquire later would, had it been there, have been clearly expressed and sub-section (3) would have stated that such property would stand attached the moment it was acquired by the notified person. The Act would also have made provision for a subsistence allowance or the like for the notified person. 7. It seems to us that to give to Section 3(3) the wide meaning that has been ascribed to it in the judgment and order under appeal would render it perilously close to being held unconstitutional, for it would deprive the notified person, so long as he remained a notified person, from earning a livelihood. Even to say that such interpretation would reduce a notified person to beggary would not be accurate (sic in accurate) because the alms that he received, being his property, would stand attached. 8. The apprehension expressed by the Special Court does not appear to be well founded : if what a notified person obtains by way of purported income or gift or inheritance is really his own money, such money would, upon establishment of the fact, stand attached automatically under the provisions of Section 3(3). In any event, it is for Parliament to enact a law that meets all contingencies. The courts must interpret the law as it reads. While a purposive interpretation is permissible where two interpretations are possible, the purposive interpretation must be such as preserves the constitutionality of the provision. 9. It is perhaps necessary to make clear that the income or usufruct of attached property is also attached property. Thus, if the property be shares, dividends and bonus and rights shares thereon would also be attached property. It is only income generated by a notified person by dint of his own labour which falls outside the net of Section 3(3). In respect of such income, the attachment under Section 3(3) does not operate. | 1[ds]5. In our view, the terms of sub-section (3) of Section 3 are clear. By reason thereof, the property that belongs to a notified person stands attached simultaneously with the issue of the notification that makes him a notified party. The words "on and from the date of notification" indicate the point of time at which the attachment takes effect; this is reiterated by the words "shall stand attached simultaneously with the issue of the notification". This also indicates that no separate notification or order in regard to the attachment isIt seems to us that to give to Section 3(3) the wide meaning that has been ascribed to it in the judgment and order under appeal would render it perilously close to being held unconstitutional, for it would deprive the notified person, so long as he remained a notified person, from earning a livelihood. Even to say that such interpretation would reduce a notified person to beggary would not be accurate (sic in accurate) because the alms that he received, being his property, would standThe apprehension expressed by the Special Court does not appear to be well founded : if what a notified person obtains by way of purported income or gift or inheritance is really his own money, such money would, upon establishment of the fact, stand attached automatically under the provisions of Section 3(3). In any event, it is for Parliament to enact a law that meets all contingencies. The courts must interpret the law as it reads. While a purposive interpretation is permissible where two interpretations are possible, the purposive interpretation must be such as preserves the constitutionality of theIt is perhaps necessary to make clear that the income or usufruct of attached property is also attached property. Thus, if the property be shares, dividends and bonus and rights shares thereon would also be attached property. It is only income generated by a notified person by dint of his own labour which falls outside the net of Section 3(3). In respect of such income, the attachment under Section 3(3) does notFor the purposes of this appeal, we have found it unnecessary to entertain the argument | 1 | 1,589 | 410 | ### 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:
suddenly inherit some assets. This would become a method to defeat the object of the Act and could not be permitted. The Special Court then dealt with the provisions of Section 3(3) and held that the words therein "on and from the date of the notification" meant that all assets which were available on the date of the notification and all assets which became available from and after that date stood attached. The term property had a wide connotation and included present and future property. Thus, if some notified party inherited or was gifted some property or earned some income subsequent to being notified, such property or income would stand attached and be available for distribution under the Act. 4. The Act was preceded by an ordinance which established the Special Court for trial of offences relating to transactions in securities that had been entered into between 1-4-1991 and 6-6-1992. Section 3, sub-section (1) empowered the Central Government to appoint one or more custodians under the Act. By reason of sub-section (2), the custodian could, on being satisfied on information received that any person had been involved in any offence relating to transactions in securities between the stated dates, notify the name of such person in the Official Gazette. Sub-section (3) reads thus. "3. (3) Notwithstanding anything contained in the Code and any other law for the time being in force, on and from the date of notification under sub-section (2), any property, moveable or immovable, or both, belonging to any person notified under that sub-section shall stand attached simultaneously with the issue of the notification." * The custodian could, by reason of sub-section (4), deal with property attached under sub-section (3) in such manner as the Special Court directed Section 4(1) empowered the custodian, if he was satisfied, after such enquiry as he thought fit, that any contract or agreement entered into at any time between the stated dates in relation to any property of the notified person had been entered into fraudulently or to defeat the provisions of the Act, to cancel such contract or agreement, whereupon such property stood attached under the Act. Sections 7, 8 and 9 deal with the jurisdiction of the Special Court in criminal proceedings. Section 9-A deals with the jurisdiction of the Special Court in civil proceedings relating to property that stands attached and arising out of transactions in securities between the stated dates in which a notified person was involved as a party, broker, intermediary or in any other manner. Section 11 deals with the discharge of liabilities and subsection (1) states that the Special Court may make such order as it may deem fit directing the custodian in the matter of disposal of attached properties; sub-section (2) sets out the order in which liabilities are to be paid or discharged. Section 13 states that the Act has effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force or in any instrument having effect by virtue of any law or in any decree or order of any court, tribunal or other authority. 5. In our view, the terms of sub-section (3) of Section 3 are clear. By reason thereof, the property that belongs to a notified person stands attached simultaneously with the issue of the notification that makes him a notified party. The words "on and from the date of notification" indicate the point of time at which the attachment takes effect; this is reiterated by the words "shall stand attached simultaneously with the issue of the notification". This also indicates that no separate notification or order in regard to the attachment is necessary. 6. Neither the words "on and from the date of notification" nor the word property lead to the conclusion that what is attached is not only that property which the notified person owned or was possessed of on the date of the notification but also all such property as he might acquire at any time thereafter. The intention to attach property which did not belong to the notified person on the date of the notification but which he might acquire later would, had it been there, have been clearly expressed and sub-section (3) would have stated that such property would stand attached the moment it was acquired by the notified person. The Act would also have made provision for a subsistence allowance or the like for the notified person. 7. It seems to us that to give to Section 3(3) the wide meaning that has been ascribed to it in the judgment and order under appeal would render it perilously close to being held unconstitutional, for it would deprive the notified person, so long as he remained a notified person, from earning a livelihood. Even to say that such interpretation would reduce a notified person to beggary would not be accurate (sic in accurate) because the alms that he received, being his property, would stand attached. 8. The apprehension expressed by the Special Court does not appear to be well founded : if what a notified person obtains by way of purported income or gift or inheritance is really his own money, such money would, upon establishment of the fact, stand attached automatically under the provisions of Section 3(3). In any event, it is for Parliament to enact a law that meets all contingencies. The courts must interpret the law as it reads. While a purposive interpretation is permissible where two interpretations are possible, the purposive interpretation must be such as preserves the constitutionality of the provision. 9. It is perhaps necessary to make clear that the income or usufruct of attached property is also attached property. Thus, if the property be shares, dividends and bonus and rights shares thereon would also be attached property. It is only income generated by a notified person by dint of his own labour which falls outside the net of Section 3(3). In respect of such income, the attachment under Section 3(3) does not operate.
### Response:
1
### Explanation:
5. In our view, the terms of sub-section (3) of Section 3 are clear. By reason thereof, the property that belongs to a notified person stands attached simultaneously with the issue of the notification that makes him a notified party. The words "on and from the date of notification" indicate the point of time at which the attachment takes effect; this is reiterated by the words "shall stand attached simultaneously with the issue of the notification". This also indicates that no separate notification or order in regard to the attachment isIt seems to us that to give to Section 3(3) the wide meaning that has been ascribed to it in the judgment and order under appeal would render it perilously close to being held unconstitutional, for it would deprive the notified person, so long as he remained a notified person, from earning a livelihood. Even to say that such interpretation would reduce a notified person to beggary would not be accurate (sic in accurate) because the alms that he received, being his property, would standThe apprehension expressed by the Special Court does not appear to be well founded : if what a notified person obtains by way of purported income or gift or inheritance is really his own money, such money would, upon establishment of the fact, stand attached automatically under the provisions of Section 3(3). In any event, it is for Parliament to enact a law that meets all contingencies. The courts must interpret the law as it reads. While a purposive interpretation is permissible where two interpretations are possible, the purposive interpretation must be such as preserves the constitutionality of theIt is perhaps necessary to make clear that the income or usufruct of attached property is also attached property. Thus, if the property be shares, dividends and bonus and rights shares thereon would also be attached property. It is only income generated by a notified person by dint of his own labour which falls outside the net of Section 3(3). In respect of such income, the attachment under Section 3(3) does notFor the purposes of this appeal, we have found it unnecessary to entertain the argument
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Banarasi Devi Vs. Income Tax Officer & Others | "where a notice under sub-s. (1) has been issued within the time therein limited." In sub-s. (1) no time is limited for the issue of the notice: time is only limited for the service of the notice; and therefore it is more appropriate that the expression "issued" used in the proviso to sub-s. (3) should be equated with the expression "served" rather than that the expression "served" used in sub-s. (1) should be equated with the expression "issued" used in the proviso to sub-s. (3)."This decision equated the expression "issued" with expression "served". The Allahabad High Court in Sri Niwas v. Income-tax Officer, (1956) 30 ITR 381 : (AIR 1956 All 657 ) has also interpreted the word "issued" to mean "served". The relevant rule of construction is clearly stated by Viscount Buckmaster in Barras v. Aberdeen Steam Trawling and Fishing Co. Ltd., 1933 AC 402 at p. 411 thus :"It has long been a well-established principle to be applied in the consideration of Act of Parliament that where a word of doubtful meaning has received a clear judicial interpretation the subsequent statute which incorporates the same word or the same phrase in a similar context, must be construed so that the word or phrase is interpreted according to the meaning that has previously assigned to it."Section 4 the Amending Act was enacted for saving the validity of notices issued under Section 34(1) of the Act. When that section used a word interpreted by courts in the context of such notices it would be reasonable to assume that the expression was designedly used in the same sense. That apart, the expressions "issued" and "served" are used as inter-changeable terms both in dictionaries and in other statutes. The dictionary meaning of the word "issue" is "the Act of sending out put into circulation, deliver with authority or delivery" Section 27 of the General Clauses Act (Act X of 1897) reads thus :"Where any Central Act or Regulation made after the commencement of this Act authorises or requires any document to be served by post, whether the expression "serve" or either of the expression, "give" or "send" or any other expression is used, then, unless a different intention appears, the service shall be deemed to be effected by properly addressing prepaying and posting by registered post, a letter containing the document, and unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post."It would be seen from this provision that Parliament used the word "serve", "give" and "send" as inter-changeable words. So too, in Ss. 553, 554 and 555 of the Calcutta Municipal Act, 1951 the two expressions "issued to" or "served upon" are used as equivalent expressions. In the legislative practice of our country the said two expressions are sometimes used to convey the same idea. In other words, the expression "issued" is used in a limited as well as in a wider sense. We must, therefore, give the expression "issued" in S. 4 of the Amending Act that meaning which carries out the intention of the Legislature in preference to that which defeats it. By doing so we will not be departing from the accepted meaning of the expression, but only giving it one of its meanings accepted, which fits into the context or setting in which it appears.11. With this background let us give a closer look to the provisions of S. 4 of the Amending Act. The object of the section is to save the validity of a notice issued beyond the prescribed time. Though the time within which such notice should have been issued under S. 34(1) of the Act as it stood before its amendment by S. 18 of the Finance Act of 1956, had expired, the said notice would be valid. Under S. 34(1) of the Act as we have already pointed out, the time prescribed was only for service of the notice. As the notice mentioned in S. 4 of the Amending Act is linked with the time prescribed under the Act, the section becomes unworkable if the narrow meaning is given to the expression "issued". On the other hand, if we give wider meaning to the word, the section would be consistent with the provisions of S. 34(1) of the Act. Moreover the narrow meaning would introduce anomalies in the section : while the notice, assessment or re-assessment were saved, the intermediate stage of service would be avoided. To put it in other words, if the proceedings were only at the stage of issue of notice, the notice could not be questioned, but if it was served, it could be questioned; though it was served beyond time if the assessment was completed, its validity could not be questioned. The result would be that the validity of an assessment proceeding would depend upon the stage at which the assessee seeks to question it. That could not have been the intention of the Legislature. All these anomalies would disappear if the expression was given the wider meaning.12. To summarize : The clear intention of the Legislature is to save the validity of the notice as well as the assessment from an attack on the ground that the notice was given beyond the prescribed period. That intention would be effectuated if the wider meaning is given to the expression "issued". The dictionary meaning of the expression "issued" takes in the entire process of sending the notice as well as the service thereof. The said word used in S. 34(1) of the Act itself was interpreted by courts to mean "served". The limited meaning, namely, "sent" will exclude from the operation of the provision a class of cases and introduce anomalies. In the circumstances, by interpretation, we accept the wider meaning the word "issued" bears. In this view, though the notices were served beyond the prescribed time, they were saved under S. 4 of Amending Act. No other point was raised before us. | 0[ds]To the present case the general rule of construction of fiscal Acts would apply, and not the exception engrafted on that rule; for S. 4 of the Amending Act cannot be described as a provision laying down the machinery for the calculation of tax. In substance it enables theess a persons income which has escaped assessment, though the time within which he could have so assessed had expired under the Act before the amendment of 1959. It resuscitates barred claim. Therefore the same stringent rules of construction appropriate to a charging section shall also apply to such a4 of the Amending Act of 1959, therefore, was enacted for the sole purpose of saving the validity of such notices in respect of all escaped incomes relating to any year commencing from the year ending on March 31, 1941, though they were issued beyond the prescribed time. If the construction sought to be placed by the learned counsel for the appellants be accepted, it would defeat the purpose of the amendment in some cases. If the words were clear and exclude the class of cases where the notices were sent before 8 years from the date of assessment, but served thereafter, this court has to give them the saidcrucial word in the said section is "issued". The section says that though a notice was issued beyond the time within which such notice should have been issued, its validity could not be questioned. If the word "issued" means "sent", we find that there is no provision in the Act prescribing a time limit for sending a notice, for, under Section 34 (1)(a) of the Act a notice could be served only within 8 years from the relevant assessment year. It does not provide any period for sending of the notice. Obviously, therefore, the expression "issued" is not used in the narrow sense of "sent". Further, the said expression has received, before the amendment, a clear judicial interpretation. Under S. 34(1) (a) of the Act theOfficer may in cases falling under cl. (a) at any time within 8 years serve on the assessee a notice. The proviso to that section says that where the notice under s. 34 (1) (a) is within time therein limited, the assessment orto be made in pursuance of such notice may be made before the expiry of one year from the date of the service of the notice even if such period exceeds the period of 8 years or 4 years, as the case may be.4 the Amending Act was enacted for saving the validity of notices issued under Section 34(1) of the Act. When that section used a word interpreted by courts in the context of such notices it would be reasonable to assume that the expression was designedly used in the same sense. That apart, the expressions "issued" and "served" are used asterms both in dictionaries and in other statutes.would be seen from this provision that Parliament used the word "serve", "give" and "send" aswords. So too, in Ss. 553, 554 and 555 of the Calcutta Municipal Act, 1951 the two expressions "issued to" or "served upon" are used as equivalent expressions. In the legislative practice of our country the said two expressions are sometimes used to convey the same idea. In other words, the expression "issued" is used in a limited as well as in a wider sense. We must, therefore, give the expression "issued" in S. 4 of the Amending Act that meaning which carries out the intention of the Legislature in preference to that which defeats it. By doing so we will not be departing from the accepted meaning of the expression, but only giving it one of its meanings accepted, which fits into the context or setting in which it appears.11. With this background let us give a closer look to the provisions of S. 4 of the Amending Act. The object of the section is to save the validity of a notice issued beyond the prescribed time. Though the time within which such notice should have been issued under S. 34(1) of the Act as it stood before its amendment by S. 18 of the Finance Act of 1956, had expired, the said notice would be valid. Under S. 34(1) of the Act as we have already pointed out, the time prescribed was only for service of the notice. As the notice mentioned in S. 4 of the Amending Act is linked with the time prescribed under the Act, the section becomes unworkable if the narrow meaning is given to the expression "issued". On the other hand, if we give wider meaning to the word, the section would be consistent with the provisions of S. 34(1) of the Act. Moreover the narrow meaning would introduce anomalies in the section : while the notice, assessment orwere saved, the intermediate stage of service would be avoided. To put it in other words, if the proceedings were only at the stage of issue of notice, the notice could not be questioned, but if it was served, it could be questioned; though it was served beyond time if the assessment was completed, its validity could not be questioned. The result would be that the validity of an assessment proceeding would depend upon the stage at which the assessee seeks to question it. That could not have been the intention of the Legislature. All these anomalies would disappear if the expression was given the wider meaning.12. To summarize : The clear intention of the Legislature is to save the validity of the notice as well as the assessment from an attack on the ground that the notice was given beyond the prescribed period. That intention would be effectuated if the wider meaning is given to the expression "issued". The dictionary meaning of the expression "issued" takes in the entire process of sending the notice as well as the service thereof. The said word used in S. 34(1) of the Act itself was interpreted by courts to mean "served". The limited meaning, namely, "sent" will exclude from the operation of the provision a class of cases and introduce anomalies. In the circumstances, by interpretation, we accept the wider meaning the word "issued" bears. In this view, though the notices were served beyond the prescribed time, they were saved under S. 4 of Amending Act. No other point was raised before us. | 0 | 3,872 | 1,231 | ### Instruction:
Determine the likely decision of the case (acceptance (1) or rejection (0)) and follow up with an explanation highlighting key sentences that support this prediction.
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"where a notice under sub-s. (1) has been issued within the time therein limited." In sub-s. (1) no time is limited for the issue of the notice: time is only limited for the service of the notice; and therefore it is more appropriate that the expression "issued" used in the proviso to sub-s. (3) should be equated with the expression "served" rather than that the expression "served" used in sub-s. (1) should be equated with the expression "issued" used in the proviso to sub-s. (3)."This decision equated the expression "issued" with expression "served". The Allahabad High Court in Sri Niwas v. Income-tax Officer, (1956) 30 ITR 381 : (AIR 1956 All 657 ) has also interpreted the word "issued" to mean "served". The relevant rule of construction is clearly stated by Viscount Buckmaster in Barras v. Aberdeen Steam Trawling and Fishing Co. Ltd., 1933 AC 402 at p. 411 thus :"It has long been a well-established principle to be applied in the consideration of Act of Parliament that where a word of doubtful meaning has received a clear judicial interpretation the subsequent statute which incorporates the same word or the same phrase in a similar context, must be construed so that the word or phrase is interpreted according to the meaning that has previously assigned to it."Section 4 the Amending Act was enacted for saving the validity of notices issued under Section 34(1) of the Act. When that section used a word interpreted by courts in the context of such notices it would be reasonable to assume that the expression was designedly used in the same sense. That apart, the expressions "issued" and "served" are used as inter-changeable terms both in dictionaries and in other statutes. The dictionary meaning of the word "issue" is "the Act of sending out put into circulation, deliver with authority or delivery" Section 27 of the General Clauses Act (Act X of 1897) reads thus :"Where any Central Act or Regulation made after the commencement of this Act authorises or requires any document to be served by post, whether the expression "serve" or either of the expression, "give" or "send" or any other expression is used, then, unless a different intention appears, the service shall be deemed to be effected by properly addressing prepaying and posting by registered post, a letter containing the document, and unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post."It would be seen from this provision that Parliament used the word "serve", "give" and "send" as inter-changeable words. So too, in Ss. 553, 554 and 555 of the Calcutta Municipal Act, 1951 the two expressions "issued to" or "served upon" are used as equivalent expressions. In the legislative practice of our country the said two expressions are sometimes used to convey the same idea. In other words, the expression "issued" is used in a limited as well as in a wider sense. We must, therefore, give the expression "issued" in S. 4 of the Amending Act that meaning which carries out the intention of the Legislature in preference to that which defeats it. By doing so we will not be departing from the accepted meaning of the expression, but only giving it one of its meanings accepted, which fits into the context or setting in which it appears.11. With this background let us give a closer look to the provisions of S. 4 of the Amending Act. The object of the section is to save the validity of a notice issued beyond the prescribed time. Though the time within which such notice should have been issued under S. 34(1) of the Act as it stood before its amendment by S. 18 of the Finance Act of 1956, had expired, the said notice would be valid. Under S. 34(1) of the Act as we have already pointed out, the time prescribed was only for service of the notice. As the notice mentioned in S. 4 of the Amending Act is linked with the time prescribed under the Act, the section becomes unworkable if the narrow meaning is given to the expression "issued". On the other hand, if we give wider meaning to the word, the section would be consistent with the provisions of S. 34(1) of the Act. Moreover the narrow meaning would introduce anomalies in the section : while the notice, assessment or re-assessment were saved, the intermediate stage of service would be avoided. To put it in other words, if the proceedings were only at the stage of issue of notice, the notice could not be questioned, but if it was served, it could be questioned; though it was served beyond time if the assessment was completed, its validity could not be questioned. The result would be that the validity of an assessment proceeding would depend upon the stage at which the assessee seeks to question it. That could not have been the intention of the Legislature. All these anomalies would disappear if the expression was given the wider meaning.12. To summarize : The clear intention of the Legislature is to save the validity of the notice as well as the assessment from an attack on the ground that the notice was given beyond the prescribed period. That intention would be effectuated if the wider meaning is given to the expression "issued". The dictionary meaning of the expression "issued" takes in the entire process of sending the notice as well as the service thereof. The said word used in S. 34(1) of the Act itself was interpreted by courts to mean "served". The limited meaning, namely, "sent" will exclude from the operation of the provision a class of cases and introduce anomalies. In the circumstances, by interpretation, we accept the wider meaning the word "issued" bears. In this view, though the notices were served beyond the prescribed time, they were saved under S. 4 of Amending Act. No other point was raised before us.
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have so assessed had expired under the Act before the amendment of 1959. It resuscitates barred claim. Therefore the same stringent rules of construction appropriate to a charging section shall also apply to such a4 of the Amending Act of 1959, therefore, was enacted for the sole purpose of saving the validity of such notices in respect of all escaped incomes relating to any year commencing from the year ending on March 31, 1941, though they were issued beyond the prescribed time. If the construction sought to be placed by the learned counsel for the appellants be accepted, it would defeat the purpose of the amendment in some cases. If the words were clear and exclude the class of cases where the notices were sent before 8 years from the date of assessment, but served thereafter, this court has to give them the saidcrucial word in the said section is "issued". The section says that though a notice was issued beyond the time within which such notice should have been issued, its validity could not be questioned. If the word "issued" means "sent", we find that there is no provision in the Act prescribing a time limit for sending a notice, for, under Section 34 (1)(a) of the Act a notice could be served only within 8 years from the relevant assessment year. It does not provide any period for sending of the notice. Obviously, therefore, the expression "issued" is not used in the narrow sense of "sent". Further, the said expression has received, before the amendment, a clear judicial interpretation. Under S. 34(1) (a) of the Act theOfficer may in cases falling under cl. (a) at any time within 8 years serve on the assessee a notice. The proviso to that section says that where the notice under s. 34 (1) (a) is within time therein limited, the assessment orto be made in pursuance of such notice may be made before the expiry of one year from the date of the service of the notice even if such period exceeds the period of 8 years or 4 years, as the case may be.4 the Amending Act was enacted for saving the validity of notices issued under Section 34(1) of the Act. When that section used a word interpreted by courts in the context of such notices it would be reasonable to assume that the expression was designedly used in the same sense. That apart, the expressions "issued" and "served" are used asterms both in dictionaries and in other statutes.would be seen from this provision that Parliament used the word "serve", "give" and "send" aswords. So too, in Ss. 553, 554 and 555 of the Calcutta Municipal Act, 1951 the two expressions "issued to" or "served upon" are used as equivalent expressions. In the legislative practice of our country the said two expressions are sometimes used to convey the same idea. In other words, the expression "issued" is used in a limited as well as in a wider sense. We must, therefore, give the expression "issued" in S. 4 of the Amending Act that meaning which carries out the intention of the Legislature in preference to that which defeats it. By doing so we will not be departing from the accepted meaning of the expression, but only giving it one of its meanings accepted, which fits into the context or setting in which it appears.11. With this background let us give a closer look to the provisions of S. 4 of the Amending Act. The object of the section is to save the validity of a notice issued beyond the prescribed time. Though the time within which such notice should have been issued under S. 34(1) of the Act as it stood before its amendment by S. 18 of the Finance Act of 1956, had expired, the said notice would be valid. Under S. 34(1) of the Act as we have already pointed out, the time prescribed was only for service of the notice. As the notice mentioned in S. 4 of the Amending Act is linked with the time prescribed under the Act, the section becomes unworkable if the narrow meaning is given to the expression "issued". On the other hand, if we give wider meaning to the word, the section would be consistent with the provisions of S. 34(1) of the Act. Moreover the narrow meaning would introduce anomalies in the section : while the notice, assessment orwere saved, the intermediate stage of service would be avoided. To put it in other words, if the proceedings were only at the stage of issue of notice, the notice could not be questioned, but if it was served, it could be questioned; though it was served beyond time if the assessment was completed, its validity could not be questioned. The result would be that the validity of an assessment proceeding would depend upon the stage at which the assessee seeks to question it. That could not have been the intention of the Legislature. All these anomalies would disappear if the expression was given the wider meaning.12. To summarize : The clear intention of the Legislature is to save the validity of the notice as well as the assessment from an attack on the ground that the notice was given beyond the prescribed period. That intention would be effectuated if the wider meaning is given to the expression "issued". The dictionary meaning of the expression "issued" takes in the entire process of sending the notice as well as the service thereof. The said word used in S. 34(1) of the Act itself was interpreted by courts to mean "served". The limited meaning, namely, "sent" will exclude from the operation of the provision a class of cases and introduce anomalies. In the circumstances, by interpretation, we accept the wider meaning the word "issued" bears. In this view, though the notices were served beyond the prescribed time, they were saved under S. 4 of Amending Act. No other point was raised before us.
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Veerappa Pillai Vs. Raman & Raman Ltd. And Others | urged two narrower grounds as sufficient for his purposes. Firstly, he urged that however wide the jurisdiction of the High Court might be under Art. 226, it could never exercise its powers under the Article in such a manner as to convert itself into a Court of appeal sitting in judgment over every tribunal or authority in the State discharging administrative or quasi-judicial functions. Secondly, he maintained that the Motor Vehicles Act with the rules framed thereunder dealing with the grant of permits is a self-contained code and that in respect of the rights and liabilities created by such a statute the manner of enforcement must be sought within the statute itself. It was further urged by him that in any event, the High Court could not substitute its own view or discretion for the view taken or discretion exercised by the specified authorities, even if it was erroneous or unsound.30. Such writs as are referred to in Art. 226 are obviously intended to enable the High Court to issue them in grave cases where the subordinate tribunals or bodies or officers act wholly without jurisdiction, or in excess of it, or in violation of the principles of natural justice, or refuse to exercise a jurisdiction vested in them, or there is an error apparent on the face of the record, and such act, omission, error, or excess has resulted in manifest injustice. However extensive the jurisdiction may be, it seems to us that it is not so wide or large as to enable the High Court to convert itself into a Court of appeal and examine for itself the correctness of the decisions impugned and decide what is the proper view to be taken or the order to be made.31. Mr. Daphtary, who appeared for the respondent, said nothing to controvert this position. His argument was that if all along the authorities and the Government had proceeded upon a particular footing and dealt with the rights of the parties on that basis, it was not open to them afterwards to change front and give the go-by altogether to the conception of the rights of parties entertained, by them till then. According to him, there was manifest injustice to his client in allowing them to do so and this was the reason which impelled the High Court to make the order which is the subject-matter of challenge in this appeal.32. The Motor Vehicles Act is a statute which creates new rights and liabilities and prescribed an elaborate procedure for their regulation. No one is entitled to a permit as of right even if he satisfies all the prescribed conditions. The grant of a permit is entirely within the discretion of the transport authorities and naturally depends on several circumstances which have to be taken into account. The Regional Transport Authority and the Provincial Transport Authority are entrusted under S. 42 with this power. They may be described as administrative bodies exercising quasi-judicial functions in the matter of the grant of permits. Under R. 3 of the Madras Motor Vehicles Rules, the Regional Transport Authority is called the Road Traffic Board and the Provincial Transport Authority is called the Central Road Traffic Board. These bodies or authorities are constituted by the Provincial Government.33. The matters which are to be taken into account in granting or refusing a stage carriage permit are specified in S. 47. By delegation under R. 134-A, the Secretary of the Road Traffic Board may exercise certain powers as regards the grant or refusal of stage carriage permits and under R. 136, there is an appeal to the Board from these orders. Similar powers of delegation are vested in the Secretary to the Central Board and an appeal lies to the Central Board under R. 148 (1). From an original order of the Road Traffic Board there is an appeal to the Central Board and from the original orders of the Central Board to the Government, vide rules 147 and 148. An amendment introduced by the Madras Act XX (20) of 1948 and found as S. 64-A in the Act vests a power of revision in the Provincial Government.34. Besides this specific provision, there is a general provision in S. 43-A, that the Provincial Government may issue such orders and directions of a general character as it may consider necessary to the Provincial Transport authority or a Regional Transport Authority in respect of any matter relating to road transport; and such transport authority shall give effect to all such orders and directions. There is therefore, the regular hierarchy of administrative bodies established to deal with the regulation of Transport by means of motor vehicles.35. Thus we have before us a complete and precise scheme for regulating the issue of permits, providing what matters are to be taken into consideration as relevant, and prescribing appeals and revisions from subordinate bodies to higher authorities. The remedies for the redress of grievances or the correction of errors are found in the statute itself and it is to these remedies that resort must generally be had. As observed already, the issue or refusal of permits is solely within the discretion of the transport authorities and it is not a matter of right.36. We are accordingly of opinion that this was not a case for interference with the discretion that was exercised by Transport Authorities paying regard to all the facts and the surrounding circumstances.37. Further, it will be noticed that the High Court here did not content itself with merely quashing the proceedings, it went further and directed the Regional Transport Authority, Tanjore, to grant to the petitioner permits in respect of the five buses in respect of which a joint application was made originally by the petitioner and Balasubramania Pillai and that in case the above buses have been condemned, the petitioner shall be at liberty to provide substitutes within such times as may be prescribed by the authorities.38. Such a direction was clearly in excess of its powers and jurisdiction.39. | 1[ds]Such writs as are referred to in Art. 226 are obviously intended to enable the High Court to issue them in grave cases where the subordinate tribunals or bodies or officers act wholly without jurisdiction, or in excess of it, or in violation of the principles of natural justice, or refuse to exercise a jurisdiction vested in them, or there is an error apparent on the face of the record, and such act, omission, error, or excess has resulted in manifest injustice. However extensive the jurisdiction may be, it seems to us that it is not so wide or large as to enable the High Court to convert itself into a Court of appeal and examine for itself the correctness of the decisions impugned and decide what is the proper view to be taken or the order to beremedies for the redress of grievances or the correction of errors are found in the statute itself and it is to these remedies that resort must generally be had. As observed already, the issue or refusal of permits is solely within the discretion of the transport authorities and it is not a matter of right.We are accordingly of opinion that this was not a case for interference with the discretion that was exercised by Transport Authorities paying regard to all the facts and the surrounding circumstances. | 1 | 4,536 | 242 | ### Instruction:
Forecast the likely verdict of the case (granting (1) or denying (0) the appeal) and then rationalize your prediction by pinpointing and explaining pivotal sentences in the case document.
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urged two narrower grounds as sufficient for his purposes. Firstly, he urged that however wide the jurisdiction of the High Court might be under Art. 226, it could never exercise its powers under the Article in such a manner as to convert itself into a Court of appeal sitting in judgment over every tribunal or authority in the State discharging administrative or quasi-judicial functions. Secondly, he maintained that the Motor Vehicles Act with the rules framed thereunder dealing with the grant of permits is a self-contained code and that in respect of the rights and liabilities created by such a statute the manner of enforcement must be sought within the statute itself. It was further urged by him that in any event, the High Court could not substitute its own view or discretion for the view taken or discretion exercised by the specified authorities, even if it was erroneous or unsound.30. Such writs as are referred to in Art. 226 are obviously intended to enable the High Court to issue them in grave cases where the subordinate tribunals or bodies or officers act wholly without jurisdiction, or in excess of it, or in violation of the principles of natural justice, or refuse to exercise a jurisdiction vested in them, or there is an error apparent on the face of the record, and such act, omission, error, or excess has resulted in manifest injustice. However extensive the jurisdiction may be, it seems to us that it is not so wide or large as to enable the High Court to convert itself into a Court of appeal and examine for itself the correctness of the decisions impugned and decide what is the proper view to be taken or the order to be made.31. Mr. Daphtary, who appeared for the respondent, said nothing to controvert this position. His argument was that if all along the authorities and the Government had proceeded upon a particular footing and dealt with the rights of the parties on that basis, it was not open to them afterwards to change front and give the go-by altogether to the conception of the rights of parties entertained, by them till then. According to him, there was manifest injustice to his client in allowing them to do so and this was the reason which impelled the High Court to make the order which is the subject-matter of challenge in this appeal.32. The Motor Vehicles Act is a statute which creates new rights and liabilities and prescribed an elaborate procedure for their regulation. No one is entitled to a permit as of right even if he satisfies all the prescribed conditions. The grant of a permit is entirely within the discretion of the transport authorities and naturally depends on several circumstances which have to be taken into account. The Regional Transport Authority and the Provincial Transport Authority are entrusted under S. 42 with this power. They may be described as administrative bodies exercising quasi-judicial functions in the matter of the grant of permits. Under R. 3 of the Madras Motor Vehicles Rules, the Regional Transport Authority is called the Road Traffic Board and the Provincial Transport Authority is called the Central Road Traffic Board. These bodies or authorities are constituted by the Provincial Government.33. The matters which are to be taken into account in granting or refusing a stage carriage permit are specified in S. 47. By delegation under R. 134-A, the Secretary of the Road Traffic Board may exercise certain powers as regards the grant or refusal of stage carriage permits and under R. 136, there is an appeal to the Board from these orders. Similar powers of delegation are vested in the Secretary to the Central Board and an appeal lies to the Central Board under R. 148 (1). From an original order of the Road Traffic Board there is an appeal to the Central Board and from the original orders of the Central Board to the Government, vide rules 147 and 148. An amendment introduced by the Madras Act XX (20) of 1948 and found as S. 64-A in the Act vests a power of revision in the Provincial Government.34. Besides this specific provision, there is a general provision in S. 43-A, that the Provincial Government may issue such orders and directions of a general character as it may consider necessary to the Provincial Transport authority or a Regional Transport Authority in respect of any matter relating to road transport; and such transport authority shall give effect to all such orders and directions. There is therefore, the regular hierarchy of administrative bodies established to deal with the regulation of Transport by means of motor vehicles.35. Thus we have before us a complete and precise scheme for regulating the issue of permits, providing what matters are to be taken into consideration as relevant, and prescribing appeals and revisions from subordinate bodies to higher authorities. The remedies for the redress of grievances or the correction of errors are found in the statute itself and it is to these remedies that resort must generally be had. As observed already, the issue or refusal of permits is solely within the discretion of the transport authorities and it is not a matter of right.36. We are accordingly of opinion that this was not a case for interference with the discretion that was exercised by Transport Authorities paying regard to all the facts and the surrounding circumstances.37. Further, it will be noticed that the High Court here did not content itself with merely quashing the proceedings, it went further and directed the Regional Transport Authority, Tanjore, to grant to the petitioner permits in respect of the five buses in respect of which a joint application was made originally by the petitioner and Balasubramania Pillai and that in case the above buses have been condemned, the petitioner shall be at liberty to provide substitutes within such times as may be prescribed by the authorities.38. Such a direction was clearly in excess of its powers and jurisdiction.39.
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Such writs as are referred to in Art. 226 are obviously intended to enable the High Court to issue them in grave cases where the subordinate tribunals or bodies or officers act wholly without jurisdiction, or in excess of it, or in violation of the principles of natural justice, or refuse to exercise a jurisdiction vested in them, or there is an error apparent on the face of the record, and such act, omission, error, or excess has resulted in manifest injustice. However extensive the jurisdiction may be, it seems to us that it is not so wide or large as to enable the High Court to convert itself into a Court of appeal and examine for itself the correctness of the decisions impugned and decide what is the proper view to be taken or the order to beremedies for the redress of grievances or the correction of errors are found in the statute itself and it is to these remedies that resort must generally be had. As observed already, the issue or refusal of permits is solely within the discretion of the transport authorities and it is not a matter of right.We are accordingly of opinion that this was not a case for interference with the discretion that was exercised by Transport Authorities paying regard to all the facts and the surrounding circumstances.
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The State Of Bihar Vs. Kumar Amar Singh And Others(And Connected Appeal) | July, 1950, challenging the validity of the notification dated the 2nd September 1949, issued by the Deputy Custodian under the Bihar Administration of Evacuee Property Ordinance, 1949, declaring the wakf estate as evacuee property and taking possession thereof. Three main grounds on which this has been contested are as follows: (1) Kumar Rani was not an evacuee. (2) She had written a letter dated the 2nd June, 1949, addressed to her , second son, Kumar Fateh Singh, whereby she relin- quished the office of mutwalli in the wakf estate, and therefore by virtue of the said letter and in pursuance of the terms of the original deed of wakf, her three sons, respondents I to 3, had become the joint mutwallis as well as the owners of the beneficial interest in the wakf estate. It being undisputed that these three remained in India throughout, it is contended that the property at the date of the notification was the property of these three sons and not of Kumar Rani and that, therefore, the Bihar Administration of Evacuee Property Ordinance, 1949, has no application to the facts. (3) The Bihar Administration of Evacuee Property Ordinance, 1949, is not applicable to wakf property and to the beneficial interest of the applicants therein. So far as the first point is concerned an "evacuee" is defined as follows in the Bihar Administration of Evacuee Property Ordinance, 1949:"A person who, on account of the setting up of the Dominions of India and Pakistan or on account of civil disturbances or the fear of such disturbances, leaves or has, on or after the 1st day of November, 1946, left, any place in the Province of Bihar for any place outside the territories now forming part of India".It is clear that, as already found above, Kumar Rani migrated to Pakistan from India after the 1st March, 1947. In view of the fact that her plea as to the reason for such migration has not been accepted, she can well be taken to have left India for Pakistan in the circumstances set out in this definition, and after the prescribed date. She has, therefore, been rightly taken to be an "evacuee" by the Custodian. As regards the second point, the alleged relinquishment of the office of mutwalli by Kumar Rani and the vesting of the interest in the wakf property in her three sons, respondents 1 to 3, as joint mutwallis thereof, by virtue of the terms of the deed of wakf, is based on a letter addressed to the second respondent, her second son Kumar Fateh Singh, purporting to have been written by her and dated the 2nd June, 1949. The genuineness of this letter has been challenged and it is the issue as to it genuineness that was remanded to the High Court for a finding by the previous order of this Court. The 7 High Court having taken evidence on the matters at the hearing after remand and having considered the same, has clearly found that the letter was not genuine. We have gone through the finding and the material relevant thereto, and can find no reason not to accept it. There is, therefore, no substance in this second contention. As regards the third point, the contention is based on the definition of the phrase "evacuee property" in the Bihar Administration of Evacuee Property Ordinance, 1949, which is as follows:"Evacuee property means any property in which an evacuee has any right or interest or which is held by him under any deed of trust or other instrument". It is contended that this definition does not apply either to the wakf property or to the beneficial interest of the mutwalli therein and that, therefore, the property in question did not vest in the Custodian. Now, as already stated, the original notification vesting the wakf property in the Custodian was made under section 5 of the Bihar Administration of Evacuee Property Ordinance, 1949. This Ordinance was repealed by section 55(2) of Central Ordinance No. XXVII of 1949. The Central Ordinance defined "evacuee property" as "any property in which an evacuee has any right or interest, whether personal or as a trustee or as beneficiary or in any other capacity".8. The Central Ordinance was in turn repealed by Cenral Act No. XXXI of 1950 and "evacuee property" has been defined therein as meaning"any property of an evacuee whether held by him as owner or as a trustee or as a beneficiary or as a tenant or in any other capacity".The word "property" is defined as meaning " property of any kind and includes any right or interest in such property".9. The Central Ordinance which repealed the Bihar Ordinance as well as the Central Act which repealed the Central Ordinance, each contain section 8(2) providing that" where immediately before the commencement of this Ordinance (Act) any evacuee property in a Province has vested in any person exercising the power of Custodian under any law repealed hereby, the evacuee property shall on the commencement of the Ordinance (Act) be deemed to have been vested in the Custodian appointed or deemed to have been appointed for the Province under the Ordinance (Act) and shall continue to so vest".10. The definitions of the phrase "evacuee property" in the Central Ordinance and by the Central Act are clear and unambiguous so as to include the interest of an evacuee in any property held as a trustee or beneficiary. There is no reason to think that "evacuee property" as defined in the Bihar Ordinance was meant to be anything different. The words used in this definition are of sufficient amplitude and we are of the opinion that the Bihar definition comprised also wak property and interest therein. We are also of the opinion that the successive repeals of the Bihar Ordinance by the Central Ordinance and the Central Act and the continuance of the vesting in the Custodian, places the matter beyond any doubt. This contention must, therefore, fail. This appeal also must accordingly succeed.11. | 1[ds]The definitions of the phrase "evacuee property" in the Central Ordinance and by the Central Act are clear and unambiguous so as to include the interest of an evacuee in any property held as a trustee or beneficiary. There is no reason to think that "evacuee property" as defined in the Bihar Ordinance was meant to be anything different. The words used in this definition are of sufficient amplitude and we are of the opinion that the Bihar definition comprised also wak property and interest therein. We are also of the opinion that the successive repeals of the Bihar Ordinance by the Central Ordinance and the Central Act and the continuance of the vesting in the Custodian, places the matter beyond any doubt. This contention must, therefore, fail. This appeal also must accordinglylearned Judges of the High Court apparently had article 5 of the Constitution in mind and acted on the view of the English law that the wifes domicile continues throughout to be that of her husband during the continuance of marriage. It appears to us, with respect, that the learned Judges of the High Court completely overlooked article 7 of the Constitution.Even if therefore article 5 can be said to be applicable to her on the assumption that Captain Narayan Singh was her husband and that her domicile was that of her husband, the facts bring her case underArticle 7 clearly overridesIt is peremptory in its scope and makes no exception for such a case, i.e., of the wife migrating to Pakistan leaving her husband in India. Even such a wife must be deemed not to be a citizen of India unless the particular facts bring her case within the proviso toThis proviso is asthat nothing in this article shall apply to a person who, after having so migrated to the territory now included in Pakistan, has returned to the territory of India under a permit for resettlement or permanent return issued by or under the authority of anythe present case, the permit has been cancelled in a reasoned order on the ground that, on the facts of the case, the consent of the State Government concerned should have been obtained before the permit could be issued. This is a case, therefore, not of a valid permanent permit having been issued and the permit holder returning to India on the strength thereof and the same having been arbitrarily cancelled. It is a case of an unauthorised issue of an invalid permit which has been properly cancelled. Hence the proviso to article 7 can have no possible application. The applicant, is, therefore, not a citizen of India and the order passed by the Sub-Inspector of Police, Gaya, dated the 23rd July, 1950, directing Kumar Rani to leave India was accordingly valid. This appeal must therefore succeed.In view of the fact that her plea as to the reason for such migration has not been accepted, she can well be taken to have left India for Pakistan in the circumstances set out in this definition, and after the prescribed date. She has, therefore, been rightly taken to be an "evacuee" by the Custodian. As regards the second point, the alleged relinquishment of the office of mutwalli by Kumar Rani and the vesting of the interest in the wakf property in her three sons, respondents 1 to 3, as joint mutwallis thereof, by virtue of the terms of the deed of wakf, is based on a letter addressed to the second respondent, her second son Kumar Fateh Singh, purporting to have been written by her and dated the 2nd June, 1949. The genuineness of this letter has been challenged and it is the issue as to it genuineness that was remanded to the High Court for a finding by the previous order of this Court. The 7 High Court having taken evidence on the matters at the hearing after remand and having considered the same, has clearly found that the letter was not genuine. We have gone through the finding and the material relevant thereto, and can find no reason not to accept it. There is, therefore, no substance in this seconddefinitions of the phrase "evacuee property" in the Central Ordinance and by the Central Act are clear and unambiguous so as to include the interest of an evacuee in any property held as a trustee or beneficiary. There is no reason to think that "evacuee property" as defined in the Bihar Ordinance was meant to be anything different. The words used in this definition are of sufficient amplitude and we are of the opinion that the Bihar definition comprised also wak property and interest therein. We are also of the opinion that the successive repeals of the Bihar Ordinance by the Central Ordinance and the Central Act and the continuance of the vesting in the Custodian, places the matter beyond any doubt. This contention must, therefore, fail. This appeal also must accordingly | 1 | 3,322 | 899 | ### 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:
July, 1950, challenging the validity of the notification dated the 2nd September 1949, issued by the Deputy Custodian under the Bihar Administration of Evacuee Property Ordinance, 1949, declaring the wakf estate as evacuee property and taking possession thereof. Three main grounds on which this has been contested are as follows: (1) Kumar Rani was not an evacuee. (2) She had written a letter dated the 2nd June, 1949, addressed to her , second son, Kumar Fateh Singh, whereby she relin- quished the office of mutwalli in the wakf estate, and therefore by virtue of the said letter and in pursuance of the terms of the original deed of wakf, her three sons, respondents I to 3, had become the joint mutwallis as well as the owners of the beneficial interest in the wakf estate. It being undisputed that these three remained in India throughout, it is contended that the property at the date of the notification was the property of these three sons and not of Kumar Rani and that, therefore, the Bihar Administration of Evacuee Property Ordinance, 1949, has no application to the facts. (3) The Bihar Administration of Evacuee Property Ordinance, 1949, is not applicable to wakf property and to the beneficial interest of the applicants therein. So far as the first point is concerned an "evacuee" is defined as follows in the Bihar Administration of Evacuee Property Ordinance, 1949:"A person who, on account of the setting up of the Dominions of India and Pakistan or on account of civil disturbances or the fear of such disturbances, leaves or has, on or after the 1st day of November, 1946, left, any place in the Province of Bihar for any place outside the territories now forming part of India".It is clear that, as already found above, Kumar Rani migrated to Pakistan from India after the 1st March, 1947. In view of the fact that her plea as to the reason for such migration has not been accepted, she can well be taken to have left India for Pakistan in the circumstances set out in this definition, and after the prescribed date. She has, therefore, been rightly taken to be an "evacuee" by the Custodian. As regards the second point, the alleged relinquishment of the office of mutwalli by Kumar Rani and the vesting of the interest in the wakf property in her three sons, respondents 1 to 3, as joint mutwallis thereof, by virtue of the terms of the deed of wakf, is based on a letter addressed to the second respondent, her second son Kumar Fateh Singh, purporting to have been written by her and dated the 2nd June, 1949. The genuineness of this letter has been challenged and it is the issue as to it genuineness that was remanded to the High Court for a finding by the previous order of this Court. The 7 High Court having taken evidence on the matters at the hearing after remand and having considered the same, has clearly found that the letter was not genuine. We have gone through the finding and the material relevant thereto, and can find no reason not to accept it. There is, therefore, no substance in this second contention. As regards the third point, the contention is based on the definition of the phrase "evacuee property" in the Bihar Administration of Evacuee Property Ordinance, 1949, which is as follows:"Evacuee property means any property in which an evacuee has any right or interest or which is held by him under any deed of trust or other instrument". It is contended that this definition does not apply either to the wakf property or to the beneficial interest of the mutwalli therein and that, therefore, the property in question did not vest in the Custodian. Now, as already stated, the original notification vesting the wakf property in the Custodian was made under section 5 of the Bihar Administration of Evacuee Property Ordinance, 1949. This Ordinance was repealed by section 55(2) of Central Ordinance No. XXVII of 1949. The Central Ordinance defined "evacuee property" as "any property in which an evacuee has any right or interest, whether personal or as a trustee or as beneficiary or in any other capacity".8. The Central Ordinance was in turn repealed by Cenral Act No. XXXI of 1950 and "evacuee property" has been defined therein as meaning"any property of an evacuee whether held by him as owner or as a trustee or as a beneficiary or as a tenant or in any other capacity".The word "property" is defined as meaning " property of any kind and includes any right or interest in such property".9. The Central Ordinance which repealed the Bihar Ordinance as well as the Central Act which repealed the Central Ordinance, each contain section 8(2) providing that" where immediately before the commencement of this Ordinance (Act) any evacuee property in a Province has vested in any person exercising the power of Custodian under any law repealed hereby, the evacuee property shall on the commencement of the Ordinance (Act) be deemed to have been vested in the Custodian appointed or deemed to have been appointed for the Province under the Ordinance (Act) and shall continue to so vest".10. The definitions of the phrase "evacuee property" in the Central Ordinance and by the Central Act are clear and unambiguous so as to include the interest of an evacuee in any property held as a trustee or beneficiary. There is no reason to think that "evacuee property" as defined in the Bihar Ordinance was meant to be anything different. The words used in this definition are of sufficient amplitude and we are of the opinion that the Bihar definition comprised also wak property and interest therein. We are also of the opinion that the successive repeals of the Bihar Ordinance by the Central Ordinance and the Central Act and the continuance of the vesting in the Custodian, places the matter beyond any doubt. This contention must, therefore, fail. This appeal also must accordingly succeed.11.
### Response:
1
### Explanation:
The definitions of the phrase "evacuee property" in the Central Ordinance and by the Central Act are clear and unambiguous so as to include the interest of an evacuee in any property held as a trustee or beneficiary. There is no reason to think that "evacuee property" as defined in the Bihar Ordinance was meant to be anything different. The words used in this definition are of sufficient amplitude and we are of the opinion that the Bihar definition comprised also wak property and interest therein. We are also of the opinion that the successive repeals of the Bihar Ordinance by the Central Ordinance and the Central Act and the continuance of the vesting in the Custodian, places the matter beyond any doubt. This contention must, therefore, fail. This appeal also must accordinglylearned Judges of the High Court apparently had article 5 of the Constitution in mind and acted on the view of the English law that the wifes domicile continues throughout to be that of her husband during the continuance of marriage. It appears to us, with respect, that the learned Judges of the High Court completely overlooked article 7 of the Constitution.Even if therefore article 5 can be said to be applicable to her on the assumption that Captain Narayan Singh was her husband and that her domicile was that of her husband, the facts bring her case underArticle 7 clearly overridesIt is peremptory in its scope and makes no exception for such a case, i.e., of the wife migrating to Pakistan leaving her husband in India. Even such a wife must be deemed not to be a citizen of India unless the particular facts bring her case within the proviso toThis proviso is asthat nothing in this article shall apply to a person who, after having so migrated to the territory now included in Pakistan, has returned to the territory of India under a permit for resettlement or permanent return issued by or under the authority of anythe present case, the permit has been cancelled in a reasoned order on the ground that, on the facts of the case, the consent of the State Government concerned should have been obtained before the permit could be issued. This is a case, therefore, not of a valid permanent permit having been issued and the permit holder returning to India on the strength thereof and the same having been arbitrarily cancelled. It is a case of an unauthorised issue of an invalid permit which has been properly cancelled. Hence the proviso to article 7 can have no possible application. The applicant, is, therefore, not a citizen of India and the order passed by the Sub-Inspector of Police, Gaya, dated the 23rd July, 1950, directing Kumar Rani to leave India was accordingly valid. This appeal must therefore succeed.In view of the fact that her plea as to the reason for such migration has not been accepted, she can well be taken to have left India for Pakistan in the circumstances set out in this definition, and after the prescribed date. She has, therefore, been rightly taken to be an "evacuee" by the Custodian. As regards the second point, the alleged relinquishment of the office of mutwalli by Kumar Rani and the vesting of the interest in the wakf property in her three sons, respondents 1 to 3, as joint mutwallis thereof, by virtue of the terms of the deed of wakf, is based on a letter addressed to the second respondent, her second son Kumar Fateh Singh, purporting to have been written by her and dated the 2nd June, 1949. The genuineness of this letter has been challenged and it is the issue as to it genuineness that was remanded to the High Court for a finding by the previous order of this Court. The 7 High Court having taken evidence on the matters at the hearing after remand and having considered the same, has clearly found that the letter was not genuine. We have gone through the finding and the material relevant thereto, and can find no reason not to accept it. There is, therefore, no substance in this seconddefinitions of the phrase "evacuee property" in the Central Ordinance and by the Central Act are clear and unambiguous so as to include the interest of an evacuee in any property held as a trustee or beneficiary. There is no reason to think that "evacuee property" as defined in the Bihar Ordinance was meant to be anything different. The words used in this definition are of sufficient amplitude and we are of the opinion that the Bihar definition comprised also wak property and interest therein. We are also of the opinion that the successive repeals of the Bihar Ordinance by the Central Ordinance and the Central Act and the continuance of the vesting in the Custodian, places the matter beyond any doubt. This contention must, therefore, fail. This appeal also must accordingly
|
State Of W.B Vs. Narayan K. Patodia | which the offence is investigated or tried." 13. The Constitution Bench which decided A.R. Antulay v. R.S. Nayak, 1984(2) SCC 500 has cautioned that the Code is the parent statute which provides for investigations, inquiry into, and trial of cases and unless there is specific provision in other statute to indicate a different procedure to be followed, the provisions of the Code cannot be displaced. Taking cue from the said ratio this Court held recently in Gangula Ashok v. State of Andhra Pradesh, 2000(1) RCR 797 : JT 2001(1) SC 379 while interpreting Section 4(2) of the Code as follows : "A reading of the sub-section makes it clear that subject to the provisions in other enactments all offences under other laws shall also be investigated, inquired into, tried and otherwise dealt with under the provisions of the Code. This means that if other enactment contains any provision which is contrary to the provisions of the Code, such other functions would apply in place of the particular provisions of the Code. If there is no such contrary provision in other laws, then provisions of the Code would apply to the matters covered thereby." 14. We did not come across any provision in the Sales Tax Act which inhibits the powers of the police as conferred by the Code. Chapter X of the Act deals with "Offences and penalties." Section 88 falls within the said chapter. Sub-section (1)(c) reads thus : "Whoever - (c) fails to make payment of interest payable under Section 31 or Section 32;......................... shall be punishable with simple imprisonment which may extend to six months or with fine not exceeding one thousand rupees or with both..................." Sections 88(6) & (7) are also extracted below : "(6) Whoever wilfully attempts in any manner to evade or defeat any tax imposed under this Act, shall, in addition to any other penalty provided by any law for the time being in force, be liable also for the offence of dishonest misappropriate of property under Section 403 of the Indian Penal Code, and shall be punishable with imprisonment of either description which shall not be less than three months but which may extend to two years or with fine not exceeding ten thousand rupees or with both.(7) Whoever knowingly produces incorrect accounts, registers or documents, or knowingly furnishes incorrect information or suppresses material information shall be punishable with imprisonment of either description which shall not be less than three months but which may extend to two years or with fine not exceeding ten thousand rupees or with both." 15. The offence envisaged in sub-section (6) is specifically created as supplemental to any other penalty provided by any law for the time being in force. This means, offences falling under the Indian Penal Code and committed by a person while committing the offence contemplated in sub-section (6) cannot get displaced for the sole reason that the accused has committed the offence falling under sub-section (6) of Section 88.16. Section 7(1) of the Sales Tax Act empowers the State Government to constitute a Bureau of Investigation for discharging the functions referred to in sub-section (3) thereof. It empowers the Bureau to carry on the investigation or hold enquiry into any case or alleged or suspected case of evasion of tax or malpractice created thereof and send a report of it to Commissioner. A reading of Section 7 makes it clear that creation of Bureau of Investigation for the purpose of discharging the function envisaged in sub-section (3) which, of course, includes investigation also. But there is nothing in Section 7 that such investigation can be carried on "only" by the Bureau and not any other investigating agency. It is open to the Bureau to get the assistance of any other legally constituted investigating agency for effectively inquiring into all the ramifications of the offence. As in this case if offences falling under the Indian Penal Code or any other enactment are also detected during the course of investigation conducted by the Bureau there is no inhibition to pass over the investigation to the regular police.17. If the view of the learned singe Judge gets approval it would lead to startling consequences. The consequences of such an interpretation would be that if the person who commits the offence under Section 88 of the Act also commits other serious offences falling under Indian Penal Code as part of the same transaction neither the regular police nor any special police force nor even the Central Bureau of Investigation can be authorised to conduct investigation. The accused in such cases would then be well ensconced insulated from the legal consequences of proper and effective investigation. Criminal justice would be the serious casualty then.18. That apart, how could the FIR be quashed if the investigating agency should have been different ? By lodging FIR alone no investigation is conducted by the police. It is the first step towards starting investigation by the police. If High Court was of the opinion that investigation has to be conducted by the Bureau then also there was no need to quash the FIR. Any way we take the view that as offences under the Indian Penal Code are also involved, efficacious investigation can be conducted by entrusting it to the police investigating agency. Inherent powers of the High Court as recognised in Section 482 of the Code are reserved to be used "to give effect to any orders under the Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice." It is quite unfortunate that learned single Judge overlooked the reality that by quashing the FIR in the case the High Court did not achieve any one of the above factors. On the contrary, the result of quashing the FIR had rendered the allegations of offences made against a person to remain consigned in stupor perennially. Hence, instead of achieving ends of criminal justice, the impugned order would achieve the reverse of it. | 1[ds]15. The offence envisaged in(6) is specifically created as supplemental to any other penalty provided by any law for the time being in force. This means, offences falling under the Indian Penal Code and committed by a person while committing the offence contemplated in(6) cannot get displaced for the sole reason that the accused has committed the offence falling under(6) of Section 88.16. Section 7(1) of the Sales Tax Act empowers the State Government to constitute a Bureau of Investigation for discharging the functions referred to in(3) thereof. It empowers the Bureau to carry on the investigation or hold enquiry into any case or alleged or suspected case of evasion of tax or malpractice created thereof and send a report of it to Commissioner. A reading of Section 7 makes it clear that creation of Bureau of Investigation for the purpose of discharging the function envisaged in(3) which, of course, includes investigation also. But there is nothing in Section 7 that such investigation can be carried on "only" by the Bureau and not any other investigating agency. It is open to the Bureau to get the assistance of any other legally constituted investigating agency for effectively inquiring into all the ramifications of the offence. As in this case if offences falling under the Indian Penal Code or any other enactment are also detected during the course of investigation conducted by the Bureau there is no inhibition to pass over the investigation to the regular police.17. If the view of the learned singe Judge gets approval it would lead to startling consequences. The consequences of such an interpretation would be that if the person who commits the offence under Section 88 of the Act also commits other serious offences falling under Indian Penal Code as part of the same transaction neither the regular police nor any special police force nor even the Central Bureau of Investigation can be authorised to conduct investigation. The accused in such cases would then be well ensconced insulated from the legal consequences of proper and effective investigation. Criminal justice would be the serious casualty then.18. That apart, how could the FIR be quashed if the investigating agency should have been different ? By lodging FIR alone no investigation is conducted by the police. It is the first step towards starting investigation by the police. If High Court was of the opinion that investigation has to be conducted by the Bureau then also there was no need to quash the FIR. Any way we take the view that as offences under the Indian Penal Code are also involved, efficacious investigation can be conducted by entrusting it to the police investigating agency. Inherent powers of the High Court as recognised in Section 482 of the Code are reserved to be used "to give effect to any orders under the Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice." It is quite unfortunate that learned single Judge overlooked the reality that by quashing the FIR in the case the High Court did not achieve any one of the above factors. On the contrary, the result of quashing the FIR had rendered the allegations of offences made against a person to remain consigned in stupor perennially. Hence, instead of achieving ends of criminal justice, the impugned order would achieve the reverse of it. | 1 | 2,801 | 620 | ### Instruction:
Conjecture the end result of the case (acceptance (1) or non-acceptance (0) of the appeal), followed by a detailed explanation using crucial sentences from the case proceeding.
### Input:
which the offence is investigated or tried." 13. The Constitution Bench which decided A.R. Antulay v. R.S. Nayak, 1984(2) SCC 500 has cautioned that the Code is the parent statute which provides for investigations, inquiry into, and trial of cases and unless there is specific provision in other statute to indicate a different procedure to be followed, the provisions of the Code cannot be displaced. Taking cue from the said ratio this Court held recently in Gangula Ashok v. State of Andhra Pradesh, 2000(1) RCR 797 : JT 2001(1) SC 379 while interpreting Section 4(2) of the Code as follows : "A reading of the sub-section makes it clear that subject to the provisions in other enactments all offences under other laws shall also be investigated, inquired into, tried and otherwise dealt with under the provisions of the Code. This means that if other enactment contains any provision which is contrary to the provisions of the Code, such other functions would apply in place of the particular provisions of the Code. If there is no such contrary provision in other laws, then provisions of the Code would apply to the matters covered thereby." 14. We did not come across any provision in the Sales Tax Act which inhibits the powers of the police as conferred by the Code. Chapter X of the Act deals with "Offences and penalties." Section 88 falls within the said chapter. Sub-section (1)(c) reads thus : "Whoever - (c) fails to make payment of interest payable under Section 31 or Section 32;......................... shall be punishable with simple imprisonment which may extend to six months or with fine not exceeding one thousand rupees or with both..................." Sections 88(6) & (7) are also extracted below : "(6) Whoever wilfully attempts in any manner to evade or defeat any tax imposed under this Act, shall, in addition to any other penalty provided by any law for the time being in force, be liable also for the offence of dishonest misappropriate of property under Section 403 of the Indian Penal Code, and shall be punishable with imprisonment of either description which shall not be less than three months but which may extend to two years or with fine not exceeding ten thousand rupees or with both.(7) Whoever knowingly produces incorrect accounts, registers or documents, or knowingly furnishes incorrect information or suppresses material information shall be punishable with imprisonment of either description which shall not be less than three months but which may extend to two years or with fine not exceeding ten thousand rupees or with both." 15. The offence envisaged in sub-section (6) is specifically created as supplemental to any other penalty provided by any law for the time being in force. This means, offences falling under the Indian Penal Code and committed by a person while committing the offence contemplated in sub-section (6) cannot get displaced for the sole reason that the accused has committed the offence falling under sub-section (6) of Section 88.16. Section 7(1) of the Sales Tax Act empowers the State Government to constitute a Bureau of Investigation for discharging the functions referred to in sub-section (3) thereof. It empowers the Bureau to carry on the investigation or hold enquiry into any case or alleged or suspected case of evasion of tax or malpractice created thereof and send a report of it to Commissioner. A reading of Section 7 makes it clear that creation of Bureau of Investigation for the purpose of discharging the function envisaged in sub-section (3) which, of course, includes investigation also. But there is nothing in Section 7 that such investigation can be carried on "only" by the Bureau and not any other investigating agency. It is open to the Bureau to get the assistance of any other legally constituted investigating agency for effectively inquiring into all the ramifications of the offence. As in this case if offences falling under the Indian Penal Code or any other enactment are also detected during the course of investigation conducted by the Bureau there is no inhibition to pass over the investigation to the regular police.17. If the view of the learned singe Judge gets approval it would lead to startling consequences. The consequences of such an interpretation would be that if the person who commits the offence under Section 88 of the Act also commits other serious offences falling under Indian Penal Code as part of the same transaction neither the regular police nor any special police force nor even the Central Bureau of Investigation can be authorised to conduct investigation. The accused in such cases would then be well ensconced insulated from the legal consequences of proper and effective investigation. Criminal justice would be the serious casualty then.18. That apart, how could the FIR be quashed if the investigating agency should have been different ? By lodging FIR alone no investigation is conducted by the police. It is the first step towards starting investigation by the police. If High Court was of the opinion that investigation has to be conducted by the Bureau then also there was no need to quash the FIR. Any way we take the view that as offences under the Indian Penal Code are also involved, efficacious investigation can be conducted by entrusting it to the police investigating agency. Inherent powers of the High Court as recognised in Section 482 of the Code are reserved to be used "to give effect to any orders under the Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice." It is quite unfortunate that learned single Judge overlooked the reality that by quashing the FIR in the case the High Court did not achieve any one of the above factors. On the contrary, the result of quashing the FIR had rendered the allegations of offences made against a person to remain consigned in stupor perennially. Hence, instead of achieving ends of criminal justice, the impugned order would achieve the reverse of it.
### Response:
1
### Explanation:
15. The offence envisaged in(6) is specifically created as supplemental to any other penalty provided by any law for the time being in force. This means, offences falling under the Indian Penal Code and committed by a person while committing the offence contemplated in(6) cannot get displaced for the sole reason that the accused has committed the offence falling under(6) of Section 88.16. Section 7(1) of the Sales Tax Act empowers the State Government to constitute a Bureau of Investigation for discharging the functions referred to in(3) thereof. It empowers the Bureau to carry on the investigation or hold enquiry into any case or alleged or suspected case of evasion of tax or malpractice created thereof and send a report of it to Commissioner. A reading of Section 7 makes it clear that creation of Bureau of Investigation for the purpose of discharging the function envisaged in(3) which, of course, includes investigation also. But there is nothing in Section 7 that such investigation can be carried on "only" by the Bureau and not any other investigating agency. It is open to the Bureau to get the assistance of any other legally constituted investigating agency for effectively inquiring into all the ramifications of the offence. As in this case if offences falling under the Indian Penal Code or any other enactment are also detected during the course of investigation conducted by the Bureau there is no inhibition to pass over the investigation to the regular police.17. If the view of the learned singe Judge gets approval it would lead to startling consequences. The consequences of such an interpretation would be that if the person who commits the offence under Section 88 of the Act also commits other serious offences falling under Indian Penal Code as part of the same transaction neither the regular police nor any special police force nor even the Central Bureau of Investigation can be authorised to conduct investigation. The accused in such cases would then be well ensconced insulated from the legal consequences of proper and effective investigation. Criminal justice would be the serious casualty then.18. That apart, how could the FIR be quashed if the investigating agency should have been different ? By lodging FIR alone no investigation is conducted by the police. It is the first step towards starting investigation by the police. If High Court was of the opinion that investigation has to be conducted by the Bureau then also there was no need to quash the FIR. Any way we take the view that as offences under the Indian Penal Code are also involved, efficacious investigation can be conducted by entrusting it to the police investigating agency. Inherent powers of the High Court as recognised in Section 482 of the Code are reserved to be used "to give effect to any orders under the Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice." It is quite unfortunate that learned single Judge overlooked the reality that by quashing the FIR in the case the High Court did not achieve any one of the above factors. On the contrary, the result of quashing the FIR had rendered the allegations of offences made against a person to remain consigned in stupor perennially. Hence, instead of achieving ends of criminal justice, the impugned order would achieve the reverse of it.
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Nathulal Vs. Phoolchand | ).6. Phoolchand could be called upon to pay the balance of the price only after Nathulal performed his part of the contract. Phoolchand had an outstanding arrangement with his Banker to enable him to draw the amount needed by him for payment to Nathulal. To prove himself ready and willing a purchaser has not necessarily to produce the money or to vouch a concluded scheme for financing the transaction: Bank of India Ltd. v. Jamsetji A. H. Chinoy and Messrs. Chinoy and Co., 77 Ind App 76 at p. 91 = (AIR 1950 PC 90 at p. 96).7. The High Court proceeded to decide the case largely upon the view that Nathulal committed breach of contract. But the question whether Nathulal had committed the breach is not of much significance. Nathulal was the owner of the land: he had executed no conveyance in favour of Phoolchand in the land or the factory. Nathulal had sued for possession relying upon his title, and Phoolchand could defeat that claim if he established his defence of part-performance under Section 53A of the Transfer of Property Act.8. The argument raised by counsel for Nathulal, that by virtue of S. 70 (8) of the Madhya Bharat Land Revenue and Tenancy Act, the plea of part performance is not available to a person put in possession of the property under a contract of sale, has, in our judgment, no force. Section 70 (8) provides:"No sale under this section shall be deemed to be valid until the sale deed effecting such a sale has been registered in accordance with the law of registration in force for the time being".But this clause only requires that not only the conditions prescribed by Section 70, but registration of sale deed in accordance with the law of registration for the time being in force is a condition required to be complied with before a sale is deemed valid. There is no sale in the present case, and Phoolchand is not relying upon any sale. He is relying upon a contract of sale and equity which he may set up to defend his possession against the claim made by Nathulal. To the making of such a claim, relying upon the doctrine of part performance in Section 53A of the Transfer of Property Act, there is nothing in Section 70 (8) of the Madhya Bharat Land Revenue and Tenancy Act 66 of 1950 which may operate as a bar.9. The conditions necessary for making out the defence of part performance to an action in ejectment by the owner are:(1) that the transferor has contracted to transfer for consideration any immovable property by writing signed by him or on his behalf from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty;(2) that the transferee has, in part performance of the contract, taken possession of the property or any part thereof, or the transferee, being already in possession continues in possession in part performance of the contract;(3) that the transferee has done some act in furtherance of the contract; and(4) that the transferee has performed or is willing to perform his part of the contract.If these conditions are fulfilled then notwithstanding that the contract, though required to be registered, has not been registered, or, where there is an instrument of transfer, that the transfer has not been completed in the manner prescribed therefor by the law for the time being in force, the transferor or any person claiming under him is debarred from enforcing against the transferee any right in respect of the property of which the transferee has taken or continued in possession, other than a right expressly provided by the terms of the contract.There is in this case a contract to transfer for consideration immovable property by writing signed by Nathulal from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty. In part performance of the contract, Phoolchand has taken possession of the property and he had in pursuance thereof paid an amount of Rs. 22,011. The argument raised by counsel for Nathulal that the act done in pursuance of the contract must be independent of the terms of the contract cannot be accepted. The first three conditions, for the defence of part performance to be effectively set up by Phoolchand exist. Mr. Shroff for Nathulal however contends that Phoolchand was not willing to perform his part of the contract.10. Nathulal had expressly undertaken to have the revenue records rectified by securing the deletion of Chittarmals name, and it was an implied condition of the contract that Nathulal will secure the sanction of the Collector to the transfer under Section 70 (4) of the Madhya Bharat Land Revenue and Tenancy Act 66 of 1950. The first condition was not fulfilled till October 6, 1952 and the second condition was never fulfilled. We are unable to agree with Mr. Shroff that the repeal of the Madhya Bharat Act 66 of 1950 by the Madhya Pradesh Land Revenue Code, 1959, has retrospective operation.11. In considering whether a person is willing to perform his part of the contract the sequence in which the obligations under a contract are to be performed must be taken into account. The argument raised by Mr. Shroff that Nathulal was bound to perform the two conditions only after the amount of Rs. 21,000 was paid is plainly contrary to the terms of the agreement. By virtue of Section 4 of the Transfer of Property Act the chapters and sections of the Transfer of Property Act which relate contracts are to be taken as part of the Indian Contract Act, 1872. If, therefore, under the terms of the contract the obligations of the parties have to be performed in a certain sequence, one of the parties to the contract cannot require compliance with the obligations by the other party without in the first instance performing his own part of the contract which in the sequence of obligations is performable by him earlier. | 0[ds]4. In the view of the Trial Court Phoolchand was unable to procure the amount of Rs. 21,000 which he had agreed to pay on or before May 7, 1951 and on that account he had committed breach of the contract. The High Court held that Nathulal was not guilty of breach of contract, for Phoolchand had arranged with a Bank to borrow upto Rs. 75,000, when needed by him, and Phoolchand had on that account sufficient resources at his disposal to enable him to pay the amount due. The Trial Court and the High Court have held that Phoolchand failed to pay the amount on or before May 7, 1951. They have also held that he had not made the tender as pleaded by him.The argument raised by counsel for Nathulal, that by virtue of S. 70 (8) of the Madhya Bharat Land Revenue and Tenancy Act, the plea of part performance is not available to a person put in possession of the property under a contract ofsale, has, in our judgment, no force. Section 70 (8)sale under this section shall be deemed to be valid until the sale deed effecting such a sale has been registered in accordance with the law of registration in force for the timethis clause only requires that not only the conditions prescribed by Section 70, but registration of sale deed in accordance with the law of registration for the time being in force is a condition required to be complied with before a sale is deemed valid. There is no sale in the present case, and Phoolchand is not relying upon any sale. He is relying upon a contract of sale and equity which he may set up to defend his possession against the claim made by Nathulal. To the making of such a claim, relying upon the doctrine of part performance in Section 53A of the Transfer of Property Act, there is nothing in Section 70 (8) of the Madhya Bharat Land Revenue and Tenancy Act 66 of 1950 which may operate as ais in this case a contract to transfer for consideration immovable property by writing signed by Nathulal from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty. In part performance of the contract, Phoolchand has taken possession of the property and he had in pursuance thereof paid an amount of Rs. 22,011. The argument raised by counsel for Nathulal that the act done in pursuance of the contract must be independent of the terms of the contract cannot be accepted. The first three conditions, for the defence of part performance to be effectively set up by Phoolchand exist.Nathulal had expressly undertaken to have the revenue records rectified by securing the deletion of Chittarmals name, and it was an implied condition of the contract that Nathulal will secure the sanction of the Collector to the transfer under Section 70 (4) of the Madhya Bharat Land Revenue and Tenancy Act 66 of 1950. The first condition was not fulfilled till October 6, 1952 and the second condition was never fulfilled. We are unable to agree with Mr. Shroff that the repeal of the Madhya Bharat Act 66 of 1950 by the Madhya Pradesh Land Revenue Code, 1959, has retrospective operation.11. In considering whether a person is willing to perform his part of the contract the sequence in which the obligations under a contract are to be performed must be taken intovirtue of Section 4 of the Transfer of Property Act the chapters and sections of the Transfer of Property Act which relate contracts are to be taken as part of the Indian Contract Act, 1872. If, therefore, under the terms of the contract the obligations of the parties have to be performed in a certain sequence, one of the parties to the contract cannot require compliance with the obligations by the other party without in the first instance performing his own part of the contract which in the sequence of obligations is performable by him earlier. | 0 | 1,997 | 728 | ### 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:
).6. Phoolchand could be called upon to pay the balance of the price only after Nathulal performed his part of the contract. Phoolchand had an outstanding arrangement with his Banker to enable him to draw the amount needed by him for payment to Nathulal. To prove himself ready and willing a purchaser has not necessarily to produce the money or to vouch a concluded scheme for financing the transaction: Bank of India Ltd. v. Jamsetji A. H. Chinoy and Messrs. Chinoy and Co., 77 Ind App 76 at p. 91 = (AIR 1950 PC 90 at p. 96).7. The High Court proceeded to decide the case largely upon the view that Nathulal committed breach of contract. But the question whether Nathulal had committed the breach is not of much significance. Nathulal was the owner of the land: he had executed no conveyance in favour of Phoolchand in the land or the factory. Nathulal had sued for possession relying upon his title, and Phoolchand could defeat that claim if he established his defence of part-performance under Section 53A of the Transfer of Property Act.8. The argument raised by counsel for Nathulal, that by virtue of S. 70 (8) of the Madhya Bharat Land Revenue and Tenancy Act, the plea of part performance is not available to a person put in possession of the property under a contract of sale, has, in our judgment, no force. Section 70 (8) provides:"No sale under this section shall be deemed to be valid until the sale deed effecting such a sale has been registered in accordance with the law of registration in force for the time being".But this clause only requires that not only the conditions prescribed by Section 70, but registration of sale deed in accordance with the law of registration for the time being in force is a condition required to be complied with before a sale is deemed valid. There is no sale in the present case, and Phoolchand is not relying upon any sale. He is relying upon a contract of sale and equity which he may set up to defend his possession against the claim made by Nathulal. To the making of such a claim, relying upon the doctrine of part performance in Section 53A of the Transfer of Property Act, there is nothing in Section 70 (8) of the Madhya Bharat Land Revenue and Tenancy Act 66 of 1950 which may operate as a bar.9. The conditions necessary for making out the defence of part performance to an action in ejectment by the owner are:(1) that the transferor has contracted to transfer for consideration any immovable property by writing signed by him or on his behalf from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty;(2) that the transferee has, in part performance of the contract, taken possession of the property or any part thereof, or the transferee, being already in possession continues in possession in part performance of the contract;(3) that the transferee has done some act in furtherance of the contract; and(4) that the transferee has performed or is willing to perform his part of the contract.If these conditions are fulfilled then notwithstanding that the contract, though required to be registered, has not been registered, or, where there is an instrument of transfer, that the transfer has not been completed in the manner prescribed therefor by the law for the time being in force, the transferor or any person claiming under him is debarred from enforcing against the transferee any right in respect of the property of which the transferee has taken or continued in possession, other than a right expressly provided by the terms of the contract.There is in this case a contract to transfer for consideration immovable property by writing signed by Nathulal from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty. In part performance of the contract, Phoolchand has taken possession of the property and he had in pursuance thereof paid an amount of Rs. 22,011. The argument raised by counsel for Nathulal that the act done in pursuance of the contract must be independent of the terms of the contract cannot be accepted. The first three conditions, for the defence of part performance to be effectively set up by Phoolchand exist. Mr. Shroff for Nathulal however contends that Phoolchand was not willing to perform his part of the contract.10. Nathulal had expressly undertaken to have the revenue records rectified by securing the deletion of Chittarmals name, and it was an implied condition of the contract that Nathulal will secure the sanction of the Collector to the transfer under Section 70 (4) of the Madhya Bharat Land Revenue and Tenancy Act 66 of 1950. The first condition was not fulfilled till October 6, 1952 and the second condition was never fulfilled. We are unable to agree with Mr. Shroff that the repeal of the Madhya Bharat Act 66 of 1950 by the Madhya Pradesh Land Revenue Code, 1959, has retrospective operation.11. In considering whether a person is willing to perform his part of the contract the sequence in which the obligations under a contract are to be performed must be taken into account. The argument raised by Mr. Shroff that Nathulal was bound to perform the two conditions only after the amount of Rs. 21,000 was paid is plainly contrary to the terms of the agreement. By virtue of Section 4 of the Transfer of Property Act the chapters and sections of the Transfer of Property Act which relate contracts are to be taken as part of the Indian Contract Act, 1872. If, therefore, under the terms of the contract the obligations of the parties have to be performed in a certain sequence, one of the parties to the contract cannot require compliance with the obligations by the other party without in the first instance performing his own part of the contract which in the sequence of obligations is performable by him earlier.
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0
### Explanation:
4. In the view of the Trial Court Phoolchand was unable to procure the amount of Rs. 21,000 which he had agreed to pay on or before May 7, 1951 and on that account he had committed breach of the contract. The High Court held that Nathulal was not guilty of breach of contract, for Phoolchand had arranged with a Bank to borrow upto Rs. 75,000, when needed by him, and Phoolchand had on that account sufficient resources at his disposal to enable him to pay the amount due. The Trial Court and the High Court have held that Phoolchand failed to pay the amount on or before May 7, 1951. They have also held that he had not made the tender as pleaded by him.The argument raised by counsel for Nathulal, that by virtue of S. 70 (8) of the Madhya Bharat Land Revenue and Tenancy Act, the plea of part performance is not available to a person put in possession of the property under a contract ofsale, has, in our judgment, no force. Section 70 (8)sale under this section shall be deemed to be valid until the sale deed effecting such a sale has been registered in accordance with the law of registration in force for the timethis clause only requires that not only the conditions prescribed by Section 70, but registration of sale deed in accordance with the law of registration for the time being in force is a condition required to be complied with before a sale is deemed valid. There is no sale in the present case, and Phoolchand is not relying upon any sale. He is relying upon a contract of sale and equity which he may set up to defend his possession against the claim made by Nathulal. To the making of such a claim, relying upon the doctrine of part performance in Section 53A of the Transfer of Property Act, there is nothing in Section 70 (8) of the Madhya Bharat Land Revenue and Tenancy Act 66 of 1950 which may operate as ais in this case a contract to transfer for consideration immovable property by writing signed by Nathulal from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty. In part performance of the contract, Phoolchand has taken possession of the property and he had in pursuance thereof paid an amount of Rs. 22,011. The argument raised by counsel for Nathulal that the act done in pursuance of the contract must be independent of the terms of the contract cannot be accepted. The first three conditions, for the defence of part performance to be effectively set up by Phoolchand exist.Nathulal had expressly undertaken to have the revenue records rectified by securing the deletion of Chittarmals name, and it was an implied condition of the contract that Nathulal will secure the sanction of the Collector to the transfer under Section 70 (4) of the Madhya Bharat Land Revenue and Tenancy Act 66 of 1950. The first condition was not fulfilled till October 6, 1952 and the second condition was never fulfilled. We are unable to agree with Mr. Shroff that the repeal of the Madhya Bharat Act 66 of 1950 by the Madhya Pradesh Land Revenue Code, 1959, has retrospective operation.11. In considering whether a person is willing to perform his part of the contract the sequence in which the obligations under a contract are to be performed must be taken intovirtue of Section 4 of the Transfer of Property Act the chapters and sections of the Transfer of Property Act which relate contracts are to be taken as part of the Indian Contract Act, 1872. If, therefore, under the terms of the contract the obligations of the parties have to be performed in a certain sequence, one of the parties to the contract cannot require compliance with the obligations by the other party without in the first instance performing his own part of the contract which in the sequence of obligations is performable by him earlier.
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Mahant Narayana Dasjee Varu & Others Vs. The Board of Trustees Tirumalai Tirupathi, Devasthanam & Others | profits and the interest thereon to be made for the purpose of the total carrying further interest? (2) What is the rate of interest to be charged. The learned trial Judge allowed interest at 6 per cent for the calculation of interest which is part of mesne profits. Having calculated mesne profits on this basis he aggregated the amount of mesne profits i. e. income from the several items of property plus the interest on it up to the date of the plaint i. e., January 10, 1946. On the total sum so ascertained he decreed interest at 6 per cent. till the date of his decree i. e., March 26, 1952. He passed a decree for this sum with further interest at 6 per cent till the date of realisation.11. One of the principal points raised by the Mahant in the two appeals which he filed to the High Court related to this method of computing the interest. His complaint was that two dates were specified by the trial Judge at which interest became payable on interest and that this was not justified by law and did not proceed on a correct interpretation of S. 34 of the Civil Procedure Code. The learned Judges acceded to these contentions and varied the decree in regard to the rates allowed by the learned Subordinate Judge. They observed :"The learned Judge should have awarded interest on yearly profits in respect of each item from the date the arrears accrued up to the date of the plaint, from the date of the plaint up to the passing of the decree and thereafter on the aggregate amount of the principal and interest till payment."In other words, they eliminated the aggregation which the decree of the trial Judge had invoked as on the date of the plaint. It is only necessary to add that in reaching this conclusion the learned Judges acceded to the arguments addressed to them on behalf of the appellant-Mahant. They also reduced the rate of interest on the mesne profits calculated each year from 6 per cent to 4 per cent and also the interest payable after the date of the decree from 6 to 3 per cent. The averages of this reduction in the rate is the subject of the appeals by the Devasthanam which we shall be considering in the proper place.12. The complaint of learned counsel for the Mahant is not that the reduction of the rate is insufficient but that the learned Judges erred in allowing interest at 3 per cent on the aggregate sum made up of principal and interest up to that date. His submission is that on the terms of S. 34 of the Civil Procedure Code, as it stood at the date when they disposed of the appeals, they could have allowed further interest on the principal sum alone. Learned counsel relies, for this purpose, on the amendment to S. 34 of the Civil Procedure Code effected by the Code of Civil Procedure (Amendment) Act, 1956 = Act 66 of 1956 - which came into effect on January 1, 1957. This Act amended, inter alia, S. 34 of the Code. As the section originally stood, the relevant provision ran."Order interest at such rate as the Court deems reasonable to be paid on the principal sum, from the date of the suit to the date of the decree, in addition to any interest adjudged on such principal sum for any period prior to the institution of the suit, with further interest at such rate as the Court deems reasonable on the aggregate sum so adjudged from the date of the decree to the date, of payment."The section was amended so as to read :"Order interest at such rate as the Court deems reasonable to be paid on the principal sum adjudged, from the date of the suit to the date of the decree, in addition to any interest adjudged on such principal sum for any period prior to the institution of the suit, with further interest at such rate not exceeding six per cent per annum as the Court deems reasonable on such principal sum from the date of the decree to the date of payment."This point, however, was not argued before the High Court even though admittedly the amendment had been in force for over six months before the appeal was disposed of and, in fact, as we have already stated the mode of calculation adopted by the High Court was that which was submitted as the correct one by Counsel for the Mahant. Secondly, this was not an objection taken in the grounds of appeal taken to this Court when seeking a certificate, nor is it raised in the statement of case. Nor is the objection clearly without an answer. In the first place, the decree of the trial Court was passed in 1952. Without pausing to enquire whether the relevant date for determining from when the amended provision would operate might not be that on which the suit was instituted, what the High Court was called upon to enquire was the correctness of that decree. Besides, it is not suggested that the amendment is expressly made retrospective or applicable to pending proceedings. Though, no doubt, the amendment was to a provision in the Code of Civil Procedure, the question would have to be seriously considered whether it does not in reality deal with the substantive rights of parties, so that it might not have retrospective operation as a matter affecting mere procedure. In the circumstances, having regard, however, to the failure of the appellant to urge this point earlier, we decline to permit learned counsel to raise to before us.13. There were certain other points raised before the High Court that the claim for mesne profits for particular periods were barred by limitation but these, have not been repeated before us and hence they do not call for consideration. These complete the submissions made to us in appeals 106 and 107. | 0[ds]We see no substance in this argument. In the first place, we do not have the Judgment of the High Court on the former occasion to ascertain the exact scope of the observation they then made. Next, the learned Judges of the High Court have themselves referred to this observation and have proceeded to state that the fact that the Devasthanam would have the benefit of the walls and other constructions put up by the Mahant would be a factor which they would take into account in ascertaining the amount of mesne profits payable on this item. We have no basis before us for saying that the learned Judges in the judgment now under appeal have not understood the earlier judgment of the High Courtis no substance in this argument either, because, in a sense, any allocation would be arbitrary and the suggestion that we should reverse the proportion and allow 1/3rd to the Devasthanam and 2/3rds to the Mahant is about as arbitrary as the order now challenged. We must take it that in fixing this proportion, the learned Judges took into account the income that could have been derived from the stable, if let, as it was, for shops and that which the constructions put up could yield. We consider that both the approach of the learned Judges as well as the result they have reached is fair and just to both parties and does not call for any interference.10. The case as to itemStand for elephants and the points urged in regard there to are exactly similar. There also we have the same observations of the High Court in the previous suit 51 of 1937 and the learned Judges on the present occasion have taken those observations into account and granted a decree for 2/ 3rds of what they ascertained on a detailed consideration of the evidence to be the income derivable from the properly. For the reasons already stated, there is no substance in this submission which weargument addressed to us on this point, we consider, is wholly without merit. As we have stated already, the Mahant did not produce his accounts and therefore the Court had to do its best in ascertaining the profits from such evidence as was placed before it and this they have done as best as theyother words, they eliminated the aggregation which the decree of the trial Judge had invoked as on the date of the plaint. It is only necessary to add that in reaching this conclusion the learned Judges acceded to the arguments addressed to them on behalf of theThey also reduced the rate of interest on the mesne profits calculated each year from 6 per cent to 4 per cent and also the interest payable after the date of the decree from 6 to 3 per cent. The averages of this reduction in the rate is the subject of the appeals by the Devasthanam which we shall be considering in the properpoint, however, was not argued before the High Court even though admittedly the amendment had been in force for over six months before the appeal was disposed of and, in fact, as we have already stated the mode of calculation adopted by the High Court was that which was submitted as the correct one by Counsel for the Mahant. Secondly, this was not an objection taken in the grounds of appeal taken to this Court when seeking a certificate, nor is it raised in the statement of case. Nor is the objection clearly without an answer. In the first place, the decree of the trial Court was passed in 1952. Without pausing to enquire whether the relevant date for determining from when the amended provision would operate might not be that on which the suit was instituted, what the High Court was called upon to enquire was the correctness of that decree. Besides, it is not suggested that the amendment is expressly made retrospective or applicable to pending proceedings. Though, no doubt, the amendment was to a provision in the Code of Civil Procedure, the question would have to be seriously considered whether it does not in reality deal with the substantive rights of parties, so that it might not have retrospective operation as a matter affecting mere procedure. In the circumstances, having regard, however, to the failure of the appellant to urge this point earlier, we decline to permit learned counsel to raise to before us.13. There were certain other points raised before the High Court that the claim for mesne profits for particular periods were barred by limitation but these, have not been repeated before us and hence they do not call for consideration. These complete the submissions made to us in appeals 106 and 107.Civil Appeals 108 and 109 ofpoint common to both these appeals is the reduction in the rate of interest which we have already indicated. As pointed out earlier, the learned Judges of the High Court have reduced the interest payable on the mesne profits up to the date of the decreeMarch 28, 1952 from 6 to 3 per cent.is, no doubt, true that the rate of interest to be allowed in regard to mesne profits or under S. 34 in such cases is discretionary, seeing there is, in them no question of any contractual rate or any particular rate fixed by statute. The only limitation which is prescribed by S. 34, as it stands now, is that the rate shall not exceed 6 per cent p. a.a limitation which did not figure in the section before its amendment though Courts as a general rule seldom awarded any rate in excess of 6 percent p. a. Learned counsel is, therefore, right in saying that the rate of 6 per cent granted by the learned trial Judge is not per se unreasonable. The amended S. 34, Civil Procedure Code is, in fact, a statutory recognition that 6 per cent is not by itself an unconscionable or an unreasonably high rate. Besides, this rate was not considered unreasonable or improper by the Mahant himself is also clear from the proceedings. The Commissioner in the report that he made to the Court on May 14, 1951 in which he ascertained the mesne profits payable by the Mahant, computed the interest from June, 1933 onwards at 6 per cent. Elaborate objections were filed by the Mahant to this report, but so far as the interest allowed was concerned the objection was formulated in groundrate of interest at 6 per cent was not challenged at all. The Subordinate Judge before whom no point was made as regards the rate of 6 per cent being too high passed a decree computing interest at that rate. Even when this decree was challenged by the Mahant by an appeal to the High Court no objection was taken to this rate. Though as many as 141 grounds were taken in the memor andum of appeal against the decree of the Subordinate Judge in the appeal in application 19 of 1946 and 37 grounds in the other appeal, there was not any ground which either (1) objected to the rate of 6 per cent as being unreasonably high or (2) complained against the award by the learned Subordinate Judge of the same rate of interest after as before the date of thetactics.16. We consider that the second of the grounds viz., that the Mahant was a trustee who had been removed from office and therefore stood in a position different from that of a trespasser is note see considerable force in this submission. The title of the Devasthanam to the property was disputed and suits had to be filed for the recovery of their possession, and litigation conducted which took 12 years to finish from 1933 to 1945. If during this period the Mahant appropriated to himself the income from the property we do not see any justification for his not being made liable for interest at the normal rate. In any event, if the trial court in its discretion awarded interest at 6 per cent, and that is admittedly not per se an unreasonable rate, there was no compelling equity in the Mahant to justify interference with that discretion.17. The first of the reasons given by the learned Judges does not also appeal to us. It is, no doubt, true that the properties of the Mutt and of the Devasthanam were mixed up in the hands of the Mahant but these two were being held by the Mahant in two distinct capacitiesthe first as the head of the Mutt and the other as the Vicharanakartha of the Devasthanams i.e., purely as manager. The fact was that in the first set of properties he might have a beneficial interest but admittedly not so in the second. In the circumstances, we do not see how he becomes entitled to the benefit of a lower rate of interest on mesne profits payable for the properties belonging to the Devasthanam of which he was wrongfully in possession because he chose to mix them up with other property which mixing enabled him to make a claim to the Devasthanam property as well.18. We, therefore, consider that the learned Judges of the High Court were not justified in reducing the rate of interest from 6 per cent to 4 per cent p.a. for the period up to March 28, 1952 and to 8 per cent p.a. on the aggregate sum thereafter. The method suggested by the learned Judges for the calculation of interest on mesne profits each year is, however, correct and interest at 6 per cent p.a. would have to be calculated on that basis before and after the decree. The decree will be modified accordingly.19.The next submission of learned counsel was in relation to the quantum of mesne profits allowed for items 4, 6, 7, 8 and 9 in appeal108. As regards items 4 and 6, we have already explained the nature of these items and the basis upon which the learned Judges of the High Court have computed the mesne profits payable. Itwas the submission of learned counsel that the 1/3rd which the learned Judges had allowed as representing the value of the improvements should not have been allowed.We do not agree. In the first place, there was the observation of the High Court in the appeals from the original suits to which we have already adverted and, secondly, it was common ground that the Mahant was not demolishing or removing any of the improvements which he had affected in items 4 and 6. It was further suggested that as these improvements had been effected in 1912 or there abouts the Mahant had derived sufficient income from the property to cover the cost of the improvements and that therefore no allowance should have been given on the basis that he had effected improvements which he was leaving on the property. It cannot, however, be disputed that it was open to the Mahant, under the law, to have demolished the improvements which he had effected before surrendering possession and, in the circumstances, we do not consider that the learned Judge erred in allowing a small reduction of 1/3rd, taking into account this feature of thehave closely examined the judgment of the High Court and are satisfied that this complaint is without foundation. The learned Judges have made a detailed examination of the evidence and have allowed to the Devasthanam profits on whatever sources of income which were proved to have existed at the relevant dates. In the circumstances, we do not consider this submissionargument was that though while considering several of these items the learned Judges had expressed the view that 10 per cent of the estimated income could be allowed as the collection charges, in the concluding portion of the judgment they had stated that as regards House property they would allow only 1/ 12th for that purpose. For this reason it was submitted that the decree drawn up which allowed 10 per cent as collection charges was wrong and not in accordance with the operative portion of thejudgment. We do not propose to pause to consider this objection which, in our opinion, is groundless, because it is admitted, and this is stated in the judgment itself, that after the judgment of the High Court, the parties were directed to file by consent a joint memo working out the mesne profits for which a decree could be passed after making the allowances which were granted. Such a statement was filed and it is on that basis that the decree passed by the High Court proceeds. The parties carried out the decision of the High Court in the manner in which both of them understood it and we see, therefore, no reason to examine the question any further. | 0 | 3,953 | 2,289 | ### Instruction:
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profits and the interest thereon to be made for the purpose of the total carrying further interest? (2) What is the rate of interest to be charged. The learned trial Judge allowed interest at 6 per cent for the calculation of interest which is part of mesne profits. Having calculated mesne profits on this basis he aggregated the amount of mesne profits i. e. income from the several items of property plus the interest on it up to the date of the plaint i. e., January 10, 1946. On the total sum so ascertained he decreed interest at 6 per cent. till the date of his decree i. e., March 26, 1952. He passed a decree for this sum with further interest at 6 per cent till the date of realisation.11. One of the principal points raised by the Mahant in the two appeals which he filed to the High Court related to this method of computing the interest. His complaint was that two dates were specified by the trial Judge at which interest became payable on interest and that this was not justified by law and did not proceed on a correct interpretation of S. 34 of the Civil Procedure Code. The learned Judges acceded to these contentions and varied the decree in regard to the rates allowed by the learned Subordinate Judge. They observed :"The learned Judge should have awarded interest on yearly profits in respect of each item from the date the arrears accrued up to the date of the plaint, from the date of the plaint up to the passing of the decree and thereafter on the aggregate amount of the principal and interest till payment."In other words, they eliminated the aggregation which the decree of the trial Judge had invoked as on the date of the plaint. It is only necessary to add that in reaching this conclusion the learned Judges acceded to the arguments addressed to them on behalf of the appellant-Mahant. They also reduced the rate of interest on the mesne profits calculated each year from 6 per cent to 4 per cent and also the interest payable after the date of the decree from 6 to 3 per cent. The averages of this reduction in the rate is the subject of the appeals by the Devasthanam which we shall be considering in the proper place.12. The complaint of learned counsel for the Mahant is not that the reduction of the rate is insufficient but that the learned Judges erred in allowing interest at 3 per cent on the aggregate sum made up of principal and interest up to that date. His submission is that on the terms of S. 34 of the Civil Procedure Code, as it stood at the date when they disposed of the appeals, they could have allowed further interest on the principal sum alone. Learned counsel relies, for this purpose, on the amendment to S. 34 of the Civil Procedure Code effected by the Code of Civil Procedure (Amendment) Act, 1956 = Act 66 of 1956 - which came into effect on January 1, 1957. This Act amended, inter alia, S. 34 of the Code. As the section originally stood, the relevant provision ran."Order interest at such rate as the Court deems reasonable to be paid on the principal sum, from the date of the suit to the date of the decree, in addition to any interest adjudged on such principal sum for any period prior to the institution of the suit, with further interest at such rate as the Court deems reasonable on the aggregate sum so adjudged from the date of the decree to the date, of payment."The section was amended so as to read :"Order interest at such rate as the Court deems reasonable to be paid on the principal sum adjudged, from the date of the suit to the date of the decree, in addition to any interest adjudged on such principal sum for any period prior to the institution of the suit, with further interest at such rate not exceeding six per cent per annum as the Court deems reasonable on such principal sum from the date of the decree to the date of payment."This point, however, was not argued before the High Court even though admittedly the amendment had been in force for over six months before the appeal was disposed of and, in fact, as we have already stated the mode of calculation adopted by the High Court was that which was submitted as the correct one by Counsel for the Mahant. Secondly, this was not an objection taken in the grounds of appeal taken to this Court when seeking a certificate, nor is it raised in the statement of case. Nor is the objection clearly without an answer. In the first place, the decree of the trial Court was passed in 1952. Without pausing to enquire whether the relevant date for determining from when the amended provision would operate might not be that on which the suit was instituted, what the High Court was called upon to enquire was the correctness of that decree. Besides, it is not suggested that the amendment is expressly made retrospective or applicable to pending proceedings. Though, no doubt, the amendment was to a provision in the Code of Civil Procedure, the question would have to be seriously considered whether it does not in reality deal with the substantive rights of parties, so that it might not have retrospective operation as a matter affecting mere procedure. In the circumstances, having regard, however, to the failure of the appellant to urge this point earlier, we decline to permit learned counsel to raise to before us.13. There were certain other points raised before the High Court that the claim for mesne profits for particular periods were barred by limitation but these, have not been repeated before us and hence they do not call for consideration. These complete the submissions made to us in appeals 106 and 107.
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no objection was taken to this rate. Though as many as 141 grounds were taken in the memor andum of appeal against the decree of the Subordinate Judge in the appeal in application 19 of 1946 and 37 grounds in the other appeal, there was not any ground which either (1) objected to the rate of 6 per cent as being unreasonably high or (2) complained against the award by the learned Subordinate Judge of the same rate of interest after as before the date of thetactics.16. We consider that the second of the grounds viz., that the Mahant was a trustee who had been removed from office and therefore stood in a position different from that of a trespasser is note see considerable force in this submission. The title of the Devasthanam to the property was disputed and suits had to be filed for the recovery of their possession, and litigation conducted which took 12 years to finish from 1933 to 1945. If during this period the Mahant appropriated to himself the income from the property we do not see any justification for his not being made liable for interest at the normal rate. In any event, if the trial court in its discretion awarded interest at 6 per cent, and that is admittedly not per se an unreasonable rate, there was no compelling equity in the Mahant to justify interference with that discretion.17. The first of the reasons given by the learned Judges does not also appeal to us. It is, no doubt, true that the properties of the Mutt and of the Devasthanam were mixed up in the hands of the Mahant but these two were being held by the Mahant in two distinct capacitiesthe first as the head of the Mutt and the other as the Vicharanakartha of the Devasthanams i.e., purely as manager. The fact was that in the first set of properties he might have a beneficial interest but admittedly not so in the second. In the circumstances, we do not see how he becomes entitled to the benefit of a lower rate of interest on mesne profits payable for the properties belonging to the Devasthanam of which he was wrongfully in possession because he chose to mix them up with other property which mixing enabled him to make a claim to the Devasthanam property as well.18. We, therefore, consider that the learned Judges of the High Court were not justified in reducing the rate of interest from 6 per cent to 4 per cent p.a. for the period up to March 28, 1952 and to 8 per cent p.a. on the aggregate sum thereafter. The method suggested by the learned Judges for the calculation of interest on mesne profits each year is, however, correct and interest at 6 per cent p.a. would have to be calculated on that basis before and after the decree. The decree will be modified accordingly.19.The next submission of learned counsel was in relation to the quantum of mesne profits allowed for items 4, 6, 7, 8 and 9 in appeal108. As regards items 4 and 6, we have already explained the nature of these items and the basis upon which the learned Judges of the High Court have computed the mesne profits payable. Itwas the submission of learned counsel that the 1/3rd which the learned Judges had allowed as representing the value of the improvements should not have been allowed.We do not agree. In the first place, there was the observation of the High Court in the appeals from the original suits to which we have already adverted and, secondly, it was common ground that the Mahant was not demolishing or removing any of the improvements which he had affected in items 4 and 6. It was further suggested that as these improvements had been effected in 1912 or there abouts the Mahant had derived sufficient income from the property to cover the cost of the improvements and that therefore no allowance should have been given on the basis that he had effected improvements which he was leaving on the property. It cannot, however, be disputed that it was open to the Mahant, under the law, to have demolished the improvements which he had effected before surrendering possession and, in the circumstances, we do not consider that the learned Judge erred in allowing a small reduction of 1/3rd, taking into account this feature of thehave closely examined the judgment of the High Court and are satisfied that this complaint is without foundation. The learned Judges have made a detailed examination of the evidence and have allowed to the Devasthanam profits on whatever sources of income which were proved to have existed at the relevant dates. In the circumstances, we do not consider this submissionargument was that though while considering several of these items the learned Judges had expressed the view that 10 per cent of the estimated income could be allowed as the collection charges, in the concluding portion of the judgment they had stated that as regards House property they would allow only 1/ 12th for that purpose. For this reason it was submitted that the decree drawn up which allowed 10 per cent as collection charges was wrong and not in accordance with the operative portion of thejudgment. We do not propose to pause to consider this objection which, in our opinion, is groundless, because it is admitted, and this is stated in the judgment itself, that after the judgment of the High Court, the parties were directed to file by consent a joint memo working out the mesne profits for which a decree could be passed after making the allowances which were granted. Such a statement was filed and it is on that basis that the decree passed by the High Court proceeds. The parties carried out the decision of the High Court in the manner in which both of them understood it and we see, therefore, no reason to examine the question any further.
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Mahanadi Coalfields Ltd & Anr Vs. M/s IVRCL AMR JOINT VENTURE | (P) Ltd. v. Mahanadi Coalfields Ltd consisting of J Chelameswar and A. K. Sikri, JJ. (2014) 10 SCC 630 In the said case, the clause was interpreted as an alternative remedy at the company level to be exhausted before taking recourse to other suitable legal remedies. It was observed: 10. From the aforesaid narration of facts, it becomes clear that Clause 12 of the general terms and conditions provides for a mechanism of dispute resolution before resorting to the legal remedies. This clause specifically states that it is incumbent upon the contractor to avoid litigation and disputes during the course of execution. If any dispute takes place between the contractor and the department, effort shall be made first to settle the disputes at the company level. Further, this clause states that the contractors should make request in writing to the Engineer Incharge for settlement of such dispute/claim within 30 days of arising of cause of dispute/claim. (emphasis supplied) 13. The above extract makes it abundantly clear that clause 15 of the Contract Agreement is a dispute resolution mechanism at the company level, rather than an arbitration agreement. Consequently, in case of a dispute, the respondent was supposed to write to the Engineer-in-charge for resolving the dispute. Clause 15 does not comport with the essential attributes of an arbitration agreement in terms of section 7 of the 1996 Act as well as the principles laid down under Jagdish Chander (supra). A plain reading of the above clause leaves no manner of doubt about its import. There is no written agreement to refer either present or future disputes to arbitration. Neither does the substantive part of the clause refer to arbitration as the mode of settlement, nor does it provide for a reference of disputes between the parties to arbitration. It does not disclose any intention of either party to make the Engineer-in-Charge, or any other person for that matter, an arbitrator in respect of disputes that may arise between the parties. Further, the said clause does not make the decision of the Engineer-in-Charge, or any other arbitrator, final or binding on the parties. Therefore, it was wrong on the part of the High Court to construe clause 15 of the Contract Agreement as an arbitration agreement. 14. However, it has been urged on behalf of the respondent by Mr S Niranjan Reddy that the first appellant is a subsidiary of CIL. It has been submitted that on 7 April 2017, CIL issued a policy document to its General Managers for the settlement of disputes or differences arising out of works and services contracts through arbitration. Clause 5 of the above communication provides as follows: Past/existing work order/contract: 5. With regards to dispute/differences cropping up in existing work order/contract, employer (department) shall adopt procedure for settlement of the same, through arbitration process. As you are aware that neither the CIL Manuals nor contract document at present contains any clause regarding arbitration, therefore, dispute/differences cannot be referred to arbitration straight away. Hence, before referring the matter to arbitration, consent of the other party (contractor) is necessary for redressal of dispute/differences through arbitration. Once, the contractor agrees for settlement of dispute/differences arising out of contracts through arbitration, an agreement may be signed between employer and contractor for referring the dispute/differences to Sole Arbitration by a person appointed by Competent Authority of CIL/CMD of Subsidiaries (as the case may be). The rest of the procedure shall be as per the Arbitration and Conciliation Act, 1996 as amended by Amendment Act of 2015 and also as per instruction incorporated in clause Settlement of Disputes through Arbitration. 15. Hence, it is urged that the first appellant being a subsidiary of CIL and being a public sector undertaking may well consider as to whether the disputes which have arisen between the appellants and the respondent should be referred to arbitration. In this context, the appellants and the respondent placed reliance on an order dated 20 July 2018 of the Chief Justice of the High Court of Orissa in Arbitration Petition No 59 of 2016. 16. We are unable to subscribe to the submission which has been urged on behalf of the respondent based on the policy letter dated 7 April 2017. The communication which has been issued by CIL refers to the possibility of a consensual resolution of disputes or differences through arbitration as neither the CIL manuals nor the contract document, at the time, contained a clause regarding arbitration. However, it has been submitted that once the contractor has agreed to settle a dispute through arbitration, the agreement may be signed between the employer and the contractor for reference to arbitration, by a person to be appointed by the competent authority of CIL or, as the case may be, the Chairman and Managing Director of the subsidiaries. 17. The communication dated 7 April 2017 merely indicates a desire on behalf of CIL to have disputes related to work contracts settled by arbitration. It requires both the parties to arrive at a further agreement to proceed to arbitration when the dispute arises. Therefore, in view of the principles laid down in Jagdish Chander (supra), following a line of precedent, clause 5 in the aforesaid communication cannot be construed as an arbitration agreement between the appellants and the respondent in terms of section 7 of the 1996 Act so as to compel the appellants to appoint an arbitrator. 18. The order of the Chief Justice of the High Court of Orissa dated 20 July 2018 proceeds on an understanding that the learned counsel for both the sides did not dispute the fact that clause 15 of the Contract Agreement and clause 5 of the policy decision 7 April 2017 taken by CIL provide for appointment of an arbitrator in case there is any dispute or difference between the parties. The order has, therefore, proceeded on an understanding of counsel, which in any event cannot be regarded as a binding statement of law on the existence of an arbitration agreement. | 1[ds]9. In Jagdish Chander v. Ramesh Chander (2007) 5 SCC 719, a two-judge bench of this Court, while relying upon the earlier decisions in K. K. Modi v. K. N. Modi (1998) 3 SCC 573, Bharat Bhushan Bansal v. U.P. Small Industries Corpn. Ltd (1999) 2 SCC 166, Bihar State Mineral Development Corpn v. Encon Builders (I) (P) Ltd. (2003) 7 SCC 418, and State of Orissa v. Damodar Das (1996) 2 SCC 216, enumerated the principles governing what constitutes an arbitration agreement. Justice R V Raveendran, speaking on behalf of the bench, held that the words used in an arbitration agreement should disclose a determination and obligation on behalf of parties to refer disputes to arbitration. This court held:8 (i) The intention of the parties to enter into an arbitration agreement shall have to be gathered from the terms of the agreement. If the terms of the agreement clearly indicate an intention on the part of the parties to the agreement to refer their disputes to a private tribunal for adjudication and a willingness to be bound by the decision of such tribunal on such disputes, it is arbitration agreement. While there is no specific form of an arbitration agreement, the words used should disclose a determination and obligation to go to arbitration and not merely contemplate the possibility of going for arbitration. Where there is merely a possibility of the parties agreeing to arbitration in future, as contrasted from an obligation to refer disputes to arbitration, there is no valid and binding arbitration agreement.(ii) Even if the words arbitration and Arbitral Tribunal (or arbitrator) are not used with reference to the process of settlement or with reference to the private tribunal which has to adjudicate upon the disputes, in a clause relating to settlement of disputes, it does not detract from the clause being an arbitration agreement if it has the attributes or elements of an arbitration agreement. They are: (a) The agreement should be in writing. (b) The parties should have agreed to refer any disputes (present or future) between them to the decision of a private tribunal. (c) The private tribunal should be empowered to adjudicate upon the disputes in an impartial manner, giving due opportunity to the parties to put forth their case before it. (d) The parties should have agreed that the decision of the private tribunal in respect of the disputes will be binding on them.(iii) Where the clause provides that in the event of disputes arising between the parties, the disputes shall be referred to arbitration, it is an arbitration agreement. Where there is a specific and direct expression of intent to have the disputes settled by arbitration, it is not necessary to set out the attributes of an arbitration agreement to make it an arbitration agreement. But where the clause relating to settlement of disputes, contains words which specifically exclude any of the attributes of an arbitration agreement or contains anything that detracts from an arbitration agreement, it will not be arbitration agreement. For example, where an agreement requires or permits an authority to decide a claim or dispute without hearing, or requires the authority to act in the interests of only one of the parties, or provides that the decision of the authority will not be final and binding on the parties, or that if either party is not satisfied with the decision of the authority, he may file a civil suit seeking relief, it cannot be termed as an arbitration agreement.(iv) But mere use of the word arbitration or arbitrator in a clause will not make it an arbitration agreement, if it requires or contemplates a further or fresh consent of the parties for reference to arbitration. For example, use of words such as parties can, if they so desire, refer their disputes to arbitration or in the event of any dispute, the parties may also agree to refer the same to arbitration or if any disputes arise between the parties, they should consider settlement by arbitration in a clause relating to settlement of disputes, indicate that the clause is not intended to be an arbitration agreement. Similarly, a clause which states that if the parties so decide, the disputes shall be referred to arbitration or any disputes between parties, if they so agree, shall be referred to arbitration is not an arbitration agreement. Such clauses merely indicate a desire or hope to have the disputes settled by arbitration, or a tentative arrangement to explore arbitration as a mode of settlement if and when a dispute arises. Such clauses require the parties to arrive at a further agreement to go to arbitration, as and when the disputes arise. Any agreement or clause in an agreement requiring or contemplating a further consent or consensus before a reference to arbitration, is not an arbitration agreement, but an agreement to enter into an arbitration agreement in future.10. In the present case, clause 15 of the Contract Agreement is titled Settlement of Disputes/Arbitration. However, the substantive part of the provision makes it abundantly clear that there is no arbitration agreement between the parties agreeing to refer either present or future disputes to arbitration.11. Clause 15.1 contains a reference to the steps to be taken for settlement of disputes between the parties. Clause 15.2 stipulates that if differences still persist, the settlement of the disputes with government agencies shall be dealt with in accordance with the guidelines of the Ministry of Finance. In the case of parties other than government agencies, the redressal of disputes has to be sought in a court of law.12. A clause similar to clause 15 of the Contract Agreement in the present case was considered by a bench of this Court in IB Valley Transport, Vijay Laxmi (P) Ltd. v. Mahanadi Coalfields Ltd consisting of J Chelameswar and A. K. Sikri, JJ. (2014) 10 SCC 630 In the said case, the clause was interpreted as an alternative remedy at the company level to be exhausted before taking recourse to other suitable legal remedies. It was observed:10. From the aforesaid narration of facts, it becomes clear that Clause 12 of the general terms and conditions provides for a mechanism of dispute resolution before resorting to the legal remedies. This clause specifically states that it is incumbent upon the contractor to avoid litigation and disputes during the course of execution. If any dispute takes place between the contractor and the department, effort shall be made first to settle the disputes at the company level. Further, this clause states that the contractors should make request in writing to the Engineer Incharge for settlement of such dispute/claim within 30 days of arising of cause of dispute/claim.13. The above extract makes it abundantly clear that clause 15 of the Contract Agreement is a dispute resolution mechanism at the company level, rather than an arbitration agreement. Consequently, in case of a dispute, the respondent was supposed to write to the Engineer-in-charge for resolving the dispute. Clause 15 does not comport with the essential attributes of an arbitration agreement in terms of section 7 of the 1996 Act as well as the principles laid down under Jagdish Chander (supra). A plain reading of the above clause leaves no manner of doubt about its import. There is no written agreement to refer either present or future disputes to arbitration. Neither does the substantive part of the clause refer to arbitration as the mode of settlement, nor does it provide for a reference of disputes between the parties to arbitration. It does not disclose any intention of either party to make the Engineer-in-Charge, or any other person for that matter, an arbitrator in respect of disputes that may arise between the parties. Further, the said clause does not make the decision of the Engineer-in-Charge, or any other arbitrator, final or binding on the parties. Therefore, it was wrong on the part of the High Court to construe clause 15 of the Contract Agreement as an arbitration agreement.16. We are unable to subscribe to the submission which has been urged on behalf of the respondent based on the policy letter dated 7 April 2017. The communication which has been issued by CIL refers to the possibility of a consensual resolution of disputes or differences through arbitration as neither the CIL manuals nor the contract document, at the time, contained a clause regarding arbitration. However, it has been submitted that once the contractor has agreed to settle a dispute through arbitration, the agreement may be signed between the employer and the contractor for reference to arbitration, by a person to be appointed by the competent authority of CIL or, as the case may be, the Chairman and Managing Director of the subsidiaries.17. The communication dated 7 April 2017 merely indicates a desire on behalf of CIL to have disputes related to work contracts settled by arbitration. It requires both the parties to arrive at a further agreement to proceed to arbitration when the dispute arises. Therefore, in view of the principles laid down in Jagdish Chander (supra), following a line of precedent, clause 5 in the aforesaid communication cannot be construed as an arbitration agreement between the appellants and the respondent in terms of section 7 of the 1996 Act so as to compel the appellants to appoint an arbitrator.18. The order of the Chief Justice of the High Court of Orissa dated 20 July 2018 proceeds on an understanding that the learned counsel for both the sides did not dispute the fact that clause 15 of the Contract Agreement and clause 5 of the policy decision 7 April 2017 taken by CIL provide for appointment of an arbitrator in case there is any dispute or difference between the parties. The order has, therefore, proceeded on an understanding of counsel, which in any event cannot be regarded as a binding statement of law on the existence of an arbitration agreement. | 1 | 3,331 | 1,830 | ### Instruction:
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(P) Ltd. v. Mahanadi Coalfields Ltd consisting of J Chelameswar and A. K. Sikri, JJ. (2014) 10 SCC 630 In the said case, the clause was interpreted as an alternative remedy at the company level to be exhausted before taking recourse to other suitable legal remedies. It was observed: 10. From the aforesaid narration of facts, it becomes clear that Clause 12 of the general terms and conditions provides for a mechanism of dispute resolution before resorting to the legal remedies. This clause specifically states that it is incumbent upon the contractor to avoid litigation and disputes during the course of execution. If any dispute takes place between the contractor and the department, effort shall be made first to settle the disputes at the company level. Further, this clause states that the contractors should make request in writing to the Engineer Incharge for settlement of such dispute/claim within 30 days of arising of cause of dispute/claim. (emphasis supplied) 13. The above extract makes it abundantly clear that clause 15 of the Contract Agreement is a dispute resolution mechanism at the company level, rather than an arbitration agreement. Consequently, in case of a dispute, the respondent was supposed to write to the Engineer-in-charge for resolving the dispute. Clause 15 does not comport with the essential attributes of an arbitration agreement in terms of section 7 of the 1996 Act as well as the principles laid down under Jagdish Chander (supra). A plain reading of the above clause leaves no manner of doubt about its import. There is no written agreement to refer either present or future disputes to arbitration. Neither does the substantive part of the clause refer to arbitration as the mode of settlement, nor does it provide for a reference of disputes between the parties to arbitration. It does not disclose any intention of either party to make the Engineer-in-Charge, or any other person for that matter, an arbitrator in respect of disputes that may arise between the parties. Further, the said clause does not make the decision of the Engineer-in-Charge, or any other arbitrator, final or binding on the parties. Therefore, it was wrong on the part of the High Court to construe clause 15 of the Contract Agreement as an arbitration agreement. 14. However, it has been urged on behalf of the respondent by Mr S Niranjan Reddy that the first appellant is a subsidiary of CIL. It has been submitted that on 7 April 2017, CIL issued a policy document to its General Managers for the settlement of disputes or differences arising out of works and services contracts through arbitration. Clause 5 of the above communication provides as follows: Past/existing work order/contract: 5. With regards to dispute/differences cropping up in existing work order/contract, employer (department) shall adopt procedure for settlement of the same, through arbitration process. As you are aware that neither the CIL Manuals nor contract document at present contains any clause regarding arbitration, therefore, dispute/differences cannot be referred to arbitration straight away. Hence, before referring the matter to arbitration, consent of the other party (contractor) is necessary for redressal of dispute/differences through arbitration. Once, the contractor agrees for settlement of dispute/differences arising out of contracts through arbitration, an agreement may be signed between employer and contractor for referring the dispute/differences to Sole Arbitration by a person appointed by Competent Authority of CIL/CMD of Subsidiaries (as the case may be). The rest of the procedure shall be as per the Arbitration and Conciliation Act, 1996 as amended by Amendment Act of 2015 and also as per instruction incorporated in clause Settlement of Disputes through Arbitration. 15. Hence, it is urged that the first appellant being a subsidiary of CIL and being a public sector undertaking may well consider as to whether the disputes which have arisen between the appellants and the respondent should be referred to arbitration. In this context, the appellants and the respondent placed reliance on an order dated 20 July 2018 of the Chief Justice of the High Court of Orissa in Arbitration Petition No 59 of 2016. 16. We are unable to subscribe to the submission which has been urged on behalf of the respondent based on the policy letter dated 7 April 2017. The communication which has been issued by CIL refers to the possibility of a consensual resolution of disputes or differences through arbitration as neither the CIL manuals nor the contract document, at the time, contained a clause regarding arbitration. However, it has been submitted that once the contractor has agreed to settle a dispute through arbitration, the agreement may be signed between the employer and the contractor for reference to arbitration, by a person to be appointed by the competent authority of CIL or, as the case may be, the Chairman and Managing Director of the subsidiaries. 17. The communication dated 7 April 2017 merely indicates a desire on behalf of CIL to have disputes related to work contracts settled by arbitration. It requires both the parties to arrive at a further agreement to proceed to arbitration when the dispute arises. Therefore, in view of the principles laid down in Jagdish Chander (supra), following a line of precedent, clause 5 in the aforesaid communication cannot be construed as an arbitration agreement between the appellants and the respondent in terms of section 7 of the 1996 Act so as to compel the appellants to appoint an arbitrator. 18. The order of the Chief Justice of the High Court of Orissa dated 20 July 2018 proceeds on an understanding that the learned counsel for both the sides did not dispute the fact that clause 15 of the Contract Agreement and clause 5 of the policy decision 7 April 2017 taken by CIL provide for appointment of an arbitrator in case there is any dispute or difference between the parties. The order has, therefore, proceeded on an understanding of counsel, which in any event cannot be regarded as a binding statement of law on the existence of an arbitration agreement.
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same to arbitration or if any disputes arise between the parties, they should consider settlement by arbitration in a clause relating to settlement of disputes, indicate that the clause is not intended to be an arbitration agreement. Similarly, a clause which states that if the parties so decide, the disputes shall be referred to arbitration or any disputes between parties, if they so agree, shall be referred to arbitration is not an arbitration agreement. Such clauses merely indicate a desire or hope to have the disputes settled by arbitration, or a tentative arrangement to explore arbitration as a mode of settlement if and when a dispute arises. Such clauses require the parties to arrive at a further agreement to go to arbitration, as and when the disputes arise. Any agreement or clause in an agreement requiring or contemplating a further consent or consensus before a reference to arbitration, is not an arbitration agreement, but an agreement to enter into an arbitration agreement in future.10. In the present case, clause 15 of the Contract Agreement is titled Settlement of Disputes/Arbitration. However, the substantive part of the provision makes it abundantly clear that there is no arbitration agreement between the parties agreeing to refer either present or future disputes to arbitration.11. Clause 15.1 contains a reference to the steps to be taken for settlement of disputes between the parties. Clause 15.2 stipulates that if differences still persist, the settlement of the disputes with government agencies shall be dealt with in accordance with the guidelines of the Ministry of Finance. In the case of parties other than government agencies, the redressal of disputes has to be sought in a court of law.12. A clause similar to clause 15 of the Contract Agreement in the present case was considered by a bench of this Court in IB Valley Transport, Vijay Laxmi (P) Ltd. v. Mahanadi Coalfields Ltd consisting of J Chelameswar and A. K. Sikri, JJ. (2014) 10 SCC 630 In the said case, the clause was interpreted as an alternative remedy at the company level to be exhausted before taking recourse to other suitable legal remedies. It was observed:10. From the aforesaid narration of facts, it becomes clear that Clause 12 of the general terms and conditions provides for a mechanism of dispute resolution before resorting to the legal remedies. This clause specifically states that it is incumbent upon the contractor to avoid litigation and disputes during the course of execution. If any dispute takes place between the contractor and the department, effort shall be made first to settle the disputes at the company level. Further, this clause states that the contractors should make request in writing to the Engineer Incharge for settlement of such dispute/claim within 30 days of arising of cause of dispute/claim.13. The above extract makes it abundantly clear that clause 15 of the Contract Agreement is a dispute resolution mechanism at the company level, rather than an arbitration agreement. Consequently, in case of a dispute, the respondent was supposed to write to the Engineer-in-charge for resolving the dispute. Clause 15 does not comport with the essential attributes of an arbitration agreement in terms of section 7 of the 1996 Act as well as the principles laid down under Jagdish Chander (supra). A plain reading of the above clause leaves no manner of doubt about its import. There is no written agreement to refer either present or future disputes to arbitration. Neither does the substantive part of the clause refer to arbitration as the mode of settlement, nor does it provide for a reference of disputes between the parties to arbitration. It does not disclose any intention of either party to make the Engineer-in-Charge, or any other person for that matter, an arbitrator in respect of disputes that may arise between the parties. Further, the said clause does not make the decision of the Engineer-in-Charge, or any other arbitrator, final or binding on the parties. Therefore, it was wrong on the part of the High Court to construe clause 15 of the Contract Agreement as an arbitration agreement.16. We are unable to subscribe to the submission which has been urged on behalf of the respondent based on the policy letter dated 7 April 2017. The communication which has been issued by CIL refers to the possibility of a consensual resolution of disputes or differences through arbitration as neither the CIL manuals nor the contract document, at the time, contained a clause regarding arbitration. However, it has been submitted that once the contractor has agreed to settle a dispute through arbitration, the agreement may be signed between the employer and the contractor for reference to arbitration, by a person to be appointed by the competent authority of CIL or, as the case may be, the Chairman and Managing Director of the subsidiaries.17. The communication dated 7 April 2017 merely indicates a desire on behalf of CIL to have disputes related to work contracts settled by arbitration. It requires both the parties to arrive at a further agreement to proceed to arbitration when the dispute arises. Therefore, in view of the principles laid down in Jagdish Chander (supra), following a line of precedent, clause 5 in the aforesaid communication cannot be construed as an arbitration agreement between the appellants and the respondent in terms of section 7 of the 1996 Act so as to compel the appellants to appoint an arbitrator.18. The order of the Chief Justice of the High Court of Orissa dated 20 July 2018 proceeds on an understanding that the learned counsel for both the sides did not dispute the fact that clause 15 of the Contract Agreement and clause 5 of the policy decision 7 April 2017 taken by CIL provide for appointment of an arbitrator in case there is any dispute or difference between the parties. The order has, therefore, proceeded on an understanding of counsel, which in any event cannot be regarded as a binding statement of law on the existence of an arbitration agreement.
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Narayanan Sankaran Mooss Vs. The State Of Kerala And Another | successful showing that the order of revocation has been made without the Government applying its mind to the aspect of public interest or without forming an honest opinion on that aspect, it will, we have no doubt, be void. The phrase "after consulting the State Electricity Board" is sandwiched between the clause "if in its opinion the public interest so requires" and cls. (a) to (d). In this context it appears to us that consultation with the Board is also a condition precedent for making the order of revocation. Accordingly the breach of this condition precedent should also entail the same consequence as the breach of the other conditions referred to earlier. It may be observed that the phrase "after consulting the State Electricity Board" did not find place in S. 4 as it stood originally. It was introduced in Section 4 in 1959 by an amendment. It seems to us that it was introduced in Section 4 with the object of providing an additional safeguard to the licensee. When revoking a licence, the State Government acts in two stages. At first it forms a tentative opinion in favour of revoking the licence. Then it calls for an explanation from the licensee. When the explanation is received, it considers the explanation. If not satisfied with the explanation, it passes the final order of revocation. First impressions and provisional judgments have a tendency to become ultimate ideas and final judgments. They would settle unconsciously on the investigators mind as the imperceptible dust-particles on an optical lens. They would dim his understanding and obfuscate his observation. Facts which will dovetail with them would arrest his attention; facts which will conflict with them would flit his observation. If by any chance he happens to notice refractory facts, he would seek to reconcile them with his first impressions and provisional judgments. This understanding of human psychology seems to have pursuaded Parliament to interpose the condition of the Boards consultation to the Governments action. The Board is an independent body. It consists of three members. One of them is a technical expert, the other a financial expert, and the third an administrative expert. While considering the facts presented to it by the Government and by the licensee in his explanation, the Board will undoubtedly act with an open and unconditioned mind and will be able to offer unbiased counsel to the Government. Having regard to the object and context, we are of the view that the condition of consulting the Board is mandatory and the breach of this condition will make the order of revocation void. We have already held that the Board was not consulted after the explanation was received. Accordingly we are of opinion that the order is void. The consequential order of acquisition will ipso facto fall down.21. Counsel for the Board has relied on 1958 SCR 533 = (AIR 1957 SC 912 ) (supra), Ram Gopal Chaturvedi v State of Madhya Pradesh, (1970) 1 SCR 472 = (AIR 1970 SC 158 ) and State of Bombay v. D. A. Korgaonkar, Civil Appeal No. 289 of 1958 D/-6-5-1960 (SC). He has also relied on Rollo v. Minister of Town and Country Planning (1948) 1 All ER 13 and Derham v. Church Commissioners for England 1954 AC 245. (1970) 1 SCR 472 = (AIR 1970 SC 158 ) (supra) and Civil App. No. 289 of 1958 D/-6-5-1960 (SC) (supra) have followed Manbodhan Lal (Srivastava (supra). In Manbodhan Lal 1958 SCR 533 = (AIR 1967 SC 912) this court held that Art. 320 (c) of the Constitution is directory and not mandatory. A Government employee was dismissed from service after complying with the provisions of Art. 311 (2) of the Constitution. The U. P. Public Service Commission was consulted as to the punishment to be imposed on him. But it was consulted before the explanation of the employee was received by the Government. The argument was that as the Commission did not have the opportunity of considering his explanation, there was no real consultation as required by Art. 320 (c). It was also argued that Art. 320 (c) was mandatory and that accordingly the order of dismissal was void. This Court pointed out several reasons for the view that Art. 320 (c) is directory. The proviso to Art. 320 empowers the appropriate Govt. to issue directions as to the classes of cases in which consultation of the Commission will not be necessary. The proviso therefore indicates that the provision is directory. Another reason given by the Court is that Art. 320 (c) does not occur in the Chapter in which Art. 311 occurs. It finds place in the Chapter dealing with the Public Service Commission. Accordingly it cannot be said that it confers any right on Government employees. The third reason given is that consultation of the Commission is not binding on the Government. The first two reasons do not apply in our case.We have shown earlier that the condition of consulting the Board has been inserted by an amendment of Section 4 with the object of creating a safeguard in favour of licensee. There is no provision in the Act authorising the Government to waive the condition of consultation in any case.It is true that the third reason given by the Court in Manbodhan Lal 1958 SCR 533 = (AIR 1957 SC 912 ) (supra) applies in this case. As there, so here the opinion of the Board is not binding on the Government. In spite of the Board advising against revocation, the Government may, if satisfied that it is necessary to revoke the licence, may revoke it. But having regard to the object and context of Section 4, we are of opinion that it should not be regarded as an over-weighing consideration. It will normally be difficult for the Government to ignore the Boards expert advice.We are satisfied from the object and context of Section 4 that Parliament intended to make consultation of the Board an imperative condition to revoking a licence. | 1[ds]4. Counsel for the State Government and the Board have raised a preliminary objection. They point out that the argument advanced by Sri Sen was neither raised in the writ petition nor urged before the High Court. According to them it should not be allowed to be raised in this Court. It is true that the point is not specifically raised in the writ petition. But, in our view, it is embedded in paragraphs 6 and 22 of the affidavit accompanying theis thus unmistakably plain that the Government as well as the Board understood the petition as raising a challenge to the orders on the ground of want of due consultation of the Board before the making of the impugned orders. And they have replied to that implicit challenge in the petition. It appears to us that there is little force in the preliminary objection that Sri Sens contention is not raised in the petition.This entire chain of correspondence between the Government and the Board would unmistakably show that there was no second consultation between the Government and the Board regarding the revocation of the licence after the Government had received the appellants explanation to the show cause notice served on him. In the circumstances of the case we are satisfied that no prejudice will be caused to the respondents if the point is permitted to be raised in this Court. So we permit Sri Sen to argue the point.It appears form a reading of S. 4 that when the Government consults the Board on the question of revocation of a licence under S. 4, the Board is to make up its mind as to whether it should recommend: (1) to revoke the licence, or (2) not to revoke the licence, or (3) to permit the license to remain in force subject to such further terms and conditions as may be thought proper. It is difficult to conceive how the Board will make a choice out of these three courses without considering the explanation of the licensee. The explanation may make out a case for not revoking the license or a case for continuation of the licence with certainIt is now to be seen as to what is the effect of this premature consultation of the Board by the Government on the impugned order. The Act does not expressly provide for the consequence of premature consultation. It does not say that the order of revocation is void. Sri Sen contends that the order will be void. Counsel for the Board, on the other hand, contends that it will not be void. According to him, the provision regarding consultation of the Board is directory, and not mandatory.with a directory provision does not nullify the order. It is not disputed that if the provision is mandatory, the order of revocation will be void.The power to revoke the licence is a drastic power. The revocation of licence results in severe abridgment of the right to carry on business. Having in mind the requirements of Art. 19 (1) (g), Parliament has, it seems to us, prescribed certain conditions to prevent the abuse of power and to ensure just exercise of power. Clauses (a) to (d) of S. 4 prescribe some of the conditions precedent for the exercise of power. The order of revocation, in breach of any one of those conditions, will undoubtedly be void. The clause "if in its opinion the public interest so requires" is also a condition precedent. On a successful showing that the order of revocation has been made without the Government applying its mind to the aspect of public interest or without forming an honest opinion on that aspect, it will, we have no doubt, be void. The phrase "after consulting the State Electricity Board" is sandwiched between the clause "if in its opinion the public interest so requires" and cls. (a) to (d). In this context it appears to us that consultation with the Board is also a condition precedent for making the order of revocation. Accordingly the breach of this condition precedent should also entail the same consequence as the breach of the other conditions referred to earlier. It may be observed that the phrase "after consulting the State Electricity Board" did not find place in S. 4 as it stood originally. It was introduced in Section 4 in 1959 by an amendment. It seems to us that it was introduced in Section 4 with the object of providing an additional safeguard to the licensee. When revoking a licence, the State Government acts in two stages. At first it forms a tentative opinion in favour of revoking the licence. Then it calls for an explanation from the licensee. When the explanation is received, it considers the explanation. If not satisfied with the explanation, it passes the final order of revocation. First impressions and provisional judgments have a tendency to become ultimate ideas and final judgments. They would settle unconsciously on the investigators mind as the imperceptibleon an optical lens. They would dim his understanding and obfuscate his observation. Facts which will dovetail with them would arrest his attention; facts which will conflict with them would flit his observation. If by any chance he happens to notice refractory facts, he would seek to reconcile them with his first impressions and provisional judgments. This understanding of human psychology seems to have pursuaded Parliament to interpose the condition of the Boards consultation to the Governments action. The Board is an independent body. It consists of three members. One of them is a technical expert, the other a financial expert, and the third an administrative expert. While considering the facts presented to it by the Government and by the licensee in his explanation, the Board will undoubtedly act with an open and unconditioned mind and will be able to offer unbiased counsel to the Government. Having regard to the object and context, we are of the view that the condition of consulting the Board is mandatory and the breach of this condition will make the order of revocation void. We have already held that the Board was not consulted after the explanation was received. Accordingly we are of opinion that the order is void. The consequential order of acquisition will ipso facto fallhave shown earlier that the condition of consulting the Board has been inserted by an amendment of Section 4 with the object of creating a safeguard in favour of licensee. There is no provision in the Act authorising the Government to waive the condition of consultation in any case.It is true that the third reason given by the Court in Manbodhan Lal 1958 SCR 533 = (AIR 1957 SC 912 ) (supra) applies in this case. As there, so here the opinion of the Board is not binding on the Government. In spite of the Board advising against revocation, the Government may, if satisfied that it is necessary to revoke the licence, may revoke it. But having regard to the object and context of Section 4, we are of opinion that it should not be regarded as anconsideration. It will normally be difficult for the Government to ignore the Boards expert advice.We are satisfied from the object and context of Section 4 that Parliament intended to make consultation of the Board an imperative condition to revoking a licence. | 1 | 5,567 | 1,341 | ### 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:
successful showing that the order of revocation has been made without the Government applying its mind to the aspect of public interest or without forming an honest opinion on that aspect, it will, we have no doubt, be void. The phrase "after consulting the State Electricity Board" is sandwiched between the clause "if in its opinion the public interest so requires" and cls. (a) to (d). In this context it appears to us that consultation with the Board is also a condition precedent for making the order of revocation. Accordingly the breach of this condition precedent should also entail the same consequence as the breach of the other conditions referred to earlier. It may be observed that the phrase "after consulting the State Electricity Board" did not find place in S. 4 as it stood originally. It was introduced in Section 4 in 1959 by an amendment. It seems to us that it was introduced in Section 4 with the object of providing an additional safeguard to the licensee. When revoking a licence, the State Government acts in two stages. At first it forms a tentative opinion in favour of revoking the licence. Then it calls for an explanation from the licensee. When the explanation is received, it considers the explanation. If not satisfied with the explanation, it passes the final order of revocation. First impressions and provisional judgments have a tendency to become ultimate ideas and final judgments. They would settle unconsciously on the investigators mind as the imperceptible dust-particles on an optical lens. They would dim his understanding and obfuscate his observation. Facts which will dovetail with them would arrest his attention; facts which will conflict with them would flit his observation. If by any chance he happens to notice refractory facts, he would seek to reconcile them with his first impressions and provisional judgments. This understanding of human psychology seems to have pursuaded Parliament to interpose the condition of the Boards consultation to the Governments action. The Board is an independent body. It consists of three members. One of them is a technical expert, the other a financial expert, and the third an administrative expert. While considering the facts presented to it by the Government and by the licensee in his explanation, the Board will undoubtedly act with an open and unconditioned mind and will be able to offer unbiased counsel to the Government. Having regard to the object and context, we are of the view that the condition of consulting the Board is mandatory and the breach of this condition will make the order of revocation void. We have already held that the Board was not consulted after the explanation was received. Accordingly we are of opinion that the order is void. The consequential order of acquisition will ipso facto fall down.21. Counsel for the Board has relied on 1958 SCR 533 = (AIR 1957 SC 912 ) (supra), Ram Gopal Chaturvedi v State of Madhya Pradesh, (1970) 1 SCR 472 = (AIR 1970 SC 158 ) and State of Bombay v. D. A. Korgaonkar, Civil Appeal No. 289 of 1958 D/-6-5-1960 (SC). He has also relied on Rollo v. Minister of Town and Country Planning (1948) 1 All ER 13 and Derham v. Church Commissioners for England 1954 AC 245. (1970) 1 SCR 472 = (AIR 1970 SC 158 ) (supra) and Civil App. No. 289 of 1958 D/-6-5-1960 (SC) (supra) have followed Manbodhan Lal (Srivastava (supra). In Manbodhan Lal 1958 SCR 533 = (AIR 1967 SC 912) this court held that Art. 320 (c) of the Constitution is directory and not mandatory. A Government employee was dismissed from service after complying with the provisions of Art. 311 (2) of the Constitution. The U. P. Public Service Commission was consulted as to the punishment to be imposed on him. But it was consulted before the explanation of the employee was received by the Government. The argument was that as the Commission did not have the opportunity of considering his explanation, there was no real consultation as required by Art. 320 (c). It was also argued that Art. 320 (c) was mandatory and that accordingly the order of dismissal was void. This Court pointed out several reasons for the view that Art. 320 (c) is directory. The proviso to Art. 320 empowers the appropriate Govt. to issue directions as to the classes of cases in which consultation of the Commission will not be necessary. The proviso therefore indicates that the provision is directory. Another reason given by the Court is that Art. 320 (c) does not occur in the Chapter in which Art. 311 occurs. It finds place in the Chapter dealing with the Public Service Commission. Accordingly it cannot be said that it confers any right on Government employees. The third reason given is that consultation of the Commission is not binding on the Government. The first two reasons do not apply in our case.We have shown earlier that the condition of consulting the Board has been inserted by an amendment of Section 4 with the object of creating a safeguard in favour of licensee. There is no provision in the Act authorising the Government to waive the condition of consultation in any case.It is true that the third reason given by the Court in Manbodhan Lal 1958 SCR 533 = (AIR 1957 SC 912 ) (supra) applies in this case. As there, so here the opinion of the Board is not binding on the Government. In spite of the Board advising against revocation, the Government may, if satisfied that it is necessary to revoke the licence, may revoke it. But having regard to the object and context of Section 4, we are of opinion that it should not be regarded as an over-weighing consideration. It will normally be difficult for the Government to ignore the Boards expert advice.We are satisfied from the object and context of Section 4 that Parliament intended to make consultation of the Board an imperative condition to revoking a licence.
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1
### Explanation:
point is permitted to be raised in this Court. So we permit Sri Sen to argue the point.It appears form a reading of S. 4 that when the Government consults the Board on the question of revocation of a licence under S. 4, the Board is to make up its mind as to whether it should recommend: (1) to revoke the licence, or (2) not to revoke the licence, or (3) to permit the license to remain in force subject to such further terms and conditions as may be thought proper. It is difficult to conceive how the Board will make a choice out of these three courses without considering the explanation of the licensee. The explanation may make out a case for not revoking the license or a case for continuation of the licence with certainIt is now to be seen as to what is the effect of this premature consultation of the Board by the Government on the impugned order. The Act does not expressly provide for the consequence of premature consultation. It does not say that the order of revocation is void. Sri Sen contends that the order will be void. Counsel for the Board, on the other hand, contends that it will not be void. According to him, the provision regarding consultation of the Board is directory, and not mandatory.with a directory provision does not nullify the order. It is not disputed that if the provision is mandatory, the order of revocation will be void.The power to revoke the licence is a drastic power. The revocation of licence results in severe abridgment of the right to carry on business. Having in mind the requirements of Art. 19 (1) (g), Parliament has, it seems to us, prescribed certain conditions to prevent the abuse of power and to ensure just exercise of power. Clauses (a) to (d) of S. 4 prescribe some of the conditions precedent for the exercise of power. The order of revocation, in breach of any one of those conditions, will undoubtedly be void. The clause "if in its opinion the public interest so requires" is also a condition precedent. On a successful showing that the order of revocation has been made without the Government applying its mind to the aspect of public interest or without forming an honest opinion on that aspect, it will, we have no doubt, be void. The phrase "after consulting the State Electricity Board" is sandwiched between the clause "if in its opinion the public interest so requires" and cls. (a) to (d). In this context it appears to us that consultation with the Board is also a condition precedent for making the order of revocation. Accordingly the breach of this condition precedent should also entail the same consequence as the breach of the other conditions referred to earlier. It may be observed that the phrase "after consulting the State Electricity Board" did not find place in S. 4 as it stood originally. It was introduced in Section 4 in 1959 by an amendment. It seems to us that it was introduced in Section 4 with the object of providing an additional safeguard to the licensee. When revoking a licence, the State Government acts in two stages. At first it forms a tentative opinion in favour of revoking the licence. Then it calls for an explanation from the licensee. When the explanation is received, it considers the explanation. If not satisfied with the explanation, it passes the final order of revocation. First impressions and provisional judgments have a tendency to become ultimate ideas and final judgments. They would settle unconsciously on the investigators mind as the imperceptibleon an optical lens. They would dim his understanding and obfuscate his observation. Facts which will dovetail with them would arrest his attention; facts which will conflict with them would flit his observation. If by any chance he happens to notice refractory facts, he would seek to reconcile them with his first impressions and provisional judgments. This understanding of human psychology seems to have pursuaded Parliament to interpose the condition of the Boards consultation to the Governments action. The Board is an independent body. It consists of three members. One of them is a technical expert, the other a financial expert, and the third an administrative expert. While considering the facts presented to it by the Government and by the licensee in his explanation, the Board will undoubtedly act with an open and unconditioned mind and will be able to offer unbiased counsel to the Government. Having regard to the object and context, we are of the view that the condition of consulting the Board is mandatory and the breach of this condition will make the order of revocation void. We have already held that the Board was not consulted after the explanation was received. Accordingly we are of opinion that the order is void. The consequential order of acquisition will ipso facto fallhave shown earlier that the condition of consulting the Board has been inserted by an amendment of Section 4 with the object of creating a safeguard in favour of licensee. There is no provision in the Act authorising the Government to waive the condition of consultation in any case.It is true that the third reason given by the Court in Manbodhan Lal 1958 SCR 533 = (AIR 1957 SC 912 ) (supra) applies in this case. As there, so here the opinion of the Board is not binding on the Government. In spite of the Board advising against revocation, the Government may, if satisfied that it is necessary to revoke the licence, may revoke it. But having regard to the object and context of Section 4, we are of opinion that it should not be regarded as anconsideration. It will normally be difficult for the Government to ignore the Boards expert advice.We are satisfied from the object and context of Section 4 that Parliament intended to make consultation of the Board an imperative condition to revoking a licence.
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Navjot Singh Sidhu Vs. Om Prakash Soni | the election petitioner was that the returned candidate had used posters, banners and wall-paintings canvassing for votes in the name of Hindu religion. The election petitioner specifically averred that he had taken photographs of the wall-paintings which, however, were not enclosed to the Election Petition. The Election petitioner in the said case had prayed for leave to produce the same at a later stage of the case. It is in the above situation, namely, where the wall-paintings itself contained the ingredients of the commission of corrupt practice alleged that the non-furnishing of the same along with the Election Petition was held to be fatal. The above is not the situation in the present case. We, therefore, hold that the averments made with regard to election expenses in paragraph 10 and 11 of the Election Petition require to go for a full-fledged trial and the appeal insofar as the aforesaid part of the decision of the High Court has to fail.12. In paragraphs 12 to 15 of the Election Petition, the respondent-election petitioner, by giving details of expenditure incurred by the appellant in connection with public meetings held on different dates and in different venues, has contended that the expenses incurred on these public meetings is much more than what has been shown in the return of election expenses under the said head (Rs.1,83,466/-). While the details of the meetings i.e. the time, date and venue are mentioned and so is the number of persons who are claimed to have attended the meetings, we do not find any basis as to how the election petitioner had arrived at the quantum of expenses which he alleges to have been incurred by the returned candidate in holding each of the said meetings. What are the source(s) of information of the election petitioner with regard to the details furnished; whether he has personal knowledge of any of the said meetings; who are the persons who informed him of the details of such meetings; what is the basis of the estimate of the number of persons present and the facilities (chairs etc.) that were hired and the particulars of the refreshments served are nowhere pleaded. All such particulars that are an integral part of the allegation of corrupt practice alleged are absent. In the absence of the aforesaid particulars, there can be no doubt that insofar as the allegations made in paragraphs 12 to 15 of the Election Petition is concerned, the same do not disclose any triable issue so as to justify a regular trial of the said allegations. The allegations mentioned in paragraphs 12 to 15, so far as commission of corrupt practice of submission of false/incorrect return of election expenses is concerned, are, therefore, struck off.13. This will take the Court to the second category of allegations on which the Election Petition is founded. The same is with regard to the assistance allegedly received by the appellant, as the returned candidate, from one Jagjit Singh Suchu. The specific case of the respondent-election petitioner in the Election Petition filed is that Jagjit Singh Suchu was posted as the Grid Executive Engineer, Amritsar and he is a gazetted officer in the Punjab State Electricity Board. Shri Suchu was transferred, at the instance of the appellant, as Additional Superintending Engineer, East Division, Verka Circle, Amritsar which is a gazetted post in the State of Punjab. It is also alleged that the returned candidate i.e. the appellant had taken the help of Shri Suchu while he was working in the said capacity so as to further the appellant’s election prospects. The detailed pleadings in this regard are contained in paragraphs 17, 18, 19 and 20 of the Election Petition. We have perused the said pleadings.14. The contention advanced on behalf of the appellant is that the aforesaid Jagjit Singh Suchu, on the pleadings of the election petitioner himself, is admittedly a gazetted officer of the Punjab State Electricity Board and, therefore, under the provisions of Section 123(7) of the R.P. Act, prior to its amendment by Act 41 of 2009 with effect from 1st February, 2010, the assistance of Jagjit Singh Suchu, even if obtained, did not amount to corrupt practice inasmuch as the said person was not in service of the Government.15. The pleadings contained in paragraphs 17 to 20 of the Election Petition makes it clear that it is alleged that while Jagjit Singh Suchu was an officer of the Punjab State Electricity Board the appellant had got him transferred to the post of Additional Superintending Engineer, East Division, Verka Circle, Amritsar under the State of Punjab and that the appellant had received assistance from him so as to further his election prospects. The allegation in the Election Petition is that the post to which Jagjit Singh Suchu was transferred from the Punjab State Electricity Board was under the State Government and the assistance received by the returned candidate from the said person is while he was rendering service as Additional Superintending Engineer, namely, while he was performing the duties in the State Government. If that be so, the aforesaid issue also will have to go for a full trial as ordered by the High Court. The appeal to the aforesaid extent will, therefore, have to be dismissed.16. Insofar as the third allegation of the election petitioner is concerned, we are of the view that it would not be necessary for us to deal with the said question. The said allegation pertains to the action taken by the Returning Officer on the complaint filed by the election petitioner with regard to counting of votes. The election took place in the year 2009. The life of the House for which the election took place has long expired. The third allegation is not one with regard to commission of any corrupt practice. Hence by efflux of time the said issue has become academic rendering it unnecessary for us to enter into any discussion on the said question.17. Consequently and in the light of the above, the | 1[ds]We, therefore, hold that the averments made with regard to election expenses in paragraph 10 and 11 of the Election Petition require to go for a full-fledged trial and the appeal insofar as the aforesaid part of the decision of the High Court has to fail.12. In paragraphs 12 to 15 of the Election Petition, the respondent-election petitioner, by giving details of expenditure incurred by the appellant in connection with public meetings held on different dates and in different venues, has contended that the expenses incurred on these public meetings is much more than what has been shown in the return of election expenses under the said head (Rs.1,83,466/-). While the details of the meetings i.e. the time, date and venue are mentioned and so is the number of persons who are claimed to have attended the meetings, we do not find any basis as to how the election petitioner had arrived at the quantum of expenses which he alleges to have been incurred by the returned candidate in holding each of the said meetings. What are the source(s) of information of the election petitioner with regard to the details furnished; whether he has personal knowledge of any of the said meetings; who are the persons who informed him of the details of such meetings; what is the basis of the estimate of the number of persons present and the facilities (chairs etc.) that were hired and the particulars of the refreshments served are nowhere pleaded. All such particulars that are an integral part of the allegation of corrupt practice alleged are absent. In the absence of the aforesaid particulars, there can be no doubt that insofar as the allegations made in paragraphs 12 to 15 of the Election Petition is concerned, the same do not disclose any triable issue so as to justify a regular trial of the said allegations. The allegations mentioned in paragraphs 12 to 15, so far as commission of corrupt practice of submission of false/incorrect return of election expenses is concerned, are, therefore, strucksame is with regard to the assistance allegedly received by the appellant, as the returned candidate, from one Jagjit Singh Suchu. The specific case of the respondent-election petitioner in the Election Petition filed is that Jagjit Singh Suchu was posted as the Grid Executive Engineer, Amritsar and he is a gazetted officer in the Punjab State Electricity Board. Shri Suchu was transferred, at the instance of the appellant, as Additional Superintending Engineer, East Division, Verka Circle, Amritsar which is a gazetted post in the State of Punjab. It is also alleged that the returned candidate i.e. the appellant had taken the help of Shri Suchu while he was working in the said capacity so as to further theelection prospects. The detailed pleadings in this regard are contained in paragraphs 17, 18, 19 and 20 of the Election Petition. We have perused the said pleadings.The pleadings contained in paragraphs 17 to 20 of the Election Petition makes it clear that it is alleged that while Jagjit Singh Suchu was an officer of the Punjab State Electricity Board the appellant had got him transferred to the post of Additional Superintending Engineer, East Division, Verka Circle, Amritsar under the State of Punjab and that the appellant had received assistance from him so as to further his election prospects. The allegation in the Election Petition is that the post to which Jagjit Singh Suchu was transferred from the Punjab State Electricity Board was under the State Government and the assistance received by the returned candidate from the said person is while he was rendering service as Additional Superintending Engineer, namely, while he was performing the duties in the State Government. If that be so, the aforesaid issue also will have to go for a full trial as ordered by the High Court. The appeal to the aforesaid extent will, therefore, have to be dismissed.16. Insofar as the third allegation of the election petitioner is concerned, we are of the view that it would not be necessary for us to deal with the said question. The said allegation pertains to the action taken by the Returning Officer on the complaint filed by the election petitioner with regard to counting of votes. The election took place in the year 2009. The life of the House for which the election took place has long expired. The third allegation is not one with regard to commission of any corrupt practice. Hence by efflux of time the said issue has become academic rendering it unnecessary for us to enter into any discussion on the said | 1 | 3,388 | 833 | ### Instruction:
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the election petitioner was that the returned candidate had used posters, banners and wall-paintings canvassing for votes in the name of Hindu religion. The election petitioner specifically averred that he had taken photographs of the wall-paintings which, however, were not enclosed to the Election Petition. The Election petitioner in the said case had prayed for leave to produce the same at a later stage of the case. It is in the above situation, namely, where the wall-paintings itself contained the ingredients of the commission of corrupt practice alleged that the non-furnishing of the same along with the Election Petition was held to be fatal. The above is not the situation in the present case. We, therefore, hold that the averments made with regard to election expenses in paragraph 10 and 11 of the Election Petition require to go for a full-fledged trial and the appeal insofar as the aforesaid part of the decision of the High Court has to fail.12. In paragraphs 12 to 15 of the Election Petition, the respondent-election petitioner, by giving details of expenditure incurred by the appellant in connection with public meetings held on different dates and in different venues, has contended that the expenses incurred on these public meetings is much more than what has been shown in the return of election expenses under the said head (Rs.1,83,466/-). While the details of the meetings i.e. the time, date and venue are mentioned and so is the number of persons who are claimed to have attended the meetings, we do not find any basis as to how the election petitioner had arrived at the quantum of expenses which he alleges to have been incurred by the returned candidate in holding each of the said meetings. What are the source(s) of information of the election petitioner with regard to the details furnished; whether he has personal knowledge of any of the said meetings; who are the persons who informed him of the details of such meetings; what is the basis of the estimate of the number of persons present and the facilities (chairs etc.) that were hired and the particulars of the refreshments served are nowhere pleaded. All such particulars that are an integral part of the allegation of corrupt practice alleged are absent. In the absence of the aforesaid particulars, there can be no doubt that insofar as the allegations made in paragraphs 12 to 15 of the Election Petition is concerned, the same do not disclose any triable issue so as to justify a regular trial of the said allegations. The allegations mentioned in paragraphs 12 to 15, so far as commission of corrupt practice of submission of false/incorrect return of election expenses is concerned, are, therefore, struck off.13. This will take the Court to the second category of allegations on which the Election Petition is founded. The same is with regard to the assistance allegedly received by the appellant, as the returned candidate, from one Jagjit Singh Suchu. The specific case of the respondent-election petitioner in the Election Petition filed is that Jagjit Singh Suchu was posted as the Grid Executive Engineer, Amritsar and he is a gazetted officer in the Punjab State Electricity Board. Shri Suchu was transferred, at the instance of the appellant, as Additional Superintending Engineer, East Division, Verka Circle, Amritsar which is a gazetted post in the State of Punjab. It is also alleged that the returned candidate i.e. the appellant had taken the help of Shri Suchu while he was working in the said capacity so as to further the appellant’s election prospects. The detailed pleadings in this regard are contained in paragraphs 17, 18, 19 and 20 of the Election Petition. We have perused the said pleadings.14. The contention advanced on behalf of the appellant is that the aforesaid Jagjit Singh Suchu, on the pleadings of the election petitioner himself, is admittedly a gazetted officer of the Punjab State Electricity Board and, therefore, under the provisions of Section 123(7) of the R.P. Act, prior to its amendment by Act 41 of 2009 with effect from 1st February, 2010, the assistance of Jagjit Singh Suchu, even if obtained, did not amount to corrupt practice inasmuch as the said person was not in service of the Government.15. The pleadings contained in paragraphs 17 to 20 of the Election Petition makes it clear that it is alleged that while Jagjit Singh Suchu was an officer of the Punjab State Electricity Board the appellant had got him transferred to the post of Additional Superintending Engineer, East Division, Verka Circle, Amritsar under the State of Punjab and that the appellant had received assistance from him so as to further his election prospects. The allegation in the Election Petition is that the post to which Jagjit Singh Suchu was transferred from the Punjab State Electricity Board was under the State Government and the assistance received by the returned candidate from the said person is while he was rendering service as Additional Superintending Engineer, namely, while he was performing the duties in the State Government. If that be so, the aforesaid issue also will have to go for a full trial as ordered by the High Court. The appeal to the aforesaid extent will, therefore, have to be dismissed.16. Insofar as the third allegation of the election petitioner is concerned, we are of the view that it would not be necessary for us to deal with the said question. The said allegation pertains to the action taken by the Returning Officer on the complaint filed by the election petitioner with regard to counting of votes. The election took place in the year 2009. The life of the House for which the election took place has long expired. The third allegation is not one with regard to commission of any corrupt practice. Hence by efflux of time the said issue has become academic rendering it unnecessary for us to enter into any discussion on the said question.17. Consequently and in the light of the above, the
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We, therefore, hold that the averments made with regard to election expenses in paragraph 10 and 11 of the Election Petition require to go for a full-fledged trial and the appeal insofar as the aforesaid part of the decision of the High Court has to fail.12. In paragraphs 12 to 15 of the Election Petition, the respondent-election petitioner, by giving details of expenditure incurred by the appellant in connection with public meetings held on different dates and in different venues, has contended that the expenses incurred on these public meetings is much more than what has been shown in the return of election expenses under the said head (Rs.1,83,466/-). While the details of the meetings i.e. the time, date and venue are mentioned and so is the number of persons who are claimed to have attended the meetings, we do not find any basis as to how the election petitioner had arrived at the quantum of expenses which he alleges to have been incurred by the returned candidate in holding each of the said meetings. What are the source(s) of information of the election petitioner with regard to the details furnished; whether he has personal knowledge of any of the said meetings; who are the persons who informed him of the details of such meetings; what is the basis of the estimate of the number of persons present and the facilities (chairs etc.) that were hired and the particulars of the refreshments served are nowhere pleaded. All such particulars that are an integral part of the allegation of corrupt practice alleged are absent. In the absence of the aforesaid particulars, there can be no doubt that insofar as the allegations made in paragraphs 12 to 15 of the Election Petition is concerned, the same do not disclose any triable issue so as to justify a regular trial of the said allegations. The allegations mentioned in paragraphs 12 to 15, so far as commission of corrupt practice of submission of false/incorrect return of election expenses is concerned, are, therefore, strucksame is with regard to the assistance allegedly received by the appellant, as the returned candidate, from one Jagjit Singh Suchu. The specific case of the respondent-election petitioner in the Election Petition filed is that Jagjit Singh Suchu was posted as the Grid Executive Engineer, Amritsar and he is a gazetted officer in the Punjab State Electricity Board. Shri Suchu was transferred, at the instance of the appellant, as Additional Superintending Engineer, East Division, Verka Circle, Amritsar which is a gazetted post in the State of Punjab. It is also alleged that the returned candidate i.e. the appellant had taken the help of Shri Suchu while he was working in the said capacity so as to further theelection prospects. The detailed pleadings in this regard are contained in paragraphs 17, 18, 19 and 20 of the Election Petition. We have perused the said pleadings.The pleadings contained in paragraphs 17 to 20 of the Election Petition makes it clear that it is alleged that while Jagjit Singh Suchu was an officer of the Punjab State Electricity Board the appellant had got him transferred to the post of Additional Superintending Engineer, East Division, Verka Circle, Amritsar under the State of Punjab and that the appellant had received assistance from him so as to further his election prospects. The allegation in the Election Petition is that the post to which Jagjit Singh Suchu was transferred from the Punjab State Electricity Board was under the State Government and the assistance received by the returned candidate from the said person is while he was rendering service as Additional Superintending Engineer, namely, while he was performing the duties in the State Government. If that be so, the aforesaid issue also will have to go for a full trial as ordered by the High Court. The appeal to the aforesaid extent will, therefore, have to be dismissed.16. Insofar as the third allegation of the election petitioner is concerned, we are of the view that it would not be necessary for us to deal with the said question. The said allegation pertains to the action taken by the Returning Officer on the complaint filed by the election petitioner with regard to counting of votes. The election took place in the year 2009. The life of the House for which the election took place has long expired. The third allegation is not one with regard to commission of any corrupt practice. Hence by efflux of time the said issue has become academic rendering it unnecessary for us to enter into any discussion on the said
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Amarjit Singh Ahluwalia Vs. The State Of Punjab & Ors | that clause (2) (ii) of the memorandum dated 25th October, 1965 was in the nature of administrative instruction, not having the force of law, but the State Government could not at its own sweet will depart from it without rational justification and fix an artificial date for commencing the length of continuous service in the case of some individual officers only for the purpose of giving them seniority in contravention of that clause. That would be clearly violative of Articles 14 and 16 of the Constitution. The sweep of Articles 14 and 16 is wide and pervasive. These two articles embody the principle of rationality and they are intended to strike against arbitrary and discriminatory action taken by the State. Where the State Government departs from a principle of seniority laid down by it, albeit by administrative instructions, and the departure is without reason and arbitrary, it would directly infringe the guarantee of equality under Articles 14 and 16.It is interesting to notice that in the United States it is now well settled that an executive agency must be rigorously held to the standards by which it professes its actions to be judged and it must scrupulously observe those standards on pain of invalidation of an act in violation of them. Vide the judgment of Mr. Justice Frankfurter in Vitaralli v. Seaton, (1959) 359 US 535 at pp. 546-547 - 3 Law Ed (2nd Series) 1012. This view is of course not based on the equality clause of the United States Constitution and it is evolved as a rule of administrative law. But the principle is the same, namely, that arbitrariness should be eliminated in State action. If, therefore, we find that the order dated 4th December, 1967 gave an artificial date from which the continuous service of respondents Nos. 3 to 19 shall be deemed to have commenced, though in fact and in truth their continuous service commenced from different dates and it was thus in contravention of the principle of seniority laid down in clause (2) (ii) of the memorandum dated 25th October, 1965, it would have to be held to be void as being violative of Articles 14 and 16.10. We do not, however, think that the order dated 4th December, 1967 providing that the seniority of respondents Nos. 3 to 19 shall be reckoned from the date of their appointment namely, 8th April, 1964 constituted a departure from the principle of seniority laid down in clause (2) (ii) of the memorandum dated 25th October, 1965 The test for determining seniority in the integrated cadre laid down by clause (2) (ii) of the memorandum dated 25th October. 1965 was the length of continuous service from the date of appointment in the group. The appellant contended that continuous service in a post could commence only when the incumbent took charge of the post and not earlier and, therefore, though respondents Nos. 3 to 19 were promoted under the order dated 8th April, 1964, their continuous service in the posts of promotion in PCMS Class I did not commence until after 25th April, 1964 when they took charge of their respective posts of promotion and hence the length of their continuous service in PCMS Class I was less than that of Dr. Jagjit Singh and the appellant in Public Health Service, Class I. This contention is fallacious in that it fails to give sufficient importance to the words "from the date of appointment" and ignores the true meaning and effect of the order dated 8th April, 1964. First let us see what the words "date of the order of appointment" mean. Are they synonymous with "date of appointment"? We think not. An order of appointment may be of three kinds. It may appoint a person with effect from the date he assumes charge of the post or it may appoint him with immediate effect or it may appoint him simpliciter without saying as to when the appointment shall take effect. Where the order of appointment is of the first kind, the appointment would be effective only when the person appointed assumes charge of the post and that would be the date of his appointment. It would be then that he is appointed. But in a case of the second kind which is the one with which we are concerned since the order dated 8th April, 1964 appointed respondents Nos. 3 to 19 to PCMS Class I "with immediate effect", the appointment would be effective immediately irrespective as to when the person appointed assumes charge of the post. The date of his appointment in such a case would be the same as the date of the order of appointment. It is, therefore, obvious that so far as respondents Nos. 3 to 19 were concerned, the date of their appointment was 8th April, 1964 and the length of their continuous service in PCMS Class I was required to be reckoned from that date. It is true that respondents Nos. 3 to 19 did not assume charge of their respective posts of promotion until after 25th April, 1964, but that makes no difference because the length of continuous service is to be counted from the date of appointment on the hypothesis that once the appointment is effective the person concerned is in the post and his service in the post is deemed to have commenced though under the rules governing his conditions of service he may not be entitled to the salary and allowances attached to the post until he assumes charge of the post. The continuous service of respondents Nos. 3 to 19 in PCMS Class I, therefore, commenced from 8th April, l964 and since that was longer than the continuous service of Dr. Jagjit Singh and the appellant in Public Health Service Class I, which commenced only on 25th April, 1964, respondents Nos. 3 to 19 were entitled to be placed senior to Dr. Jagjit Singh and the appellant in the joint seniority list of the integrated PCMS Class I. | 0[ds]The measure or yard-stick for adjusting inter se seniority of the officers coming from the two services should be the length of continuous service of each from the date of appointment in his group. This was the principle laid down in clause (2) (ii) of the memorandum dated 25th October, 1965 for bringing about integration of the two services by adjusting the inter se seniority of the officers in the integrated service. There was no occasion or need at that time to lay down any principle for determining seniority inter se Deputy Directors or Assistant Directors. The seniority of Deputy Directors or Assistant Directors inter se in Public Health Service Class I was already determined and known and clause (2) (ii) of the memorandum dated 25th October, 1965 in fact provided that the adjustment of inter se seniority in the integrated service according to the length of continuous service from the date of appointment should be subject to the condition that "the seniority of persons in the present seniority list will not be disturbed. Clause (2) (ii) of the memorandum dated 25th October, 1965 was, therefore, not intended to provide for seniority of Deputy Directors or Assistant Directors inter se in their parent service. Whatever was the inter se seniority of Deputy Directors or Assistant Directors in their parent service was not to be disturbed while adjusting the seniority of the officers in the integrated service and so also was the inter se seniority of the officers already in PCMS Class I not to be violated while fixing seniority in the integrated service. There can, therefore, be no doubt that on a proper interpretation of clause (2) (ii) of the memorandum dated 25th October, 1965 the principle of length of continuous service from the date of appointment was applicable to officers coming from both the services for the purpose of fixing their inter se seniority in the integrated service.8. Now, it is true that cl. (2) (ii) of the memorandum dated 25th October, 1965 was not a statutory provision haying the force of law and was merely an administrative instruction issued by the State Government in exercise of its executive power. But that does not present any difficulty, for it is now well settled by several decisions of this Court that where no statutory rules are made regulating recruitment or conditions of service, the State Government always can in exercise of its executive power issue administrative instructions providing for recruitment and laying down conditions ofargument urged on behalf of the State Government was that it was competent to it to fix an assumed date on which the continuous service of respondents Nos. 3 to 19 should be deemed to have commenced for the purpose of determining their seniority in the integrated service, and the order dated 4th December, 1967 was, therefore, not beyond its power. But we do not think this argument is well founded. Clause (2) (ii) of the memorandum dated 25th October, 1965 provided that the seniority of the officers in the integrated service shall be determined by reference to the length of continuous service from the date of appointment in the group within their respective service. What was, therefore, required to be taken into account was the actual length of continuous service from the date of appointment and not the length of continuous service reckoned from an artificial date given by the State Government. Now, it is true that clause (2) (ii) of the memorandum dated 25th October, 1965 was in the nature of administrative instruction, not having the force of law, but the State Government could not at its own sweet will depart from it without rational justification and fix an artificial date for commencing the length of continuous service in the case of some individual officers only for the purpose of giving them seniority in contravention of that clause. That would be clearly violative of Articles 14 and 16 of the Constitution. The sweep of Articles 14 and 16 is wide and pervasive. These two articles embody the principle of rationality and they are intended to strike against arbitrary and discriminatory action taken by the State. Where the State Government departs from a principle of seniority laid down by it, albeit by administrative instructions, and the departure is without reason and arbitrary, it would directly infringe the guarantee of equality under Articles 14 and 16.It is interesting to notice that in the United States it is now well settled that an executive agency must be rigorously held to the standards by which it professes its actions to be judged and it must scrupulously observe those standards on pain of invalidation of an act in violation of them. Vide the judgment of Mr. Justice Frankfurter inVitaralli v. Seaton, (1959) 359 US 535 at pp. 546-547 - 3 Law Ed (2nd Series)This view is of course not based on the equality clause of the United States Constitution and it is evolved as a rule of administrative law. But the principle is the same, namely, that arbitrariness should be eliminated in State action. If, therefore, we find that the order dated 4th December, 1967 gave an artificial date from which the continuous service of respondents Nos. 3 to 19 shall be deemed to have commenced, though in fact and in truth their continuous service commenced from different dates and it was thus in contravention of the principle of seniority laid down in clause (2) (ii) of the memorandum dated 25th October, 1965, it would have to be held to be void as being violative of Articles 14 and 16.10. We do not, however, think that the order dated 4th December, 1967 providing that the seniority of respondents Nos. 3 to 19 shall be reckoned from the date of their appointment namely, 8th April, 1964 constituted a departure from the principle of seniority laid down in clause (2) (ii) of the memorandum dated 25th October, 1965 The test for determining seniority in the integrated cadre laid down by clause (2) (ii) of the memorandum dated 25th October. 1965 was the length of continuous service from the date of appointment in the group. The appellant contended that continuous service in a post could commence only when the incumbent took charge of the post and not earlier and, therefore, though respondents Nos. 3 to 19 were promoted under the order dated 8th April, 1964, their continuous service in the posts of promotion in PCMS Class I did not commence until after 25th April, 1964 when they took charge of their respective posts of promotion and hence the length of their continuous service in PCMS Class I was less than that of Dr. Jagjit Singh and the appellant in Public Health Service, Class I. This contention is fallacious in that it fails to give sufficient importance to the words "from the date of appointment" and ignores the true meaning and effect of the order dated 8th April, 1964. First let us see what the words "date of the order of appointment" mean. Are they synonymous with "date of appointment"? We think not. An order of appointment may be of three kinds. It may appoint a person with effect from the date he assumes charge of the post or it may appoint him with immediate effect or it may appoint him simpliciter without saying as to when the appointment shall take effect. Where the order of appointment is of the first kind, the appointment would be effective only when the person appointed assumes charge of the post and that would be the date of his appointment. It would be then that he is appointed. But in a case of the second kind which is the one with which we are concerned since the order dated 8th April, 1964 appointed respondents Nos. 3 to 19 to PCMS Class I "with immediate effect", the appointment would be effective immediately irrespective as to when the person appointed assumes charge of the post. The date of his appointment in such a case would be the same as the date of the order of appointment. It is, therefore, obvious that so far as respondents Nos. 3 to 19 were concerned, the date of their appointment was 8th April, 1964 and the length of their continuous service in PCMS Class I was required to be reckoned from that date. It is true that respondents Nos. 3 to 19 did not assume charge of their respective posts of promotion until after 25th April, 1964, but that makes no difference because the length of continuous service is to be counted from the date of appointment on the hypothesis that once the appointment is effective the person concerned is in the post and his service in the post is deemed to have commenced though under the rules governing his conditions of service he may not be entitled to the salary and allowances attached to the post until he assumes charge of the post. The continuous service of respondents Nos. 3 to 19 in PCMS Class I, therefore, commenced from 8th April, l964 and since that was longer than the continuous service of Dr. Jagjit Singh and the appellant in Public Health Service Class I, which commenced only on 25th April, 1964, respondents Nos. 3 to 19 were entitled to be placed senior to Dr. Jagjit Singh and the appellant in the joint seniority list of the integrated PCMS Class I. | 0 | 4,281 | 1,736 | ### Instruction:
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that clause (2) (ii) of the memorandum dated 25th October, 1965 was in the nature of administrative instruction, not having the force of law, but the State Government could not at its own sweet will depart from it without rational justification and fix an artificial date for commencing the length of continuous service in the case of some individual officers only for the purpose of giving them seniority in contravention of that clause. That would be clearly violative of Articles 14 and 16 of the Constitution. The sweep of Articles 14 and 16 is wide and pervasive. These two articles embody the principle of rationality and they are intended to strike against arbitrary and discriminatory action taken by the State. Where the State Government departs from a principle of seniority laid down by it, albeit by administrative instructions, and the departure is without reason and arbitrary, it would directly infringe the guarantee of equality under Articles 14 and 16.It is interesting to notice that in the United States it is now well settled that an executive agency must be rigorously held to the standards by which it professes its actions to be judged and it must scrupulously observe those standards on pain of invalidation of an act in violation of them. Vide the judgment of Mr. Justice Frankfurter in Vitaralli v. Seaton, (1959) 359 US 535 at pp. 546-547 - 3 Law Ed (2nd Series) 1012. This view is of course not based on the equality clause of the United States Constitution and it is evolved as a rule of administrative law. But the principle is the same, namely, that arbitrariness should be eliminated in State action. If, therefore, we find that the order dated 4th December, 1967 gave an artificial date from which the continuous service of respondents Nos. 3 to 19 shall be deemed to have commenced, though in fact and in truth their continuous service commenced from different dates and it was thus in contravention of the principle of seniority laid down in clause (2) (ii) of the memorandum dated 25th October, 1965, it would have to be held to be void as being violative of Articles 14 and 16.10. We do not, however, think that the order dated 4th December, 1967 providing that the seniority of respondents Nos. 3 to 19 shall be reckoned from the date of their appointment namely, 8th April, 1964 constituted a departure from the principle of seniority laid down in clause (2) (ii) of the memorandum dated 25th October, 1965 The test for determining seniority in the integrated cadre laid down by clause (2) (ii) of the memorandum dated 25th October. 1965 was the length of continuous service from the date of appointment in the group. The appellant contended that continuous service in a post could commence only when the incumbent took charge of the post and not earlier and, therefore, though respondents Nos. 3 to 19 were promoted under the order dated 8th April, 1964, their continuous service in the posts of promotion in PCMS Class I did not commence until after 25th April, 1964 when they took charge of their respective posts of promotion and hence the length of their continuous service in PCMS Class I was less than that of Dr. Jagjit Singh and the appellant in Public Health Service, Class I. This contention is fallacious in that it fails to give sufficient importance to the words "from the date of appointment" and ignores the true meaning and effect of the order dated 8th April, 1964. First let us see what the words "date of the order of appointment" mean. Are they synonymous with "date of appointment"? We think not. An order of appointment may be of three kinds. It may appoint a person with effect from the date he assumes charge of the post or it may appoint him with immediate effect or it may appoint him simpliciter without saying as to when the appointment shall take effect. Where the order of appointment is of the first kind, the appointment would be effective only when the person appointed assumes charge of the post and that would be the date of his appointment. It would be then that he is appointed. But in a case of the second kind which is the one with which we are concerned since the order dated 8th April, 1964 appointed respondents Nos. 3 to 19 to PCMS Class I "with immediate effect", the appointment would be effective immediately irrespective as to when the person appointed assumes charge of the post. The date of his appointment in such a case would be the same as the date of the order of appointment. It is, therefore, obvious that so far as respondents Nos. 3 to 19 were concerned, the date of their appointment was 8th April, 1964 and the length of their continuous service in PCMS Class I was required to be reckoned from that date. It is true that respondents Nos. 3 to 19 did not assume charge of their respective posts of promotion until after 25th April, 1964, but that makes no difference because the length of continuous service is to be counted from the date of appointment on the hypothesis that once the appointment is effective the person concerned is in the post and his service in the post is deemed to have commenced though under the rules governing his conditions of service he may not be entitled to the salary and allowances attached to the post until he assumes charge of the post. The continuous service of respondents Nos. 3 to 19 in PCMS Class I, therefore, commenced from 8th April, l964 and since that was longer than the continuous service of Dr. Jagjit Singh and the appellant in Public Health Service Class I, which commenced only on 25th April, 1964, respondents Nos. 3 to 19 were entitled to be placed senior to Dr. Jagjit Singh and the appellant in the joint seniority list of the integrated PCMS Class I.
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### Explanation:
it is true that clause (2) (ii) of the memorandum dated 25th October, 1965 was in the nature of administrative instruction, not having the force of law, but the State Government could not at its own sweet will depart from it without rational justification and fix an artificial date for commencing the length of continuous service in the case of some individual officers only for the purpose of giving them seniority in contravention of that clause. That would be clearly violative of Articles 14 and 16 of the Constitution. The sweep of Articles 14 and 16 is wide and pervasive. These two articles embody the principle of rationality and they are intended to strike against arbitrary and discriminatory action taken by the State. Where the State Government departs from a principle of seniority laid down by it, albeit by administrative instructions, and the departure is without reason and arbitrary, it would directly infringe the guarantee of equality under Articles 14 and 16.It is interesting to notice that in the United States it is now well settled that an executive agency must be rigorously held to the standards by which it professes its actions to be judged and it must scrupulously observe those standards on pain of invalidation of an act in violation of them. Vide the judgment of Mr. Justice Frankfurter inVitaralli v. Seaton, (1959) 359 US 535 at pp. 546-547 - 3 Law Ed (2nd Series)This view is of course not based on the equality clause of the United States Constitution and it is evolved as a rule of administrative law. But the principle is the same, namely, that arbitrariness should be eliminated in State action. If, therefore, we find that the order dated 4th December, 1967 gave an artificial date from which the continuous service of respondents Nos. 3 to 19 shall be deemed to have commenced, though in fact and in truth their continuous service commenced from different dates and it was thus in contravention of the principle of seniority laid down in clause (2) (ii) of the memorandum dated 25th October, 1965, it would have to be held to be void as being violative of Articles 14 and 16.10. We do not, however, think that the order dated 4th December, 1967 providing that the seniority of respondents Nos. 3 to 19 shall be reckoned from the date of their appointment namely, 8th April, 1964 constituted a departure from the principle of seniority laid down in clause (2) (ii) of the memorandum dated 25th October, 1965 The test for determining seniority in the integrated cadre laid down by clause (2) (ii) of the memorandum dated 25th October. 1965 was the length of continuous service from the date of appointment in the group. The appellant contended that continuous service in a post could commence only when the incumbent took charge of the post and not earlier and, therefore, though respondents Nos. 3 to 19 were promoted under the order dated 8th April, 1964, their continuous service in the posts of promotion in PCMS Class I did not commence until after 25th April, 1964 when they took charge of their respective posts of promotion and hence the length of their continuous service in PCMS Class I was less than that of Dr. Jagjit Singh and the appellant in Public Health Service, Class I. This contention is fallacious in that it fails to give sufficient importance to the words "from the date of appointment" and ignores the true meaning and effect of the order dated 8th April, 1964. First let us see what the words "date of the order of appointment" mean. Are they synonymous with "date of appointment"? We think not. An order of appointment may be of three kinds. It may appoint a person with effect from the date he assumes charge of the post or it may appoint him with immediate effect or it may appoint him simpliciter without saying as to when the appointment shall take effect. Where the order of appointment is of the first kind, the appointment would be effective only when the person appointed assumes charge of the post and that would be the date of his appointment. It would be then that he is appointed. But in a case of the second kind which is the one with which we are concerned since the order dated 8th April, 1964 appointed respondents Nos. 3 to 19 to PCMS Class I "with immediate effect", the appointment would be effective immediately irrespective as to when the person appointed assumes charge of the post. The date of his appointment in such a case would be the same as the date of the order of appointment. It is, therefore, obvious that so far as respondents Nos. 3 to 19 were concerned, the date of their appointment was 8th April, 1964 and the length of their continuous service in PCMS Class I was required to be reckoned from that date. It is true that respondents Nos. 3 to 19 did not assume charge of their respective posts of promotion until after 25th April, 1964, but that makes no difference because the length of continuous service is to be counted from the date of appointment on the hypothesis that once the appointment is effective the person concerned is in the post and his service in the post is deemed to have commenced though under the rules governing his conditions of service he may not be entitled to the salary and allowances attached to the post until he assumes charge of the post. The continuous service of respondents Nos. 3 to 19 in PCMS Class I, therefore, commenced from 8th April, l964 and since that was longer than the continuous service of Dr. Jagjit Singh and the appellant in Public Health Service Class I, which commenced only on 25th April, 1964, respondents Nos. 3 to 19 were entitled to be placed senior to Dr. Jagjit Singh and the appellant in the joint seniority list of the integrated PCMS Class I.
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Union of India Vs. Steel Stock Holders' Syndicate, Poona | 2, 974/2/- as claimed by the plaintiff could not be allowed in the absence of there being any contract justifying the charging of such interest. This Court was not at all concerned with a case like the present one where the plaintiff has merely claimed damages pure and simple and in order to assess the same had applied the yardstick of charging interest at a particular rate on the locked up capital for a period of more than six months. In these circumstances, therefore the ratio of the aforesaid decision in Watkins Mayore &Company (supra) is not applicable to the facts of the present case.Similarly in Bengal Nagpur Railway Co. Ltd. v. Ruttanji Ramji which was relied upon by this Court in Watkins Mayore &Company (supra) the amount claimed by the plaintiff was a specified amount on the basis of which interest was charged which had the effect of increasing the damages sought for. That was a case of a contractor who had brought a suit for recovery of the amount due from the Government Department and had added interest to the total claim made by the plaintiff. The Privy Council pointed out that as there was no stipulation which authorized the plaintiff to charge interest on the quantified amount of damages, the plaintiff was not entitled to any interest. Thus, in other words, the ratio of the decision in Ruttanji Ramjis case as also in Watkins Mayore &Company (supra) would apply only to such cases where interest by way of damages is claimed for wrongful detention of a debt or where the interest is claimed on a specified amount due or claimed against any debtor. The principle adumbrated in the two cases mentioned above will not apply to cases where the plaintiff does not claim interest on a quantified amount or on damages but where the plaintiff merely calculates interest as a yardstick or measure to assess t he damages which he would be entitled to. In the instant case the Courts below have clearly found that the plaintiff had deposited a sum of Rs. 27, 332-44 in the Bank soon after booking the consignment with the railway administration. The plaintiff was a stockist and as the money in the Bank remained idle for a period of more than six months due to the delayed delivery made by the Railway on account of its negligence, the plaintiff merely claimed compensation for this delayed delivery on the basis that if the amount was not locked up it would have earned some interest which would yield some profit to the plaintiff. Thus it is clear, therefore, that in the instant case the plaintiff neither claimed interest on any quantified amount, nor did he claim profit due to loss of market.In Digbijai Nath v. Tirbeni Nath Tewari a Division Bench of the Allahabad High Court, while interpreting the decision of the Privy Council referred to above, observed as follows:"We do not consider that this case is authority for the proposition that interest cannot be claimed by way of damages for breach of a contract under s. 73, Contract Act. All that was held in it was that interest cannot be allowed by way of damages for wrongful detention of debt. * * * The position is different where interest is claimed as part of the damages for breach of a contract.A similar view was taken by a Division Bench decision of the Patna High Court in The Official Receiver, Calcutta High Court and another v. Baneshwar Prasad Singh and another. We find ourselves in complete agreement with the principles laid down in those cases."13. For these reasons, therefore, we are of the opinion that the decision of this Court in Watkins Mayore &Company (supra) does not appear to be of any assistance to the appellant, so far as the facts of the present case are concerned. Thus it is clear that there is no of the Interest Act, because in the instant case the Interest Act has no application at all inasmuch as no interest is claimed by the plaintiff at all but interest has been used as a measure to determine the compensation which the plaintiff could seek against the appellant for its negligence in causing inordinate delay in the delivery of the goods. The contention raised by the learned Solicitor-General on this point is, therefore, overruled.14. The plaintiff is not claiming the sum decreed by way of interest but he is claiming the damages calculated on a particular basis. As a common carrier the Railway is undoubtedly responsible for breach of contract. In the instant case the Railway Receipt shows that the goods were booked to be carried from Bhillai to Poona which is on the Nagpur route. There was absolutely no reason nor any occasion for the Railway to divert the goods to a different route and for taking the same to a different route and for taking the same to Aurangabad which did not fall on the route to Poona at all. The Courts below, therefore, rightly found that the Railway was guilty of gross negligence.The last quest ion submitted by the learned Solicitor General was that the plaintiff was not entitled to loss of profit or loss of market, because the plaintiff has not pleaded anywhere that he had obtained any permit for the goods which, were a controlled commodity and sustained loss of market. It is true that the plaintiff has not pleaded this fact, but the plaintiff has not at all prayed for any damages on the ground of loss of market or loss of profit. The plaintiff has only claimed nominal damages for the loss which occurred to him because of the amount of money which he had deposited in the Bank and was locked for more than six months due to the delayed delivery. The Trial Court has already scaled down the amount from Rs. 2, 378-65 to Rs. 1, 250/- and we think the Trial Court was fully entitled to do so.15. | 0[ds]We are, however, unable to accept this argument. It is well settled that while the Indian Contract Act merely provides certain elementary conditions under which the contract becomes binding on the parties, it does not provide any particular form or condition of a contract. It is, therefore, clear that the parties to the contract may agree to a particular form or condition or of mode in which the contract is to be executed. In case where the Government enters into a contract with a person or vice versa a particular form in which the contract is to be executed has been provided for even by the Constitution and the contract has to be in that form.This does not mean that the provisions of the Contract Act stand superseded either by the Constitution or by the Railways Act which provide for a particular mode or a form in which the contract has to be entered into. Section 72 therefore does nothing more or nothing less than provide for a particular form in which the contract is to be executed and it enjoins that such a form will be prescribed by the railway administration and approved by the Centralthese circumstances, therefore, according to the plaintiff itself, the breach occurred only after the new Act had come into force-whether it was January 1, 1962 or thereafter. There can be no question of the liability arising when the goods were booked and the contract was entered into between the plaintiff and the Railway, because there is no presumption that the contract would result in breach. The plaintiff would be entitled to damages only when t here was a breach of contract and if the said breach, even according to the plaintiff itself, occurred on January 1, 1962 or thereafter, then it is manifest that the case would be covered by the new Act and not by the old Act.The first contention put forward by the Solicitor General was that the case of the plaintiff does not fall under any of the contingencies contemplated by s. 76 of the newthese circumstances, the case of the plaintiff does not fall within the four corners of s. 76, nor does it fulfill any of the categories mentioned therein. If s. 76 does not apply to the facts of the present case, then s. 78 will also have no application, because s. 78 starts with a non obstante clause "Notwithstanding anything contained in the foregoing provisions of this Chapter, a railway administration shall not be responsible". We, therefore, agree with the learned counsel for the respondent that under the new Act the liability of the Railway has been increased so as to take upon itself the responsibility of a commonthese circumstances, therefore, with due respect, we are unable to agree with the somewhat broad view taken by the Allahabad High Court and followed by the Orissa High Court in the cases referred to above. We, on the other hand, prefer to adopt the view taken by the Lahore High Court in the case referred to above. In this view of the matter, it is clear that the word "deterioration" used in s. 76 referred to the physical and actual deterioration of the goods which has admittedly not taken place in the present case. The plaintiff cannot take advantage of s. 76 relying on the word "deterioration" because of the finding of negligence entered by the Courts below. The case of the plaintiff is clearly taken out of the ambit of ss. 76 and 78 and his suit for damage also cannot be defeated on the ground that it is barred by s. 76 or s. 78 of the new Act. We are, therefore, of the opinion that in vie w of the finding of fact arrived by the Courts below the plaintiff is undoubtedly entitled to damages.This brings us to the second contention raised by the Solicitor General, namely, that the plaintiff is not entitled to interest as damages for breach of the contract. It was submitted that what the plaintiff has done is to calculate interest at the rate of 12% which has been reduced to 6% per annum on the amount deposited by him in the Bank which remained locked up for more than six months and to claim the same as damages. It was contended that the plaintiff plainly could not do so in view of the Interest Act under which interest can only be charged before suit if so stipulated by the parties to the contract. It is common ground that in the present case the contract between the parties does not provide for charging any interest for breach ofplaintiff is not claiming the sum decreed by way of interest but he is claiming the damages calculated on a particular basis. As a common carrier the Railway is undoubtedly responsible for breach of contract. In the instant case the Railway Receipt shows that the goods were booked to be carried from Bhillai to Poona which is on the Nagpur route. There was absolutely no reason nor any occasion for the Railway to divert the goods to a different route and for taking the same to a different route and for taking the same to Aurangabad which did not fall on the route to Poona at all. The Courts below, therefore, rightly found that the Railway was guilty of gross negligence.The last quest ion submitted by the learned Solicitor General was that the plaintiff was not entitled to loss of profit or loss of market, because the plaintiff has not pleaded anywhere that he had obtained any permit for the goods which, were a controlled commodity and sustained loss of market. It is true that the plaintiff has not pleaded this fact, but the plaintiff has not at all prayed for any damages on the ground of loss of market or loss of profit. The plaintiff has only claimed nominal damages for the loss which occurred to him because of the amount of money which he had deposited in the Bank and was locked for more than six months due to the delayed delivery. The Trial Court has already scaled down the amount from Rs. 2, 378-65 to Rs. 1, 250/- and we think the Trial Court was fully entitled to do so. | 0 | 6,606 | 1,127 | ### Instruction:
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2, 974/2/- as claimed by the plaintiff could not be allowed in the absence of there being any contract justifying the charging of such interest. This Court was not at all concerned with a case like the present one where the plaintiff has merely claimed damages pure and simple and in order to assess the same had applied the yardstick of charging interest at a particular rate on the locked up capital for a period of more than six months. In these circumstances, therefore the ratio of the aforesaid decision in Watkins Mayore &Company (supra) is not applicable to the facts of the present case.Similarly in Bengal Nagpur Railway Co. Ltd. v. Ruttanji Ramji which was relied upon by this Court in Watkins Mayore &Company (supra) the amount claimed by the plaintiff was a specified amount on the basis of which interest was charged which had the effect of increasing the damages sought for. That was a case of a contractor who had brought a suit for recovery of the amount due from the Government Department and had added interest to the total claim made by the plaintiff. The Privy Council pointed out that as there was no stipulation which authorized the plaintiff to charge interest on the quantified amount of damages, the plaintiff was not entitled to any interest. Thus, in other words, the ratio of the decision in Ruttanji Ramjis case as also in Watkins Mayore &Company (supra) would apply only to such cases where interest by way of damages is claimed for wrongful detention of a debt or where the interest is claimed on a specified amount due or claimed against any debtor. The principle adumbrated in the two cases mentioned above will not apply to cases where the plaintiff does not claim interest on a quantified amount or on damages but where the plaintiff merely calculates interest as a yardstick or measure to assess t he damages which he would be entitled to. In the instant case the Courts below have clearly found that the plaintiff had deposited a sum of Rs. 27, 332-44 in the Bank soon after booking the consignment with the railway administration. The plaintiff was a stockist and as the money in the Bank remained idle for a period of more than six months due to the delayed delivery made by the Railway on account of its negligence, the plaintiff merely claimed compensation for this delayed delivery on the basis that if the amount was not locked up it would have earned some interest which would yield some profit to the plaintiff. Thus it is clear, therefore, that in the instant case the plaintiff neither claimed interest on any quantified amount, nor did he claim profit due to loss of market.In Digbijai Nath v. Tirbeni Nath Tewari a Division Bench of the Allahabad High Court, while interpreting the decision of the Privy Council referred to above, observed as follows:"We do not consider that this case is authority for the proposition that interest cannot be claimed by way of damages for breach of a contract under s. 73, Contract Act. All that was held in it was that interest cannot be allowed by way of damages for wrongful detention of debt. * * * The position is different where interest is claimed as part of the damages for breach of a contract.A similar view was taken by a Division Bench decision of the Patna High Court in The Official Receiver, Calcutta High Court and another v. Baneshwar Prasad Singh and another. We find ourselves in complete agreement with the principles laid down in those cases."13. For these reasons, therefore, we are of the opinion that the decision of this Court in Watkins Mayore &Company (supra) does not appear to be of any assistance to the appellant, so far as the facts of the present case are concerned. Thus it is clear that there is no of the Interest Act, because in the instant case the Interest Act has no application at all inasmuch as no interest is claimed by the plaintiff at all but interest has been used as a measure to determine the compensation which the plaintiff could seek against the appellant for its negligence in causing inordinate delay in the delivery of the goods. The contention raised by the learned Solicitor-General on this point is, therefore, overruled.14. The plaintiff is not claiming the sum decreed by way of interest but he is claiming the damages calculated on a particular basis. As a common carrier the Railway is undoubtedly responsible for breach of contract. In the instant case the Railway Receipt shows that the goods were booked to be carried from Bhillai to Poona which is on the Nagpur route. There was absolutely no reason nor any occasion for the Railway to divert the goods to a different route and for taking the same to a different route and for taking the same to Aurangabad which did not fall on the route to Poona at all. The Courts below, therefore, rightly found that the Railway was guilty of gross negligence.The last quest ion submitted by the learned Solicitor General was that the plaintiff was not entitled to loss of profit or loss of market, because the plaintiff has not pleaded anywhere that he had obtained any permit for the goods which, were a controlled commodity and sustained loss of market. It is true that the plaintiff has not pleaded this fact, but the plaintiff has not at all prayed for any damages on the ground of loss of market or loss of profit. The plaintiff has only claimed nominal damages for the loss which occurred to him because of the amount of money which he had deposited in the Bank and was locked for more than six months due to the delayed delivery. The Trial Court has already scaled down the amount from Rs. 2, 378-65 to Rs. 1, 250/- and we think the Trial Court was fully entitled to do so.15.
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that the parties to the contract may agree to a particular form or condition or of mode in which the contract is to be executed. In case where the Government enters into a contract with a person or vice versa a particular form in which the contract is to be executed has been provided for even by the Constitution and the contract has to be in that form.This does not mean that the provisions of the Contract Act stand superseded either by the Constitution or by the Railways Act which provide for a particular mode or a form in which the contract has to be entered into. Section 72 therefore does nothing more or nothing less than provide for a particular form in which the contract is to be executed and it enjoins that such a form will be prescribed by the railway administration and approved by the Centralthese circumstances, therefore, according to the plaintiff itself, the breach occurred only after the new Act had come into force-whether it was January 1, 1962 or thereafter. There can be no question of the liability arising when the goods were booked and the contract was entered into between the plaintiff and the Railway, because there is no presumption that the contract would result in breach. The plaintiff would be entitled to damages only when t here was a breach of contract and if the said breach, even according to the plaintiff itself, occurred on January 1, 1962 or thereafter, then it is manifest that the case would be covered by the new Act and not by the old Act.The first contention put forward by the Solicitor General was that the case of the plaintiff does not fall under any of the contingencies contemplated by s. 76 of the newthese circumstances, the case of the plaintiff does not fall within the four corners of s. 76, nor does it fulfill any of the categories mentioned therein. If s. 76 does not apply to the facts of the present case, then s. 78 will also have no application, because s. 78 starts with a non obstante clause "Notwithstanding anything contained in the foregoing provisions of this Chapter, a railway administration shall not be responsible". We, therefore, agree with the learned counsel for the respondent that under the new Act the liability of the Railway has been increased so as to take upon itself the responsibility of a commonthese circumstances, therefore, with due respect, we are unable to agree with the somewhat broad view taken by the Allahabad High Court and followed by the Orissa High Court in the cases referred to above. We, on the other hand, prefer to adopt the view taken by the Lahore High Court in the case referred to above. In this view of the matter, it is clear that the word "deterioration" used in s. 76 referred to the physical and actual deterioration of the goods which has admittedly not taken place in the present case. The plaintiff cannot take advantage of s. 76 relying on the word "deterioration" because of the finding of negligence entered by the Courts below. The case of the plaintiff is clearly taken out of the ambit of ss. 76 and 78 and his suit for damage also cannot be defeated on the ground that it is barred by s. 76 or s. 78 of the new Act. We are, therefore, of the opinion that in vie w of the finding of fact arrived by the Courts below the plaintiff is undoubtedly entitled to damages.This brings us to the second contention raised by the Solicitor General, namely, that the plaintiff is not entitled to interest as damages for breach of the contract. It was submitted that what the plaintiff has done is to calculate interest at the rate of 12% which has been reduced to 6% per annum on the amount deposited by him in the Bank which remained locked up for more than six months and to claim the same as damages. It was contended that the plaintiff plainly could not do so in view of the Interest Act under which interest can only be charged before suit if so stipulated by the parties to the contract. It is common ground that in the present case the contract between the parties does not provide for charging any interest for breach ofplaintiff is not claiming the sum decreed by way of interest but he is claiming the damages calculated on a particular basis. As a common carrier the Railway is undoubtedly responsible for breach of contract. In the instant case the Railway Receipt shows that the goods were booked to be carried from Bhillai to Poona which is on the Nagpur route. There was absolutely no reason nor any occasion for the Railway to divert the goods to a different route and for taking the same to a different route and for taking the same to Aurangabad which did not fall on the route to Poona at all. The Courts below, therefore, rightly found that the Railway was guilty of gross negligence.The last quest ion submitted by the learned Solicitor General was that the plaintiff was not entitled to loss of profit or loss of market, because the plaintiff has not pleaded anywhere that he had obtained any permit for the goods which, were a controlled commodity and sustained loss of market. It is true that the plaintiff has not pleaded this fact, but the plaintiff has not at all prayed for any damages on the ground of loss of market or loss of profit. The plaintiff has only claimed nominal damages for the loss which occurred to him because of the amount of money which he had deposited in the Bank and was locked for more than six months due to the delayed delivery. The Trial Court has already scaled down the amount from Rs. 2, 378-65 to Rs. 1, 250/- and we think the Trial Court was fully entitled to do so.
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Jahiruddin Vs. K.D. Ratmi, Factory Manager, The Model Mills Nagpur Ltd | Act No. XXII of 1947 ) and the Industrial Disputes Act, 1947 (XIV of 1947)".The contention urged on behalf of the Mills proceeds on the assumption that the right to claim reinstatement has been granted by S. 16 of the State Act. As we have already stated, S. 16 only recognises the right of a dismissed employee, in appropriate cases, to claim reinstatement but does not confer the right. The section provides the procedure for enforcing the right. In this view, the right of the dismissed employee to claim reinstatement was in existence even during the period of exemption, but only it could not be enforced under S.16. Once the exemption is withdrawn he status quo ante is restored and it is open to the employee to file an application for reinstatement provided, however, his application is within the period of six months from the date of his dismissal.13. Under S. 4(1) (a), on a notification being made, the industry becomes a relief undertaking and the laws enumerated in the Schedule to the Bombay Act shall not apply. The Schedule specifies Chapter V-A of the Industrial Disputes Act and S. 16 of the State Act. Section 4 (1) (a) (i) also provides that the relief undertaking shall be exempt from the operation of the Acts mentioned in the Schedule.14. Learned counsel drew a distinction between the expressions exemption and suspension by relying upon the meanings given to these words in the Oxford Dictionary; Exemption means immunity from a liability whereas the word suspension means put it off. Basing himself on the dictionary meanings, learned counsel for the Mills has contended that the word exemption is of a vider connotation than suspension and means that the industry shall be immune from the liabilities arising under the statutes specified in the Schedule and that the order of dismissal having been passed while the exemption was in force the Mills were immune from liability to reinstate the employees on their dismissal being held to be wrongful.15. The order dismissing the employees was passed on January 6, 1961 when the notification was in force. The employees filed applications before the Commissioner of Labour on April 25, 1961. On the date of their applications the exemption granted to the Mills by the State Government was no longer in operation. The decision in Birla Brothers, Ltd. v. Modak, ILR (1948) 2 Cal 209, has firmly established the principles that for a dispute which originated before the Industrial Disputes Act came into force but was in existence on the date when that Act became law, the Act applied to the dispute since it was in existence and continuing on that date and no question of giving retrospective effect to the Act arose. At p. 221, the learned Chief Justice, Harries, who spoke for the Court stated thus:"In my judgment, the Act of 1947 clearly applies to the present dispute without any question arising of giving the Act any retrospective effect. It is true the dispute arose before the Act was passed, but on April 1, 1947 when the Act came into force, the dispute was in existence and continuing. The employees were on strike and the strike actually continued until May 19, that is, five days after the Government made the order referring the dispute to arbitration. In my judgment, the Act must apply to any dispute existing after it came into force, no matter when that dispute commenced. There is nothing in the Act to suggest that it should apply only to disputes which originated after the passing of the Act. On the contrary, the opening words of S. 10 of the Act make it clear that the Act would apply to all disputes existing when it came into force. The opening words of S. 10 (1) are-If any industrial dispute exists or is apprehended, the appropriate Government may, by order in writing etc.It seems to me that these words make it abundantly clear that the Act applies to any industrial dispute existing when it came into force and therefore, the Act applies to this dispute".16. It is argued by Mr. Phadke that the notification dated April 4, 1961 withdrawing the exemption is only prospective and no retrospective effect can be given to it. This argument proceeds on a fallacy. There is no question of the notification withdrawing an exemption being prospective or retrospective.17. It is finally submitted by learned counsel for the Mills that the validity of the orders passed by the Factory Manager dismissing the employees from service has not been determined by the High Court and that the matter must be remitted to that Court for a consideration of that question. We may point out that the Assistant Commissioner of Labour has held that the dismissal is wrongful. This conclusion is affirmed by the Industrial Court. The validity of the dismissal was therefore, finally concluded in favour of the employees. There is therefore, no question of the validity of the dismissal order now being considered by the High Court.18. We may now summarise the conclusions reached by us as a result of the above discussion. The right of an employee to claim reinstatement on a wrongful dismissal exists de hors S. 16 of the State Act Section 16 provides a forum for a dismissed employee to claim reinstatement but does not create a right. The effect of an exemption granted by the notification issued under the Bombay Act is not to destroy the right but to suspend the remedy prescribed by S. 16 for enforcing that right during the period when the exemption remains in force,. The right can be enforced by a dismissed employee by resorting to the provisions of S.16 of the Act provided he makes the application within six months from the date of his dismissal. In the present case, the appellants filed their applications within the period specified in S. 16 of the State Act. The High Court was in error in holding that the applications were not maintainable.19 | 1[ds]18. We may now summarise the conclusions reached by us as a result of the above discussion. The right of an employee to claim reinstatement on a wrongful dismissal exists de hors S. 16 of the State Act Section 16 provides a forum for a dismissed employee to claim reinstatement but does not create a right. The effect of an exemption granted by the notification issued under the Bombay Act is not to destroy the right but to suspend the remedy prescribed by S. 16 for enforcing that right during the period when the exemption remains in force,. The right can be enforced by a dismissed employee by resorting to the provisions of S.16 of the Act provided he makes the application within six months from the date of his dismissal. In the present case, the appellants filed their applications within the period specified in S. 16 of the State Act. The High Court was in error in holding that the applications were not maintainable. | 1 | 3,544 | 178 | ### Instruction:
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Act No. XXII of 1947 ) and the Industrial Disputes Act, 1947 (XIV of 1947)".The contention urged on behalf of the Mills proceeds on the assumption that the right to claim reinstatement has been granted by S. 16 of the State Act. As we have already stated, S. 16 only recognises the right of a dismissed employee, in appropriate cases, to claim reinstatement but does not confer the right. The section provides the procedure for enforcing the right. In this view, the right of the dismissed employee to claim reinstatement was in existence even during the period of exemption, but only it could not be enforced under S.16. Once the exemption is withdrawn he status quo ante is restored and it is open to the employee to file an application for reinstatement provided, however, his application is within the period of six months from the date of his dismissal.13. Under S. 4(1) (a), on a notification being made, the industry becomes a relief undertaking and the laws enumerated in the Schedule to the Bombay Act shall not apply. The Schedule specifies Chapter V-A of the Industrial Disputes Act and S. 16 of the State Act. Section 4 (1) (a) (i) also provides that the relief undertaking shall be exempt from the operation of the Acts mentioned in the Schedule.14. Learned counsel drew a distinction between the expressions exemption and suspension by relying upon the meanings given to these words in the Oxford Dictionary; Exemption means immunity from a liability whereas the word suspension means put it off. Basing himself on the dictionary meanings, learned counsel for the Mills has contended that the word exemption is of a vider connotation than suspension and means that the industry shall be immune from the liabilities arising under the statutes specified in the Schedule and that the order of dismissal having been passed while the exemption was in force the Mills were immune from liability to reinstate the employees on their dismissal being held to be wrongful.15. The order dismissing the employees was passed on January 6, 1961 when the notification was in force. The employees filed applications before the Commissioner of Labour on April 25, 1961. On the date of their applications the exemption granted to the Mills by the State Government was no longer in operation. The decision in Birla Brothers, Ltd. v. Modak, ILR (1948) 2 Cal 209, has firmly established the principles that for a dispute which originated before the Industrial Disputes Act came into force but was in existence on the date when that Act became law, the Act applied to the dispute since it was in existence and continuing on that date and no question of giving retrospective effect to the Act arose. At p. 221, the learned Chief Justice, Harries, who spoke for the Court stated thus:"In my judgment, the Act of 1947 clearly applies to the present dispute without any question arising of giving the Act any retrospective effect. It is true the dispute arose before the Act was passed, but on April 1, 1947 when the Act came into force, the dispute was in existence and continuing. The employees were on strike and the strike actually continued until May 19, that is, five days after the Government made the order referring the dispute to arbitration. In my judgment, the Act must apply to any dispute existing after it came into force, no matter when that dispute commenced. There is nothing in the Act to suggest that it should apply only to disputes which originated after the passing of the Act. On the contrary, the opening words of S. 10 of the Act make it clear that the Act would apply to all disputes existing when it came into force. The opening words of S. 10 (1) are-If any industrial dispute exists or is apprehended, the appropriate Government may, by order in writing etc.It seems to me that these words make it abundantly clear that the Act applies to any industrial dispute existing when it came into force and therefore, the Act applies to this dispute".16. It is argued by Mr. Phadke that the notification dated April 4, 1961 withdrawing the exemption is only prospective and no retrospective effect can be given to it. This argument proceeds on a fallacy. There is no question of the notification withdrawing an exemption being prospective or retrospective.17. It is finally submitted by learned counsel for the Mills that the validity of the orders passed by the Factory Manager dismissing the employees from service has not been determined by the High Court and that the matter must be remitted to that Court for a consideration of that question. We may point out that the Assistant Commissioner of Labour has held that the dismissal is wrongful. This conclusion is affirmed by the Industrial Court. The validity of the dismissal was therefore, finally concluded in favour of the employees. There is therefore, no question of the validity of the dismissal order now being considered by the High Court.18. We may now summarise the conclusions reached by us as a result of the above discussion. The right of an employee to claim reinstatement on a wrongful dismissal exists de hors S. 16 of the State Act Section 16 provides a forum for a dismissed employee to claim reinstatement but does not create a right. The effect of an exemption granted by the notification issued under the Bombay Act is not to destroy the right but to suspend the remedy prescribed by S. 16 for enforcing that right during the period when the exemption remains in force,. The right can be enforced by a dismissed employee by resorting to the provisions of S.16 of the Act provided he makes the application within six months from the date of his dismissal. In the present case, the appellants filed their applications within the period specified in S. 16 of the State Act. The High Court was in error in holding that the applications were not maintainable.19
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18. We may now summarise the conclusions reached by us as a result of the above discussion. The right of an employee to claim reinstatement on a wrongful dismissal exists de hors S. 16 of the State Act Section 16 provides a forum for a dismissed employee to claim reinstatement but does not create a right. The effect of an exemption granted by the notification issued under the Bombay Act is not to destroy the right but to suspend the remedy prescribed by S. 16 for enforcing that right during the period when the exemption remains in force,. The right can be enforced by a dismissed employee by resorting to the provisions of S.16 of the Act provided he makes the application within six months from the date of his dismissal. In the present case, the appellants filed their applications within the period specified in S. 16 of the State Act. The High Court was in error in holding that the applications were not maintainable.
|
Official Liquidator, High Court, Bombay Vs. Taru Jethmal Lalvani | that the liability of the deceased respondent No. 16 does not survive and hence he as an heir, cannot be brought on record, cannot be accepted. ( 12 ) THE present case, however, is somewhat different from the above cases decided by the Supreme Court. In the present case, respondent Nos. 1 and 16 had died before the misfeasance summons was taken out. So that the misfeasance summons itself is being taken out against the heirs and legal representatives of the deceased. The appellant contends that in view of the principle laid down by the Supreme Court that the liability of a director or officer does not abate on his death, a misfeasance summons can be taken out against the heirs and legal representatives of such a deceased director or officer. Kerala High Court, however, in the case of (Official Liquidator v. Ramakrishna Iyer) reported in 64 Company Cases, pg. 855, held that under section 543, a proceedings cannot be initiated against the legal representatives of a deceased director. The Kerala High Court has referred to the language of section 543 which contemplates a proceeding being taken out only against director, managing agent, secretary, treasurer, liquidator or officer of the company. The view taken by the Kerala High Court is supported by the decision in the case of (Feltoms Executors) 1865-66 1 L. R. Eq. pg. 219, where section 165 of the English Companies Act, 1862, which is similar to our section 543 was considered. Vice Chancellor Kindersley held that the words "compel him to pay" in that section cannot be applied to executors and administrators of a deceased director. The same ratio was applied in the case of (In re British Guardian Life Assurance Company) 1880 14 Ch. D. pg. 335.( 13 ) THE Kerala High Court has also emphasised the aspect of difficulty faced by legal representatives in defending such an action and consequently whether it would be just, fair or equitable to allow such proceedings to be initiated and continued. This letter aspect has been referred to by the Supreme Court also in its judgment in the case of Official Liquidator v. Tendolkar, (supra ). The Kerala High Court held that bearing all these aspects in mind, the proceedings cannot be initiated under section 543 against the legal representatives of a delinquent director or officer. The aspect of practical difficulties of the heirs of the deceased director or officer to defend such a proceeding and whether it would be just and fair to permit such a proceeding to be initiated do need to be considered when misfeasance proceedings are sought to be initiated against the heirs. This aspect will have to be considered by the Court on the basis of circumstances of each case. In the case before us, however, the very initiation of proceedings against the heirs and legal representatives of the deceased respondent No. 16 is far beyond the period of limitation under section 543 (2) of the Companies Act. Therefore, we have not examined the question raised by the Kerala High Court in the present case. There is no doubt that the misfeasance summons is hopelessly time barred in so far as it is sought to be directed against the heirs of respondent No. 16. ( 14 ) IN the case of respondent No. 1, however, his son who is one of his heirs, has been a party to the misfeasance summons right from inception as one of the delinquent officers of the Company. As far as he is concerned, the Official Liquidator is merely required to change his description as an heir and legal representative of respondent No. 1 also. However, the Official Liquidator cannot ask for any compulsive order against him in his capacity as an heir of deceased respondent No. 1. The Official Liquidator can certainly ask for a declaratory order against him as held by the Supreme Court in the above decisions. The Official Liquidator is, therefore, entitled to pursue his remedy against the estate of the deceased respondent No. 1 coming to the share of respondent No. 9 in Company Application No. 75 of 1988. In the Company Application No. 75 of 1988 for amendment however no such amendments are asked for. Therefore, no relief can be granted to the Official Liquidator under the present Company Application which has been rightly dismissed by the learned Single Judge. We are also informed that Misfeasance Summons itself has also been dismissed and an appeal from that order is before us for consideration. Therefore, if the misfeasance summons is restored the Official Liquidator is at liberty to take out an appropriate application to amend the misfeasance summons to bring on record respondent No. 9 in Company Application No. 75 of 1988 in his capacity as an heir of original respondent No. 1 also. ( 15 ) AS regards the other heirs of respondent No. 1 that the Official Liquidator is seeking to bring on record the application may not be hit by section 543 (2) of the Companies Act, 1956. But the Official Liquidator became aware in 1981 about the death of respondent No. 1. He was throughout aware of the fact one of the sons of respondent No. 1 viz. , respondent No. 9 (in Company Application No. 75 of 1988) was already on record as a party to the misfeasance summons. He has made no attempt to enquire from respondent No. 9 regarding other heirs of respondent No. 1. Only in 1988 he made an application to bring on record the other heirs of respondent No. 1. Such an application, made 7 years after the knowledge of the death of respondent No. 1, would also be barred under Article 137 of the Limitation Act. This, however, does not preclude the Official Liquidator from taking out any other proceedings in accordance with law against the heirs and legal representatives of the deceased respondent Nos. 1 and 16.( 16 ) IN the premises the learned Judge has rightly dismissed the Company Application. | 0[ds]We do not see why a misfeasance summons should not be governed by the same principles. He further submits that even though the misfeasance summons is taken out against dead respondents, their heirs can be subsequently brought on record even beyond the period prescribed under section 543 (2), because according to him, under section 543 (2) only an application is required to be made within the prescribed period. Once an application is made, somebody can be subsequently joined as a party to it. Such an interpretation cannot be accepted. Section 543 (2), when it refers to an application, must necessarily refer to an application against a specified person or persons. It cannot be an application in the abstract. Therefore, when the heir of a respondent who wasat the time when the original misfeasance summons was taken out, is brought on record, it is equivalent to taking out a fresh misfeasance summons against the heir. There is no question here of the amendment relating back to the date of the original misfeasance summons against some other parties. Therefore, this contention must be rejected. In view of this position, we do not see how the present Company Application No. 75 of 1988 can be11 ) THE Supreme Court, therefore, held that in a proceeding under section 543 of the Companies Act, the death of one of the officers will not result in abatement of his liability. His heirs can be brought on record for the purpose of pursuing the remedy under section 543 as against the estate of the deceased officer or director. In this case, the Supreme Court was concerned with a situation where, during the pendency of misfeasance proceedings one of the directors died. The Court allowed the substitution of his heirs and legal representatives in the misfeasance proceedings. In view of this judgment, the contention of respondent No. 12 (son of deceased respondent No. 16 in Company Application No. 16 of 1981) that the liability of the deceased respondent No. 16 does not survive and hence he as an heir, cannot be brought on record, cannot be13 ) THE Kerala High Court has also emphasised the aspect of difficulty faced by legal representatives in defending such an action and consequently whether it would be just, fair or equitable to allow such proceedings to be initiated and continued. This letter aspect has been referred to by the Supreme Court also in its judgment in the case of Official Liquidator v. Tendolkar, (supra ). The Kerala High Court held that bearing all these aspects in mind, the proceedings cannot be initiated under section 543 against the legal representatives of a delinquent director or officer. The aspect of practical difficulties of the heirs of the deceased director or officer to defend such a proceeding and whether it would be just and fair to permit such a proceeding to be initiated do need to be considered when misfeasance proceedings are sought to be initiated against the heirs. This aspect will have to be considered by the Court on the basis of circumstances of each case. In the case before us, however, the very initiation of proceedings against the heirs and legal representatives of the deceased respondent No. 16 is far beyond the period of limitation under section 543 (2) of the Companies Act. Therefore, we have not examined the question raised by the Kerala High Court in the present case. There is no doubt that the misfeasance summons is hopelessly time barred in so far as it is sought to be directed against the heirs of respondent No.14 ) IN the case of respondent No. 1, however, his son who is one of his heirs, has been a party to the misfeasance summons right from inception as one of the delinquent officers of the Company. As far as he is concerned, the Official Liquidator is merely required to change his description as an heir and legal representative of respondent No. 1 also. However, the Official Liquidator cannot ask for any compulsive order against him in his capacity as an heir of deceased respondent No. 1. The Official Liquidator can certainly ask for a declaratory order against him as held by the Supreme Court in the above decisions. The Official Liquidator is, therefore, entitled to pursue his remedy against the estate of the deceased respondent No. 1 coming to the share of respondent No. 9 in Company Application No. 75 of 1988. In the Company Application No. 75 of 1988 for amendment however no such amendments are asked for. Therefore, no relief can be granted to the Official Liquidator under the present Company Application which has been rightly dismissed by the learned Single Judge. We are also informed that Misfeasance Summons itself has also been dismissed and an appeal from that order is before us for consideration. Therefore, if the misfeasance summons is restored the Official Liquidator is at liberty to take out an appropriate application to amend the misfeasance summons to bring on record respondent No. 9 in Company Application No. 75 of 1988 in his capacity as an heir of original respondent No. 115 ) AS regards the other heirs of respondent No. 1 that the Official Liquidator is seeking to bring on record the application may not be hit by section 543 (2) of the Companies Act, 1956. But the Official Liquidator became aware in 1981 about the death of respondent No. 1. He was throughout aware of the fact one of the sons of respondent No. 1 viz. , respondent No. 9 (in Company Application No. 75 of 1988) was already on record as a party to the misfeasance summons. He has made no attempt to enquire from respondent No. 9 regarding other heirs of respondent No. 1. Only in 1988 he made an application to bring on record the other heirs of respondent No. 1. Such an application, made 7 years after the knowledge of the death of respondent No. 1, would also be barred under Article 137 of the Limitation Act. This, however, does not preclude the Official Liquidator from taking out any other proceedings in accordance with law against the heirs and legal representatives of the deceased respondent Nos. 1 and 16.( 16 ) IN the premises the learned Judge has rightly dismissed the Company Application. | 0 | 3,885 | 1,177 | ### Instruction:
Ascertain if the court will uphold (1) or dismiss (0) the appeal in the case proceeding, and then clarify this prediction by discussing critical sentences from the text.
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that the liability of the deceased respondent No. 16 does not survive and hence he as an heir, cannot be brought on record, cannot be accepted. ( 12 ) THE present case, however, is somewhat different from the above cases decided by the Supreme Court. In the present case, respondent Nos. 1 and 16 had died before the misfeasance summons was taken out. So that the misfeasance summons itself is being taken out against the heirs and legal representatives of the deceased. The appellant contends that in view of the principle laid down by the Supreme Court that the liability of a director or officer does not abate on his death, a misfeasance summons can be taken out against the heirs and legal representatives of such a deceased director or officer. Kerala High Court, however, in the case of (Official Liquidator v. Ramakrishna Iyer) reported in 64 Company Cases, pg. 855, held that under section 543, a proceedings cannot be initiated against the legal representatives of a deceased director. The Kerala High Court has referred to the language of section 543 which contemplates a proceeding being taken out only against director, managing agent, secretary, treasurer, liquidator or officer of the company. The view taken by the Kerala High Court is supported by the decision in the case of (Feltoms Executors) 1865-66 1 L. R. Eq. pg. 219, where section 165 of the English Companies Act, 1862, which is similar to our section 543 was considered. Vice Chancellor Kindersley held that the words "compel him to pay" in that section cannot be applied to executors and administrators of a deceased director. The same ratio was applied in the case of (In re British Guardian Life Assurance Company) 1880 14 Ch. D. pg. 335.( 13 ) THE Kerala High Court has also emphasised the aspect of difficulty faced by legal representatives in defending such an action and consequently whether it would be just, fair or equitable to allow such proceedings to be initiated and continued. This letter aspect has been referred to by the Supreme Court also in its judgment in the case of Official Liquidator v. Tendolkar, (supra ). The Kerala High Court held that bearing all these aspects in mind, the proceedings cannot be initiated under section 543 against the legal representatives of a delinquent director or officer. The aspect of practical difficulties of the heirs of the deceased director or officer to defend such a proceeding and whether it would be just and fair to permit such a proceeding to be initiated do need to be considered when misfeasance proceedings are sought to be initiated against the heirs. This aspect will have to be considered by the Court on the basis of circumstances of each case. In the case before us, however, the very initiation of proceedings against the heirs and legal representatives of the deceased respondent No. 16 is far beyond the period of limitation under section 543 (2) of the Companies Act. Therefore, we have not examined the question raised by the Kerala High Court in the present case. There is no doubt that the misfeasance summons is hopelessly time barred in so far as it is sought to be directed against the heirs of respondent No. 16. ( 14 ) IN the case of respondent No. 1, however, his son who is one of his heirs, has been a party to the misfeasance summons right from inception as one of the delinquent officers of the Company. As far as he is concerned, the Official Liquidator is merely required to change his description as an heir and legal representative of respondent No. 1 also. However, the Official Liquidator cannot ask for any compulsive order against him in his capacity as an heir of deceased respondent No. 1. The Official Liquidator can certainly ask for a declaratory order against him as held by the Supreme Court in the above decisions. The Official Liquidator is, therefore, entitled to pursue his remedy against the estate of the deceased respondent No. 1 coming to the share of respondent No. 9 in Company Application No. 75 of 1988. In the Company Application No. 75 of 1988 for amendment however no such amendments are asked for. Therefore, no relief can be granted to the Official Liquidator under the present Company Application which has been rightly dismissed by the learned Single Judge. We are also informed that Misfeasance Summons itself has also been dismissed and an appeal from that order is before us for consideration. Therefore, if the misfeasance summons is restored the Official Liquidator is at liberty to take out an appropriate application to amend the misfeasance summons to bring on record respondent No. 9 in Company Application No. 75 of 1988 in his capacity as an heir of original respondent No. 1 also. ( 15 ) AS regards the other heirs of respondent No. 1 that the Official Liquidator is seeking to bring on record the application may not be hit by section 543 (2) of the Companies Act, 1956. But the Official Liquidator became aware in 1981 about the death of respondent No. 1. He was throughout aware of the fact one of the sons of respondent No. 1 viz. , respondent No. 9 (in Company Application No. 75 of 1988) was already on record as a party to the misfeasance summons. He has made no attempt to enquire from respondent No. 9 regarding other heirs of respondent No. 1. Only in 1988 he made an application to bring on record the other heirs of respondent No. 1. Such an application, made 7 years after the knowledge of the death of respondent No. 1, would also be barred under Article 137 of the Limitation Act. This, however, does not preclude the Official Liquidator from taking out any other proceedings in accordance with law against the heirs and legal representatives of the deceased respondent Nos. 1 and 16.( 16 ) IN the premises the learned Judge has rightly dismissed the Company Application.
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according to him, under section 543 (2) only an application is required to be made within the prescribed period. Once an application is made, somebody can be subsequently joined as a party to it. Such an interpretation cannot be accepted. Section 543 (2), when it refers to an application, must necessarily refer to an application against a specified person or persons. It cannot be an application in the abstract. Therefore, when the heir of a respondent who wasat the time when the original misfeasance summons was taken out, is brought on record, it is equivalent to taking out a fresh misfeasance summons against the heir. There is no question here of the amendment relating back to the date of the original misfeasance summons against some other parties. Therefore, this contention must be rejected. In view of this position, we do not see how the present Company Application No. 75 of 1988 can be11 ) THE Supreme Court, therefore, held that in a proceeding under section 543 of the Companies Act, the death of one of the officers will not result in abatement of his liability. His heirs can be brought on record for the purpose of pursuing the remedy under section 543 as against the estate of the deceased officer or director. In this case, the Supreme Court was concerned with a situation where, during the pendency of misfeasance proceedings one of the directors died. The Court allowed the substitution of his heirs and legal representatives in the misfeasance proceedings. In view of this judgment, the contention of respondent No. 12 (son of deceased respondent No. 16 in Company Application No. 16 of 1981) that the liability of the deceased respondent No. 16 does not survive and hence he as an heir, cannot be brought on record, cannot be13 ) THE Kerala High Court has also emphasised the aspect of difficulty faced by legal representatives in defending such an action and consequently whether it would be just, fair or equitable to allow such proceedings to be initiated and continued. This letter aspect has been referred to by the Supreme Court also in its judgment in the case of Official Liquidator v. Tendolkar, (supra ). The Kerala High Court held that bearing all these aspects in mind, the proceedings cannot be initiated under section 543 against the legal representatives of a delinquent director or officer. The aspect of practical difficulties of the heirs of the deceased director or officer to defend such a proceeding and whether it would be just and fair to permit such a proceeding to be initiated do need to be considered when misfeasance proceedings are sought to be initiated against the heirs. This aspect will have to be considered by the Court on the basis of circumstances of each case. In the case before us, however, the very initiation of proceedings against the heirs and legal representatives of the deceased respondent No. 16 is far beyond the period of limitation under section 543 (2) of the Companies Act. Therefore, we have not examined the question raised by the Kerala High Court in the present case. There is no doubt that the misfeasance summons is hopelessly time barred in so far as it is sought to be directed against the heirs of respondent No.14 ) IN the case of respondent No. 1, however, his son who is one of his heirs, has been a party to the misfeasance summons right from inception as one of the delinquent officers of the Company. As far as he is concerned, the Official Liquidator is merely required to change his description as an heir and legal representative of respondent No. 1 also. However, the Official Liquidator cannot ask for any compulsive order against him in his capacity as an heir of deceased respondent No. 1. The Official Liquidator can certainly ask for a declaratory order against him as held by the Supreme Court in the above decisions. The Official Liquidator is, therefore, entitled to pursue his remedy against the estate of the deceased respondent No. 1 coming to the share of respondent No. 9 in Company Application No. 75 of 1988. In the Company Application No. 75 of 1988 for amendment however no such amendments are asked for. Therefore, no relief can be granted to the Official Liquidator under the present Company Application which has been rightly dismissed by the learned Single Judge. We are also informed that Misfeasance Summons itself has also been dismissed and an appeal from that order is before us for consideration. Therefore, if the misfeasance summons is restored the Official Liquidator is at liberty to take out an appropriate application to amend the misfeasance summons to bring on record respondent No. 9 in Company Application No. 75 of 1988 in his capacity as an heir of original respondent No. 115 ) AS regards the other heirs of respondent No. 1 that the Official Liquidator is seeking to bring on record the application may not be hit by section 543 (2) of the Companies Act, 1956. But the Official Liquidator became aware in 1981 about the death of respondent No. 1. He was throughout aware of the fact one of the sons of respondent No. 1 viz. , respondent No. 9 (in Company Application No. 75 of 1988) was already on record as a party to the misfeasance summons. He has made no attempt to enquire from respondent No. 9 regarding other heirs of respondent No. 1. Only in 1988 he made an application to bring on record the other heirs of respondent No. 1. Such an application, made 7 years after the knowledge of the death of respondent No. 1, would also be barred under Article 137 of the Limitation Act. This, however, does not preclude the Official Liquidator from taking out any other proceedings in accordance with law against the heirs and legal representatives of the deceased respondent Nos. 1 and 16.( 16 ) IN the premises the learned Judge has rightly dismissed the Company Application.
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Thahira P Vs. The Administrator, UT of Lakshadweep and Ors | the check-list showed that Thahira was Rank No. 1 having obtained 48.03% marks while Kadeeja was Rank No. 2 having obtained 46.43% marks.6. The check-list was accompanied by a notice of the same date published for the information of all the applicants. It was mentioned in the notice that in case of any mistake in the personal data or in the marks entered in the check-list, the same may be brought before the department till 1 p.m. on 26th May, 2011. It was also stated in the notice that no complaint would be entertained after the stipulated time and date.7. On 27th May, 2011 that is after the cut-off date, Kadeeja is said to have filed an objection to the check-list. The objection was limited to the allegation that Thahira did not have the required qualification for the post of Social Education Organiser since she had a degree in Malayalam and Sociology (Double Main). No objection was raised to the weightage given to the qualifications.8. It appears that the objection raised by Kadeeja was not accepted or not considered by the Administration being beyond time. Be that as it may, a rank list was then published on 4th June, 2011 for the post of Social Education Organiser in which Thahira was placed at Rank No. 1 and Kadeeja was placed at Rank No. 2.9. On 7th June, 2011 Thahira was appointed to the post of Social Education Organiser on a temporary basis.10. Feeling aggrieved, Kadeeja preferred an application before the Central Administrative Tribunal being O.A. No. 666 of 2013 dated 18th July, 2013 challenging the appointment of Thahira. The Administration filed a reply to the application to the effect that since no objection had been received to the check-list, within the prescribed time, the list was finalised and the rank list published.11. One of the issues adverted to before the Tribunal was whether the degree obtained by Thahira in Malayalam and Sociology (Double Main) was equivalent to a degree in Sociology (Single Main). The University of Calicut filed an affidavit on 4th September, 2013 to the effect that the question of equivalence had not been considered by the Academic Board of the University.12. By an order dated 15th March, 2016 the Tribunal allowed the application filed by Kadeeja and it was held that the composite marks obtained by the candidates should be taken into consideration for making the selection. Consequently, the marks obtained by Kadeeja in her subsidiary subjects were also taken into consideration and on that basis it was held that the appointment of Thahira was not justified.13. Feeling aggrieved by the decision of the Tribunal, a writ petition being O.P. (CAT) No. 126 of 2016 was preferred by Thahira before the High Court of Kerala. The High Court upheld the order passed by the Tribunal. In other words, the appointment of Thahira was struck down.14. At this stage, it may be mentioned that in the meanwhile the University of Calicut looked into the equivalence issue and concluded on or about 9th May, 2016 that the degree in Malayalam and Sociology (Double Main) was equivalent to a degree in Sociology (Single Main) awarded by the University. That being the position, there cannot be any doubt that Thahira was entitled to be considered for appointment to the post of Social Education Organiser.15. The High Court took into consideration the method of calculation of marks for deciding who should Rank No. 1 and who should Rank No. 2 and found fault with it. We are afraid the High Court ought not to have travelled this path since this was not an issue raised by Kadeeja in her representation to the Administration. Her only grievance was with regard to the eligibility of Thahira who had a degree in Malayalam and Sociology (Double Main) which, according to her, made Thahira ineligible since she did not have a degree in Sociology (Single Main).16. That apart, the check-list published on 24th May, 2011 gave the weightage of marks to be awarded. It would have been more appropriate for the High Court to permit the Directorate of Education to proceed on the announced basis rather than to open the issue of award of marks which, in any case, was not the grievance made by Kadeeja. In matters such as the present, it is advisable to leave the award of marks, weightage to be given etc. to the authorities who are dealing with the issue. Otherwise, any interference by the Court would amount to trenching on the wisdom and expertise of the selecting authority leading to avoidable litigation and uncertainty of employment as far as the candidates are concerned. It is another matter if there is some ex facie perversity or illegality in the process, but that is not so insofar as the present case is concerned.17. There also must be some adherence to the timelines held out to all candidates. In the present case, all the candidates were informed that if they had any objection to the check-list, they should file an objection before 1 p.m. on 26th May, 2011. Kadeeja did not file her objection within the prescribed time. As such, the Administration was fully justified in not considering her objection or rejecting it as being beyond the prescribed time. Adherence to such time limits, if not strictly followed, can again lead to uncertainties particularly if other candidates also start raising objections after the cut off date and providing some justification for the delay. In such circumstances, the process of selection would get bogged down and unduly prolonged which would neither serve the interest of the concerned institution nor the management of affairs of the institution.18. Consequently, we are of opinion that the Tribunal and the High Court needlessly opened up a new avenue for challenging the appointment of Thahira as Social Education Organiser. Both the Tribunal and the High Court ought to have exercised due restraint given the time limit for raising an objection by the Administration and the actual objection raised by Kadeeja. | 1[ds]14. At this stage, it may be mentioned that in the meanwhile the University of Calicut looked into the equivalence issue and concluded on or about 9th May, 2016 that the degree in Malayalam and Sociology (Double Main) was equivalent to a degree in Sociology (Single Main) awarded by the University. That being the position, there cannot be any doubt that Thahira was entitled to be considered for appointment to the post of Social Education Organiser15. The High Court took into consideration the method of calculation of marks for deciding who should Rank No. 1 and who should Rank No. 2 and found fault with it. We are afraid the High Court ought not to have travelled this path since this was not an issue raised by Kadeeja in her representation to the Administration. Her only grievance was with regard to the eligibility of Thahira who had a degree in Malayalam and Sociology (Double Main) which, according to her, made Thahira ineligible since she did not have a degree in Sociology (Single Main)16. That apart, the check-list published on 24th May, 2011 gave the weightage of marks to be awarded. It would have been more appropriate for the High Court to permit the Directorate of Education to proceed on the announced basis rather than to open the issue of award of marks which, in any case, was not the grievance made by Kadeeja. In matters such as the present, it is advisable to leave the award of marks, weightage to be given etc. to the authorities who are dealing with the issue. Otherwise, any interference by the Court would amount to trenching on the wisdom and expertise of the selecting authority leading to avoidable litigation and uncertainty of employment as far as the candidates are concerned. It is another matter if there is some ex facie perversity or illegality in the process, but that is not so insofar as the present case is concerned17. There also must be some adherence to the timelines held out to all candidates. In the present case, all the candidates were informed that if they had any objection to the check-list, they should file an objection before 1 p.m. on 26th May, 2011. Kadeeja did not file her objection within the prescribed time. As such, the Administration was fully justified in not considering her objection or rejecting it as being beyond the prescribed time. Adherence to such time limits, if not strictly followed, can again lead to uncertainties particularly if other candidates also start raising objections after the cut off date and providing some justification for the delay. In such circumstances, the process of selection would get bogged down and unduly prolonged which would neither serve the interest of the concerned institution nor the management of affairs of the institution18. Consequently, we are of opinion that the Tribunal and the High Court needlessly opened up a new avenue for challenging the appointment of Thahira as Social Education Organiser. Both the Tribunal and the High Court ought to have exercised due restraint given the time limit for raising an objection by the Administration and the actual objection raised by Kadeeja. | 1 | 1,338 | 581 | ### 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 check-list showed that Thahira was Rank No. 1 having obtained 48.03% marks while Kadeeja was Rank No. 2 having obtained 46.43% marks.6. The check-list was accompanied by a notice of the same date published for the information of all the applicants. It was mentioned in the notice that in case of any mistake in the personal data or in the marks entered in the check-list, the same may be brought before the department till 1 p.m. on 26th May, 2011. It was also stated in the notice that no complaint would be entertained after the stipulated time and date.7. On 27th May, 2011 that is after the cut-off date, Kadeeja is said to have filed an objection to the check-list. The objection was limited to the allegation that Thahira did not have the required qualification for the post of Social Education Organiser since she had a degree in Malayalam and Sociology (Double Main). No objection was raised to the weightage given to the qualifications.8. It appears that the objection raised by Kadeeja was not accepted or not considered by the Administration being beyond time. Be that as it may, a rank list was then published on 4th June, 2011 for the post of Social Education Organiser in which Thahira was placed at Rank No. 1 and Kadeeja was placed at Rank No. 2.9. On 7th June, 2011 Thahira was appointed to the post of Social Education Organiser on a temporary basis.10. Feeling aggrieved, Kadeeja preferred an application before the Central Administrative Tribunal being O.A. No. 666 of 2013 dated 18th July, 2013 challenging the appointment of Thahira. The Administration filed a reply to the application to the effect that since no objection had been received to the check-list, within the prescribed time, the list was finalised and the rank list published.11. One of the issues adverted to before the Tribunal was whether the degree obtained by Thahira in Malayalam and Sociology (Double Main) was equivalent to a degree in Sociology (Single Main). The University of Calicut filed an affidavit on 4th September, 2013 to the effect that the question of equivalence had not been considered by the Academic Board of the University.12. By an order dated 15th March, 2016 the Tribunal allowed the application filed by Kadeeja and it was held that the composite marks obtained by the candidates should be taken into consideration for making the selection. Consequently, the marks obtained by Kadeeja in her subsidiary subjects were also taken into consideration and on that basis it was held that the appointment of Thahira was not justified.13. Feeling aggrieved by the decision of the Tribunal, a writ petition being O.P. (CAT) No. 126 of 2016 was preferred by Thahira before the High Court of Kerala. The High Court upheld the order passed by the Tribunal. In other words, the appointment of Thahira was struck down.14. At this stage, it may be mentioned that in the meanwhile the University of Calicut looked into the equivalence issue and concluded on or about 9th May, 2016 that the degree in Malayalam and Sociology (Double Main) was equivalent to a degree in Sociology (Single Main) awarded by the University. That being the position, there cannot be any doubt that Thahira was entitled to be considered for appointment to the post of Social Education Organiser.15. The High Court took into consideration the method of calculation of marks for deciding who should Rank No. 1 and who should Rank No. 2 and found fault with it. We are afraid the High Court ought not to have travelled this path since this was not an issue raised by Kadeeja in her representation to the Administration. Her only grievance was with regard to the eligibility of Thahira who had a degree in Malayalam and Sociology (Double Main) which, according to her, made Thahira ineligible since she did not have a degree in Sociology (Single Main).16. That apart, the check-list published on 24th May, 2011 gave the weightage of marks to be awarded. It would have been more appropriate for the High Court to permit the Directorate of Education to proceed on the announced basis rather than to open the issue of award of marks which, in any case, was not the grievance made by Kadeeja. In matters such as the present, it is advisable to leave the award of marks, weightage to be given etc. to the authorities who are dealing with the issue. Otherwise, any interference by the Court would amount to trenching on the wisdom and expertise of the selecting authority leading to avoidable litigation and uncertainty of employment as far as the candidates are concerned. It is another matter if there is some ex facie perversity or illegality in the process, but that is not so insofar as the present case is concerned.17. There also must be some adherence to the timelines held out to all candidates. In the present case, all the candidates were informed that if they had any objection to the check-list, they should file an objection before 1 p.m. on 26th May, 2011. Kadeeja did not file her objection within the prescribed time. As such, the Administration was fully justified in not considering her objection or rejecting it as being beyond the prescribed time. Adherence to such time limits, if not strictly followed, can again lead to uncertainties particularly if other candidates also start raising objections after the cut off date and providing some justification for the delay. In such circumstances, the process of selection would get bogged down and unduly prolonged which would neither serve the interest of the concerned institution nor the management of affairs of the institution.18. Consequently, we are of opinion that the Tribunal and the High Court needlessly opened up a new avenue for challenging the appointment of Thahira as Social Education Organiser. Both the Tribunal and the High Court ought to have exercised due restraint given the time limit for raising an objection by the Administration and the actual objection raised by Kadeeja.
### Response:
1
### Explanation:
14. At this stage, it may be mentioned that in the meanwhile the University of Calicut looked into the equivalence issue and concluded on or about 9th May, 2016 that the degree in Malayalam and Sociology (Double Main) was equivalent to a degree in Sociology (Single Main) awarded by the University. That being the position, there cannot be any doubt that Thahira was entitled to be considered for appointment to the post of Social Education Organiser15. The High Court took into consideration the method of calculation of marks for deciding who should Rank No. 1 and who should Rank No. 2 and found fault with it. We are afraid the High Court ought not to have travelled this path since this was not an issue raised by Kadeeja in her representation to the Administration. Her only grievance was with regard to the eligibility of Thahira who had a degree in Malayalam and Sociology (Double Main) which, according to her, made Thahira ineligible since she did not have a degree in Sociology (Single Main)16. That apart, the check-list published on 24th May, 2011 gave the weightage of marks to be awarded. It would have been more appropriate for the High Court to permit the Directorate of Education to proceed on the announced basis rather than to open the issue of award of marks which, in any case, was not the grievance made by Kadeeja. In matters such as the present, it is advisable to leave the award of marks, weightage to be given etc. to the authorities who are dealing with the issue. Otherwise, any interference by the Court would amount to trenching on the wisdom and expertise of the selecting authority leading to avoidable litigation and uncertainty of employment as far as the candidates are concerned. It is another matter if there is some ex facie perversity or illegality in the process, but that is not so insofar as the present case is concerned17. There also must be some adherence to the timelines held out to all candidates. In the present case, all the candidates were informed that if they had any objection to the check-list, they should file an objection before 1 p.m. on 26th May, 2011. Kadeeja did not file her objection within the prescribed time. As such, the Administration was fully justified in not considering her objection or rejecting it as being beyond the prescribed time. Adherence to such time limits, if not strictly followed, can again lead to uncertainties particularly if other candidates also start raising objections after the cut off date and providing some justification for the delay. In such circumstances, the process of selection would get bogged down and unduly prolonged which would neither serve the interest of the concerned institution nor the management of affairs of the institution18. Consequently, we are of opinion that the Tribunal and the High Court needlessly opened up a new avenue for challenging the appointment of Thahira as Social Education Organiser. Both the Tribunal and the High Court ought to have exercised due restraint given the time limit for raising an objection by the Administration and the actual objection raised by Kadeeja.
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M. Viswanathan Vs. M/s. S.K. Tiles & Potteries P. Ltd. & Others | 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 Act concerned (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 Act concerned, 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." As noted above, the powers possessed by the High Court under Section 482 of the Code are very wide and the very plenitude of the power requires great caution in its exercise. Court must be careful to see that its decision in exercise of this power is based on sound principles. The inherent power should not be exercised to stifle a legitimate prosecution. The High Court being the highest court of a State should normally refrain from giving a prima facie decision in a case where the entire facts are incomplete and hazy, more so when the evidence has not been collected and produced before the Court and the issues involved, whether factual or legal, are of magnitude and cannot be seen in their true perspective without sufficient material. Of course, no hard-and-fast rule can be laid down in regard to cases in which the High Court will exercise its extraordinary jurisdiction of quashing the proceeding at any stage. (See: Janata Dal v. H. S. Chowdhary (1992 (4) SCC 305 ), and Raghubir Saran (Dr.) v. State of Bihar (AIR 1964 SC 1 ). It would not be proper for the High Court to analyse the case of the complainant in the light of all probabilities in order to determine whether a conviction would be sustainable and on such premises arrive at a conclusion that the proceedings are to be quashed. It would be erroneous to assess the material before it and conclude that the complaint cannot be proceeded with. In a proceeding instituted on complaint, exercise of the inherent powers to quash the proceedings is called for only in a case where the complaint does not disclose any offence or is frivolous, vexatious or oppressive. If the allegations set out in the complaint do not constitute the offence of which cognizance has been taken by the Magistrate, it is open to the High Court to quash the same in exercise of the inherent powers under Section 482 of the Code. It is not, however, necessary that there should be meticulous analysis of the case before the trial to find out whether the case would end in conviction or acquittal. The complaint has to be read as a whole. If it appears that on consideration of the allegations in the light of the statement made on oath of the complainant that the ingredients of the offence or offences are disclosed and there is no material to show that the complaint is mala fide, frivolous or vexatious, in that event there would be no justification for interference by the High Court. When an information is lodged at the police station and an offence is registered, then the mala fides of the informant would be of secondary importance. It is the material collected during the investigation and evidence led in court which decides the fate of the accused person. The allegations of mala fides against the informant are of no consequence and cannot by themselves be the basis for quashing the proceedings. (See: Dhanalakshmi v. R. Prasanna Kumar (1990 Supp SCC 686), State of Bihar v. P. P. Sharma (AIR 1996 SC 309 ), Rupan Deol Bajaj v. Kanwar Pal Singh Gill (1995 (6) SCC 194 ), State of Kerala v. O. C. Kuttan (AIR 1999 SC 1044 ), State of U.P. v. O. P. Sharma (1996 (7) SCC 705 ), Rashmi Kumar v. Mahesh Kumar Bhada (1997 (2) SCC 397 ), Satvinder Kaur v. State (Govt. of NCT of Delhi) (AIR 1996 SC 2983 ) and Rajesh Bajaj v. State NCT of Delhi (1999 (3) SCC 259. 17. The above position was recently highlighted in Zandu Pharmaceutical Works Ltd. & Ors. v. Mohd. Sharaful Haque and Another (2005 (1) SCC 122 ). 18. In the instant case the only conclusions arrived at by the High Court is in para 23 of the judgment which have been quoted above. The High Court has wrongly come to the conclusion that the matter in issue has to be decided by a Civil Court or the Company Law Board. The High Court had referred to the four types of allegations. Some of the allegations are certainly not adjudicable by the Civil Court or the Company Law Board. That being so the exercise of jurisdiction by the High Court in terms of Section 482 Cr.P.C. cannot be maintained. The impugned order is indefensible and is set aside.19. | 1[ds]In the instant case the only conclusions arrived at by the High Court is in para 23 of the judgment which have been quoted above. The High Court has wrongly come to the conclusion that the matter in issue has to be decided by a Civil Court or the Company Law Board. The High Court had referred to the four types of allegations. Some of the allegations are certainly not adjudicable by the Civil Court or the Company Law Board. That being so the exercise of jurisdiction by the High Court in terms of Section 482 Cr.P.C. cannot be maintained. The impugned order is indefensible and is set aside. | 1 | 3,989 | 121 | ### 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:
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 Act concerned (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 Act concerned, 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." As noted above, the powers possessed by the High Court under Section 482 of the Code are very wide and the very plenitude of the power requires great caution in its exercise. Court must be careful to see that its decision in exercise of this power is based on sound principles. The inherent power should not be exercised to stifle a legitimate prosecution. The High Court being the highest court of a State should normally refrain from giving a prima facie decision in a case where the entire facts are incomplete and hazy, more so when the evidence has not been collected and produced before the Court and the issues involved, whether factual or legal, are of magnitude and cannot be seen in their true perspective without sufficient material. Of course, no hard-and-fast rule can be laid down in regard to cases in which the High Court will exercise its extraordinary jurisdiction of quashing the proceeding at any stage. (See: Janata Dal v. H. S. Chowdhary (1992 (4) SCC 305 ), and Raghubir Saran (Dr.) v. State of Bihar (AIR 1964 SC 1 ). It would not be proper for the High Court to analyse the case of the complainant in the light of all probabilities in order to determine whether a conviction would be sustainable and on such premises arrive at a conclusion that the proceedings are to be quashed. It would be erroneous to assess the material before it and conclude that the complaint cannot be proceeded with. In a proceeding instituted on complaint, exercise of the inherent powers to quash the proceedings is called for only in a case where the complaint does not disclose any offence or is frivolous, vexatious or oppressive. If the allegations set out in the complaint do not constitute the offence of which cognizance has been taken by the Magistrate, it is open to the High Court to quash the same in exercise of the inherent powers under Section 482 of the Code. It is not, however, necessary that there should be meticulous analysis of the case before the trial to find out whether the case would end in conviction or acquittal. The complaint has to be read as a whole. If it appears that on consideration of the allegations in the light of the statement made on oath of the complainant that the ingredients of the offence or offences are disclosed and there is no material to show that the complaint is mala fide, frivolous or vexatious, in that event there would be no justification for interference by the High Court. When an information is lodged at the police station and an offence is registered, then the mala fides of the informant would be of secondary importance. It is the material collected during the investigation and evidence led in court which decides the fate of the accused person. The allegations of mala fides against the informant are of no consequence and cannot by themselves be the basis for quashing the proceedings. (See: Dhanalakshmi v. R. Prasanna Kumar (1990 Supp SCC 686), State of Bihar v. P. P. Sharma (AIR 1996 SC 309 ), Rupan Deol Bajaj v. Kanwar Pal Singh Gill (1995 (6) SCC 194 ), State of Kerala v. O. C. Kuttan (AIR 1999 SC 1044 ), State of U.P. v. O. P. Sharma (1996 (7) SCC 705 ), Rashmi Kumar v. Mahesh Kumar Bhada (1997 (2) SCC 397 ), Satvinder Kaur v. State (Govt. of NCT of Delhi) (AIR 1996 SC 2983 ) and Rajesh Bajaj v. State NCT of Delhi (1999 (3) SCC 259. 17. The above position was recently highlighted in Zandu Pharmaceutical Works Ltd. & Ors. v. Mohd. Sharaful Haque and Another (2005 (1) SCC 122 ). 18. In the instant case the only conclusions arrived at by the High Court is in para 23 of the judgment which have been quoted above. The High Court has wrongly come to the conclusion that the matter in issue has to be decided by a Civil Court or the Company Law Board. The High Court had referred to the four types of allegations. Some of the allegations are certainly not adjudicable by the Civil Court or the Company Law Board. That being so the exercise of jurisdiction by the High Court in terms of Section 482 Cr.P.C. cannot be maintained. The impugned order is indefensible and is set aside.19.
### Response:
1
### Explanation:
In the instant case the only conclusions arrived at by the High Court is in para 23 of the judgment which have been quoted above. The High Court has wrongly come to the conclusion that the matter in issue has to be decided by a Civil Court or the Company Law Board. The High Court had referred to the four types of allegations. Some of the allegations are certainly not adjudicable by the Civil Court or the Company Law Board. That being so the exercise of jurisdiction by the High Court in terms of Section 482 Cr.P.C. cannot be maintained. The impugned order is indefensible and is set aside.
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State Of Himachal Pradesh Vs. Ram Pal | Adarsh Kumar Goel, J. 1. Leave granted. 2. This appeal has been preferred against judgment and order dated 27th February, 2013 passed by the High Court of Himachal Pradesh at Shimla in Criminal Appeal No.406 of 2011. 3. Only question raised for consideration is whether the sentence imposed in the facts and circumstances is fair and just. 4. On 20th August, 2009 at 5.35 P.M. FIR was lodged by PW 3 Chhering to the effect that he was a mason in the work of construction of road at Gulaba near Manali. At 2.30 P.M., a tanker driven by the respondent accused struck the deceased Sonam a 20 year old girl, which was on account of rash and negligence driving by the respondent. The injured was taken to Mission hospital, Manali where she was declared dead on arrival. After completing the investigation, the accused was sent up for trial.5. The prosecution examined six witnesses, namely, PW 1 Dr. Balbir Rawat, PW 2 Budhi Singh, PW 3 Chhering, PW 4 Smt. Seema, PW 5 Sange Sherpa and PW 6 SI Om Chand. The accused took up the plea that the deceased came under the rear tyre after a part of the vehicle had already crossed. The girl had come running and struck against the vehicle and the appellant was not rash or negligent in driving.6. The trial Court noted that the vehicle was coming uphill as admitted by PW 4 Seema. It was also admitted that the girl was struck on the back side of the vehicle. The vehicle was going uphill on a road, condition of which was bad. Thus, the vehicle could not be at high speed.7. On appeal, the view taken by the trial Court was reversed. It was held that even if the vehicle was going at slow speed and uphill, the vehicle could have been stopped and its striking to the girl could have been prevented. Undoubtedly, the death was because of vehicle hitting the girl which in the circumstances was clear result of rash and negligent act of driving. Accordingly, the appellate Court convicted the respondent under Section 279 and 304 A IPC and awarded sentence of imprisonment for six months and fine of Rs.1000, in default further imprisonment of one month under Section 304 A IPC and concurrent imprisonment for three months and fine of Rs.500, in default further imprisonment of fifteen days under Section 279 IPC.8. The respondent accused preferred appeal to the High Court. The High Court noticed the post mortem report to the effect that "the cause of death of the deceased was crush injury of lumbo-sacral spine and pelvic bone leading to cardio respiratory arrest". It was inferred that such injury could be possible only with rash and negligent driving. However, sentence of imprisonment was set aside and substituted by fine of Rs.40,000/-, in default of which sentence awarded by the trial Court was to revive. 9. We have heard learned counsel for the parties. 10. Learned counsel for the State pointed out that it was the duty of the Court to award just and fair sentence. If a liberal view was taken on sentence of imprisonment, reasonable amount of compensation was required to be awarded. On this text, the view taken by the High Court is not sustainable. The amount of Rs.40,000/- cannot be held to be adequate compensation when life of a young girl aged 20 years was lost. 11. Learned counsel for the respondent submitted that the accused was a poor man and a driver and could not pay more amount as compensation. He also submitted that even though it was a case of driving in a difficult terrain where different parameters ought to be applied for determining negligence. 12. We have given our anxious consideration to the rival submissions and perused the record. 13. It is evident from the facts and circumstances of the case that the respondent has not called in question his conviction. We have before us only challenge to the inadequacy of the sentence in the present appeal filed by the State. Moreover, in an appeal under Article 136 of the Constitution, this Court does not re-appreciate the evidence, in absence of perversity or patent legal error, merely because a different view was also possible. We are thus, not inclined to reopen the correctness of conviction of the respondent and proceed to consider the question of adequacy of the sentence. In our view, the sentence of mere fine of Rs.40,000/- imposed by the High Court is not adequate and proportionate to the offence. We have been informed that a sum of Rs.3,60,000/- has been awarded as compensation by the insurance company to the heirs of the deceased. We are also of the view that where the accused is unable to pay adequate compensation to the victim or his heir, the Court ought to have awarded compensation under Section 357A against the State from the funds available under the Victim Compensation Scheme framed under the said section. This Court has dealt with the issue in Suresh vs. State of Haryana [2015 (2) SCC 227 ], Manohar Singh vs. State of Rajasthan & Ors. (Criminal Appeal No.99 of 2015 decided on 16.1.2015) and State of M.P. vs. Mehtaab (Criminal Appeal No.290 of 2015 decided on 13.2.2015). Having regard to totality of circumstances of the present case, we feel that ends of justice will be served if the accused is required to pay total compensation of Rs.1 lakh and the State to pay a sum of Rs.3 lakhs. | 0[ds]13. It is evident from the facts and circumstances of the case that the respondent has not called in question his conviction. We have before us only challenge to the inadequacy of the sentence in the present appeal filed by the State. Moreover, in an appeal under Article 136 of the Constitution, this Court does not re-appreciate the evidence, in absence of perversity or patent legal error, merely because a different view was also possible. We are thus, not inclined to reopen the correctness of conviction of the respondent and proceed to consider the question of adequacy of the sentence. In our view, the sentence of mere fine of Rs.40,000/- imposed by the High Court is not adequate and proportionate to the offence. We have been informed that a sum of Rs.3,60,000/- has been awarded as compensation by the insurance company to the heirs of the deceased. We are also of the view that where the accused is unable to pay adequate compensation to the victim or his heir, the Court ought to have awarded compensation under Section 357A against the State from the funds available under the Victim Compensation Scheme framed under the said section. This Court has dealt with the issue in Suresh vs. State of Haryana [2015 (2) SCC 227 ], Manohar Singh vs. State of Rajasthan & Ors. (Criminal Appeal No.99 of 2015 decided on 16.1.2015) and State of M.P. vs. Mehtaab (Criminal Appeal No.290 of 2015 decided on 13.2.2015). Having regard to totality of circumstances of the present case, we feel that ends of justice will be served if the accused is required to pay total compensation of Rs.1 lakh and the State to pay a sum of Rs.3 lakhs. | 0 | 1,017 | 317 | ### 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:
Adarsh Kumar Goel, J. 1. Leave granted. 2. This appeal has been preferred against judgment and order dated 27th February, 2013 passed by the High Court of Himachal Pradesh at Shimla in Criminal Appeal No.406 of 2011. 3. Only question raised for consideration is whether the sentence imposed in the facts and circumstances is fair and just. 4. On 20th August, 2009 at 5.35 P.M. FIR was lodged by PW 3 Chhering to the effect that he was a mason in the work of construction of road at Gulaba near Manali. At 2.30 P.M., a tanker driven by the respondent accused struck the deceased Sonam a 20 year old girl, which was on account of rash and negligence driving by the respondent. The injured was taken to Mission hospital, Manali where she was declared dead on arrival. After completing the investigation, the accused was sent up for trial.5. The prosecution examined six witnesses, namely, PW 1 Dr. Balbir Rawat, PW 2 Budhi Singh, PW 3 Chhering, PW 4 Smt. Seema, PW 5 Sange Sherpa and PW 6 SI Om Chand. The accused took up the plea that the deceased came under the rear tyre after a part of the vehicle had already crossed. The girl had come running and struck against the vehicle and the appellant was not rash or negligent in driving.6. The trial Court noted that the vehicle was coming uphill as admitted by PW 4 Seema. It was also admitted that the girl was struck on the back side of the vehicle. The vehicle was going uphill on a road, condition of which was bad. Thus, the vehicle could not be at high speed.7. On appeal, the view taken by the trial Court was reversed. It was held that even if the vehicle was going at slow speed and uphill, the vehicle could have been stopped and its striking to the girl could have been prevented. Undoubtedly, the death was because of vehicle hitting the girl which in the circumstances was clear result of rash and negligent act of driving. Accordingly, the appellate Court convicted the respondent under Section 279 and 304 A IPC and awarded sentence of imprisonment for six months and fine of Rs.1000, in default further imprisonment of one month under Section 304 A IPC and concurrent imprisonment for three months and fine of Rs.500, in default further imprisonment of fifteen days under Section 279 IPC.8. The respondent accused preferred appeal to the High Court. The High Court noticed the post mortem report to the effect that "the cause of death of the deceased was crush injury of lumbo-sacral spine and pelvic bone leading to cardio respiratory arrest". It was inferred that such injury could be possible only with rash and negligent driving. However, sentence of imprisonment was set aside and substituted by fine of Rs.40,000/-, in default of which sentence awarded by the trial Court was to revive. 9. We have heard learned counsel for the parties. 10. Learned counsel for the State pointed out that it was the duty of the Court to award just and fair sentence. If a liberal view was taken on sentence of imprisonment, reasonable amount of compensation was required to be awarded. On this text, the view taken by the High Court is not sustainable. The amount of Rs.40,000/- cannot be held to be adequate compensation when life of a young girl aged 20 years was lost. 11. Learned counsel for the respondent submitted that the accused was a poor man and a driver and could not pay more amount as compensation. He also submitted that even though it was a case of driving in a difficult terrain where different parameters ought to be applied for determining negligence. 12. We have given our anxious consideration to the rival submissions and perused the record. 13. It is evident from the facts and circumstances of the case that the respondent has not called in question his conviction. We have before us only challenge to the inadequacy of the sentence in the present appeal filed by the State. Moreover, in an appeal under Article 136 of the Constitution, this Court does not re-appreciate the evidence, in absence of perversity or patent legal error, merely because a different view was also possible. We are thus, not inclined to reopen the correctness of conviction of the respondent and proceed to consider the question of adequacy of the sentence. In our view, the sentence of mere fine of Rs.40,000/- imposed by the High Court is not adequate and proportionate to the offence. We have been informed that a sum of Rs.3,60,000/- has been awarded as compensation by the insurance company to the heirs of the deceased. We are also of the view that where the accused is unable to pay adequate compensation to the victim or his heir, the Court ought to have awarded compensation under Section 357A against the State from the funds available under the Victim Compensation Scheme framed under the said section. This Court has dealt with the issue in Suresh vs. State of Haryana [2015 (2) SCC 227 ], Manohar Singh vs. State of Rajasthan & Ors. (Criminal Appeal No.99 of 2015 decided on 16.1.2015) and State of M.P. vs. Mehtaab (Criminal Appeal No.290 of 2015 decided on 13.2.2015). Having regard to totality of circumstances of the present case, we feel that ends of justice will be served if the accused is required to pay total compensation of Rs.1 lakh and the State to pay a sum of Rs.3 lakhs.
### Response:
0
### Explanation:
13. It is evident from the facts and circumstances of the case that the respondent has not called in question his conviction. We have before us only challenge to the inadequacy of the sentence in the present appeal filed by the State. Moreover, in an appeal under Article 136 of the Constitution, this Court does not re-appreciate the evidence, in absence of perversity or patent legal error, merely because a different view was also possible. We are thus, not inclined to reopen the correctness of conviction of the respondent and proceed to consider the question of adequacy of the sentence. In our view, the sentence of mere fine of Rs.40,000/- imposed by the High Court is not adequate and proportionate to the offence. We have been informed that a sum of Rs.3,60,000/- has been awarded as compensation by the insurance company to the heirs of the deceased. We are also of the view that where the accused is unable to pay adequate compensation to the victim or his heir, the Court ought to have awarded compensation under Section 357A against the State from the funds available under the Victim Compensation Scheme framed under the said section. This Court has dealt with the issue in Suresh vs. State of Haryana [2015 (2) SCC 227 ], Manohar Singh vs. State of Rajasthan & Ors. (Criminal Appeal No.99 of 2015 decided on 16.1.2015) and State of M.P. vs. Mehtaab (Criminal Appeal No.290 of 2015 decided on 13.2.2015). Having regard to totality of circumstances of the present case, we feel that ends of justice will be served if the accused is required to pay total compensation of Rs.1 lakh and the State to pay a sum of Rs.3 lakhs.
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The Factory Manager,Cimmco Wagon Factory Vs. Virendra Kumar Sharma | be compelled to do so. May be, the respondent did not give up training and continued working as a Co-ordinator in anticipation of being provided employment as his father was also an employee in the factory. There was no evidence on record to indicate that either GPF or ESI were deducted from the salary of the respondent as he was not being paid any salary. Having regard to the evidence placed on record, the Labour Court held that the respondent was not a workman. As regards the presumption to be drawn under Section 103 of the Act, the Labour Court observed that such a presumption was put to an end by the facts of the case as the respondent was not given any appointment letter; he was neither paid any salary or wages and that the master and servants relationship did not exist between the parties. As per clause 5 of the Exbts. M1 and M2, the appellant was not bound to give employment to the respondent. It may be added here that the letter Exbt. W-6 (Annexure R1/8 produced in this appeal) written by the respondent himself shows that his services came to an end on 30.6.82. If that be the case, his claim that he continued in the service as a regular employee till April, 1983 is not acceptable. 10. The learned Single Judge looking to the award passed by the Labour Court has observed that the respondent was continued as an apprentice for a period of two years in the appellant company and beyond that his services were not extended by the appellant. The learned Single Judge did not find any illegality, impropriety or perversity in the award. The learned Single Judge also proceeded to say that not a single document was placed on record from which it could be established that the respondent was a regular employee. In this view, the learned Single Judge declined to exercise jurisdiction under Article 226 of the Constitution of India and dismissed the writ petition. 11. The Division Bench of this High Court in the impugned order referred to Exbts. W7 and W8 to hold that the respondent was a workman. From a plain reading of these letters, it is clear that they are only recommendatory. It is also brought on record, as observed by the Labour Court that Shri Goyal was not competent authority to give any appointment. The Division Bench in the impugned order has stated thus : "Though it is true that no appointment letter has been issued to the writ petitioner, nor any payment was made to the writ petitioner, but still it is the established fact that he was asked to work in the factory by the authorities." 12. Assuming that the respondent was asked to work in the factory in anticipation of securing employment, that too by an officer who was not competent to give appointment, did not make the respondent workman or a regular employee of the appellant company. We have no hesitation to say that the Division Bench was not right in raising presumption under Section 103 of the Act in order to say that the respondent was a workman in relation to an industrial dispute for the purposes of any proceedings under the Industrial Disputes Act, 1947. Section 103 of the Factories Act, 1948 read as under :- "103. Presumption as to employment - If a person is found in a factory at any time, except during intervals for meals or rest, when work is going on or the machinery is in motion, he shall until the contrary is proved, be deemed for the purposes of this Act and the rules made thereunder to have been at that time employed in the factory." (Emphasis supplied) 13. The presumption available under this Section in the first place is rebuttable and secondly it is available only for the purpose of the said Act. It is also not the case of the respondent that this presumption is made available in relation to an adjudication of a dispute referred to under Section 10 of the Industrial Disputes Act, 1947. Section 103 of the Act is included in Chapter X under the heading "Penalties and Procedure" which chapter deals with general penalty for offences, liability of owner of premises in certain circumstances, enhanced penalty after previous conviction etc. The Act provides for the health, safety, welfare, and other aspects of workers in factories. It was enacted to consolidate and the law regulating labour in factories. The presumption under Section 103 of the Act as already noticed above is to be raised for the purposes of the said Act. Even otherwise on the material placed on record when it was factually established that the respondent was not a workman, raising a presumption under Section 103 of the Act in his favour was not correct. At any rate there were no good reasons sustainable in law to upset the finding of fact recorded by the Labour Court based on the evidence placed on record after proper appreciation of the same and more so when the award of the Labour Court was affirmed by the learned Single Judge. Having regard to the facts, circumstances of the case and in the light of the evidence placed on record, it is not possible to accept that there was any unfair labour practice as observed in the impugned order. Thus in view of what is stated above, we find it difficult to sustain the impugned order. Hence the appeal is allowed. The impugned order is set aside and the award of the Labour Court is restored. 14. The Division Bench of the High Court while directing reinstatement of the respondent in service had ordered payment of 25% of the back-wages. The respondent aggrieved by denial of full back-wages, has filed Civil Appeal No. 5408/98. In the light of the conclusion arrived at by us in Civil Appeal No. 4501/98, this appeal is dismissed. There shall be no order as to costs. 15. | 1[ds]The presumption available under this Section in the first place is rebuttable and secondly it is available only for the purpose of the said Act. It is also not the case of the respondent that this presumption is made available in relation to an adjudication of a dispute referred to under Section 10 of the Industrial Disputes Act, 1947. Section 103 of the Act is included in Chapter X under the heading "Penalties and Procedure" which chapter deals with general penalty for offences, liability of owner of premises in certain circumstances, enhanced penalty after previous conviction etc. The Act provides for the health, safety, welfare, and other aspects of workers in factories. It was enacted to consolidate and the law regulating labour in factories. The presumption under Section 103 of the Act as already noticed above is to be raised for the purposes of the said Act. Even otherwise on the material placed on record when it was factually established that the respondent was not a workman, raising a presumption under Section 103 of the Act in his favour was not correct. At any rate there were no good reasons sustainable in law to upset the finding of fact recorded by the Labour Court based on the evidence placed on record after proper appreciation of the same and more so when the award of the Labour Court was affirmed by the learned Single Judge. Having regard to the facts, circumstances of the case and in the light of the evidence placed on record, it is not possible to accept that there was any unfair labour practice as observed in the impugned order. Thus in view of what is stated above, we find it difficult to sustain the impugned order. Hence the appeal is allowed. The impugned order is set aside and the award of the Labour Court is restored. | 1 | 2,384 | 337 | ### Instruction:
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be compelled to do so. May be, the respondent did not give up training and continued working as a Co-ordinator in anticipation of being provided employment as his father was also an employee in the factory. There was no evidence on record to indicate that either GPF or ESI were deducted from the salary of the respondent as he was not being paid any salary. Having regard to the evidence placed on record, the Labour Court held that the respondent was not a workman. As regards the presumption to be drawn under Section 103 of the Act, the Labour Court observed that such a presumption was put to an end by the facts of the case as the respondent was not given any appointment letter; he was neither paid any salary or wages and that the master and servants relationship did not exist between the parties. As per clause 5 of the Exbts. M1 and M2, the appellant was not bound to give employment to the respondent. It may be added here that the letter Exbt. W-6 (Annexure R1/8 produced in this appeal) written by the respondent himself shows that his services came to an end on 30.6.82. If that be the case, his claim that he continued in the service as a regular employee till April, 1983 is not acceptable. 10. The learned Single Judge looking to the award passed by the Labour Court has observed that the respondent was continued as an apprentice for a period of two years in the appellant company and beyond that his services were not extended by the appellant. The learned Single Judge did not find any illegality, impropriety or perversity in the award. The learned Single Judge also proceeded to say that not a single document was placed on record from which it could be established that the respondent was a regular employee. In this view, the learned Single Judge declined to exercise jurisdiction under Article 226 of the Constitution of India and dismissed the writ petition. 11. The Division Bench of this High Court in the impugned order referred to Exbts. W7 and W8 to hold that the respondent was a workman. From a plain reading of these letters, it is clear that they are only recommendatory. It is also brought on record, as observed by the Labour Court that Shri Goyal was not competent authority to give any appointment. The Division Bench in the impugned order has stated thus : "Though it is true that no appointment letter has been issued to the writ petitioner, nor any payment was made to the writ petitioner, but still it is the established fact that he was asked to work in the factory by the authorities." 12. Assuming that the respondent was asked to work in the factory in anticipation of securing employment, that too by an officer who was not competent to give appointment, did not make the respondent workman or a regular employee of the appellant company. We have no hesitation to say that the Division Bench was not right in raising presumption under Section 103 of the Act in order to say that the respondent was a workman in relation to an industrial dispute for the purposes of any proceedings under the Industrial Disputes Act, 1947. Section 103 of the Factories Act, 1948 read as under :- "103. Presumption as to employment - If a person is found in a factory at any time, except during intervals for meals or rest, when work is going on or the machinery is in motion, he shall until the contrary is proved, be deemed for the purposes of this Act and the rules made thereunder to have been at that time employed in the factory." (Emphasis supplied) 13. The presumption available under this Section in the first place is rebuttable and secondly it is available only for the purpose of the said Act. It is also not the case of the respondent that this presumption is made available in relation to an adjudication of a dispute referred to under Section 10 of the Industrial Disputes Act, 1947. Section 103 of the Act is included in Chapter X under the heading "Penalties and Procedure" which chapter deals with general penalty for offences, liability of owner of premises in certain circumstances, enhanced penalty after previous conviction etc. The Act provides for the health, safety, welfare, and other aspects of workers in factories. It was enacted to consolidate and the law regulating labour in factories. The presumption under Section 103 of the Act as already noticed above is to be raised for the purposes of the said Act. Even otherwise on the material placed on record when it was factually established that the respondent was not a workman, raising a presumption under Section 103 of the Act in his favour was not correct. At any rate there were no good reasons sustainable in law to upset the finding of fact recorded by the Labour Court based on the evidence placed on record after proper appreciation of the same and more so when the award of the Labour Court was affirmed by the learned Single Judge. Having regard to the facts, circumstances of the case and in the light of the evidence placed on record, it is not possible to accept that there was any unfair labour practice as observed in the impugned order. Thus in view of what is stated above, we find it difficult to sustain the impugned order. Hence the appeal is allowed. The impugned order is set aside and the award of the Labour Court is restored. 14. The Division Bench of the High Court while directing reinstatement of the respondent in service had ordered payment of 25% of the back-wages. The respondent aggrieved by denial of full back-wages, has filed Civil Appeal No. 5408/98. In the light of the conclusion arrived at by us in Civil Appeal No. 4501/98, this appeal is dismissed. There shall be no order as to costs. 15.
### Response:
1
### Explanation:
The presumption available under this Section in the first place is rebuttable and secondly it is available only for the purpose of the said Act. It is also not the case of the respondent that this presumption is made available in relation to an adjudication of a dispute referred to under Section 10 of the Industrial Disputes Act, 1947. Section 103 of the Act is included in Chapter X under the heading "Penalties and Procedure" which chapter deals with general penalty for offences, liability of owner of premises in certain circumstances, enhanced penalty after previous conviction etc. The Act provides for the health, safety, welfare, and other aspects of workers in factories. It was enacted to consolidate and the law regulating labour in factories. The presumption under Section 103 of the Act as already noticed above is to be raised for the purposes of the said Act. Even otherwise on the material placed on record when it was factually established that the respondent was not a workman, raising a presumption under Section 103 of the Act in his favour was not correct. At any rate there were no good reasons sustainable in law to upset the finding of fact recorded by the Labour Court based on the evidence placed on record after proper appreciation of the same and more so when the award of the Labour Court was affirmed by the learned Single Judge. Having regard to the facts, circumstances of the case and in the light of the evidence placed on record, it is not possible to accept that there was any unfair labour practice as observed in the impugned order. Thus in view of what is stated above, we find it difficult to sustain the impugned order. Hence the appeal is allowed. The impugned order is set aside and the award of the Labour Court is restored.
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The State Of Bombay Vs. F.A.Abraham | Government service, either on probation, or on an officiating basis, is, from the very nature of such employment, itself of a very transitory character and, in the absence of any special contract or specific rule regulating the conditions of the service, the implied term of such appointment, under the ordinary law of master and servant, is that it is terminable at any time. In the case of an appointment to a permanent post of an appointment to a permanent post in a Government service on probation or on an officiating basis, the servant so appointed does not acquire any substantive right to the post and consequently cannot complain, any more than a private servant employed on probation or on an officiating basis can do, if his service is terminated at any time. 7. The respondent had of course no right to the post of Deputy Superintendent of Police to which he had been given an officiating appointment and he does not contend to the contrary. He cannot, therefore, without more, complain if he is sent back to his original post. This is what happened in this case even if it be taken that the respondent had been reverted to his original rank because he was found unsuitable for the higher rank to which he had been given an officiating appointment. It is, however, true that even an officiating person may be reverted to his original rank by way of punishment. It was, therefore, observed in Parshotam Lal Dhingra case [1958 - I L.L.J. 544] (vide supra) (p. 562) : . . . Thus if the order entails or provides for the forfeiture of his pay or allowances or the loss of his seniority in his substantive rank or the stoppage or postponement of his future chances of promotion, then that circumstances may indicate that although in form the Government had purported to exercise its right to terminate the employment or to reduce the servant to a lower rank under the terms of the contract of employment or under the rules, in truth and reality, the Government has terminated the employment as and by way of penalty. It is quite clear that the circumstances mentioned in this observation have not occurred in the present case. The reversion has not in any way affected the respondent so far as his condition and prospect of service are concerned. He, of course, lost the benefit of the appointment to the higher rank but that, by itself, cannot indicate that the reversion was by way of punishment because he had no right to continue in the higher post or to the benefits arising from it. He had been reverted in exercise of a right which the Government had under the terms of the officiating employment. The High Court seems to us to have been in error in thinking that the Governments refusal to supply the respondent with the reasons why action was taken against him proved that the reversion was a reduction in rank by way of punishment; the refusal cannot prove that. It may give rose to a suspicion about the motive which led the Government to take the action, but it is now firmly established that if the action is justifiable under the terms of the employment, then the motive inducing the action is irrelevant in deciding the question whether the action had been taken by way of punishment - see Parshotam Lal Dhingra case [1958 - I L.L.J. 544 at p. 562] (vide supra). It does not require to be repeated now that, unless the reversion is by way of punishment, S. 240(3) is not attracted. 8. The High Court seems to have been in error also in drawing an inference from holding of the departmental inquiry that the respondent must have been reduced in rank by way of punishment. The departmental inquiry was held long after the order reverting the respondent had been passed and could not have been the occasion for the reversion of the respondent. The Government had the right to consider the suitability of the respondent to hold the position to which he had been appointed to officiate. It was entitled for that purpose to make inquiries about his suitability. This is all that the Government did in this case. This inquiry cannot show, whatever the findings may have been, that the reversion earlier made was by way of punishment.Mr. Anthony for the respondent referred to State of Bihar v. Gopi Kishore Prasad [1960 - I L.L.L. 577] in which it was observed (pp. 579 - 580) : But, if instead of terminating such a persons service without any inquiry into his alleged misconduct, or inefficiency, or for some similar reason, the termination of the service is by way of punishment, because it puts a stigma on his competence and thus affects his future career. 9. That case dealt with discharge of a probationer officer on the ground that he was unsuitable. The observation there made was considered by this Court in the later case of State of Orissa v. Ram Narayan Das [1961 - I L.L.J. 552] where it was said : The third proposition in the later case refers to an enquiry into allegations of misconduct or inefficiency with a view, if they were found established, to imposing punishment and not to an enquiry whether a probationer should be confirmed. 10. We would repeat that in the present case the enquiry was concerned with ascertaining the suitability of the respondent for the higher rank and was not a punishment. 11. At one stage, Mr. Anthony was inclined to argue that the enquiry was really a part of the original order of reversion and that it had been deliberately postponed so as to avoid the applicability of S.240(3) of the Government of India Act, 1935. No such case is made in the plaint. Neither was it made in the Courts below, nor can it be based on their findings. Such a case cannot now be made. 12. | 1[ds]The judgments of the High Court and the learned Additional District Judge seem to us to be clearly unsustainable. The Courts below held that the respondent had been reduced in rank in violation of the terms of S.240(3) of the Government of India Act, 1935, which corresponds to Art. 311 of the Constitution, inasmuch as he was not given an opportunity to show cause against the order proposed to be made. It is not in dispute that the opportunity had not been given. In our view, however, for reasons to be presently stated, the respondent was not entitled to that opportunityThe High Court seems to have been in error also in drawing an inference from holding of the departmental inquiry that the respondent must have been reduced in rank by way of punishment. The departmental inquiry was held long after the order reverting the respondent had been passed and could not have been the occasion for the reversion of the respondent. The Government had the right to consider the suitability of the respondent to hold the position to which he had been appointed to officiate. It was entitled for that purpose to make inquiries about his suitability. This is all that the Government did in this case. This inquiry cannot show, whatever the findings may have been, that the reversion earlier made was by way of punishmentNo such case is made in the plaint. Neither was it made in the Courts below, nor can it be based on their findings. Such a case cannot now be made. | 1 | 2,311 | 287 | ### Instruction:
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Government service, either on probation, or on an officiating basis, is, from the very nature of such employment, itself of a very transitory character and, in the absence of any special contract or specific rule regulating the conditions of the service, the implied term of such appointment, under the ordinary law of master and servant, is that it is terminable at any time. In the case of an appointment to a permanent post of an appointment to a permanent post in a Government service on probation or on an officiating basis, the servant so appointed does not acquire any substantive right to the post and consequently cannot complain, any more than a private servant employed on probation or on an officiating basis can do, if his service is terminated at any time. 7. The respondent had of course no right to the post of Deputy Superintendent of Police to which he had been given an officiating appointment and he does not contend to the contrary. He cannot, therefore, without more, complain if he is sent back to his original post. This is what happened in this case even if it be taken that the respondent had been reverted to his original rank because he was found unsuitable for the higher rank to which he had been given an officiating appointment. It is, however, true that even an officiating person may be reverted to his original rank by way of punishment. It was, therefore, observed in Parshotam Lal Dhingra case [1958 - I L.L.J. 544] (vide supra) (p. 562) : . . . Thus if the order entails or provides for the forfeiture of his pay or allowances or the loss of his seniority in his substantive rank or the stoppage or postponement of his future chances of promotion, then that circumstances may indicate that although in form the Government had purported to exercise its right to terminate the employment or to reduce the servant to a lower rank under the terms of the contract of employment or under the rules, in truth and reality, the Government has terminated the employment as and by way of penalty. It is quite clear that the circumstances mentioned in this observation have not occurred in the present case. The reversion has not in any way affected the respondent so far as his condition and prospect of service are concerned. He, of course, lost the benefit of the appointment to the higher rank but that, by itself, cannot indicate that the reversion was by way of punishment because he had no right to continue in the higher post or to the benefits arising from it. He had been reverted in exercise of a right which the Government had under the terms of the officiating employment. The High Court seems to us to have been in error in thinking that the Governments refusal to supply the respondent with the reasons why action was taken against him proved that the reversion was a reduction in rank by way of punishment; the refusal cannot prove that. It may give rose to a suspicion about the motive which led the Government to take the action, but it is now firmly established that if the action is justifiable under the terms of the employment, then the motive inducing the action is irrelevant in deciding the question whether the action had been taken by way of punishment - see Parshotam Lal Dhingra case [1958 - I L.L.J. 544 at p. 562] (vide supra). It does not require to be repeated now that, unless the reversion is by way of punishment, S. 240(3) is not attracted. 8. The High Court seems to have been in error also in drawing an inference from holding of the departmental inquiry that the respondent must have been reduced in rank by way of punishment. The departmental inquiry was held long after the order reverting the respondent had been passed and could not have been the occasion for the reversion of the respondent. The Government had the right to consider the suitability of the respondent to hold the position to which he had been appointed to officiate. It was entitled for that purpose to make inquiries about his suitability. This is all that the Government did in this case. This inquiry cannot show, whatever the findings may have been, that the reversion earlier made was by way of punishment.Mr. Anthony for the respondent referred to State of Bihar v. Gopi Kishore Prasad [1960 - I L.L.L. 577] in which it was observed (pp. 579 - 580) : But, if instead of terminating such a persons service without any inquiry into his alleged misconduct, or inefficiency, or for some similar reason, the termination of the service is by way of punishment, because it puts a stigma on his competence and thus affects his future career. 9. That case dealt with discharge of a probationer officer on the ground that he was unsuitable. The observation there made was considered by this Court in the later case of State of Orissa v. Ram Narayan Das [1961 - I L.L.J. 552] where it was said : The third proposition in the later case refers to an enquiry into allegations of misconduct or inefficiency with a view, if they were found established, to imposing punishment and not to an enquiry whether a probationer should be confirmed. 10. We would repeat that in the present case the enquiry was concerned with ascertaining the suitability of the respondent for the higher rank and was not a punishment. 11. At one stage, Mr. Anthony was inclined to argue that the enquiry was really a part of the original order of reversion and that it had been deliberately postponed so as to avoid the applicability of S.240(3) of the Government of India Act, 1935. No such case is made in the plaint. Neither was it made in the Courts below, nor can it be based on their findings. Such a case cannot now be made. 12.
### Response:
1
### Explanation:
The judgments of the High Court and the learned Additional District Judge seem to us to be clearly unsustainable. The Courts below held that the respondent had been reduced in rank in violation of the terms of S.240(3) of the Government of India Act, 1935, which corresponds to Art. 311 of the Constitution, inasmuch as he was not given an opportunity to show cause against the order proposed to be made. It is not in dispute that the opportunity had not been given. In our view, however, for reasons to be presently stated, the respondent was not entitled to that opportunityThe High Court seems to have been in error also in drawing an inference from holding of the departmental inquiry that the respondent must have been reduced in rank by way of punishment. The departmental inquiry was held long after the order reverting the respondent had been passed and could not have been the occasion for the reversion of the respondent. The Government had the right to consider the suitability of the respondent to hold the position to which he had been appointed to officiate. It was entitled for that purpose to make inquiries about his suitability. This is all that the Government did in this case. This inquiry cannot show, whatever the findings may have been, that the reversion earlier made was by way of punishmentNo such case is made in the plaint. Neither was it made in the Courts below, nor can it be based on their findings. Such a case cannot now be made.
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K.C.P. Ltd Vs. Presidisng Officer | respondents 3 to 14 were not parties to the said settlement as individually they had no locus standi and they were represented by their union respondent No. 2 which had signed the settlement on behalf of its members for whom the dispute was raised by the union. Nothing could be alleged by respondents 3 to 14 to the effect that the said settlement was in any way unjust or unfair or was a mala fide one. There were no exceptional circumstances to reject this settlement qua even the contesting respondents. However, as learned counsel for the respondent-workmen tried to faintly suggest to that effect we have carefully gone through the circumstances which are brought on record which had led to the settlement. It may be noted that about 500 workmen had gone on strike and that had resulted in the lock-out by the appellant company and ultimately disciplinary action was initiated against 29 workmen who had indulged into various acts of misconduct. It is for these 29 workmen who were ultimately dismissed from service that the respondent-union had raised a dispute under Section 2(k) of the Act on their behalf. Earlier the remaining workmen had gone on strike for nearly 5 months. Ultimately, the strike was withdrawn; lock-out was lifted and a broad understanding was reached between the appellant company and the workmen represented by their union whereby it was agreed that 29 workmen, who were dismissed, would be either given Rs. 75,000/- as compensation or reinstatement with continuity of service without back wages and the concerned workmen should express apology for mis-conduct and also assure good conduct in future.27. Out of 29 workmen for whom the industrial dispute was raised 17 workmen agreed and accepted this settlement and joined the service. Remaining 12 workmen (respondent Nos. 3 to 14) have not agreed to the said settlement. It is under these circumstances that the settlement arrived at by the union on behalf of all of them has to be scrutinised. It has clearly transpired on the record of this case that all the 500 workmen excluding 29 dismissed workmen had espoused the cause of these dismissed workmen and had struck the work. Ultimately, when they were reinstated in service leaving aside the 29 workmen for whom industrial dispute lingered on, all the remaining workmen lost their wages from 20.10.1990 to 12.5.1991 and also from 13.5.1991 to 6.10.1991. They lost their wages because they were expressing sympathy for their 29 colleagues who were facing disciplinary action and even for these 29 workmen respondent No. 2 union entered into a settlement so that they could be reinstated in service with continuity of service or could walk out from service with Rs. 75,000/- and other monetary benefits. All that was agreed to by the union as a condition for reinstatement was that the workmen would give up back wages and had to sign a written undertaking to behave properly in future. In our view there was nothing unreasonable or unfair in these terms of settlement. The relief of reinstatement without back wages could not be said to be unreasonable as for nearly 12 months all the other workmen lost their back wages only because they supported the cause of these 29 colleagues of theirs and hence there was no reason why the workmen who indulged in the acts of misconduct and who were also to be taken in service should not lose their wages for 12 months. Relief of reinstatement was made available to respondents 3 to 14 on the same line as it was made available to their 17 remaining colleagues who were covered by the very same settlement and who accepted the relief of settlement without back wages or a lumpsum compensation of Rs. 75,000/- and other monetary benefits in lieu of that. In our view such a package deal entered into by respondent No. 2 in the best interest of these workmen could not be said to be unfair or unjust from any angle. On the contrary, if the back wages were given to them, then the remaining workmen against whom there was no disciplinary action or any alleged misconduct and who had also lost wages for 12 months only because they were in sympathy with these 29 dismissed workmen would have stood discriminated against. Consequently, it is not possible to agree with the learned counsel for respondent Nos. 3 to 14 that the said settlement was in any way unfair or unjust. Once this conclusion is reached it is obvious that the entire industrial dispute should have been disposed of in the light of this settlement and an award in terms of the settlement should have been passed by the first respondent-court in the case of respondents 3 to 14 also. Consequently, the judgment and order of the Division Bench of the High Court dated 4th April, 1995 and the order of the learned Single Judge dated 29th September, 1993 are quashed and set aside. The writ petition filed by the appellant company will stand allowed with a direction to the first respondent-Labour Court to pass award in terms of the settlement dated 14th December, 1992 by treating it to be binding to respondent Nos. 3 to 14 also.28. Learned counsel for these respondents ultimately submitted that the time during which the concerned workmen had to exercise their option as per the terms of the settlement is now over and the appellant company may not make available the said option to them. His apprehension on behalf of the respondents was set at rest by learned counsel for the appellant company who stated that the appellant company is willing to make available the option to these respondent Nos. 3 to 14 to either accept reinstatement with continuity of service without back wages on their executing the writing as per the said settlement or to be paid Rs. 75,000/- each in addition to gratuity as per the payment of Gratuity Act, wages for unavailed leave and bonus, if any payable. 29. | 1[ds]17. Having given our anxious consideration to these rival submissions, we find that the terms of the settlement cannot be considered to be in any way ex-facie, unjust or unfair and that the said settlement consequently must be held to be binding on these contesting workmen also.It is not in dispute that the settlement arrived at by respondent No. 2-union with the appellant company was not in the course of conciliation proceedings. Therefore, it would be binding to the parties to the agreement, namely, the appellant company on the one hand and respondent No. 2- union representing all the 29 dismissed employees, who were its members and on whose behalf it had raised the industrial dispute under Section 2(k) of the Act, on the other.It is also not in dispute that parties to the settlement were the appellant company on the one hand and respondent No. 2-union on the other, which acted on behalf of all the 29 dismissed workmen for whom reference was pending in the Labour Court. It was duly signed by both these parties. Under these circumstances, respondent Nos. 3 to 14 also would be ordinarily bound by this settlement entered into by their representative union with the company unless it is shown that the said settlement was ex-facie, unfair, unjust or malafide. No such case could be even alleged much less made out by the dissenting respondent Nos. 3 to 14 before the trial court. It is interesting to note that before the Labour Court the only argument put forward on behalf of respondent Nos. 3 to 14 was that they were not parties to the settlement and, therefore, it was not binding on them. Once it is kept in view that the entire industrial dispute was raised by respondent No. 2 union on behalf of all the 29 dismissed workmen and as it was not an industrial dispute covered by Section 2-A whereunder individual dismissed workman could come in the arena of contest, it could not be held, as wrongly assumed by the Labour Court that this settlement was not entered into under Section 18(1) of the Act by these dissenting workmen when the respondent- union did represent them from beginning to end and is still representing them as they are members of the union even at present.It is true that the said decision was rendered prior to the insertion of Section 2-A in the Act by which individual workmen were also given a right to raise industrial dispute in case of discharge, dismissal or retrenchment or otherwise termination of service. It is also true that the present controversy has arisen after the coming into operation of Section 2-A but as noted earlier the industrial dispute raised for 29 dismissed workmen was raised by the union-respondent No. 2 under Section 2(k) of the Act and there was no reference under Section 2-A of the Act, so far as respondents Nos. 3 to 14 are concerned.It has to be kept in view that under the scheme of labour legislations like the Act in the present case, collective bargaining and the principle of industrial democracy permeate the relations between the management on the one hand and the union which resorts to collective bargaining on behalf of its members-workmen with the management on the other. Such a collective bargaining which may result in just and fair settlement would always be beneficial to the management as well as to the body of workmen and society at large as there would be industrial peace and tranquility pursuant to such settlement and which would avoid unnecessary social strife and tribulation on the one hand and promote industrial and commercial development on the other hand. Keeping in view the aforesaid salient features of the Act the settlement which is sought to be impugned has to be scanned and scrutinised. Settlement of labour disputes by direct negotiation and collective bargaining is always to be preferred for it is the best guarantee of industrial peace which is the aim of all legislations for settlement of labour disputes. In order to bring about such a settlement more easily and to make it more workable and effective it may not be always possible or necessary that such a settlement is arrived at in the course of conciliation proceedings which may be the first step towards resolving the industrial dispute which may be lingering between the employers and their workmen represented by their unions but even if at that stage such settlement does not take place and the industrial dispute gets referred for adjudication, even pending such disputes, the parties can arrive at amicable settlement which may be binding to the parties to the settlement unlike settlement arrived at during conciliation proceedings which may be binding not only to the parties to the settlement but even to the entire labour force working in the concerned organisation even though they may not be members of the union which might have entered into settlement during conciliation proceedings.As in the present case the settlement arrived at between the parties was not during conciliation proceedings, it would remain binding to parties to the settlement as per Section 18(1) of the Act. But as we have seen above, respondent No. 2 union while entering into that settlement acted on behalf of all the 29 dismissed workmen who were its members including the present respondent Nos. 3 to 14 who are also its members as noted earlier. We have also seen earlier that the Labour Court had erred in taking the view that respondents 3 to 14 were not parties to the said settlement as individually they had no locus standi and they were represented by their union respondent No. 2 which had signed the settlement on behalf of its members for whom the dispute was raised by the union. Nothing could be alleged by respondents 3 to 14 to the effect that the said settlement was in any way unjust or unfair or was a mala fide one. There were no exceptional circumstances to reject this settlement qua even the contesting respondents. However, as learned counsel for the respondent-workmen tried to faintly suggest to that effect we have carefully gone through the circumstances which are brought on record which had led to the settlement. It may be noted that about 500 workmen had gone on strike and that had resulted in the lock-out by the appellant company and ultimately disciplinary action was initiated against 29 workmen who had indulged into various acts of misconduct. It is for these 29 workmen who were ultimately dismissed from service that the respondent-union had raised a dispute under Section 2(k) of the Act on their behalf. Earlier the remaining workmen had gone on strike for nearly 5 months. Ultimately, the strike was withdrawn; lock-out was lifted and a broad understanding was reached between the appellant company and the workmen represented by their union whereby it was agreed that 29 workmen, who were dismissed, would be either given Rs. 75,000/- as compensation or reinstatement with continuity of service without back wages and the concerned workmen should express apology for mis-conduct and also assure good conduct in future.27. Out of 29 workmen for whom the industrial dispute was raised 17 workmen agreed and accepted this settlement and joined the service. Remaining 12 workmen (respondent Nos. 3 to 14) have not agreed to the said settlement. It is under these circumstances that the settlement arrived at by the union on behalf of all of them has to be scrutinised. It has clearly transpired on the record of this case that all the 500 workmen excluding 29 dismissed workmen had espoused the cause of these dismissed workmen and had struck the work. Ultimately, when they were reinstated in service leaving aside the 29 workmen for whom industrial dispute lingered on, all the remaining workmen lost their wages from 20.10.1990 to 12.5.1991 and also from 13.5.1991 to 6.10.1991. They lost their wages because they were expressing sympathy for their 29 colleagues who were facing disciplinary action and even for these 29 workmen respondent No. 2 union entered into a settlement so that they could be reinstated in service with continuity of service or could walk out from service with Rs. 75,000/- and other monetary benefits. All that was agreed to by the union as a condition for reinstatement was that the workmen would give up back wages and had to sign a written undertaking to behave properly in future. In our view there was nothing unreasonable or unfair in these terms of settlement. The relief of reinstatement without back wages could not be said to be unreasonable as for nearly 12 months all the other workmen lost their back wages only because they supported the cause of these 29 colleagues of theirs and hence there was no reason why the workmen who indulged in the acts of misconduct and who were also to be taken in service should not lose their wages for 12 months. Relief of reinstatement was made available to respondents 3 to 14 on the same line as it was made available to their 17 remaining colleagues who were covered by the very same settlement and who accepted the relief of settlement without back wages or a lumpsum compensation of Rs. 75,000/- and other monetary benefits in lieu of that. In our view such a package deal entered into by respondent No. 2 in the best interest of these workmen could not be said to be unfair or unjust from any angle. On the contrary, if the back wages were given to them, then the remaining workmen against whom there was no disciplinary action or any alleged misconduct and who had also lost wages for 12 months only because they were in sympathy with these 29 dismissed workmen would have stood discriminated against. Consequently, it is not possible to agree with the learned counsel for respondent Nos. 3 to 14 that the said settlement was in any way unfair or unjust. Once this conclusion is reached it is obvious that the entire industrial dispute should have been disposed of in the light of this settlement and an award in terms of the settlement should have been passed by the first respondent-court in the case of respondents 3 to 14 also. Consequently, the judgment and order of the Division Bench of the High Court dated 4th April, 1995 and the order of the learned Single Judge dated 29th September, 1993 are quashed and set aside. The writ petition filed by the appellant company will stand allowed with a direction to the first respondent-Labour Court to pass award in terms of the settlement dated 14th December, 1992 by treating it to be binding to respondent Nos. 3 to 14 also. | 1 | 5,562 | 1,906 | ### Instruction:
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respondents 3 to 14 were not parties to the said settlement as individually they had no locus standi and they were represented by their union respondent No. 2 which had signed the settlement on behalf of its members for whom the dispute was raised by the union. Nothing could be alleged by respondents 3 to 14 to the effect that the said settlement was in any way unjust or unfair or was a mala fide one. There were no exceptional circumstances to reject this settlement qua even the contesting respondents. However, as learned counsel for the respondent-workmen tried to faintly suggest to that effect we have carefully gone through the circumstances which are brought on record which had led to the settlement. It may be noted that about 500 workmen had gone on strike and that had resulted in the lock-out by the appellant company and ultimately disciplinary action was initiated against 29 workmen who had indulged into various acts of misconduct. It is for these 29 workmen who were ultimately dismissed from service that the respondent-union had raised a dispute under Section 2(k) of the Act on their behalf. Earlier the remaining workmen had gone on strike for nearly 5 months. Ultimately, the strike was withdrawn; lock-out was lifted and a broad understanding was reached between the appellant company and the workmen represented by their union whereby it was agreed that 29 workmen, who were dismissed, would be either given Rs. 75,000/- as compensation or reinstatement with continuity of service without back wages and the concerned workmen should express apology for mis-conduct and also assure good conduct in future.27. Out of 29 workmen for whom the industrial dispute was raised 17 workmen agreed and accepted this settlement and joined the service. Remaining 12 workmen (respondent Nos. 3 to 14) have not agreed to the said settlement. It is under these circumstances that the settlement arrived at by the union on behalf of all of them has to be scrutinised. It has clearly transpired on the record of this case that all the 500 workmen excluding 29 dismissed workmen had espoused the cause of these dismissed workmen and had struck the work. Ultimately, when they were reinstated in service leaving aside the 29 workmen for whom industrial dispute lingered on, all the remaining workmen lost their wages from 20.10.1990 to 12.5.1991 and also from 13.5.1991 to 6.10.1991. They lost their wages because they were expressing sympathy for their 29 colleagues who were facing disciplinary action and even for these 29 workmen respondent No. 2 union entered into a settlement so that they could be reinstated in service with continuity of service or could walk out from service with Rs. 75,000/- and other monetary benefits. All that was agreed to by the union as a condition for reinstatement was that the workmen would give up back wages and had to sign a written undertaking to behave properly in future. In our view there was nothing unreasonable or unfair in these terms of settlement. The relief of reinstatement without back wages could not be said to be unreasonable as for nearly 12 months all the other workmen lost their back wages only because they supported the cause of these 29 colleagues of theirs and hence there was no reason why the workmen who indulged in the acts of misconduct and who were also to be taken in service should not lose their wages for 12 months. Relief of reinstatement was made available to respondents 3 to 14 on the same line as it was made available to their 17 remaining colleagues who were covered by the very same settlement and who accepted the relief of settlement without back wages or a lumpsum compensation of Rs. 75,000/- and other monetary benefits in lieu of that. In our view such a package deal entered into by respondent No. 2 in the best interest of these workmen could not be said to be unfair or unjust from any angle. On the contrary, if the back wages were given to them, then the remaining workmen against whom there was no disciplinary action or any alleged misconduct and who had also lost wages for 12 months only because they were in sympathy with these 29 dismissed workmen would have stood discriminated against. Consequently, it is not possible to agree with the learned counsel for respondent Nos. 3 to 14 that the said settlement was in any way unfair or unjust. Once this conclusion is reached it is obvious that the entire industrial dispute should have been disposed of in the light of this settlement and an award in terms of the settlement should have been passed by the first respondent-court in the case of respondents 3 to 14 also. Consequently, the judgment and order of the Division Bench of the High Court dated 4th April, 1995 and the order of the learned Single Judge dated 29th September, 1993 are quashed and set aside. The writ petition filed by the appellant company will stand allowed with a direction to the first respondent-Labour Court to pass award in terms of the settlement dated 14th December, 1992 by treating it to be binding to respondent Nos. 3 to 14 also.28. Learned counsel for these respondents ultimately submitted that the time during which the concerned workmen had to exercise their option as per the terms of the settlement is now over and the appellant company may not make available the said option to them. His apprehension on behalf of the respondents was set at rest by learned counsel for the appellant company who stated that the appellant company is willing to make available the option to these respondent Nos. 3 to 14 to either accept reinstatement with continuity of service without back wages on their executing the writing as per the said settlement or to be paid Rs. 75,000/- each in addition to gratuity as per the payment of Gratuity Act, wages for unavailed leave and bonus, if any payable. 29.
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only to the parties to the settlement but even to the entire labour force working in the concerned organisation even though they may not be members of the union which might have entered into settlement during conciliation proceedings.As in the present case the settlement arrived at between the parties was not during conciliation proceedings, it would remain binding to parties to the settlement as per Section 18(1) of the Act. But as we have seen above, respondent No. 2 union while entering into that settlement acted on behalf of all the 29 dismissed workmen who were its members including the present respondent Nos. 3 to 14 who are also its members as noted earlier. We have also seen earlier that the Labour Court had erred in taking the view that respondents 3 to 14 were not parties to the said settlement as individually they had no locus standi and they were represented by their union respondent No. 2 which had signed the settlement on behalf of its members for whom the dispute was raised by the union. Nothing could be alleged by respondents 3 to 14 to the effect that the said settlement was in any way unjust or unfair or was a mala fide one. There were no exceptional circumstances to reject this settlement qua even the contesting respondents. However, as learned counsel for the respondent-workmen tried to faintly suggest to that effect we have carefully gone through the circumstances which are brought on record which had led to the settlement. It may be noted that about 500 workmen had gone on strike and that had resulted in the lock-out by the appellant company and ultimately disciplinary action was initiated against 29 workmen who had indulged into various acts of misconduct. It is for these 29 workmen who were ultimately dismissed from service that the respondent-union had raised a dispute under Section 2(k) of the Act on their behalf. Earlier the remaining workmen had gone on strike for nearly 5 months. Ultimately, the strike was withdrawn; lock-out was lifted and a broad understanding was reached between the appellant company and the workmen represented by their union whereby it was agreed that 29 workmen, who were dismissed, would be either given Rs. 75,000/- as compensation or reinstatement with continuity of service without back wages and the concerned workmen should express apology for mis-conduct and also assure good conduct in future.27. Out of 29 workmen for whom the industrial dispute was raised 17 workmen agreed and accepted this settlement and joined the service. Remaining 12 workmen (respondent Nos. 3 to 14) have not agreed to the said settlement. It is under these circumstances that the settlement arrived at by the union on behalf of all of them has to be scrutinised. It has clearly transpired on the record of this case that all the 500 workmen excluding 29 dismissed workmen had espoused the cause of these dismissed workmen and had struck the work. Ultimately, when they were reinstated in service leaving aside the 29 workmen for whom industrial dispute lingered on, all the remaining workmen lost their wages from 20.10.1990 to 12.5.1991 and also from 13.5.1991 to 6.10.1991. They lost their wages because they were expressing sympathy for their 29 colleagues who were facing disciplinary action and even for these 29 workmen respondent No. 2 union entered into a settlement so that they could be reinstated in service with continuity of service or could walk out from service with Rs. 75,000/- and other monetary benefits. All that was agreed to by the union as a condition for reinstatement was that the workmen would give up back wages and had to sign a written undertaking to behave properly in future. In our view there was nothing unreasonable or unfair in these terms of settlement. The relief of reinstatement without back wages could not be said to be unreasonable as for nearly 12 months all the other workmen lost their back wages only because they supported the cause of these 29 colleagues of theirs and hence there was no reason why the workmen who indulged in the acts of misconduct and who were also to be taken in service should not lose their wages for 12 months. Relief of reinstatement was made available to respondents 3 to 14 on the same line as it was made available to their 17 remaining colleagues who were covered by the very same settlement and who accepted the relief of settlement without back wages or a lumpsum compensation of Rs. 75,000/- and other monetary benefits in lieu of that. In our view such a package deal entered into by respondent No. 2 in the best interest of these workmen could not be said to be unfair or unjust from any angle. On the contrary, if the back wages were given to them, then the remaining workmen against whom there was no disciplinary action or any alleged misconduct and who had also lost wages for 12 months only because they were in sympathy with these 29 dismissed workmen would have stood discriminated against. Consequently, it is not possible to agree with the learned counsel for respondent Nos. 3 to 14 that the said settlement was in any way unfair or unjust. Once this conclusion is reached it is obvious that the entire industrial dispute should have been disposed of in the light of this settlement and an award in terms of the settlement should have been passed by the first respondent-court in the case of respondents 3 to 14 also. Consequently, the judgment and order of the Division Bench of the High Court dated 4th April, 1995 and the order of the learned Single Judge dated 29th September, 1993 are quashed and set aside. The writ petition filed by the appellant company will stand allowed with a direction to the first respondent-Labour Court to pass award in terms of the settlement dated 14th December, 1992 by treating it to be binding to respondent Nos. 3 to 14 also.
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Y.P. SUDHANVA REDDY Vs. THE CHAIRMAN AND MANAGING DIRECTOR KARNATAKA MILK FEDARATION ETC | of the record of the case, we are constrained to dismiss the appeals finding no merit therein.18. In our considered opinion, the filing of the two suits, namely, first by the appellants’ father, Mr. K.G. Yellappa Reddy, (O.S.No.4875/1998) and later by the appellants out of which these appeals arise were wholly misconceived in nature and were not maintainable as would be clear from the following reasons.19. It is not in dispute that once the respondent filed a copy of the notification in appeal before the High Court bearing No.L-5468-MI 10-4-15 dated 22.01.1941 issued under Section 4 of the Act by the State Government, which was taken on record as additional evidence by the High Court, showing that the suit land was acquired by the State in the year 1941, the legal position arising in the case in relation to the suit land became clear.20. Indeed, as a matter of fact, consequent upon issuance of the notification under Section 4 of the Act, which was followed by declaration under Section 6 and then by an award under Section 11 of the Act and lastly, by taking over of the possession of the suit land from the owner of the suit land (appellants’ father) under Section 16 of the Act, the suit land stood vested in the State absolutely free from all encumbrances as provided under Section 16 of the Act.21. In other words, on and after issuance of the notifications under the Act and initiation of acquisition proceedings by the State which culminated in passing of the award as far back as in the year 1941, the appellants’ predecessor-in-title ceased to be the owner of the suit land and lost all his rights to hold the suit land and claim possession over it.22. The only legal remedy available to the appellants’ predecessor-in-title (Mr. K.G.Yellappa Reddy) in such case was to challenge the legality and correctness of the notifications issued under Section 4 or/and 6 of the Act and that too within a reasonable time after their issuance in the year 1941. It is not in dispute that the landowners, admittedly, did not challenge the validity and correctness of the notifications and, on the other hand, by suppressing the fact of acquisition proceedings from the Court filed two suits one after the other and claimed title over the suit land.23. In our considered opinion, neither the predecessor-in-title of the appellants and nor the appellants had any subsisting right, title and interest in the suit land on and after 1941 consequent upon issuance of the notifications by the State under the Act. The reason was that all the ownership rights of the appellants’ predecessor-in-title in the suit land stood vested in the State once the acquisition proceedings were completed under the Act. As mentioned above, the appellants’ only right was to either challenge the land acquisition proceedings as being against the provisions of Act or to claim compensation payable under the Act in relation to the suit land under Section 11 of the Act followed by reference proceedings under Section 18 of the Act and lastly, in appeal before the High Court for its re-dertermination.24. We find from the record that the appellants failed to file any document in rebuttal to the documents filed by the respondent in appeal by way of additional evidence with a view to show that the notifications issued under the Act for acquiring the suit land, which were relied on by the respondent in appeal, were either withdrawn or set aside or not given effect to. Such fact, in our view, alone would have enabled the appellants to claim and assert their right of ownership over the suit land. Such was, however, not the case of the appellants.25. In the light of the foregoing discussion, we are of the considered opinion that the suit filed by the appellants seeking therein a declaration of their title over the suit land and further claiming permanent injunction was wholly misconceived and was liable to be dismissed.26. Indeed, no declaration of title over the suit land could be claimed or/and granted by the Civil Court and nor any suit of such nature could be filed in the Civil Court in the light of background facts brought on record by the respondent by way of additional evidence in appeal. These documents fully establish that neither the appellants’ predecessor and nor the appellants had any subsisting prima facie title in their favour over the suit land on the date of filing the two suits.27. Learned counsel for the appellants, however, argued that there was non-compliance of the provisions of Order 41 Rule 27-A of the Code and hence the application filed by the respondent ought not to have been allowed by the High Court. The submission, in our opinion, has no merit for the following reasons.28. In the first place, the documents sought to be filed by the respondent, namely, notifications issued under the Act were relevant and also necessary for deciding the rights of the parties involved in the suit/appeal. Second, these documents did not require any proof being public documents in nature. Third, the respondent had already made reference of these documents and laid foundation in the pleadings and lastly, the first Appellate Court has jurisdiction under Order 41 Rule 27 of the Code to allow the parties to file additional evidence, if such documents are required to decide the suit/appeal provided satisfactory explanation is given as to why the documents could not be filed in the suit and why they are filed in appeal. The respondent, in this case, did give the explanation, which found acceptance to the High Court and, in our opinion, rightly.29. Learned counsel for the appellants (plaintiffs) argued some issues but they did not impress us in the light of the settled legal position taken note of us supra.30. In the light of the foregoing discussion, we concur with the reasoning and the conclusion arrived at by the High Court and find no merit in the appeals.31. | 0[ds]Having heard the learned counsel for the parties and on perusal of the record of the case, we are constrained to dismiss the appeals finding no meritIn our considered opinion, the filing of the two suits, namely, first by thefather, Mr. K.G. Yellappa Reddy, (O.S.No.4875/1998) and later by the appellants out of which these appeals arise were wholly misconceived in nature and were not maintainable as would be clear from the followingIt is not in dispute that once the respondent filed a copy of the notification in appeal before the High Court bearing41 issued under Section 4 of the Act by the State Government, which was taken on record as additional evidence by the High Court, showing that the suit land was acquired by the State in the year 1941, the legal position arising in the case in relation to the suit land becameIndeed, as a matter of fact, consequent upon issuance of the notification under Section 4 of the Act, which was followed by declaration under Section 6 and then by an award under Section 11 of the Act and lastly, by taking over of the possession of the suit land from the owner of the suit landfather) under Section 16 of the Act, the suit land stood vested in the State absolutely free from all encumbrances as provided under Section 16 of theIn other words, on and after issuance of the notifications under the Act and initiation of acquisition proceedings by the State which culminated in passing of the award as far back as in the year 1941, thee ceased to be the owner of the suit land and lost all his rights to hold the suit land and claim possession overThe only legal remedy available to thee (Mr. K.G.Yellappa Reddy) in such case was to challenge the legality and correctness of the notifications issued under Section 4 or/and 6 of the Act and that too within a reasonable time after their issuance in the year 1941. It is not in dispute that the landowners, admittedly, did not challenge the validity and correctness of the notifications and, on the other hand, by suppressing the fact of acquisition proceedings from the Court filed two suits one after the other and claimed title over the suitIn our considered opinion, neither theof the appellants and nor the appellants had any subsisting right, title and interest in the suit land on and after 1941 consequent upon issuance of the notifications by the State under the Act. The reason was that all the ownership rights of thee in the suit land stood vested in the State once the acquisition proceedings were completed under the Act. As mentioned above, theonly right was to either challenge the land acquisition proceedings as being against the provisions of Act or to claim compensation payable under the Act in relation to the suit land under Section 11 of the Act followed by reference proceedings under Section 18 of the Act and lastly, in appeal before the High Court for itsWe find from the record that the appellants failed to file any document in rebuttal to the documents filed by the respondent in appeal by way of additional evidence with a view to show that the notifications issued under the Act for acquiring the suit land, which were relied on by the respondent in appeal, were either withdrawn or set aside or not given effect to. Such fact, in our view, alone would have enabled the appellants to claim and assert their right of ownership over the suit land. Such was, however, not the case of theIn the light of the foregoing discussion, we are of the considered opinion that the suit filed by the appellants seeking therein a declaration of their title over the suit land and further claiming permanent injunction was wholly misconceived and was liable to beIndeed, no declaration of title over the suit land could be claimed or/and granted by the Civil Court and nor any suit of such nature could be filed in the Civil Court in the light of background facts brought on record by the respondent by way of additional evidence in appeal. These documents fully establish that neither thepredecessor and nor the appellants had any subsisting prima facie title in their favour over the suit land on the date of filing the twoLearned counsel for the appellants, however, argued that there wasof the provisions of Order 41 Ruleof the Code and hence the application filed by the respondent ought not to have been allowed by the High Court.The submission, in our opinion, has no merit for the followingIn the first place, the documents sought to be filed by the respondent, namely, notifications issued under the Act were relevant and also necessary for deciding the rights of the parties involved in the suit/appeal. Second, these documents did not require any proof being public documents in nature. Third, the respondent had already made reference of these documents and laid foundation in the pleadings and lastly, the first Appellate Court has jurisdiction under Order 41 Rule 27 of the Code to allow the parties to file additional evidence, if such documents are required to decide the suit/appeal provided satisfactory explanation is given as to why the documents could not be filed in the suit and why they are filed in appeal. The respondent, in this case, did give the explanation, which found acceptance to the High Court and, in our opinion,Learned counsel for the appellants (plaintiffs) argued some issues but they did not impress us in the light of the settled legal position taken note of usIn the light of the foregoing discussion, we concur with the reasoning and the conclusion arrived at by the High Court and find no merit in the appeals. | 0 | 2,066 | 1,032 | ### Instruction:
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of the record of the case, we are constrained to dismiss the appeals finding no merit therein.18. In our considered opinion, the filing of the two suits, namely, first by the appellants’ father, Mr. K.G. Yellappa Reddy, (O.S.No.4875/1998) and later by the appellants out of which these appeals arise were wholly misconceived in nature and were not maintainable as would be clear from the following reasons.19. It is not in dispute that once the respondent filed a copy of the notification in appeal before the High Court bearing No.L-5468-MI 10-4-15 dated 22.01.1941 issued under Section 4 of the Act by the State Government, which was taken on record as additional evidence by the High Court, showing that the suit land was acquired by the State in the year 1941, the legal position arising in the case in relation to the suit land became clear.20. Indeed, as a matter of fact, consequent upon issuance of the notification under Section 4 of the Act, which was followed by declaration under Section 6 and then by an award under Section 11 of the Act and lastly, by taking over of the possession of the suit land from the owner of the suit land (appellants’ father) under Section 16 of the Act, the suit land stood vested in the State absolutely free from all encumbrances as provided under Section 16 of the Act.21. In other words, on and after issuance of the notifications under the Act and initiation of acquisition proceedings by the State which culminated in passing of the award as far back as in the year 1941, the appellants’ predecessor-in-title ceased to be the owner of the suit land and lost all his rights to hold the suit land and claim possession over it.22. The only legal remedy available to the appellants’ predecessor-in-title (Mr. K.G.Yellappa Reddy) in such case was to challenge the legality and correctness of the notifications issued under Section 4 or/and 6 of the Act and that too within a reasonable time after their issuance in the year 1941. It is not in dispute that the landowners, admittedly, did not challenge the validity and correctness of the notifications and, on the other hand, by suppressing the fact of acquisition proceedings from the Court filed two suits one after the other and claimed title over the suit land.23. In our considered opinion, neither the predecessor-in-title of the appellants and nor the appellants had any subsisting right, title and interest in the suit land on and after 1941 consequent upon issuance of the notifications by the State under the Act. The reason was that all the ownership rights of the appellants’ predecessor-in-title in the suit land stood vested in the State once the acquisition proceedings were completed under the Act. As mentioned above, the appellants’ only right was to either challenge the land acquisition proceedings as being against the provisions of Act or to claim compensation payable under the Act in relation to the suit land under Section 11 of the Act followed by reference proceedings under Section 18 of the Act and lastly, in appeal before the High Court for its re-dertermination.24. We find from the record that the appellants failed to file any document in rebuttal to the documents filed by the respondent in appeal by way of additional evidence with a view to show that the notifications issued under the Act for acquiring the suit land, which were relied on by the respondent in appeal, were either withdrawn or set aside or not given effect to. Such fact, in our view, alone would have enabled the appellants to claim and assert their right of ownership over the suit land. Such was, however, not the case of the appellants.25. In the light of the foregoing discussion, we are of the considered opinion that the suit filed by the appellants seeking therein a declaration of their title over the suit land and further claiming permanent injunction was wholly misconceived and was liable to be dismissed.26. Indeed, no declaration of title over the suit land could be claimed or/and granted by the Civil Court and nor any suit of such nature could be filed in the Civil Court in the light of background facts brought on record by the respondent by way of additional evidence in appeal. These documents fully establish that neither the appellants’ predecessor and nor the appellants had any subsisting prima facie title in their favour over the suit land on the date of filing the two suits.27. Learned counsel for the appellants, however, argued that there was non-compliance of the provisions of Order 41 Rule 27-A of the Code and hence the application filed by the respondent ought not to have been allowed by the High Court. The submission, in our opinion, has no merit for the following reasons.28. In the first place, the documents sought to be filed by the respondent, namely, notifications issued under the Act were relevant and also necessary for deciding the rights of the parties involved in the suit/appeal. Second, these documents did not require any proof being public documents in nature. Third, the respondent had already made reference of these documents and laid foundation in the pleadings and lastly, the first Appellate Court has jurisdiction under Order 41 Rule 27 of the Code to allow the parties to file additional evidence, if such documents are required to decide the suit/appeal provided satisfactory explanation is given as to why the documents could not be filed in the suit and why they are filed in appeal. The respondent, in this case, did give the explanation, which found acceptance to the High Court and, in our opinion, rightly.29. Learned counsel for the appellants (plaintiffs) argued some issues but they did not impress us in the light of the settled legal position taken note of us supra.30. In the light of the foregoing discussion, we concur with the reasoning and the conclusion arrived at by the High Court and find no merit in the appeals.31.
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Having heard the learned counsel for the parties and on perusal of the record of the case, we are constrained to dismiss the appeals finding no meritIn our considered opinion, the filing of the two suits, namely, first by thefather, Mr. K.G. Yellappa Reddy, (O.S.No.4875/1998) and later by the appellants out of which these appeals arise were wholly misconceived in nature and were not maintainable as would be clear from the followingIt is not in dispute that once the respondent filed a copy of the notification in appeal before the High Court bearing41 issued under Section 4 of the Act by the State Government, which was taken on record as additional evidence by the High Court, showing that the suit land was acquired by the State in the year 1941, the legal position arising in the case in relation to the suit land becameIndeed, as a matter of fact, consequent upon issuance of the notification under Section 4 of the Act, which was followed by declaration under Section 6 and then by an award under Section 11 of the Act and lastly, by taking over of the possession of the suit land from the owner of the suit landfather) under Section 16 of the Act, the suit land stood vested in the State absolutely free from all encumbrances as provided under Section 16 of theIn other words, on and after issuance of the notifications under the Act and initiation of acquisition proceedings by the State which culminated in passing of the award as far back as in the year 1941, thee ceased to be the owner of the suit land and lost all his rights to hold the suit land and claim possession overThe only legal remedy available to thee (Mr. K.G.Yellappa Reddy) in such case was to challenge the legality and correctness of the notifications issued under Section 4 or/and 6 of the Act and that too within a reasonable time after their issuance in the year 1941. It is not in dispute that the landowners, admittedly, did not challenge the validity and correctness of the notifications and, on the other hand, by suppressing the fact of acquisition proceedings from the Court filed two suits one after the other and claimed title over the suitIn our considered opinion, neither theof the appellants and nor the appellants had any subsisting right, title and interest in the suit land on and after 1941 consequent upon issuance of the notifications by the State under the Act. The reason was that all the ownership rights of thee in the suit land stood vested in the State once the acquisition proceedings were completed under the Act. As mentioned above, theonly right was to either challenge the land acquisition proceedings as being against the provisions of Act or to claim compensation payable under the Act in relation to the suit land under Section 11 of the Act followed by reference proceedings under Section 18 of the Act and lastly, in appeal before the High Court for itsWe find from the record that the appellants failed to file any document in rebuttal to the documents filed by the respondent in appeal by way of additional evidence with a view to show that the notifications issued under the Act for acquiring the suit land, which were relied on by the respondent in appeal, were either withdrawn or set aside or not given effect to. Such fact, in our view, alone would have enabled the appellants to claim and assert their right of ownership over the suit land. Such was, however, not the case of theIn the light of the foregoing discussion, we are of the considered opinion that the suit filed by the appellants seeking therein a declaration of their title over the suit land and further claiming permanent injunction was wholly misconceived and was liable to beIndeed, no declaration of title over the suit land could be claimed or/and granted by the Civil Court and nor any suit of such nature could be filed in the Civil Court in the light of background facts brought on record by the respondent by way of additional evidence in appeal. These documents fully establish that neither thepredecessor and nor the appellants had any subsisting prima facie title in their favour over the suit land on the date of filing the twoLearned counsel for the appellants, however, argued that there wasof the provisions of Order 41 Ruleof the Code and hence the application filed by the respondent ought not to have been allowed by the High Court.The submission, in our opinion, has no merit for the followingIn the first place, the documents sought to be filed by the respondent, namely, notifications issued under the Act were relevant and also necessary for deciding the rights of the parties involved in the suit/appeal. Second, these documents did not require any proof being public documents in nature. Third, the respondent had already made reference of these documents and laid foundation in the pleadings and lastly, the first Appellate Court has jurisdiction under Order 41 Rule 27 of the Code to allow the parties to file additional evidence, if such documents are required to decide the suit/appeal provided satisfactory explanation is given as to why the documents could not be filed in the suit and why they are filed in appeal. The respondent, in this case, did give the explanation, which found acceptance to the High Court and, in our opinion,Learned counsel for the appellants (plaintiffs) argued some issues but they did not impress us in the light of the settled legal position taken note of usIn the light of the foregoing discussion, we concur with the reasoning and the conclusion arrived at by the High Court and find no merit in the appeals.
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Mgmt. Of Sundaram Industries Ltd Vs. Sundaram Industries Employee Union | issue ought to have been in his favour; and may also take any cross-objection] to the decree which he could have taken by way of appeal provided he has filed such objection in the Appellant Court within one month from the date of service on him or his pleader of notice of the day fixed for hearing the appeal, or within such further time as the Appellate Court may see fit to allow.[Explanation.--A respondent aggrieved by a finding of the Court in the judgment on which the decree appealed against is based may, under this rule, file cross-objection in respect of the decree in so far as it is based on that finding, notwithstanding that by reason of the decision of the Court on any other finding which is sufficient for the decision of the suit, the decree, is, wholly or in part, in favour of that respondent.](2) Form of objection and provisions applicable thereto. - Such cross-objection shall be in the form of a memorandum, and the provisions of rule 1, so far as they relate to the form and contents of the memorandum of appeal, shall apply thereto.3[***](4) Where, in any case in which any respondent has under this rule filed a memorandum of objection, the original appeal is withdrawn or is dismissed for default, the objection so filed may nevertheless be heard and determined after such notice to the other parties as the Court thinks fit.(5) The provisions relating to appeals by indigent persons shall, so far as they can be made applicable, apply to an objection under this rule.” 15. The principle underlying the above provision is applicable even to Appeals by Special Leave under Article 136 of the Constitution of India as held by this Court in Jamshed Hormusji Wadia v. Board of Trustees, Port of Mumbai and Anr. 2004 (3) SCC 214 , where this Court observed: “35. A few decisions were brought to the notice of this Court by the learned Additional Solicitor General wherein this Court has made a reference to Order 41 Rule 22 CPC and permitted the respondent to support the decree or decision under appeal by laying challenge to a finding recorded or issue decided against him though the order, judgment or decree was in the end in his favour. Illustratively, see Ramanbhai Ashabhai Patel, Northern Rly. Coop. Society Ltd. and Bharat Kala Bhandar Ltd. The learned Additional Solicitor General is right. But we would like to clarify that this is done not because Order 41 Rule 22 CPC is applicable to appeals preferred under Article 136 of the Constitution; it is because of a basic principle of justice applicable to courts of superior jurisdiction. A person who has entirely succeeded before a court or tribunal below cannot file an appeal solely for the sake of clearing himself from the effect of an adverse finding or an adverse decision on one of the issues as he would not be a person falling within the meaning of the words “person aggrieved”. In an appeal or revision, as a matter of general principle, the party who has an order in his favour, is entitled to show that even if the order was liable to be set aside on the grounds decided in his favour, yet the order could be sustained by reversing the finding on some other ground which was decided against him in the court below. This position of law is supportable on general principles without having recourse to Order 41 Rule 22 of the Code of Civil Procedure. Reference may be had to a recent decision of this Court in Nalakath Sainuddin v. Koorikadan Sulaiman and also Banarsi v. Ram Phal. This Court being a court of plenary jurisdiction, once the matter has come to it in appeal, shall have power to pass any decree and make any order which ought to have been passed or made as the facts of the case and law applicable thereto call for. Such a power is exercised by this Court by virtue of its own jurisdiction and not by having recourse to Order 41 Rule 33 CPC though in some of the cases observations are available to the effect that this Court can act on the principles deducible from Order 41 Rule 33 CPC. It may be added that this Court has jurisdiction to pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it. Such jurisdiction is conferred on this Court by Article 142 of the Constitution and this Court is not required to have recourse to any provision of the Code of Civil Procedure or any principle deducible therefrom. However, still, in spite of the wide jurisdiction being available, this Court would not ordinarily make an order, direction or decree placing the party appealing to it in a position more disadvantageous than in what it would have been had it not appealed.” 16. We have, therefore, no hesitation in rejecting the contention that the finding regarding commission of misconduct by the workmen cannot be assailed by the workmen in these proceedings. 17. Even assuming that the finding regarding the commission of misconduct is left undisturbed, the circumstances in which the workmen are alleged to have disobeyed the instructions issued to them did not justify the extreme penalty of their dismissal. At any rate, the Labour Court having exercised its discretion in setting aside the dismissal order on the ground that the same was disproportionate, the High Court was justified in refusing to interfere with that order under Article 226 of the Constitution. There is in any event no compelling reason for us to invoke our extraordinary power under Article 136 of the Constitution or to interfere with what has been done by the two Courts below. But for the fact that there is no appeal or challenge to the denial of full back wages to the workmen, we may have even interfered to award the same to the workmen. | 0[ds]It is evident from the above that the discord between the workmen and the management arose entirely out of the management requiring the workmen to place the bag of their production on the electronic weighing scale instead of placing them on the floor at the end of the shift as they were doing till the management issued fresh instructions that demanded that the workmen carry their production bags to the electronic weighing scale for weighment. The workmen considered this additional responsibility to be involving not only additional work in carrying the production bag to the weighing machine but also in devoting additional time beyond the shift hours without any additional remuneration for theis thus evident that the refusal of the workmen to carry out the instructions issued by the management was not without a lawful or reasonable justification. The same could not at any rate be described as contumacious. The essence of the matter was whether the management could, without additional remuneration, ask the workmen who were responsible for attending to the production work alone to do additional work which was hitherto being done by another group of workmen, especially when compliance with the instructions to the workmen would require them to tie their production bags, carry them to the weighing machine, wait in the queue till the process was to be completed and leave only thereafter. In the course of hearing before us, it was fairly conceded by the representative of the appellant that since the number of moulders working in the establishment was fairly large and weighing machines limited in number, the workmen had to wait in a queue for their turn to have their production weighed which was earlier being done by some other workmen who were disbanded. Inasmuch as the workmen concerned had declined to undertake this additional responsibility which was not only consuming additional time but also additional effort they could not be accused of either deliberate defiance or misconduct that could be punished. The Tribunal was in that view wrong in holding that the charge framed against the respondents was proved. Refusal to carry out the instructions requiring workmen to do additional work beyond the shift hours was clearly tantamount to changing the conditions of service of the workmen which was impermissible without complying with the requirements of Section 9-A of the Industrial Disputesassuming that the finding regarding the commission of misconduct is left undisturbed, the circumstances in which the workmen are alleged to have disobeyed the instructions issued to them did not justify the extreme penalty of their dismissal. At any rate, the Labour Court having exercised its discretion in setting aside the dismissal order on the ground that the same was disproportionate, the High Court was justified in refusing to interfere with that order under Article 226 of the Constitution. There is in any event no compelling reason for us to invoke our extraordinary power under Article 136 of the Constitution or to interfere with what has been done by the two Courts below. But for the fact that there is no appeal or challenge to the denial of full back wages to the workmen, we may have even interfered to award the same to the | 0 | 3,757 | 559 | ### Instruction:
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### Input:
issue ought to have been in his favour; and may also take any cross-objection] to the decree which he could have taken by way of appeal provided he has filed such objection in the Appellant Court within one month from the date of service on him or his pleader of notice of the day fixed for hearing the appeal, or within such further time as the Appellate Court may see fit to allow.[Explanation.--A respondent aggrieved by a finding of the Court in the judgment on which the decree appealed against is based may, under this rule, file cross-objection in respect of the decree in so far as it is based on that finding, notwithstanding that by reason of the decision of the Court on any other finding which is sufficient for the decision of the suit, the decree, is, wholly or in part, in favour of that respondent.](2) Form of objection and provisions applicable thereto. - Such cross-objection shall be in the form of a memorandum, and the provisions of rule 1, so far as they relate to the form and contents of the memorandum of appeal, shall apply thereto.3[***](4) Where, in any case in which any respondent has under this rule filed a memorandum of objection, the original appeal is withdrawn or is dismissed for default, the objection so filed may nevertheless be heard and determined after such notice to the other parties as the Court thinks fit.(5) The provisions relating to appeals by indigent persons shall, so far as they can be made applicable, apply to an objection under this rule.” 15. The principle underlying the above provision is applicable even to Appeals by Special Leave under Article 136 of the Constitution of India as held by this Court in Jamshed Hormusji Wadia v. Board of Trustees, Port of Mumbai and Anr. 2004 (3) SCC 214 , where this Court observed: “35. A few decisions were brought to the notice of this Court by the learned Additional Solicitor General wherein this Court has made a reference to Order 41 Rule 22 CPC and permitted the respondent to support the decree or decision under appeal by laying challenge to a finding recorded or issue decided against him though the order, judgment or decree was in the end in his favour. Illustratively, see Ramanbhai Ashabhai Patel, Northern Rly. Coop. Society Ltd. and Bharat Kala Bhandar Ltd. The learned Additional Solicitor General is right. But we would like to clarify that this is done not because Order 41 Rule 22 CPC is applicable to appeals preferred under Article 136 of the Constitution; it is because of a basic principle of justice applicable to courts of superior jurisdiction. A person who has entirely succeeded before a court or tribunal below cannot file an appeal solely for the sake of clearing himself from the effect of an adverse finding or an adverse decision on one of the issues as he would not be a person falling within the meaning of the words “person aggrieved”. In an appeal or revision, as a matter of general principle, the party who has an order in his favour, is entitled to show that even if the order was liable to be set aside on the grounds decided in his favour, yet the order could be sustained by reversing the finding on some other ground which was decided against him in the court below. This position of law is supportable on general principles without having recourse to Order 41 Rule 22 of the Code of Civil Procedure. Reference may be had to a recent decision of this Court in Nalakath Sainuddin v. Koorikadan Sulaiman and also Banarsi v. Ram Phal. This Court being a court of plenary jurisdiction, once the matter has come to it in appeal, shall have power to pass any decree and make any order which ought to have been passed or made as the facts of the case and law applicable thereto call for. Such a power is exercised by this Court by virtue of its own jurisdiction and not by having recourse to Order 41 Rule 33 CPC though in some of the cases observations are available to the effect that this Court can act on the principles deducible from Order 41 Rule 33 CPC. It may be added that this Court has jurisdiction to pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it. Such jurisdiction is conferred on this Court by Article 142 of the Constitution and this Court is not required to have recourse to any provision of the Code of Civil Procedure or any principle deducible therefrom. However, still, in spite of the wide jurisdiction being available, this Court would not ordinarily make an order, direction or decree placing the party appealing to it in a position more disadvantageous than in what it would have been had it not appealed.” 16. We have, therefore, no hesitation in rejecting the contention that the finding regarding commission of misconduct by the workmen cannot be assailed by the workmen in these proceedings. 17. Even assuming that the finding regarding the commission of misconduct is left undisturbed, the circumstances in which the workmen are alleged to have disobeyed the instructions issued to them did not justify the extreme penalty of their dismissal. At any rate, the Labour Court having exercised its discretion in setting aside the dismissal order on the ground that the same was disproportionate, the High Court was justified in refusing to interfere with that order under Article 226 of the Constitution. There is in any event no compelling reason for us to invoke our extraordinary power under Article 136 of the Constitution or to interfere with what has been done by the two Courts below. But for the fact that there is no appeal or challenge to the denial of full back wages to the workmen, we may have even interfered to award the same to the workmen.
### Response:
0
### Explanation:
It is evident from the above that the discord between the workmen and the management arose entirely out of the management requiring the workmen to place the bag of their production on the electronic weighing scale instead of placing them on the floor at the end of the shift as they were doing till the management issued fresh instructions that demanded that the workmen carry their production bags to the electronic weighing scale for weighment. The workmen considered this additional responsibility to be involving not only additional work in carrying the production bag to the weighing machine but also in devoting additional time beyond the shift hours without any additional remuneration for theis thus evident that the refusal of the workmen to carry out the instructions issued by the management was not without a lawful or reasonable justification. The same could not at any rate be described as contumacious. The essence of the matter was whether the management could, without additional remuneration, ask the workmen who were responsible for attending to the production work alone to do additional work which was hitherto being done by another group of workmen, especially when compliance with the instructions to the workmen would require them to tie their production bags, carry them to the weighing machine, wait in the queue till the process was to be completed and leave only thereafter. In the course of hearing before us, it was fairly conceded by the representative of the appellant that since the number of moulders working in the establishment was fairly large and weighing machines limited in number, the workmen had to wait in a queue for their turn to have their production weighed which was earlier being done by some other workmen who were disbanded. Inasmuch as the workmen concerned had declined to undertake this additional responsibility which was not only consuming additional time but also additional effort they could not be accused of either deliberate defiance or misconduct that could be punished. The Tribunal was in that view wrong in holding that the charge framed against the respondents was proved. Refusal to carry out the instructions requiring workmen to do additional work beyond the shift hours was clearly tantamount to changing the conditions of service of the workmen which was impermissible without complying with the requirements of Section 9-A of the Industrial Disputesassuming that the finding regarding the commission of misconduct is left undisturbed, the circumstances in which the workmen are alleged to have disobeyed the instructions issued to them did not justify the extreme penalty of their dismissal. At any rate, the Labour Court having exercised its discretion in setting aside the dismissal order on the ground that the same was disproportionate, the High Court was justified in refusing to interfere with that order under Article 226 of the Constitution. There is in any event no compelling reason for us to invoke our extraordinary power under Article 136 of the Constitution or to interfere with what has been done by the two Courts below. But for the fact that there is no appeal or challenge to the denial of full back wages to the workmen, we may have even interfered to award the same to the
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S. Chandra Sekharan & Ors Vs. Government Of Tamil Nadu & Ors | Ray, C.J.1. These writ petitions under Article 32 dismissed on 5 April, 1974. Reasons were to be given later on. These are as follows:2. The petitioners asked for a writ of mandamus restraining the respondents from denying the petitioners their quota of levy sugar which they had been receiving under the Levy Sugar (Supply Control) Order, 1972.3. Up to 1967 production, price, and distribution of sugar were controlled by the Government of India in exercise of the powers conferred on it by the Essential Commodities Act, 1955 and the orders made thereunder.4. Every dealer in sugar was required by the Sugar Dealers Licensing Order, 1962 to obtain a licence for trading in sugar. The licences were required for any person who stored more than 10 quintals of sugar at a time for purposes of sale. The licences were issued annually. They were renewable.5. In 1971 the Central Government provided for partial decontrol of sugar by which producers were required to sell a part of the total production at the price fixed by the Government under the Sugar Control Order, 1966. The rest of the production could be sold by the producers in what is called "free market.6. The Central Government kept free market sugar separate from levy sugar. A dealer was prohibited from selling both levy and free market sugar in order to prevent any abuse.7. The petitioners were dealing in levy sugar. They never traded in free market sugar.8. On 15 June, 1972 the Central Government promulgated Levy Sugar Supply Control Order, 1972. The order provided for requisitioning of sugar from producers and for producers to supply the same to such persons or organisations or to such State Governments as the Central Government might specify at a price not exceeding the price determined in the Sugar Price (determination) Order, 1972.9. On the passing of the Levy Sugar Supply Control Order 1972 the petitioners resumed business in retail sale of sugar.10. The State of Tamil Nadu required the petitioners dealing in controlled sugar and levy sugar to enter into agreements.11. The petitioners were appointed retailers for certain localities in Tiruchirapalli. The Collector appointed the petitioners as retailers for distribution of levy sugar. The agreements which were entered into by the petitioners provided for termination of agency on one months notice. The petitioners were authorised distributors. The State appointed the petitioners agents for such distribution. The contract of agency provided for termination. The rights of the parties were purely contractual.12. The State of Tamil Nadu announced the policy of elimination of retail sellers dealing in controlled sugar. The order dated 17 February, 1973 which is impeached by the petitioners states that pursuant to Condition 11 of the agreement, their agreement was cancelled and the ration card holders who were allotted to the shops were told that they would not be entitled to supply sugar from their shops.13. Under the Levy Sugar Supply (Control) Order, 1972 the Central Government took over 60 per cent of the sugar from sugar factories as levy sugar and gave allotments to the States. The levy sugar to allotted was utilised for domestic consumption and was issued to family cards. The petitioners were appointed retailers for distribution of levy sugar. They were appointed for certain localities in Tiruchirapalli. The petitioners were appointed under agreements with the State.14. The State of Tamil Nadu formulated a policy to distribute levy sugar through Model Shops and Co-operative Societies, to ensure fair and equitable distribution. The Model Shops were opened by Tamil Nadu Civil Supplies Corporation. The appointment of the petitioners for distribution of levy sugar was under agreement. The State of Tamil Nadu terminated the agreement. The agreement also provided for such termination. The relationship between the State and the petitioners is purely contractual.15. The petitioners contended that there were 160 dealers selling levy sugar and out of the 160, 24 dealers like the petitioners have been discriminated. The State issued instructions that preference should be given to Co-operatives. The State is taking steps to replace the private retailers wherever Co-operatives are available and Government retail shops can be established. In Tiruchirapalli Town two model shops have been opened by the Tamil Nadu Civil Supplies Corporation. Some of the private retailers in that town were replaced.As and when more shops are opened, the private retailers in other places will be eliminated. There is no discrimination. The agency agreements have been terminated.16. The petitioners have no legal right to trade in levy sugar. | 0[ds]10. The State of Tamil Nadu required the petitioners dealing in controlled sugar and levy sugar to enter into agreements.11. The petitioners were appointed retailers for certain localities in Tiruchirapalli. The Collector appointed the petitioners as retailers for distribution of levy sugar. The agreements which were entered into by the petitioners provided for termination of agency on one months notice. The petitioners were authorised distributors. The State appointed the petitioners agents for such distribution. The contract of agency provided for termination. The rights of the parties were purely contractual.12. The State of Tamil Nadu announced the policy of elimination of retail sellers dealing in controlled sugar. The order dated 17 February, 1973 which is impeached by the petitioners states that pursuant to Condition 11 of the agreement, their agreement was cancelled and the ration card holders who were allotted to the shops were told that they would not be entitled to supply sugar from their shops.13. Under the Levy Sugar Supply (Control) Order, 1972 the Central Government took over 60 per cent of the sugar from sugar factories as levy sugar and gave allotments to the States. The levy sugar to allotted was utilised for domestic consumption and was issued to family cards. The petitioners were appointed retailers for distribution of levy sugar. They were appointed for certain localities in Tiruchirapalli. The petitioners were appointed under agreements with the State.14. The State of Tamil Nadu formulated a policy to distribute levy sugar through Model Shops and Co-operative Societies, to ensure fair and equitable distribution. The Model Shops were opened by Tamil Nadu Civil Supplies Corporation. The appointment of the petitioners for distribution of levy sugar was under agreement. The State of Tamil Nadu terminated the agreement. The agreement also provided for such termination. The relationship between the State and the petitioners is purely contractual.15. The petitioners contended that there were 160 dealers selling levy sugar and out of the 160, 24 dealers like the petitioners have been discriminated. The State issued instructions that preference should be given to Co-operatives. The State is taking steps to replace the private retailers wherever Co-operatives are available and Government retail shops can be established. In Tiruchirapalli Town two model shops have been opened by the Tamil Nadu Civil Supplies Corporation. Some of the private retailers in that town were replaced.As and when more shops are opened, the private retailers in other places will be eliminated. There is no discrimination. The agency agreements have been terminated.16. The petitioners have no legal right to trade in levy sugar. | 0 | 814 | 464 | ### Instruction:
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Ray, C.J.1. These writ petitions under Article 32 dismissed on 5 April, 1974. Reasons were to be given later on. These are as follows:2. The petitioners asked for a writ of mandamus restraining the respondents from denying the petitioners their quota of levy sugar which they had been receiving under the Levy Sugar (Supply Control) Order, 1972.3. Up to 1967 production, price, and distribution of sugar were controlled by the Government of India in exercise of the powers conferred on it by the Essential Commodities Act, 1955 and the orders made thereunder.4. Every dealer in sugar was required by the Sugar Dealers Licensing Order, 1962 to obtain a licence for trading in sugar. The licences were required for any person who stored more than 10 quintals of sugar at a time for purposes of sale. The licences were issued annually. They were renewable.5. In 1971 the Central Government provided for partial decontrol of sugar by which producers were required to sell a part of the total production at the price fixed by the Government under the Sugar Control Order, 1966. The rest of the production could be sold by the producers in what is called "free market.6. The Central Government kept free market sugar separate from levy sugar. A dealer was prohibited from selling both levy and free market sugar in order to prevent any abuse.7. The petitioners were dealing in levy sugar. They never traded in free market sugar.8. On 15 June, 1972 the Central Government promulgated Levy Sugar Supply Control Order, 1972. The order provided for requisitioning of sugar from producers and for producers to supply the same to such persons or organisations or to such State Governments as the Central Government might specify at a price not exceeding the price determined in the Sugar Price (determination) Order, 1972.9. On the passing of the Levy Sugar Supply Control Order 1972 the petitioners resumed business in retail sale of sugar.10. The State of Tamil Nadu required the petitioners dealing in controlled sugar and levy sugar to enter into agreements.11. The petitioners were appointed retailers for certain localities in Tiruchirapalli. The Collector appointed the petitioners as retailers for distribution of levy sugar. The agreements which were entered into by the petitioners provided for termination of agency on one months notice. The petitioners were authorised distributors. The State appointed the petitioners agents for such distribution. The contract of agency provided for termination. The rights of the parties were purely contractual.12. The State of Tamil Nadu announced the policy of elimination of retail sellers dealing in controlled sugar. The order dated 17 February, 1973 which is impeached by the petitioners states that pursuant to Condition 11 of the agreement, their agreement was cancelled and the ration card holders who were allotted to the shops were told that they would not be entitled to supply sugar from their shops.13. Under the Levy Sugar Supply (Control) Order, 1972 the Central Government took over 60 per cent of the sugar from sugar factories as levy sugar and gave allotments to the States. The levy sugar to allotted was utilised for domestic consumption and was issued to family cards. The petitioners were appointed retailers for distribution of levy sugar. They were appointed for certain localities in Tiruchirapalli. The petitioners were appointed under agreements with the State.14. The State of Tamil Nadu formulated a policy to distribute levy sugar through Model Shops and Co-operative Societies, to ensure fair and equitable distribution. The Model Shops were opened by Tamil Nadu Civil Supplies Corporation. The appointment of the petitioners for distribution of levy sugar was under agreement. The State of Tamil Nadu terminated the agreement. The agreement also provided for such termination. The relationship between the State and the petitioners is purely contractual.15. The petitioners contended that there were 160 dealers selling levy sugar and out of the 160, 24 dealers like the petitioners have been discriminated. The State issued instructions that preference should be given to Co-operatives. The State is taking steps to replace the private retailers wherever Co-operatives are available and Government retail shops can be established. In Tiruchirapalli Town two model shops have been opened by the Tamil Nadu Civil Supplies Corporation. Some of the private retailers in that town were replaced.As and when more shops are opened, the private retailers in other places will be eliminated. There is no discrimination. The agency agreements have been terminated.16. The petitioners have no legal right to trade in levy sugar.
### Response:
0
### Explanation:
10. The State of Tamil Nadu required the petitioners dealing in controlled sugar and levy sugar to enter into agreements.11. The petitioners were appointed retailers for certain localities in Tiruchirapalli. The Collector appointed the petitioners as retailers for distribution of levy sugar. The agreements which were entered into by the petitioners provided for termination of agency on one months notice. The petitioners were authorised distributors. The State appointed the petitioners agents for such distribution. The contract of agency provided for termination. The rights of the parties were purely contractual.12. The State of Tamil Nadu announced the policy of elimination of retail sellers dealing in controlled sugar. The order dated 17 February, 1973 which is impeached by the petitioners states that pursuant to Condition 11 of the agreement, their agreement was cancelled and the ration card holders who were allotted to the shops were told that they would not be entitled to supply sugar from their shops.13. Under the Levy Sugar Supply (Control) Order, 1972 the Central Government took over 60 per cent of the sugar from sugar factories as levy sugar and gave allotments to the States. The levy sugar to allotted was utilised for domestic consumption and was issued to family cards. The petitioners were appointed retailers for distribution of levy sugar. They were appointed for certain localities in Tiruchirapalli. The petitioners were appointed under agreements with the State.14. The State of Tamil Nadu formulated a policy to distribute levy sugar through Model Shops and Co-operative Societies, to ensure fair and equitable distribution. The Model Shops were opened by Tamil Nadu Civil Supplies Corporation. The appointment of the petitioners for distribution of levy sugar was under agreement. The State of Tamil Nadu terminated the agreement. The agreement also provided for such termination. The relationship between the State and the petitioners is purely contractual.15. The petitioners contended that there were 160 dealers selling levy sugar and out of the 160, 24 dealers like the petitioners have been discriminated. The State issued instructions that preference should be given to Co-operatives. The State is taking steps to replace the private retailers wherever Co-operatives are available and Government retail shops can be established. In Tiruchirapalli Town two model shops have been opened by the Tamil Nadu Civil Supplies Corporation. Some of the private retailers in that town were replaced.As and when more shops are opened, the private retailers in other places will be eliminated. There is no discrimination. The agency agreements have been terminated.16. The petitioners have no legal right to trade in levy sugar.
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gupta c Vs. galaxosmithklin pharmaceutical ltd | of India Ltd. v. Burma Shell management Staff Association and Ors. (supra)it was held as follows: "in this connection, we may take notice of the argument advanced by Mr. Chari on behalf of the Association that, whenever a technical man is employed in an industry, it must be held that he is employed to do technical work irrespective of the manner in which and the occasions on which the technical knowledge of that person is actually brought into use. The general proposition put forward by him was that, if a technical employee even gives advice or guides other workmen, it must be held that he is doing technical work and not supervisory work. He elaborated this submission by urging that, if we hold the supervisory work done by atechnician as not amounting to his being employed to do technical work, the result would be that only those persons would be held to be employed on technical work who actually do manual work themselves. According to him this would result in making the word "technical" redundant in the definition of workman even though it was later introduced to amplify the scope of the definition. We are unable to accept these submissions. The argument that, if we hold that supervisory work done by a technical man is not employment to do technical work, it would result in only manual work being held to be technical work, is not at all connect. There is a clear distinction between technical work and manual work. Similarly there is a distinction between employments which are substantially for manual duties, and employments where the principal duties are supervisory or other type, though incidentally involving some manual work. Even though the law in India is different from that in England, the views expressed by BRANSON, J, in appeal of Gardner : In re Maschek : In re tyrrell (1938) 1 All E. R. 20 are helpful, because, there also, the nature of the work had to be examined to see whether it was manual work. As examples of duties different from manual labour, though incidentally involving manual work, he mentioned cases where a worker (a) is mainly occupied in clerical or accounting work, or (b) is mainly occupied in supervising the work of others, or (c) is mainly occupied in managing a business or a department, or (d) is mainly engaged in salesmanship, or (e) if the successful execution of his work depends mainly upon the display of taste or imagination or the exercise of some special mental or artistic faculty or the application of scientific knowledge as distinguished from manual dexterity. Another helpful illustration given by him of the contrast between the two types of cases was in the following words:-"if one finds a man employed because he has the artistic faculties which will enable him to produce something wanted in the shape of a creation of his own, then obviously, although it involves a good deal of manual labour, he is employed in order that the employer may get the benefit of his creative faculty. " the example (e), given above, very appropriately applies to the case of a person employed to do technical work. His work depends upon special mental training or scientific or technical knowledge. If the man is employed because he possesses such faculties and they enable him to produce something as a creation of his own, he will have to be held to be employed on technical work, even though, in carrying out that work, he may have to go through a lot of manual labour. If, on the other hand, he is merely employed in supervising the work of others, the fact that, for the purpose of proper supervision, he is required to have technical knowledge will not convert his supervisory work into technical work. The work of giving advice and guidance cannot be held to be an employment to do technical work. " ( 27 ) IN Hussain Mithu Mhasvadkar v. Bombay Iron and Steel Labour Board and Another air 2001 SC 3290 : (2001) 7 SCC 394 : 2001-II-LLJ-1520 it was held that while deciding the status of the person, nature of work is really relevant. The High Court has referred to the evidence of the appellant. He had admitted in his evidence that apart from the advice to the management from time to time, he had other independent functions such as preparation of draft enquiry report and conducting domestic enquiries. In his cross-examination he had further admitted that he had tendered legal advise in all the four branches and factory of the company at worli. He also admitted that on many occasions he had drafted management enquiry and it was his duty to hold conferences with the advocates in relation to the companys acts. He also admitted that as an employee in the category of management staff, his conditions of service were different than those provided for the workers of the Company. He also admitted that leave given to him were not applicable under the settlement. He also admitted that he was covered under the pension Scheme which did not apply under the settlement with employees. ( 28 ) IN view of the aforesaid factual position, the order of the learned single Judge and the impugned judgment of the Division Bench do not suffer from any infirmity to warrant interference. Learned counsel for the appellant tried to distinguish the judgment in the Ruston and Hornsby (I) Ltd. case (supra) on the ground that there legal assistant had licence to practice. As rightly submitted by learned counsel for the respondent, no distinction was made by this court on the only ground that licence and in paragraph 16 the distinction was made on the basis of duties. In a recent case in Muir Mills unit of NTC (U. P.) Ltd. v. Swayam Prakash srivastava and Another (2007) 1 SCC 491 : 2007-I-LLJ-801, question of legal assistant was also considered. In that case the definition between occupation and profession was highlighted. | 0[ds]20 ) IT is not in dispute that the nomenclature is really not of any consequence. Whether a particular employee comes within the definition of workman has to be decided factually. In fact, it has been found as a matter with reference to various factual aspects that the duties undertaken by the appellant overwhelmingly fall in the managerial cadre. So far as the nature of work is concerned, the Division Bench of the high Court took note of several aspects as reflected in para 29 of the judgment. The same reads asthe evidence adduced on behalf of the company, its Director Shri Rustam Padam bharucha deposed that the duties of the appellant were to represent the Company in conciliation proceedings, before Government authorities under the Factories Act. E. S. I. Act, P. F. Act, Contract Labour (Regulation and Abolition) Act, to represent the management as an Enquiry officer or as the managements Representative in domestic enquiries, to guide and advise the managements representative in domestic enquiries, to advise him about the line ofin such enquiries, advise about the quantum of punishment to be inflicted in disciplinary proceedings. To give advise on queries raised by the management pertaining to the interpretation of statutes or settlement with the Unions or regarding enquiries raised by Government authorities to brief witnesses, to prepare drafts for the perusal of counsel to brief counsel on facts as well as law to be present in Court when the arguments were taking place in judicial matters related to the Company, to keep in touch with the latest case laws and amendments to the labour legislations, to ensure that the management fulfilled its obligations under the Labour legislations and to advise the management on provisions of settlement.23 ) IN the present case, we find that for determining the nature of amendment, the question is whether it affects the legal rights of individual workers in the context that if they fall within the definition then they would be entitled to claim several benefits conferred by the act. The amendment should be also one which would touch upon their substantive rights. Unless there is a clear provision to the effect that it is retrospective or such retrospectivity can be implied by necessary implication or intendment, it must be held to be prospective. We find no such clear provision or anything to suggest by necessary implication or intendment either in the amending Act or in the amendment itself. The amendment cannot be said to be one which affects procedure. Insofar as the amendment substantially changes the scope of the definition of the term "workman" it cannot be said to be merely declaratory or clarificatory. In this regard, we find that entirely new category of persons who are doing "operational" work was introduced first time in the definition and the words "skilled" and "unskilled" were made independent categories unlinked to the word "manual". It can be seen that the Industrial Disputes (Amendment) Act, 1984 was enacted by parliament on August 31, 1982. However, the amendment itself was not brought into force immediately and in(1) of Section 1 of the Amending Act, it was provided that it would come into force on such day as the Central Government may be Notification in the official Gazette, appoint. Ultimately, by a notification the said amendment was brought into force on August 21, 1984. Although this court has held that the amendment would be prospective if it is deemed to have come with effect on a particular day, a provision in the amendment Act to the effect that amendment would become operative in the future, would have similar effect.( 24 ) THEREFORE, by the application of the tests mentioned above, it is clear that the definition of workman as amended must, therefore, presumed to be prospective.( 25 ) IN this regard we would like to give one further reason as to why the definition of workman as prevailing on the date of dismissal should be taken into account. When the workman is dismissed, it is usually contended (as has been done in the present case) that the relevant conditions precedent for retrenchment under sectionhaving not been followed and that, therefore, the termination is illegal. Sectionof the Industrial Disputes Act, 1947 lays down that contravention of the provision of sectionshall be punishable with imprisonment for a term which may extend to one month or with fine which may extend to Rs. 1,000/or with both. It is, therefore, clear that on the date of dismissal, the employer must act according to the then prevailing provision of law. It is only in respect of a workman who is then within the definition of Section 2 (s) of the act that the employer is required to follow the condition mentioned in Sectionfailing which, he will commit an offence. If the employee so dismissed, later becomes a person who is a workman within an expanded definition brought about by a subsequent amendment held to be of retrospective nature, the employer will be rendered punishable for an offence under Sectionand Q as this would amount to the employer being punishable for an offence, which he could not have envisaged on the date of dismissal. This would be violative of Article 20 (1) of the Constitution.(28 ) IN view of the aforesaid factual position, the order of the learned single Judge and the impugned judgment of the Division Bench do not suffer from any infirmity to warrant interference. Learned counsel for the appellant tried to distinguish the judgment in the Ruston and Hornsby (I) Ltd. case (supra) on the ground that there legal assistant had licence to practice. As rightly submitted by learned counsel for the respondent, no distinction was made by this court on the only ground that licence and in paragraph 16 the distinction was made on the basis of duties. In a recent case in Muir Mills unit of NTC (U. P.) Ltd. v. Swayam Prakash srivastava and Another (2007) 1 SCC 491 :question of legal assistant was also considered. In that case the definition between occupation and profession was highlighted. | 0 | 4,764 | 1,127 | ### Instruction:
Decide if the appeal in the case proceeding is more likely to be successful (1) or unsuccessful (0), and then justify your decision by focusing on essential sentences in the document.
### Input:
of India Ltd. v. Burma Shell management Staff Association and Ors. (supra)it was held as follows: "in this connection, we may take notice of the argument advanced by Mr. Chari on behalf of the Association that, whenever a technical man is employed in an industry, it must be held that he is employed to do technical work irrespective of the manner in which and the occasions on which the technical knowledge of that person is actually brought into use. The general proposition put forward by him was that, if a technical employee even gives advice or guides other workmen, it must be held that he is doing technical work and not supervisory work. He elaborated this submission by urging that, if we hold the supervisory work done by atechnician as not amounting to his being employed to do technical work, the result would be that only those persons would be held to be employed on technical work who actually do manual work themselves. According to him this would result in making the word "technical" redundant in the definition of workman even though it was later introduced to amplify the scope of the definition. We are unable to accept these submissions. The argument that, if we hold that supervisory work done by a technical man is not employment to do technical work, it would result in only manual work being held to be technical work, is not at all connect. There is a clear distinction between technical work and manual work. Similarly there is a distinction between employments which are substantially for manual duties, and employments where the principal duties are supervisory or other type, though incidentally involving some manual work. Even though the law in India is different from that in England, the views expressed by BRANSON, J, in appeal of Gardner : In re Maschek : In re tyrrell (1938) 1 All E. R. 20 are helpful, because, there also, the nature of the work had to be examined to see whether it was manual work. As examples of duties different from manual labour, though incidentally involving manual work, he mentioned cases where a worker (a) is mainly occupied in clerical or accounting work, or (b) is mainly occupied in supervising the work of others, or (c) is mainly occupied in managing a business or a department, or (d) is mainly engaged in salesmanship, or (e) if the successful execution of his work depends mainly upon the display of taste or imagination or the exercise of some special mental or artistic faculty or the application of scientific knowledge as distinguished from manual dexterity. Another helpful illustration given by him of the contrast between the two types of cases was in the following words:-"if one finds a man employed because he has the artistic faculties which will enable him to produce something wanted in the shape of a creation of his own, then obviously, although it involves a good deal of manual labour, he is employed in order that the employer may get the benefit of his creative faculty. " the example (e), given above, very appropriately applies to the case of a person employed to do technical work. His work depends upon special mental training or scientific or technical knowledge. If the man is employed because he possesses such faculties and they enable him to produce something as a creation of his own, he will have to be held to be employed on technical work, even though, in carrying out that work, he may have to go through a lot of manual labour. If, on the other hand, he is merely employed in supervising the work of others, the fact that, for the purpose of proper supervision, he is required to have technical knowledge will not convert his supervisory work into technical work. The work of giving advice and guidance cannot be held to be an employment to do technical work. " ( 27 ) IN Hussain Mithu Mhasvadkar v. Bombay Iron and Steel Labour Board and Another air 2001 SC 3290 : (2001) 7 SCC 394 : 2001-II-LLJ-1520 it was held that while deciding the status of the person, nature of work is really relevant. The High Court has referred to the evidence of the appellant. He had admitted in his evidence that apart from the advice to the management from time to time, he had other independent functions such as preparation of draft enquiry report and conducting domestic enquiries. In his cross-examination he had further admitted that he had tendered legal advise in all the four branches and factory of the company at worli. He also admitted that on many occasions he had drafted management enquiry and it was his duty to hold conferences with the advocates in relation to the companys acts. He also admitted that as an employee in the category of management staff, his conditions of service were different than those provided for the workers of the Company. He also admitted that leave given to him were not applicable under the settlement. He also admitted that he was covered under the pension Scheme which did not apply under the settlement with employees. ( 28 ) IN view of the aforesaid factual position, the order of the learned single Judge and the impugned judgment of the Division Bench do not suffer from any infirmity to warrant interference. Learned counsel for the appellant tried to distinguish the judgment in the Ruston and Hornsby (I) Ltd. case (supra) on the ground that there legal assistant had licence to practice. As rightly submitted by learned counsel for the respondent, no distinction was made by this court on the only ground that licence and in paragraph 16 the distinction was made on the basis of duties. In a recent case in Muir Mills unit of NTC (U. P.) Ltd. v. Swayam Prakash srivastava and Another (2007) 1 SCC 491 : 2007-I-LLJ-801, question of legal assistant was also considered. In that case the definition between occupation and profession was highlighted.
### Response:
0
### Explanation:
is really not of any consequence. Whether a particular employee comes within the definition of workman has to be decided factually. In fact, it has been found as a matter with reference to various factual aspects that the duties undertaken by the appellant overwhelmingly fall in the managerial cadre. So far as the nature of work is concerned, the Division Bench of the high Court took note of several aspects as reflected in para 29 of the judgment. The same reads asthe evidence adduced on behalf of the company, its Director Shri Rustam Padam bharucha deposed that the duties of the appellant were to represent the Company in conciliation proceedings, before Government authorities under the Factories Act. E. S. I. Act, P. F. Act, Contract Labour (Regulation and Abolition) Act, to represent the management as an Enquiry officer or as the managements Representative in domestic enquiries, to guide and advise the managements representative in domestic enquiries, to advise him about the line ofin such enquiries, advise about the quantum of punishment to be inflicted in disciplinary proceedings. To give advise on queries raised by the management pertaining to the interpretation of statutes or settlement with the Unions or regarding enquiries raised by Government authorities to brief witnesses, to prepare drafts for the perusal of counsel to brief counsel on facts as well as law to be present in Court when the arguments were taking place in judicial matters related to the Company, to keep in touch with the latest case laws and amendments to the labour legislations, to ensure that the management fulfilled its obligations under the Labour legislations and to advise the management on provisions of settlement.23 ) IN the present case, we find that for determining the nature of amendment, the question is whether it affects the legal rights of individual workers in the context that if they fall within the definition then they would be entitled to claim several benefits conferred by the act. The amendment should be also one which would touch upon their substantive rights. Unless there is a clear provision to the effect that it is retrospective or such retrospectivity can be implied by necessary implication or intendment, it must be held to be prospective. We find no such clear provision or anything to suggest by necessary implication or intendment either in the amending Act or in the amendment itself. The amendment cannot be said to be one which affects procedure. Insofar as the amendment substantially changes the scope of the definition of the term "workman" it cannot be said to be merely declaratory or clarificatory. In this regard, we find that entirely new category of persons who are doing "operational" work was introduced first time in the definition and the words "skilled" and "unskilled" were made independent categories unlinked to the word "manual". It can be seen that the Industrial Disputes (Amendment) Act, 1984 was enacted by parliament on August 31, 1982. However, the amendment itself was not brought into force immediately and in(1) of Section 1 of the Amending Act, it was provided that it would come into force on such day as the Central Government may be Notification in the official Gazette, appoint. Ultimately, by a notification the said amendment was brought into force on August 21, 1984. Although this court has held that the amendment would be prospective if it is deemed to have come with effect on a particular day, a provision in the amendment Act to the effect that amendment would become operative in the future, would have similar effect.( 24 ) THEREFORE, by the application of the tests mentioned above, it is clear that the definition of workman as amended must, therefore, presumed to be prospective.( 25 ) IN this regard we would like to give one further reason as to why the definition of workman as prevailing on the date of dismissal should be taken into account. When the workman is dismissed, it is usually contended (as has been done in the present case) that the relevant conditions precedent for retrenchment under sectionhaving not been followed and that, therefore, the termination is illegal. Sectionof the Industrial Disputes Act, 1947 lays down that contravention of the provision of sectionshall be punishable with imprisonment for a term which may extend to one month or with fine which may extend to Rs. 1,000/or with both. It is, therefore, clear that on the date of dismissal, the employer must act according to the then prevailing provision of law. It is only in respect of a workman who is then within the definition of Section 2 (s) of the act that the employer is required to follow the condition mentioned in Sectionfailing which, he will commit an offence. If the employee so dismissed, later becomes a person who is a workman within an expanded definition brought about by a subsequent amendment held to be of retrospective nature, the employer will be rendered punishable for an offence under Sectionand Q as this would amount to the employer being punishable for an offence, which he could not have envisaged on the date of dismissal. This would be violative of Article 20 (1) of the Constitution.(28 ) IN view of the aforesaid factual position, the order of the learned single Judge and the impugned judgment of the Division Bench do not suffer from any infirmity to warrant interference. Learned counsel for the appellant tried to distinguish the judgment in the Ruston and Hornsby (I) Ltd. case (supra) on the ground that there legal assistant had licence to practice. As rightly submitted by learned counsel for the respondent, no distinction was made by this court on the only ground that licence and in paragraph 16 the distinction was made on the basis of duties. In a recent case in Muir Mills unit of NTC (U. P.) Ltd. v. Swayam Prakash srivastava and Another (2007) 1 SCC 491 :question of legal assistant was also considered. In that case the definition between occupation and profession was highlighted.
|
Dhirendra Chandra Pal Vs. Associated Bank of Tripura Limited | time being in force, no other court (i.e., a court other than the one as above defined) shall have jurisdiction to entertain any matter relating to or arising out of the winding up of a banking company." Next is section 45B(1) which is in the following terms"Notwithstanding anything to the contrary contained in the Indian Companies Act, 1913, or in any other law for the time being in force, the Court shall have full power to decide all claims made by or against any banking company .... and all questions of priorities and all other questions whatsoever, whether of law or fact, which may relate to or arise in the course of the winding up of the banking company coming within the cognizance of the Court."8. Section 45G authorises the court to make rules consistent with the Act concerning the mode of proceedings for the decision of claims and other proceedings under the Act. This group of sections in Part III-A constitute a wide departure from the corresponding provisions of the Indian Companies Act. Under various section thereof the liquidator, after an order for winding up of a company is made, can approach a company court for exercising certain powers in aid of and to expedite the process of liquidation. The procedure normally adopted for the purpose is by way of application. But the scope of matters in respect of which the liquidator can obtain the help of the company court by summary procedure is rather limited. In respect of other matters and particularly in the matter of collecting assets or recovering properties from third parties, (not covered by section 185 and 186) the liquidator has to invoke the help of the appropriate court in the ordinary way. This as is well known leads to a great deal of inevitable delay and expense. When in 1949 special legislation in respect of banking companies was taken up, it was one of the stated objects to provide a machinery by which proceedings in liquidation of banking companies could be expedited and speedily terminated. It was found, however, that the Act of 1949, as originally enacted, was inadequate to achieve that purpose. It is in this situation that the Amending Act of 1950 introduced into the Act of 1949 an entire Chapter, Part III-A, consisting of sections 45A to 45H under the heading "Special provisions for speedy disposal of winding up proceedings."9. It appears to us that, consistently with this policy and with the scheme of the Amending Act, where the liquidator has to approach the court under section 45B for relief in respect of matters legitimately falling within the scope thereof, elaborate proceedings by way of a suit involving time and expense, to the detriment of the ultimate interest of the company under liquidation, were not contemplated. In the absence of any specific provision in this behalf in the Act itself and in the absence of the any rules framed by the High Court concerned under section 45G, the procedure must be taken to be one left to the judgment and discretion of the court, having regard to the nature of the claim and of the questions therein involved.10. In the Sree Bank case (1952 22 Comp. Cas. 73) the question that arose for direct consideration was one of limitation. But in considering it and when pressed with the argument that, if the appropriate proceeding was by way of an application and not a suit, difficulties might arise as to the question of limitation, the learned Judges felt it unnecessary to consider whether or not the Limitation Act applies to the applications under section 45B and if so what would be the period which would govern such applications. They proceeded to decide the particular case before them, viz., a case relating to a debt due to the bank, on the view that"there is nothing in the Companies Act or the Banking Companies Act which permits a liquidator to recover debts from debtors of a banking company by a summary preceding such as an application to the company judge"and therefore held that no application for recovery would lie and that only a suit should have been brought for which the period of limitation was the ordinary period provided in the Limitation Act. It appears to us, with great respect to the learned Judges that this approach as to the nature of the proceeding required or permitted under section 45B of the Banking Companies Act was not correct. The question is not whether section 45B permitted summary proceedings but the question is whether the section prescribed definitely a particular method of proceeding and whether consistently with the policy of the Act it was not to be presumed that a speedy and cheap remedy was to be available to the liquidator, unless the court in its discretion though fit to direct or the rules of the High Court provided that a claim of a particular nature had to be pursued by a suit.11. It is to be remembered that section 45B is not confined to claims for recovery of money or recovery of property, movable or immovable, but comprehends all sorts of claims which relate to or arise in the course of winding up. Obviously the normal proceeding that the section contemplated must be taken to be a summary proceeding by way of application.12. We are clearly of the opinion that in the present case the court which passed the ex parte decree was fully competent to decide the matter raised before it on summary application and to pass the ex parte decree which has been challenged by the suit and that the decree of the courts below dismissing the suit is correct. We are not to be supposed to have expressed any opinion on the question of limitation which was raised before the High Court in the Sree Bank case (1952 22 Comp. Cas. 73). That is a question which may have to be decided in an appropriate case when it is raised directly.13. | 0[ds]It has not been disputed before us that the relief by way of ejectment of the appellant from the land demised is one which would fall within the scope of section 45B of the Banking Companies Act and that the liquidator could obtain the said relief by an appropriate proceeding in the High Court. Indeed, the learned appellate Judges specifically held that the court had, by virtue of section 45B, jurisdiction over the subject matter of the dispute and this view has not been challenged having regard to the wide and comprehensive language of theappears to us that, consistently with this policy and with the scheme of the Amending Act, where the liquidator has to approach the court under section 45B for relief in respect of matters legitimately falling within the scope thereof, elaborate proceedings by way of a suit involving time and expense, to the detriment of the ultimate interest of the company under liquidation, were not contemplated. In the absence of any specific provision in this behalf in the Act itself and in the absence of the any rules framed by the High Court concerned under section 45G, the procedure must be taken to be one left to the judgment and discretion of the court, having regard to the nature of the claim and of the questions thereinappears to us, with great respect to the learned Judges that this approach as to the nature of the proceeding required or permitted under section 45B of the Banking Companies Act was not correct. The question is not whether section 45B permitted summary proceedings but the question is whether the section prescribed definitely a particular method of proceeding and whether consistently with the policy of the Act it was not to be presumed that a speedy and cheap remedy was to be available to the liquidator, unless the court in its discretion though fit to direct or the rules of the High Court provided that a claim of a particular nature had to be pursued by ais to be remembered that section 45B is not confined to claims for recovery of money or recovery of property, movable or immovable, but comprehends all sorts of claims which relate to or arise in the course of winding up. Obviously the normal proceeding that the section contemplated must be taken to be a summary proceeding by way ofare clearly of the opinion that in the present case the court which passed the ex parte decree was fully competent to decide the matter raised before it on summary application and to pass the ex parte decree which has been challenged by the suit and that the decree of the courts below dismissing the suit is correct. We are not to be supposed to have expressed any opinion on the question of limitation which was raised before the High Court in the Sree Bank case (1952 22 Comp. Cas. 73). That is a question which may have to be decided in an appropriate case when it is raised directly. | 0 | 2,015 | 532 | ### 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:
time being in force, no other court (i.e., a court other than the one as above defined) shall have jurisdiction to entertain any matter relating to or arising out of the winding up of a banking company." Next is section 45B(1) which is in the following terms"Notwithstanding anything to the contrary contained in the Indian Companies Act, 1913, or in any other law for the time being in force, the Court shall have full power to decide all claims made by or against any banking company .... and all questions of priorities and all other questions whatsoever, whether of law or fact, which may relate to or arise in the course of the winding up of the banking company coming within the cognizance of the Court."8. Section 45G authorises the court to make rules consistent with the Act concerning the mode of proceedings for the decision of claims and other proceedings under the Act. This group of sections in Part III-A constitute a wide departure from the corresponding provisions of the Indian Companies Act. Under various section thereof the liquidator, after an order for winding up of a company is made, can approach a company court for exercising certain powers in aid of and to expedite the process of liquidation. The procedure normally adopted for the purpose is by way of application. But the scope of matters in respect of which the liquidator can obtain the help of the company court by summary procedure is rather limited. In respect of other matters and particularly in the matter of collecting assets or recovering properties from third parties, (not covered by section 185 and 186) the liquidator has to invoke the help of the appropriate court in the ordinary way. This as is well known leads to a great deal of inevitable delay and expense. When in 1949 special legislation in respect of banking companies was taken up, it was one of the stated objects to provide a machinery by which proceedings in liquidation of banking companies could be expedited and speedily terminated. It was found, however, that the Act of 1949, as originally enacted, was inadequate to achieve that purpose. It is in this situation that the Amending Act of 1950 introduced into the Act of 1949 an entire Chapter, Part III-A, consisting of sections 45A to 45H under the heading "Special provisions for speedy disposal of winding up proceedings."9. It appears to us that, consistently with this policy and with the scheme of the Amending Act, where the liquidator has to approach the court under section 45B for relief in respect of matters legitimately falling within the scope thereof, elaborate proceedings by way of a suit involving time and expense, to the detriment of the ultimate interest of the company under liquidation, were not contemplated. In the absence of any specific provision in this behalf in the Act itself and in the absence of the any rules framed by the High Court concerned under section 45G, the procedure must be taken to be one left to the judgment and discretion of the court, having regard to the nature of the claim and of the questions therein involved.10. In the Sree Bank case (1952 22 Comp. Cas. 73) the question that arose for direct consideration was one of limitation. But in considering it and when pressed with the argument that, if the appropriate proceeding was by way of an application and not a suit, difficulties might arise as to the question of limitation, the learned Judges felt it unnecessary to consider whether or not the Limitation Act applies to the applications under section 45B and if so what would be the period which would govern such applications. They proceeded to decide the particular case before them, viz., a case relating to a debt due to the bank, on the view that"there is nothing in the Companies Act or the Banking Companies Act which permits a liquidator to recover debts from debtors of a banking company by a summary preceding such as an application to the company judge"and therefore held that no application for recovery would lie and that only a suit should have been brought for which the period of limitation was the ordinary period provided in the Limitation Act. It appears to us, with great respect to the learned Judges that this approach as to the nature of the proceeding required or permitted under section 45B of the Banking Companies Act was not correct. The question is not whether section 45B permitted summary proceedings but the question is whether the section prescribed definitely a particular method of proceeding and whether consistently with the policy of the Act it was not to be presumed that a speedy and cheap remedy was to be available to the liquidator, unless the court in its discretion though fit to direct or the rules of the High Court provided that a claim of a particular nature had to be pursued by a suit.11. It is to be remembered that section 45B is not confined to claims for recovery of money or recovery of property, movable or immovable, but comprehends all sorts of claims which relate to or arise in the course of winding up. Obviously the normal proceeding that the section contemplated must be taken to be a summary proceeding by way of application.12. We are clearly of the opinion that in the present case the court which passed the ex parte decree was fully competent to decide the matter raised before it on summary application and to pass the ex parte decree which has been challenged by the suit and that the decree of the courts below dismissing the suit is correct. We are not to be supposed to have expressed any opinion on the question of limitation which was raised before the High Court in the Sree Bank case (1952 22 Comp. Cas. 73). That is a question which may have to be decided in an appropriate case when it is raised directly.13.
### Response:
0
### Explanation:
It has not been disputed before us that the relief by way of ejectment of the appellant from the land demised is one which would fall within the scope of section 45B of the Banking Companies Act and that the liquidator could obtain the said relief by an appropriate proceeding in the High Court. Indeed, the learned appellate Judges specifically held that the court had, by virtue of section 45B, jurisdiction over the subject matter of the dispute and this view has not been challenged having regard to the wide and comprehensive language of theappears to us that, consistently with this policy and with the scheme of the Amending Act, where the liquidator has to approach the court under section 45B for relief in respect of matters legitimately falling within the scope thereof, elaborate proceedings by way of a suit involving time and expense, to the detriment of the ultimate interest of the company under liquidation, were not contemplated. In the absence of any specific provision in this behalf in the Act itself and in the absence of the any rules framed by the High Court concerned under section 45G, the procedure must be taken to be one left to the judgment and discretion of the court, having regard to the nature of the claim and of the questions thereinappears to us, with great respect to the learned Judges that this approach as to the nature of the proceeding required or permitted under section 45B of the Banking Companies Act was not correct. The question is not whether section 45B permitted summary proceedings but the question is whether the section prescribed definitely a particular method of proceeding and whether consistently with the policy of the Act it was not to be presumed that a speedy and cheap remedy was to be available to the liquidator, unless the court in its discretion though fit to direct or the rules of the High Court provided that a claim of a particular nature had to be pursued by ais to be remembered that section 45B is not confined to claims for recovery of money or recovery of property, movable or immovable, but comprehends all sorts of claims which relate to or arise in the course of winding up. Obviously the normal proceeding that the section contemplated must be taken to be a summary proceeding by way ofare clearly of the opinion that in the present case the court which passed the ex parte decree was fully competent to decide the matter raised before it on summary application and to pass the ex parte decree which has been challenged by the suit and that the decree of the courts below dismissing the suit is correct. We are not to be supposed to have expressed any opinion on the question of limitation which was raised before the High Court in the Sree Bank case (1952 22 Comp. Cas. 73). That is a question which may have to be decided in an appropriate case when it is raised directly.
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Kala Devi Vs. Jagdish Chand | S. Abdul Nazeer, J. 1. The appellant/plaintiff is the widow of deceased Nokhu Ram. She filed a Suit bearing No.112 of 1991 for a declaration that she being the sole legal heir of the Nokhu Ram, is entitled to succeed and inherit his movable and immovable properties to the exclusion of the respondent/defendant and that the Will dated 29.10.1990 is a forged document which does not bind her in any manner. The respondent/defendant filed the written statement opposing the suit. The trial court dismissed the suit by holding that the Will executed by deceased Nokhu Ram bequeathing his property in favour of the plaintiff and the defendant in equal shares is valid. The first appeal filed by the appellant was allowed and the judgment and decree of the trial court was set aside. Feeling aggrieved, the defendant filed RSA No. 174 of 1998 in the High Court of Himachal Pradesh, Shimla. The High Court while setting aside the judgment and decree of the first appellate court, restored the judgment and decree of the trial court. The appellant has challenged the legality and correctness of the said judgment and decree in these appeals. 2. The only contention urged on behalf of the appellant is that the execution of the Will is shrouded by suspicious circumstances. Learned counsel appearing for the respondent has supported the judgment and decree of the High Court. 3. Having heard learned counsel for the parties, we are of the view that the Will executed by Nokhu Ram is not shrouded by suspicious circumstances. In fact, Nokhu Ram had expressed his desire to execute the Will to Ganga Ram, his Purohit in the presence of Sukh Ram, Tota Ram and also the plaintiff Kala Devi. Purohit was examined as DW-4. DW-4 had testified that the plaintiff Kala Devi agreed to the wish of Nokhu Ram. DW-2 Sant Ram was one of the attesting witnesses of the Will and DW-5 Jai Singh was the scribe. DW-2 and DW-5 have corroborated the statement of the defendant. J.P. Sharma, advocate, was an identifier of the testator at the time of execution of the Will. He was examined as PW-3. He has stated in his evidence that at the time of execution of the Will, Nokhu Ram was mentally and physically sound. The plaintiff was not able to establish in suspicious circumstances alleging the execution of the Will. The trial court after considering the entire materials on record has rightly come to the conclusion that the Will has been executed by Nokhu Ram of his own free Will and that he was in a sound state of mind on the date of execution of the Will. 4. We are of the view that the first appellate court was not justified in reversing the well reasoned judgment of the trial court. The High Court was, therefore, right in setting aside the judgment of the first appellate court and restoring that of the trial court. We do not find any reason to interfere with the judgment and decree of the High Court. | 0[ds]3. Having heard learned counsel for the parties, we are of the view that the Will executed by Nokhu Ram is not shrouded by suspicious circumstances. In fact, Nokhu Ram had expressed his desire to execute the Will to Ganga Ram, his Purohit in the presence of Sukh Ram, Tota Ram and also the plaintiff Kala Devi. Purohit was examined as4 had testified that the plaintiff Kala Devi agreed to the wish of Nokhu Ram.2 Sant Ram was one of the attesting witnesses of the Will and5 Jai Singh was the scribe.2 and5 have corroborated the statement of the defendant. J.P. Sharma, advocate, was an identifier of the testator at the time of execution of the Will. He was examined as. He has stated in his evidence that at the time of execution of the Will, Nokhu Ram was mentally and physically sound. The plaintiff was not able to establish in suspicious circumstances alleging the execution of the Will. The trial court after considering the entire materials on record has rightly come to the conclusion that the Will has been executed by Nokhu Ram of his own free Will and that he was in a sound state of mind on the date of execution of the Will4. We are of the view that the first appellate court was not justified in reversing the well reasoned judgment of the trial court. The High Court was, therefore, right in setting aside the judgment of the first appellate court and restoring that of the trial court. We do not find any reason to interfere with the judgment and decree of the High Court. | 0 | 552 | 295 | ### 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:
S. Abdul Nazeer, J. 1. The appellant/plaintiff is the widow of deceased Nokhu Ram. She filed a Suit bearing No.112 of 1991 for a declaration that she being the sole legal heir of the Nokhu Ram, is entitled to succeed and inherit his movable and immovable properties to the exclusion of the respondent/defendant and that the Will dated 29.10.1990 is a forged document which does not bind her in any manner. The respondent/defendant filed the written statement opposing the suit. The trial court dismissed the suit by holding that the Will executed by deceased Nokhu Ram bequeathing his property in favour of the plaintiff and the defendant in equal shares is valid. The first appeal filed by the appellant was allowed and the judgment and decree of the trial court was set aside. Feeling aggrieved, the defendant filed RSA No. 174 of 1998 in the High Court of Himachal Pradesh, Shimla. The High Court while setting aside the judgment and decree of the first appellate court, restored the judgment and decree of the trial court. The appellant has challenged the legality and correctness of the said judgment and decree in these appeals. 2. The only contention urged on behalf of the appellant is that the execution of the Will is shrouded by suspicious circumstances. Learned counsel appearing for the respondent has supported the judgment and decree of the High Court. 3. Having heard learned counsel for the parties, we are of the view that the Will executed by Nokhu Ram is not shrouded by suspicious circumstances. In fact, Nokhu Ram had expressed his desire to execute the Will to Ganga Ram, his Purohit in the presence of Sukh Ram, Tota Ram and also the plaintiff Kala Devi. Purohit was examined as DW-4. DW-4 had testified that the plaintiff Kala Devi agreed to the wish of Nokhu Ram. DW-2 Sant Ram was one of the attesting witnesses of the Will and DW-5 Jai Singh was the scribe. DW-2 and DW-5 have corroborated the statement of the defendant. J.P. Sharma, advocate, was an identifier of the testator at the time of execution of the Will. He was examined as PW-3. He has stated in his evidence that at the time of execution of the Will, Nokhu Ram was mentally and physically sound. The plaintiff was not able to establish in suspicious circumstances alleging the execution of the Will. The trial court after considering the entire materials on record has rightly come to the conclusion that the Will has been executed by Nokhu Ram of his own free Will and that he was in a sound state of mind on the date of execution of the Will. 4. We are of the view that the first appellate court was not justified in reversing the well reasoned judgment of the trial court. The High Court was, therefore, right in setting aside the judgment of the first appellate court and restoring that of the trial court. We do not find any reason to interfere with the judgment and decree of the High Court.
### Response:
0
### Explanation:
3. Having heard learned counsel for the parties, we are of the view that the Will executed by Nokhu Ram is not shrouded by suspicious circumstances. In fact, Nokhu Ram had expressed his desire to execute the Will to Ganga Ram, his Purohit in the presence of Sukh Ram, Tota Ram and also the plaintiff Kala Devi. Purohit was examined as4 had testified that the plaintiff Kala Devi agreed to the wish of Nokhu Ram.2 Sant Ram was one of the attesting witnesses of the Will and5 Jai Singh was the scribe.2 and5 have corroborated the statement of the defendant. J.P. Sharma, advocate, was an identifier of the testator at the time of execution of the Will. He was examined as. He has stated in his evidence that at the time of execution of the Will, Nokhu Ram was mentally and physically sound. The plaintiff was not able to establish in suspicious circumstances alleging the execution of the Will. The trial court after considering the entire materials on record has rightly come to the conclusion that the Will has been executed by Nokhu Ram of his own free Will and that he was in a sound state of mind on the date of execution of the Will4. We are of the view that the first appellate court was not justified in reversing the well reasoned judgment of the trial court. The High Court was, therefore, right in setting aside the judgment of the first appellate court and restoring that of the trial court. We do not find any reason to interfere with the judgment and decree of the High Court.
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M.R.Prabhakar Vs. Canara Bank | “resignation” and “retirement” carry different meanings in common parlance. An employee can resign at any point of time, even on the second day of his appointment but in the case of retirement he retires only after attaining the age of superannuation or in the case of voluntary retirement on completion of qualifying service. The effect of resignation and retirement to the extent that there is severance of employment but in service jurisprudence both the expressions are understood differently. Under the Regulations, the expressions “resignation” and “retirement” have been employed for different purpose and carry different meanings. The pension scheme herein is based on actuarial calculation; it is a self-financing scheme, which does not depend upon budgetary support and consequently it constitutes a complete code by itself. The scheme essentially covers retirees as the credit balance to their provident fund account is larger as compared to employees who resigned from service. Moreover, resignation brings about complete cessation of master and servant relationship whereas voluntary retirement maintains the relationship for the purposes of grant of retiral benefits, in view of the past service. Similarly, acceptance of resignation is dependent upon discretion of the employer whereas retirement is completion of service in terms of regulations/rules framed by the bank. Resignation can be tendered irrespective of the length of service whereas in the case of voluntary retirement, the employee has to complete qualifying service for retiral benefits. …………” (emphasis added) In the above mentioned judgment, this Court has also held that there are different yardsticks and criteria for submitting the resignation, vis-à-vis voluntary retirement and exceptions thereof. In that context, the scope of Regulation 22 of Regulations 1995 was also considered and the Court held as follows: 9. …………….In our view, Regulation 22 provides for disqualification of employees who have resigned from service and for those who have been dismissed or removed from service. Hence, we do not find any merit in the arguments advanced on behalf of the respondent that Regulation 22 makes an arbitrary and unreasonable classification repugnant to Article 14 of the Constitution by keeping out such class of employees. The view we have taken is supported by the judgment of this Court in the case of Reserve Bank of India v. Cecil Dennis Solomon (2004) 9 SCC 461 . Before concluding we may state that Clause 22 is not in the nature of penalty as alleged. It only disentitles an employee who has resigned from service from becoming a member of the Fund. Such employees have received their retiral benefits earlier. The pension scheme, as stated above, only provides for a second retiral benefit. Hence there is no question of penalty being imposed on such employees as alleged. The pension scheme only provides for an avenue for investment to retirees. They are provided avenue to put in their savings and as a term or condition which is more in the nature of an eligibility criteria the scheme disentitles such category of employees out of it.” 16. We may indicate that in Sanwar Mal (supra), the employee, who was working on Class III post, resigned from the service of UCO Bank on 25.2.1988 after giving one month’s notice and also accepted his provident fund without protest. On coming into force of the Regulations 1995, Sanwar Mal opted for pension scheme. Since Sanwar Mal had resigned in the year 1988, UCO Bank declined its option for admitting him as a member of the fund. 17. This Court, as already indicated, after referring to the various provisions of the Regulations 1995 and after examining the meaning of the expressions ‘resignation’ and ‘retirement’, held that since Regulation 22 provided for disqualification of employees who had resigned, such employees could not claim membership of the fund. 18. Learned counsel appearing for the appellants have placed heavy reliance on Sheelkumar Jain (supra) and submitted that in the light of that judgment, the decision rendered in Sanwar Mal (supra) requires reconsideration. We find it difficult to accept the contention raised by the learned counsel appearing for the appellants. 19. We may point out in Sheelkumar Jain (supra) that this Court was dealing with an insurance scheme and not the pension scheme, which is applicable in the banking sector. The provisions of both the scheme and the Regulation are not pari materia. In Sheelkumar Jain case (supra), while referring to Para 5, this Court came to the conclusion that the same does not make distinction between ‘resignation’ and ‘voluntary retirement’ and it only provides that an employee who wants to leave or discontinue his service amounts to ‘resignation’ or ‘voluntary retirement’. Whereas, Regulation 20(2) of the Canara Bank (Officers) Service Regulations 1979 applicable to banks, had specifically referred to the words ‘resignation’, unlike Para 5 of the Insurance Rules. Further, it is also to be noted that, in that judgment, this Court in Para 30 held that the Court will have to construe the statutory provisions in each case to find out whether the termination of service of an employee was a termination by way of resignation or a termination by way of voluntary retirement.20. The appellants, when tendered their letters of resignation, were governed by the Regulations 1979. Regulation 20(2) of Regulations 1979 dealt with resignation from service and they tendered their resignation in the light of that provision. We are of the view that the appellants have failed to show any pre-existing rights in their favour either in the Statutory Settlement/Joint Note dated 29.10.1993 or under the Regulations 1995. Appellants had resigned from service prior to 1.11.1993 and, therefore, were not covered by the statutory settlement, Joint Note dated 29.10.1993 and the Regulations 1995. They could not establish any pre- existing legal, statutory or fundamental rights in their favour to claim the benefit of Regulations 1995. Consequently, the reliance placed by the appellants either on Regulation 29 or Regulation 22 in support of their contentions, cannot be accepted, since they are not covered by the scheme of pension introduced by the banks with effect from 1.11.1993. | 0[ds]14. The appellants, in our view, did not retire from the service, but resigned from the service. Appellants tried to build up a case that in the absence of a legal definition of ‘voluntaryor in the absence of legally prescribed consequences ofit must be understood in the sense of voluntary relinquishment of service. It was pointed out that there can be no distinction between ‘voluntaryand those expressions are to be understood in their ordinary literal sense.15. We find it difficult to accept the contentions raised by the appellants. There is no ambiguity in the definition clause under Regulation 2(y) which has statutorily brought in the ‘voluntarilyThough the concept ofis well known in Service Jurisprudence, the same has not been brought within the definition ofunder Regulation 2(y). Further, the wordshave some resemblance in their meanings, but notRegulation 3(1)(a) specifically used the expressionand the expressionhas not been incorporated either in the definition clause or in Regulation 3(1)(a). We need not labour much on this issue, since the difference between these two conceptsin the context of the same Banking Regulations 1995, came up for consideration before this Court in Sanwar Mal (supra), wherein this Court has distinguished the wordsand held as……… The wordscarry different meanings in common parlance. An employee can resign at any point of time, even on the second day of his appointment but in the case of retirement he retires only after attaining the age of superannuation or in the case of voluntary retirement on completion of qualifying service. The effect of resignation and retirement to the extent that there is severance of employment but in service jurisprudence both the expressions are understood differently. Under the Regulations, the expressionshave been employed for different purpose and carry different meanings. The pension scheme herein is based on actuarial calculation; it is ascheme, which does not depend upon budgetary support and consequently it constitutes a complete code by itself. The scheme essentially covers retirees as the credit balance to their provident fund account is larger as compared to employees who resigned from service. Moreover, resignation brings about complete cessation of master and servant relationship whereas voluntary retirement maintains the relationship for the purposes of grant of retiral benefits, in view of the past service. Similarly, acceptance of resignation is dependent upon discretion of the employer whereas retirement is completion of service in terms of regulations/rules framed by the bank. Resignation can be tendered irrespective of the length of service whereas in the case of voluntary retirement, the employee has to complete qualifying service for retiral benefits.We may point out in Sheelkumar Jain (supra) that this Court was dealing with an insurance scheme and not the pension scheme, which is applicable in the banking sector. The provisions of both the scheme and the Regulation are not pari materia. In Sheelkumar Jain case (supra), while referring to Para 5, this Court came to the conclusion that the same does not make distinction betweenand it only provides that an employee who wants to leave or discontinue his service amounts toWhereas, Regulation 20(2) of the Canara Bank (Officers) Service Regulations 1979 applicable to banks, had specifically referred to the wordsunlike Para 5 of the Insurance Rules. Further, it is also to be noted that, in that judgment, this Court in Para 30 held that the Court will have to construe the statutory provisions in each case to find out whether the termination of service of an employee was a termination by way of resignation or a termination by way of voluntary retirement.20. The appellants, when tendered their letters of resignation, were governed by the Regulations 1979. Regulation 20(2) of Regulations 1979 dealt with resignation from service and they tendered their resignation in the light of that provision. We are of the view that the appellants have failed to show any pre-existing rights in their favour either in the Statutory Settlement/Joint Note dated 29.10.1993 or under the Regulations 1995. Appellants had resigned from service prior to 1.11.1993 and, therefore, were not covered by the statutory settlement, Joint Note dated 29.10.1993 and the Regulations 1995. They could not establish any pre- existing legal, statutory or fundamental rights in their favour to claim the benefit of Regulations 1995. Consequently, the reliance placed by the appellants either on Regulation 29 or Regulation 22 in support of their contentions, cannot be accepted, since they are not covered by the scheme of pension introduced by the banks with effect from 1.11.1993. | 0 | 4,302 | 837 | ### Instruction:
Project the court's decision (favor (1) or against (0) the appeal) based on the case proceeding, and subsequently give an in-depth explanation by analyzing relevant sentences from the document.
### Input:
“resignation” and “retirement” carry different meanings in common parlance. An employee can resign at any point of time, even on the second day of his appointment but in the case of retirement he retires only after attaining the age of superannuation or in the case of voluntary retirement on completion of qualifying service. The effect of resignation and retirement to the extent that there is severance of employment but in service jurisprudence both the expressions are understood differently. Under the Regulations, the expressions “resignation” and “retirement” have been employed for different purpose and carry different meanings. The pension scheme herein is based on actuarial calculation; it is a self-financing scheme, which does not depend upon budgetary support and consequently it constitutes a complete code by itself. The scheme essentially covers retirees as the credit balance to their provident fund account is larger as compared to employees who resigned from service. Moreover, resignation brings about complete cessation of master and servant relationship whereas voluntary retirement maintains the relationship for the purposes of grant of retiral benefits, in view of the past service. Similarly, acceptance of resignation is dependent upon discretion of the employer whereas retirement is completion of service in terms of regulations/rules framed by the bank. Resignation can be tendered irrespective of the length of service whereas in the case of voluntary retirement, the employee has to complete qualifying service for retiral benefits. …………” (emphasis added) In the above mentioned judgment, this Court has also held that there are different yardsticks and criteria for submitting the resignation, vis-à-vis voluntary retirement and exceptions thereof. In that context, the scope of Regulation 22 of Regulations 1995 was also considered and the Court held as follows: 9. …………….In our view, Regulation 22 provides for disqualification of employees who have resigned from service and for those who have been dismissed or removed from service. Hence, we do not find any merit in the arguments advanced on behalf of the respondent that Regulation 22 makes an arbitrary and unreasonable classification repugnant to Article 14 of the Constitution by keeping out such class of employees. The view we have taken is supported by the judgment of this Court in the case of Reserve Bank of India v. Cecil Dennis Solomon (2004) 9 SCC 461 . Before concluding we may state that Clause 22 is not in the nature of penalty as alleged. It only disentitles an employee who has resigned from service from becoming a member of the Fund. Such employees have received their retiral benefits earlier. The pension scheme, as stated above, only provides for a second retiral benefit. Hence there is no question of penalty being imposed on such employees as alleged. The pension scheme only provides for an avenue for investment to retirees. They are provided avenue to put in their savings and as a term or condition which is more in the nature of an eligibility criteria the scheme disentitles such category of employees out of it.” 16. We may indicate that in Sanwar Mal (supra), the employee, who was working on Class III post, resigned from the service of UCO Bank on 25.2.1988 after giving one month’s notice and also accepted his provident fund without protest. On coming into force of the Regulations 1995, Sanwar Mal opted for pension scheme. Since Sanwar Mal had resigned in the year 1988, UCO Bank declined its option for admitting him as a member of the fund. 17. This Court, as already indicated, after referring to the various provisions of the Regulations 1995 and after examining the meaning of the expressions ‘resignation’ and ‘retirement’, held that since Regulation 22 provided for disqualification of employees who had resigned, such employees could not claim membership of the fund. 18. Learned counsel appearing for the appellants have placed heavy reliance on Sheelkumar Jain (supra) and submitted that in the light of that judgment, the decision rendered in Sanwar Mal (supra) requires reconsideration. We find it difficult to accept the contention raised by the learned counsel appearing for the appellants. 19. We may point out in Sheelkumar Jain (supra) that this Court was dealing with an insurance scheme and not the pension scheme, which is applicable in the banking sector. The provisions of both the scheme and the Regulation are not pari materia. In Sheelkumar Jain case (supra), while referring to Para 5, this Court came to the conclusion that the same does not make distinction between ‘resignation’ and ‘voluntary retirement’ and it only provides that an employee who wants to leave or discontinue his service amounts to ‘resignation’ or ‘voluntary retirement’. Whereas, Regulation 20(2) of the Canara Bank (Officers) Service Regulations 1979 applicable to banks, had specifically referred to the words ‘resignation’, unlike Para 5 of the Insurance Rules. Further, it is also to be noted that, in that judgment, this Court in Para 30 held that the Court will have to construe the statutory provisions in each case to find out whether the termination of service of an employee was a termination by way of resignation or a termination by way of voluntary retirement.20. The appellants, when tendered their letters of resignation, were governed by the Regulations 1979. Regulation 20(2) of Regulations 1979 dealt with resignation from service and they tendered their resignation in the light of that provision. We are of the view that the appellants have failed to show any pre-existing rights in their favour either in the Statutory Settlement/Joint Note dated 29.10.1993 or under the Regulations 1995. Appellants had resigned from service prior to 1.11.1993 and, therefore, were not covered by the statutory settlement, Joint Note dated 29.10.1993 and the Regulations 1995. They could not establish any pre- existing legal, statutory or fundamental rights in their favour to claim the benefit of Regulations 1995. Consequently, the reliance placed by the appellants either on Regulation 29 or Regulation 22 in support of their contentions, cannot be accepted, since they are not covered by the scheme of pension introduced by the banks with effect from 1.11.1993.
### Response:
0
### Explanation:
14. The appellants, in our view, did not retire from the service, but resigned from the service. Appellants tried to build up a case that in the absence of a legal definition of ‘voluntaryor in the absence of legally prescribed consequences ofit must be understood in the sense of voluntary relinquishment of service. It was pointed out that there can be no distinction between ‘voluntaryand those expressions are to be understood in their ordinary literal sense.15. We find it difficult to accept the contentions raised by the appellants. There is no ambiguity in the definition clause under Regulation 2(y) which has statutorily brought in the ‘voluntarilyThough the concept ofis well known in Service Jurisprudence, the same has not been brought within the definition ofunder Regulation 2(y). Further, the wordshave some resemblance in their meanings, but notRegulation 3(1)(a) specifically used the expressionand the expressionhas not been incorporated either in the definition clause or in Regulation 3(1)(a). We need not labour much on this issue, since the difference between these two conceptsin the context of the same Banking Regulations 1995, came up for consideration before this Court in Sanwar Mal (supra), wherein this Court has distinguished the wordsand held as……… The wordscarry different meanings in common parlance. An employee can resign at any point of time, even on the second day of his appointment but in the case of retirement he retires only after attaining the age of superannuation or in the case of voluntary retirement on completion of qualifying service. The effect of resignation and retirement to the extent that there is severance of employment but in service jurisprudence both the expressions are understood differently. Under the Regulations, the expressionshave been employed for different purpose and carry different meanings. The pension scheme herein is based on actuarial calculation; it is ascheme, which does not depend upon budgetary support and consequently it constitutes a complete code by itself. The scheme essentially covers retirees as the credit balance to their provident fund account is larger as compared to employees who resigned from service. Moreover, resignation brings about complete cessation of master and servant relationship whereas voluntary retirement maintains the relationship for the purposes of grant of retiral benefits, in view of the past service. Similarly, acceptance of resignation is dependent upon discretion of the employer whereas retirement is completion of service in terms of regulations/rules framed by the bank. Resignation can be tendered irrespective of the length of service whereas in the case of voluntary retirement, the employee has to complete qualifying service for retiral benefits.We may point out in Sheelkumar Jain (supra) that this Court was dealing with an insurance scheme and not the pension scheme, which is applicable in the banking sector. The provisions of both the scheme and the Regulation are not pari materia. In Sheelkumar Jain case (supra), while referring to Para 5, this Court came to the conclusion that the same does not make distinction betweenand it only provides that an employee who wants to leave or discontinue his service amounts toWhereas, Regulation 20(2) of the Canara Bank (Officers) Service Regulations 1979 applicable to banks, had specifically referred to the wordsunlike Para 5 of the Insurance Rules. Further, it is also to be noted that, in that judgment, this Court in Para 30 held that the Court will have to construe the statutory provisions in each case to find out whether the termination of service of an employee was a termination by way of resignation or a termination by way of voluntary retirement.20. The appellants, when tendered their letters of resignation, were governed by the Regulations 1979. Regulation 20(2) of Regulations 1979 dealt with resignation from service and they tendered their resignation in the light of that provision. We are of the view that the appellants have failed to show any pre-existing rights in their favour either in the Statutory Settlement/Joint Note dated 29.10.1993 or under the Regulations 1995. Appellants had resigned from service prior to 1.11.1993 and, therefore, were not covered by the statutory settlement, Joint Note dated 29.10.1993 and the Regulations 1995. They could not establish any pre- existing legal, statutory or fundamental rights in their favour to claim the benefit of Regulations 1995. Consequently, the reliance placed by the appellants either on Regulation 29 or Regulation 22 in support of their contentions, cannot be accepted, since they are not covered by the scheme of pension introduced by the banks with effect from 1.11.1993.
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Panna Lal And Ors. Etc. Etc Vs. State Of Rajasthan And Ors | the license; and (c) where license is granted by auction or negotiation, the amount of Guarantee shall be the amount determined by the Excise Commissioner and accepted by the licensee.29. The lump sum amount stipulated under the agreement is not to be equated with issue price. The issue price is payable only when the contractors take delivery of a particular quantity of specified value of country liquor. The issue price relates only to liquor drawn by the contractors and does not pertain to undrawn liquor. No excise duty is or can be collected on undrawn liquor. The issue price is the price at which country liquor is sold to the liquor contractors. So far as the liquor contractors are concerned, they pay the price of the liquor even though the price may include the component of excise duty in respect of which they have no direct liability. Illustrations may be found in case of a person buying a match-box or a motor-car or a refrigerator. When the purchaser pays the price of a match-box, or a motor-car or a refrigerator the price includes excise duty levied and collected on the manufacture of these goods. The price of goods necessarily includes different components but the price a buyer pays is different from duties and taxes paid or payable by the manufacturers. The incidence of all the components of cost and taxes is inevitably passed on to the consumer. What the consumer pays is the price of the goods and not the antecedent components as such.30. The licenses after stipulation an agreed sum of money which is payable by the licensees under the licenses provides a scheme of remission. The liquor contractor is given a remission in the matter of his obligation to pay the stipulated amount to the extent of the excise duty component of the issue price paid by him. The excise duty component of the issue price is, therefore, only a measure of the quantum or extent of the concession or the remission to be given to the liquor contractor. The concession is not what is paid by the contractor to the State but it is a remission or a reduction in the stipulated amount for exclusive privilege allowed by the State to the contractor. The lump sum amount payable for the exclusive privilege is not to be confused with the issue price. In essence what is sought to be recovered from the liquor contractors is the shortfall occasioned on account of failure on the part of liquor contractor to fulfil the terms of licences.31. The contractual obligation of the appellants to pay the stipulated amounts is not dependent on the quantum of liquor said by them which is relevant only for the purpose of remission to be earned by them under the license. No excise duty is charged or chargeable on undrawn liquor under the license. To suggest that the licence obliges the contractors to pay excise duty on undrawn liquor is totally mis-reading the conditions of the licence. The excise duty is collected only in relation to the quantity and quality of the country liquor which is drawn. No excise duty can be predicated in respect of undrawn liquor.32. Adjustment by way of reduction in the contractual liability of the appellants to the extent of a specific and quantified portion of the issue price is purely a measure of concession or a remission and is a method of calculation. The question of adjustment arises only when liquor is drawn, otherwise, the formula of remission does not come into the picture at all.33. The appellants relied on the decision of this Court in Binal Chandra Banerjee vs. State of Madhya Pradesh 1971 1 SCR 844 in support of the contention that the attempt on the part of the State to enforce the full guaranteed amount or stipulated sum is collecting excise duty. In Bimal Chandra Banerjees case (supra) a levy of excise duty on undrawn liquor was imposed in terms by the State Government by a notification amending the Rules and by an alternation in the conditions of the licence. It was provided that certain minimum quantity of liquor would have to be withdrawn by each contractor who was to make good every month the deficit monthly average of the total minimum duty on or before the 10th of each month following the months to which the deficit duty relates. The decision there was that in imposing the excise duty on undrawn liquor by the impugned notification, the State Government was exercising powers which it did not possess. In the present case, the State Government has not imposed any excise duty on the licensee. On the contrary, the licence only takes into account the excise duty component of the issue price for the purposes of giving a concession or remission to the contractors. In Bimal Chandra Banerjees (supra) the impugned notification was assailed on the ground that it exceeded the legislative competence of the State. No such question arises here. The scheme of remission in the present case is that if the liquor contractor purchased liquor of the value, the excise duty whereof equalled the price of the exclusive privilege, the liquor contractor is to be given credit therefore.34. The agreements give the liquor contractors an exclusive privilege to sell country liquor in a specified area for the period fixed for the stipulated sum of money for enjoying the privilege. If the contractors do not sell any liquor they are yet bought to pay the stipulated sum. If they sell liquor they are given the benefit of remission in the price of the exclusive privilege. The measure for this remission is the excise duty leviable to the extent that the liquor contractors can neutralise the entire amount of exclusive privilege in the excise duty payable by them. If the contractors fail to lift adequate quantity of liquor and thereby fail in neutralising the entire price of exclusive privilege the contractors are not called upon to pay excise duty. | 0[ds]21. The licenses in the present case are contracts between the parties. The licensees voluntarily accepted the contracts. They fully exploited to their advantage the entrants to the exclusion of others. The High Court rightly said that it was not open to the appellants to resile from the contracts on the ground that the terms of payment were onerous. The reasons given by the High Court were that the licensees accepted the license by exclusing their competitors and it would not be open to the licensees to challenge to terms either on the ground of inconvenient consequence of terms or of harshness oflicensees in the present appeals voluntarily contracted to pay the guaranteed sum of the stipulated lump sum for the exclusive privilege to vend liquor.The decisions of this Court establish that the lump sum amount voluntarily agreed to by the appellants to pay to the State are not levies of excise duty but are in the nature of lease money or rental or lump sum amount for the exclusive privilege of retail sales granted by the States to the appellants.27. There is no levy of excise duty in enforcing the payment of the guaranteed sum or the stipulated limp sum mentioned in the licenses, for these reasons. First, the licenses were granted to the appellants after offer and acceptance or by accepting their tenders or auction bid. The appellants stipulated to pay lump sum amounts as the price for the exclusive privilege of vending country liquor. The appellants agree to pay what they considered to be equivalent to the value of the right. Second, the stipulated payment has no relation to the production or manufacture of country liquor except that it enables the licensee to sell it. The country liquor is produced by the distilleries. Under s. 28 of the Act and under the relevant duty notifications the excise levy is on the manufacture and not on the whole-sale or retail of liquor. Under the duty notifications no excise duty is lived or collected from the liquor contractors who are liable only to pay the price of liquor. The taxable event is not the sale of liquor to the contractors but the manufacture of liquor. What the liquor contractors pay in consideration of the license is a payment for the exclusive privilege for selling country liquor. The liability for excise is on the distillery and the liquor contractors are not concerned with it. Before 1965 there was no excise duty. The appellants were required to pay the guaranteed amount. After the imposition of excise duty the position is not altered because the privilege of selling is granted by auction or by offer and acceptance before the goods came into existence. Excise contracts are settled in the preceding year. Third, the stipulated amounts payable by the appellants have relation only to what the appellants foresaw they could recoup by the sale of country liquor from the liquor shops licensed to them. There are several varieties of country liquor and rates of excise levy on these varieties are different. The appellants are not bound to take any particular quantity or any particular quality of any variety. Without reference to any quantity or quality, it is impossible to predecate the alleged levy of excise duty.The licenses after stipulation an agreed sum of money which is payable by the licensees under the licenses provides a scheme of remission. The liquor contractor is given a remission in the matter of his obligation to pay the stipulated amount to the extent of the excise duty component of the issue price paid by him. The excise duty component of the issue price is, therefore, only a measure of the quantum or extent of the concession or the remission to be given to the liquor contractor. The concession is not what is paid by the contractor to the State but it is a remission or a reduction in the stipulated amount for exclusive privilege allowed by the State to the contractor. The lump sum amount payable for the exclusive privilege is not to be confused with the issue price. In essence what is sought to be recovered from the liquor contractors is the shortfall occasioned on account of failure on the part of liquor contractor to fulfil the terms of licences.31. The contractual obligation of the appellants to pay the stipulated amounts is not dependent on the quantum of liquor said by them which is relevant only for the purpose of remission to be earned by them under the license. No excise duty is charged or chargeable on undrawn liquor under the license. To suggest that the licence obliges the contractors to pay excise duty on undrawn liquor is totally mis-reading the conditions of the licence. The excise duty is collected only in relation to the quantity and quality of the country liquor which is drawn. No excise duty can be predicated in respect of undrawn liquor.32. Adjustment by way of reduction in the contractual liability of the appellants to the extent of a specific and quantified portion of the issue price is purely a measure of concession or a remission and is a method of calculation. The question of adjustment arises only when liquor is drawn, otherwise, the formula of remission does not come into the picture atdecision there was that in imposing the excise duty on undrawn liquor by the impugned notification, the State Government was exercising powers which it did not possess. In the present case, the State Government has not imposed any excise duty on the licensee. On the contrary, the licence only takes into account the excise duty component of the issue price for the purposes of giving a concession or remission to the contractors. In Bimal Chandra Banerjees (supra) the impugned notification was assailed on the ground that it exceeded the legislative competence of the State. No such question arises here. The scheme of remission in the present case is that if the liquor contractor purchased liquor of the value, the excise duty whereof equalled the price of the exclusive privilege, the liquor contractor is to be given credit therefore.34. The agreements give the liquor contractors an exclusive privilege to sell country liquor in a specified area for the period fixed for the stipulated sum of money for enjoying the privilege. If the contractors do not sell any liquor they are yet bought to pay the stipulated sum. If they sell liquor they are given the benefit of remission in the price of the exclusive privilege. The measure for this remission is the excise duty leviable to the extent that the liquor contractors can neutralise the entire amount of exclusive privilege in the excise duty payable by them. If the contractors fail to lift adequate quantity of liquor and thereby fail in neutralising the entire price of exclusive privilege the contractors are not called upon to pay excise duty.28. Before imposition of excise duty is 1965, the issue price did not have even a notional component of excise duty under Issue Price Rules. Therefore, no excise duty could be attributed to the contractual amounts payable by the appellants. The references to excise duty in licenses under the guarantee system or exclusive privilege system prevalent subsequent to the year 1965 are only for the purposes of adjustment or concession as a unit of measure. It is not an excise duty currently imposed or levied in the year of the license that is being collected with regard to undrawn liquor because the adjustment of issue price is with reference to the issue price prevailing in the preceding year. Ruleof the Rajasthan Excise Rules, 1966 defines value as the price current on the 1st January preceding the financial year to which the guarantee relates. Under r.licenses for retail shops of country liquor under the guarantee system may be granted to persons guaranteeing to drawn from a Government warehouse and sell in a financial year or part thereof, country liquor of a specified value, called the amount of guarantee. The explanation to r.is that value for the purpose of that rule shall be the total issue price at a Government warehouse calculated at the rate of such price content on the first day of January preceding the financial year to which the guarantee relates. The licenses under the guarantee system are granted either by inviting tenders or by auction or by negotiation. The amount of guarantee under r. 67A shall be (a) where the license is granted by inviting tenders the amount of the tender accepted for the grant of the license; (b) where a license is granted by auction the amount of the bid accepted for the grant of the license; and (c) where license is granted by auction or negotiation, the amount of Guarantee shall be the amount determined by the Excise Commissioner and accepted by the licensee.29. The lump sum amount stipulated under the agreement is not to be equated with issue price. The issue price is payable only when the contractors take delivery of a particular quantity of specified value of country liquor. The issue price relates only to liquor drawn by the contractors and does not pertain to undrawn liquor. No excise duty is or can be collected on undrawn liquor. The issue price is the price at which country liquor is sold to the liquor contractors. So far as the liquor contractors are concerned, they pay the price of the liquor even though the price may include the component of excise duty in respect of which they have no direct liability. Illustrations may be found in case of a person buying acar or a refrigerator. When the purchaser pays the price of acar or a refrigerator the price includes excise duty levied and collected on the manufacture of these goods. The price of goods necessarily includes different components but the price a buyer pays is different from duties and taxes paid or payable by the manufacturers. The incidence of all the components of cost and taxes is inevitably passed on to the consumer. What the consumer pays is the price of the goods and not the antecedent components asBimal Chandra Banerjees case (supra) a levy of excise duty on undrawn liquor was imposed in terms by the State Government by a notification amending the Rules and by an alternation in the conditions of the licence. It was provided that certain minimum quantity of liquor would have to be withdrawn by each contractor who was to make good every month the deficit monthly average of the total minimum duty on or before the 10th of each month following the months to which the deficit duty relates. Thedecision there was that in imposing the excise duty on undrawn liquor by the impugned notification, the State Government was exercising powers which it did not possess. In the present case, the State Government has not imposed any excise duty on the licensee. On the contrary, the licence only takes into account the excise duty component of the issue price for the purposes of giving a concession or remission to the contractors. In Bimal Chandra Banerjees (supra) the impugned notification was assailed on the ground that it exceeded the legislative competence of the State. No such question arises here. The scheme of remission in the present case is that if the liquor contractor purchased liquor of the value, the excise duty whereof equalled the price of the exclusive privilege, the liquor contractor is to be given credit therefore. | 0 | 4,674 | 2,032 | ### 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 license; and (c) where license is granted by auction or negotiation, the amount of Guarantee shall be the amount determined by the Excise Commissioner and accepted by the licensee.29. The lump sum amount stipulated under the agreement is not to be equated with issue price. The issue price is payable only when the contractors take delivery of a particular quantity of specified value of country liquor. The issue price relates only to liquor drawn by the contractors and does not pertain to undrawn liquor. No excise duty is or can be collected on undrawn liquor. The issue price is the price at which country liquor is sold to the liquor contractors. So far as the liquor contractors are concerned, they pay the price of the liquor even though the price may include the component of excise duty in respect of which they have no direct liability. Illustrations may be found in case of a person buying a match-box or a motor-car or a refrigerator. When the purchaser pays the price of a match-box, or a motor-car or a refrigerator the price includes excise duty levied and collected on the manufacture of these goods. The price of goods necessarily includes different components but the price a buyer pays is different from duties and taxes paid or payable by the manufacturers. The incidence of all the components of cost and taxes is inevitably passed on to the consumer. What the consumer pays is the price of the goods and not the antecedent components as such.30. The licenses after stipulation an agreed sum of money which is payable by the licensees under the licenses provides a scheme of remission. The liquor contractor is given a remission in the matter of his obligation to pay the stipulated amount to the extent of the excise duty component of the issue price paid by him. The excise duty component of the issue price is, therefore, only a measure of the quantum or extent of the concession or the remission to be given to the liquor contractor. The concession is not what is paid by the contractor to the State but it is a remission or a reduction in the stipulated amount for exclusive privilege allowed by the State to the contractor. The lump sum amount payable for the exclusive privilege is not to be confused with the issue price. In essence what is sought to be recovered from the liquor contractors is the shortfall occasioned on account of failure on the part of liquor contractor to fulfil the terms of licences.31. The contractual obligation of the appellants to pay the stipulated amounts is not dependent on the quantum of liquor said by them which is relevant only for the purpose of remission to be earned by them under the license. No excise duty is charged or chargeable on undrawn liquor under the license. To suggest that the licence obliges the contractors to pay excise duty on undrawn liquor is totally mis-reading the conditions of the licence. The excise duty is collected only in relation to the quantity and quality of the country liquor which is drawn. No excise duty can be predicated in respect of undrawn liquor.32. Adjustment by way of reduction in the contractual liability of the appellants to the extent of a specific and quantified portion of the issue price is purely a measure of concession or a remission and is a method of calculation. The question of adjustment arises only when liquor is drawn, otherwise, the formula of remission does not come into the picture at all.33. The appellants relied on the decision of this Court in Binal Chandra Banerjee vs. State of Madhya Pradesh 1971 1 SCR 844 in support of the contention that the attempt on the part of the State to enforce the full guaranteed amount or stipulated sum is collecting excise duty. In Bimal Chandra Banerjees case (supra) a levy of excise duty on undrawn liquor was imposed in terms by the State Government by a notification amending the Rules and by an alternation in the conditions of the licence. It was provided that certain minimum quantity of liquor would have to be withdrawn by each contractor who was to make good every month the deficit monthly average of the total minimum duty on or before the 10th of each month following the months to which the deficit duty relates. The decision there was that in imposing the excise duty on undrawn liquor by the impugned notification, the State Government was exercising powers which it did not possess. In the present case, the State Government has not imposed any excise duty on the licensee. On the contrary, the licence only takes into account the excise duty component of the issue price for the purposes of giving a concession or remission to the contractors. In Bimal Chandra Banerjees (supra) the impugned notification was assailed on the ground that it exceeded the legislative competence of the State. No such question arises here. The scheme of remission in the present case is that if the liquor contractor purchased liquor of the value, the excise duty whereof equalled the price of the exclusive privilege, the liquor contractor is to be given credit therefore.34. The agreements give the liquor contractors an exclusive privilege to sell country liquor in a specified area for the period fixed for the stipulated sum of money for enjoying the privilege. If the contractors do not sell any liquor they are yet bought to pay the stipulated sum. If they sell liquor they are given the benefit of remission in the price of the exclusive privilege. The measure for this remission is the excise duty leviable to the extent that the liquor contractors can neutralise the entire amount of exclusive privilege in the excise duty payable by them. If the contractors fail to lift adequate quantity of liquor and thereby fail in neutralising the entire price of exclusive privilege the contractors are not called upon to pay excise duty.
### Response:
0
### Explanation:
Government has not imposed any excise duty on the licensee. On the contrary, the licence only takes into account the excise duty component of the issue price for the purposes of giving a concession or remission to the contractors. In Bimal Chandra Banerjees (supra) the impugned notification was assailed on the ground that it exceeded the legislative competence of the State. No such question arises here. The scheme of remission in the present case is that if the liquor contractor purchased liquor of the value, the excise duty whereof equalled the price of the exclusive privilege, the liquor contractor is to be given credit therefore.34. The agreements give the liquor contractors an exclusive privilege to sell country liquor in a specified area for the period fixed for the stipulated sum of money for enjoying the privilege. If the contractors do not sell any liquor they are yet bought to pay the stipulated sum. If they sell liquor they are given the benefit of remission in the price of the exclusive privilege. The measure for this remission is the excise duty leviable to the extent that the liquor contractors can neutralise the entire amount of exclusive privilege in the excise duty payable by them. If the contractors fail to lift adequate quantity of liquor and thereby fail in neutralising the entire price of exclusive privilege the contractors are not called upon to pay excise duty.28. Before imposition of excise duty is 1965, the issue price did not have even a notional component of excise duty under Issue Price Rules. Therefore, no excise duty could be attributed to the contractual amounts payable by the appellants. The references to excise duty in licenses under the guarantee system or exclusive privilege system prevalent subsequent to the year 1965 are only for the purposes of adjustment or concession as a unit of measure. It is not an excise duty currently imposed or levied in the year of the license that is being collected with regard to undrawn liquor because the adjustment of issue price is with reference to the issue price prevailing in the preceding year. Ruleof the Rajasthan Excise Rules, 1966 defines value as the price current on the 1st January preceding the financial year to which the guarantee relates. Under r.licenses for retail shops of country liquor under the guarantee system may be granted to persons guaranteeing to drawn from a Government warehouse and sell in a financial year or part thereof, country liquor of a specified value, called the amount of guarantee. The explanation to r.is that value for the purpose of that rule shall be the total issue price at a Government warehouse calculated at the rate of such price content on the first day of January preceding the financial year to which the guarantee relates. The licenses under the guarantee system are granted either by inviting tenders or by auction or by negotiation. The amount of guarantee under r. 67A shall be (a) where the license is granted by inviting tenders the amount of the tender accepted for the grant of the license; (b) where a license is granted by auction the amount of the bid accepted for the grant of the license; and (c) where license is granted by auction or negotiation, the amount of Guarantee shall be the amount determined by the Excise Commissioner and accepted by the licensee.29. The lump sum amount stipulated under the agreement is not to be equated with issue price. The issue price is payable only when the contractors take delivery of a particular quantity of specified value of country liquor. The issue price relates only to liquor drawn by the contractors and does not pertain to undrawn liquor. No excise duty is or can be collected on undrawn liquor. The issue price is the price at which country liquor is sold to the liquor contractors. So far as the liquor contractors are concerned, they pay the price of the liquor even though the price may include the component of excise duty in respect of which they have no direct liability. Illustrations may be found in case of a person buying acar or a refrigerator. When the purchaser pays the price of acar or a refrigerator the price includes excise duty levied and collected on the manufacture of these goods. The price of goods necessarily includes different components but the price a buyer pays is different from duties and taxes paid or payable by the manufacturers. The incidence of all the components of cost and taxes is inevitably passed on to the consumer. What the consumer pays is the price of the goods and not the antecedent components asBimal Chandra Banerjees case (supra) a levy of excise duty on undrawn liquor was imposed in terms by the State Government by a notification amending the Rules and by an alternation in the conditions of the licence. It was provided that certain minimum quantity of liquor would have to be withdrawn by each contractor who was to make good every month the deficit monthly average of the total minimum duty on or before the 10th of each month following the months to which the deficit duty relates. Thedecision there was that in imposing the excise duty on undrawn liquor by the impugned notification, the State Government was exercising powers which it did not possess. In the present case, the State Government has not imposed any excise duty on the licensee. On the contrary, the licence only takes into account the excise duty component of the issue price for the purposes of giving a concession or remission to the contractors. In Bimal Chandra Banerjees (supra) the impugned notification was assailed on the ground that it exceeded the legislative competence of the State. No such question arises here. The scheme of remission in the present case is that if the liquor contractor purchased liquor of the value, the excise duty whereof equalled the price of the exclusive privilege, the liquor contractor is to be given credit therefore.
|
Dalchand Jain Vs. Narayan Shankar Trivedi & Another | already stated, we do not believe PW 20, PW 24, PW 30. We set aside the finding of the learned Judge that the appellant paid Rs. 200/- to them. Item (xvii) relates to an expenditure of Rs. 4, 000/- in respect of portraits fitted on motor vehicles with an automatic device. The petition charged that two station-wagons were used in the election. But in his deposition respondent No. 1 spoke of only one station-wagon. PW 6, PW 8, PW 11 and PW 45 spoke of two station-wagons, but we do not believe them. RW 6 Kanchan Lal Dhruv proved that he sent the station-wagon from Indore free of charge. He is corroborated by the appellant and RW 13. The learned Judge rightly held that the charge under item (xvii) was not proved. Item (xviii) relates to an expenditure of Rs. 1, 000/- for constructing a platform for a meeting. The charge is not proved. There is convincing evidence to show that the expensed for the platform was met by the District Congress Committee. The relevant receipt is Ex. P-142. Item (xxi) relates to the payment of Rs. 1, 400/- as printing charges to the Patel Printing Press. The charge is not established. We accept the statement of RW 32 that the Nagar Congress Committee placed the order and paid for the printing. Item (xxii) relates to payment of Rs. 2, 200/- to Adarsh Press. Respondent No. 1 examined PW 37, PW 38, PW 21 and PW 34 to prove the charge. PW 37, the manager of the press tried to prove the bill Ex. P-89 and the work orders Exs. P-90, P-91 and P-92. But PW 38, the Printer, stated that entries in Ex. P-92 were false entries written by him at the instance of PW 37. PW 21 said that he personally got Rs. 2, 850/- for the bill from the appellant, but in the petition the charge was that the appellant spent only Rs. 2, 200/. The evidence of PW 34 does not carry the matter any further. The entries in Exs. P-90, P-91 and P-92 are not reliable and cannot be acted upon. The charge under item no. (xxiii) is not proved. The learned Judge has adequately dealt with the charges with regard to items (vi), (vii), (xvi), (xx) and has rightly rejected them for cogent reasons. The charges with regard to the other item were not pressed.12. The learned Judge held that the appellant incurred an expense of Rs. 200/- under item (v) and Rs. 230/- under items (xix) and (xxiii) and that it was not included in the return of election expenses. We agree with the finding.13. Counsel for respondent No. 1 contends that as the appellant did not keep correct account under Section 77(1) and as his return of election expenses is false in material particulars the appellant committed the corrupt practice under Section 123(6). We are unable to accept this contention.14. Section 123(6) lays down that "the incurring or authorizing of expenditure in contravention of Section 77" is a corrupt practice. Every contravention of Section 77 dos not fall within Section 123(6). Section 77 consists of three parts. Section 77, sub-section (1) requires the candidate to keep a separate and correct account of all election expenses incurred or authorised by him within certain dates. Section 77, sub-section (2) provides that the account shall contain such particulars as may be prescribed. Section 77, sub-section (3) requires that the total of the said expenditure shall not exceed the prescribed amount. Section 123(6) is related to Section 73(3). If the candidate incurs or authorises expenditure in excess of the prescribed amount in contravention of Section 77(3) he commits corrupt practice under Section 123(6). The contravention of Section 77, sub-sections (1) and (2) or the failure to maintain correct accounts with the prescribed particulars does not fall within Section 123(6). See Sri Krishna v. Sat Narain. The same opinion has been expressed in several decisions of the High Courts, see Savitri Devi v. Prabhawati Misra; N. L. Verma v. Muni Lal; Narasimhan v. Natesa and the cases referred to therein.15. Section 124(4) as it stood before its amendment by Act XXVII of 1956 provided that the making of any return which was false in material particulars was a minor corrupt practice. That provision has now been deleted and the submission of an incorrect return of expenses is no longer a corrupt practice.16. In his return of expenses the appellant stated that he spent Rs. 4, 145. 04P. We have found that he spent the additional sum of Rs. 430/-. He thus spent in all Rs. 4, 575.04P. The authorised limit of expenses was Rs. 7, 000/-. It follows that the appellant did not incur or authorise expenditure in contravention of Section 77, and the case does not fall within Section 123(6). We hold that there is no ground for setting aside the appellants election, and the petition filed by respondent No. 1 must be dismissed.17. While making the order under Section 98(b) the learned Judge passed an order under Section 99 declaring that the appellant as also Jainarain Dube, Laxminarain Trunkwala and Badal Singh were guilty of the corrupt practice under Section 123(4). The present appeal has been filed by the appellant against the orders under Sections 98(b) and 99. Counsel for the respondent contended that the appeal was not maintainable as Jainarain Dube, Laxminarain Trunkwala and Badal Singh were not impleaded as respondents. We find no merit in this contention. The appellant as a party aggrieved by the order against him under Sections 98 and 99 is entitled to file the appeal under Section 116-A. He is the only person aggrieved by the order under Section 98 and he alone can maintain the appeal against that order. As the person aggrieve by the order under Section 99 he is also entitled to maintain an appeal against it. The other person against whom the order under Section 99 was made are not necessary parties to the appeal. | 1[ds]We are unable to agree with thisstory appears to us to be false. If the bargains had already been made with RW 23 and CW 1 it was not necessary to call them at the conference. Nor was it necessary to make a public announcement of the bargain at a press conference. The charge that such an agreement was made with the editors of the two papers was not made in the petition and is any appears to us to be false. If the bargains had already been made with RW 23 and CW 1 it was not necessary to call them at the conference. Nor was it necessary to make a public announcement of the bargain at a press conference. The charge that such an agreement was made with the editors of the two papers was not made in the petition and is ando not believe this story. Had there been such a dispute in the last week of January PW 34 would not have continued to publish the advertisements till February 16. PW 36 did not make any demand on the appellant in writing for Rs. 1, 000/ nor file any suit against him. RW 11 denied that he brought Rs. 300/from the appellant. PW 35 did not support PW 36 and did not speak of any admission made by the appellant at the press conference with regard to his alleged bargains with the New Rocket Times and the Agami Kal. PW 43 Bakar Mia, the manager of Nisi Printing Press proved that RW 34 gave the manuscripts for the articles, but RW 34 denied that he wrote them at the appellants request. PW 43 said that the appellants servants took away all the copies of the papers in the appellants car. But RW 32 Narendranath Purohit, the owner of the Nisi Printing Press denied that the appellants car or jeep ever came to collect the copies. We do not believe PW 43. There is evidence to show that only 500 copies of Agami Kal used to be printed. This fact proved by RW 32 and CW 1 belies the story of PW 36 that the editors of the two papers agreed to supply 1, 000 copies to the appellant. The learned Judge held against the appellant mainly on the strength of the evidence of Ghanshyam Das. As we do not accept his testimony there is no direct evidence to show that the publications were made at the appellants instance.5. The circumstantial evidence relied on by respondent No. 1 does not conclusively establish that the publications were with the appellants consent. The appellant read the papers but his omission to raise any objection does not establish his consent. His photos and appeals were published in the New Rocket Times and Agami Kal; but they were also published in other papers. The financial position of the two papers were shaky, and their publication shot up during the elections; but the editors of these mushroom papers might have hit upon the plan of making money by publishing sensational articles on the eve of the election.6. The evidence as to the distribution of the papers at the appellants instance is not convincing. Out of the 13 distributors named in the petition respondent No. 2 called only PW 23, PW 24, and PW 30. They do not identify the papers distributed by them. We do not accept the statement of PW 24, and PW 30 that they got Rs. 50/each as remuneration from thedo not believe PW 20. PW 8 said that he got a copy of the New Rocket Times from RW 30 Panna Lal Patel, but this was denied by RW 30. PW 29 and PW 31 said that one Ram Charan used to distribute the papers but Ram Charan was not examined. CW 1 and RW 23 denied that the papers were distributed free of cost. We do not accept the story that the papers used to be distributed free of cost at the appellants instance.7. It is not established that the issue of the New Rocket Times and the Agami Kal were distributed with the appellants consent. In view of this conclusion, it follows that the appellant was not guilty of any corrupt practice under Section 123(4). There is force in the appellants contention that the statements in the publications were not in relation to the personal character or conduct or respondent No. 1. But we do not find it necessary to express any opinion on thisis force in the appellants contention that a convenient cross entry was made on the same date so that the cash balance carried forward in the books might not be disturbed. PW 16 said that he sent the accounts for the year ending March 31, 1967 to the Waqf committee in the month of April 1967. But RW 26 Nazir Ahmed, the Secretary of the Madhya Pradesh Waqf Board said that no such account was receive and none was to be found in his office. In agreement with the learned trial Judge we are unable to accept the testimony of PW 16 and the supporting32, proved that the printed a replica of the flag in the paper at his own instance for doing propaganda work. There is no reliable evidence to show that he did so at the appellants instance. The learned Judge rightly repelled this10 said that Nanhuram Vyas was a paid servant of the appellant. Nanhuram was not examined by respondent No. 1. The petition did not allege that the appellant got the statement published through his gent Nanhuram. In agreement with the learned Judge we hold that it is not established that the statement was published at the appellantsare unable to agree with thisfinding. As already stated respondent No. 1 failed to prove that the appellant paid any money to the editors of the two papers. Item No. (xiii) relates to the item of 2, 000 Gandhi caps and sunshades. This charge is not prove. The appellant said that he spent Rs. 225/only for the Gandhi caps and that only 750 Gandhi caps at the cost of Rs. 225/. He was notIt is not established that the appellant obtained more than 750 caps. RW 15 proved that the sunshades were supplied by him for distribution free of cost. With regard to item (xv) the learned Judge held that the appellant paid Rs. 100/to PW 20, and Rs. 50/each to PW 24 and PW 30. As already stated, we do not believe PW 20, PW 24, PW 30. We set aside the finding of the learned Judge that the appellant paid Rs. 200/W 6 Kanchan Lal Dhruv proved that he sent thefrom Indore free of charge. He is corroborated by the appellant and RW 13. The learned Judge rightly held that the charge under item (xvii) was not proved. Item (xviii) relates to an expenditure of Rs. 1, 000/for constructing a platform for a meeting. The charge is not proved. There is convincing evidence to show that the expensed for the platform was met by the District Congress Committee. The relevant receipt is Ex.Item (xxi) relates to the payment of Rs. 1, 400/as printing charges to the Patel Printing Press. The charge is not established. We accept the statement of RW 32 that the Nagar Congress Committee placed the order and paid for the printing. Item (xxii) relates to payment of Rs. 2, 200/to Adarsh Press. Respondent No. 1 examined PW 37, PW 38, PW 21 and PW 34 to prove the charge. PW 37, the manager of the press tried to prove the bill Ex.and the work orders Exs.2. But PW 38, the Printer, stated that entries in Ex.were false entries written by him at the instance of PW 37. PW 21 said that he personally got Rs. 2, 850/for the bill from the appellant, but in the petition the charge was that the appellant spent only Rs. 2, 200/. The evidence of PW 34 does not carry the matter any further. The entries in Exs.92 are not reliable and cannot be acted upon. The charge under item no. (xxiii) is not proved. The learned Judge has adequately dealt with the charges with regard to items (vi), (vii), (xvi), (xx) and has rightly rejected them for cogent reasons. The charges with regard to the other item were not pressed.12. The learned Judge held that the appellant incurred an expense of Rs. 200/under item (v) and Rs. 230/under items (xix) and (xxiii) and that it was not included in the return of election expenses. We agree with theare unable to accept this contention.Section 124(4) as it stood before its amendment by Act XXVII of 1956 provided that the making of any return which was false in material particulars was a minor corrupt practice. That provision has now been deleted and the submission of an incorrect return of expenses is no longer a corrupthave found that he spent the additional sum of Rs.He thus spent in all Rs. 4, 575.04P. The authorised limit of expenses was Rs. 7,It follows that the appellant did not incur or authorise expenditure in contravention of Section 77, and the case does not fall within Section 123(6). We hold that there is no ground for setting aside the appellants election, and the petition filed by respondent No. 1 must befind no merit in this contention. The appellant as a party aggrieved by the order against him under Sections 98 and 99 is entitled to file the appeal under SectionHe is the only person aggrieved by the order under Section 98 and he alone can maintain the appeal against that order. As the person aggrieve by the order under Section 99 he is also entitled to maintain an appeal against it. The other person against whom the order under Section 99 was made are not necessary parties to theare unable to agree with this | 1 | 3,549 | 1,832 | ### 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:
already stated, we do not believe PW 20, PW 24, PW 30. We set aside the finding of the learned Judge that the appellant paid Rs. 200/- to them. Item (xvii) relates to an expenditure of Rs. 4, 000/- in respect of portraits fitted on motor vehicles with an automatic device. The petition charged that two station-wagons were used in the election. But in his deposition respondent No. 1 spoke of only one station-wagon. PW 6, PW 8, PW 11 and PW 45 spoke of two station-wagons, but we do not believe them. RW 6 Kanchan Lal Dhruv proved that he sent the station-wagon from Indore free of charge. He is corroborated by the appellant and RW 13. The learned Judge rightly held that the charge under item (xvii) was not proved. Item (xviii) relates to an expenditure of Rs. 1, 000/- for constructing a platform for a meeting. The charge is not proved. There is convincing evidence to show that the expensed for the platform was met by the District Congress Committee. The relevant receipt is Ex. P-142. Item (xxi) relates to the payment of Rs. 1, 400/- as printing charges to the Patel Printing Press. The charge is not established. We accept the statement of RW 32 that the Nagar Congress Committee placed the order and paid for the printing. Item (xxii) relates to payment of Rs. 2, 200/- to Adarsh Press. Respondent No. 1 examined PW 37, PW 38, PW 21 and PW 34 to prove the charge. PW 37, the manager of the press tried to prove the bill Ex. P-89 and the work orders Exs. P-90, P-91 and P-92. But PW 38, the Printer, stated that entries in Ex. P-92 were false entries written by him at the instance of PW 37. PW 21 said that he personally got Rs. 2, 850/- for the bill from the appellant, but in the petition the charge was that the appellant spent only Rs. 2, 200/. The evidence of PW 34 does not carry the matter any further. The entries in Exs. P-90, P-91 and P-92 are not reliable and cannot be acted upon. The charge under item no. (xxiii) is not proved. The learned Judge has adequately dealt with the charges with regard to items (vi), (vii), (xvi), (xx) and has rightly rejected them for cogent reasons. The charges with regard to the other item were not pressed.12. The learned Judge held that the appellant incurred an expense of Rs. 200/- under item (v) and Rs. 230/- under items (xix) and (xxiii) and that it was not included in the return of election expenses. We agree with the finding.13. Counsel for respondent No. 1 contends that as the appellant did not keep correct account under Section 77(1) and as his return of election expenses is false in material particulars the appellant committed the corrupt practice under Section 123(6). We are unable to accept this contention.14. Section 123(6) lays down that "the incurring or authorizing of expenditure in contravention of Section 77" is a corrupt practice. Every contravention of Section 77 dos not fall within Section 123(6). Section 77 consists of three parts. Section 77, sub-section (1) requires the candidate to keep a separate and correct account of all election expenses incurred or authorised by him within certain dates. Section 77, sub-section (2) provides that the account shall contain such particulars as may be prescribed. Section 77, sub-section (3) requires that the total of the said expenditure shall not exceed the prescribed amount. Section 123(6) is related to Section 73(3). If the candidate incurs or authorises expenditure in excess of the prescribed amount in contravention of Section 77(3) he commits corrupt practice under Section 123(6). The contravention of Section 77, sub-sections (1) and (2) or the failure to maintain correct accounts with the prescribed particulars does not fall within Section 123(6). See Sri Krishna v. Sat Narain. The same opinion has been expressed in several decisions of the High Courts, see Savitri Devi v. Prabhawati Misra; N. L. Verma v. Muni Lal; Narasimhan v. Natesa and the cases referred to therein.15. Section 124(4) as it stood before its amendment by Act XXVII of 1956 provided that the making of any return which was false in material particulars was a minor corrupt practice. That provision has now been deleted and the submission of an incorrect return of expenses is no longer a corrupt practice.16. In his return of expenses the appellant stated that he spent Rs. 4, 145. 04P. We have found that he spent the additional sum of Rs. 430/-. He thus spent in all Rs. 4, 575.04P. The authorised limit of expenses was Rs. 7, 000/-. It follows that the appellant did not incur or authorise expenditure in contravention of Section 77, and the case does not fall within Section 123(6). We hold that there is no ground for setting aside the appellants election, and the petition filed by respondent No. 1 must be dismissed.17. While making the order under Section 98(b) the learned Judge passed an order under Section 99 declaring that the appellant as also Jainarain Dube, Laxminarain Trunkwala and Badal Singh were guilty of the corrupt practice under Section 123(4). The present appeal has been filed by the appellant against the orders under Sections 98(b) and 99. Counsel for the respondent contended that the appeal was not maintainable as Jainarain Dube, Laxminarain Trunkwala and Badal Singh were not impleaded as respondents. We find no merit in this contention. The appellant as a party aggrieved by the order against him under Sections 98 and 99 is entitled to file the appeal under Section 116-A. He is the only person aggrieved by the order under Section 98 and he alone can maintain the appeal against that order. As the person aggrieve by the order under Section 99 he is also entitled to maintain an appeal against it. The other person against whom the order under Section 99 was made are not necessary parties to the appeal.
### Response:
1
### Explanation:
We do not accept the story that the papers used to be distributed free of cost at the appellants instance.7. It is not established that the issue of the New Rocket Times and the Agami Kal were distributed with the appellants consent. In view of this conclusion, it follows that the appellant was not guilty of any corrupt practice under Section 123(4). There is force in the appellants contention that the statements in the publications were not in relation to the personal character or conduct or respondent No. 1. But we do not find it necessary to express any opinion on thisis force in the appellants contention that a convenient cross entry was made on the same date so that the cash balance carried forward in the books might not be disturbed. PW 16 said that he sent the accounts for the year ending March 31, 1967 to the Waqf committee in the month of April 1967. But RW 26 Nazir Ahmed, the Secretary of the Madhya Pradesh Waqf Board said that no such account was receive and none was to be found in his office. In agreement with the learned trial Judge we are unable to accept the testimony of PW 16 and the supporting32, proved that the printed a replica of the flag in the paper at his own instance for doing propaganda work. There is no reliable evidence to show that he did so at the appellants instance. The learned Judge rightly repelled this10 said that Nanhuram Vyas was a paid servant of the appellant. Nanhuram was not examined by respondent No. 1. The petition did not allege that the appellant got the statement published through his gent Nanhuram. In agreement with the learned Judge we hold that it is not established that the statement was published at the appellantsare unable to agree with thisfinding. As already stated respondent No. 1 failed to prove that the appellant paid any money to the editors of the two papers. Item No. (xiii) relates to the item of 2, 000 Gandhi caps and sunshades. This charge is not prove. The appellant said that he spent Rs. 225/only for the Gandhi caps and that only 750 Gandhi caps at the cost of Rs. 225/. He was notIt is not established that the appellant obtained more than 750 caps. RW 15 proved that the sunshades were supplied by him for distribution free of cost. With regard to item (xv) the learned Judge held that the appellant paid Rs. 100/to PW 20, and Rs. 50/each to PW 24 and PW 30. As already stated, we do not believe PW 20, PW 24, PW 30. We set aside the finding of the learned Judge that the appellant paid Rs. 200/W 6 Kanchan Lal Dhruv proved that he sent thefrom Indore free of charge. He is corroborated by the appellant and RW 13. The learned Judge rightly held that the charge under item (xvii) was not proved. Item (xviii) relates to an expenditure of Rs. 1, 000/for constructing a platform for a meeting. The charge is not proved. There is convincing evidence to show that the expensed for the platform was met by the District Congress Committee. The relevant receipt is Ex.Item (xxi) relates to the payment of Rs. 1, 400/as printing charges to the Patel Printing Press. The charge is not established. We accept the statement of RW 32 that the Nagar Congress Committee placed the order and paid for the printing. Item (xxii) relates to payment of Rs. 2, 200/to Adarsh Press. Respondent No. 1 examined PW 37, PW 38, PW 21 and PW 34 to prove the charge. PW 37, the manager of the press tried to prove the bill Ex.and the work orders Exs.2. But PW 38, the Printer, stated that entries in Ex.were false entries written by him at the instance of PW 37. PW 21 said that he personally got Rs. 2, 850/for the bill from the appellant, but in the petition the charge was that the appellant spent only Rs. 2, 200/. The evidence of PW 34 does not carry the matter any further. The entries in Exs.92 are not reliable and cannot be acted upon. The charge under item no. (xxiii) is not proved. The learned Judge has adequately dealt with the charges with regard to items (vi), (vii), (xvi), (xx) and has rightly rejected them for cogent reasons. The charges with regard to the other item were not pressed.12. The learned Judge held that the appellant incurred an expense of Rs. 200/under item (v) and Rs. 230/under items (xix) and (xxiii) and that it was not included in the return of election expenses. We agree with theare unable to accept this contention.Section 124(4) as it stood before its amendment by Act XXVII of 1956 provided that the making of any return which was false in material particulars was a minor corrupt practice. That provision has now been deleted and the submission of an incorrect return of expenses is no longer a corrupthave found that he spent the additional sum of Rs.He thus spent in all Rs. 4, 575.04P. The authorised limit of expenses was Rs. 7,It follows that the appellant did not incur or authorise expenditure in contravention of Section 77, and the case does not fall within Section 123(6). We hold that there is no ground for setting aside the appellants election, and the petition filed by respondent No. 1 must befind no merit in this contention. The appellant as a party aggrieved by the order against him under Sections 98 and 99 is entitled to file the appeal under SectionHe is the only person aggrieved by the order under Section 98 and he alone can maintain the appeal against that order. As the person aggrieve by the order under Section 99 he is also entitled to maintain an appeal against it. The other person against whom the order under Section 99 was made are not necessary parties to theare unable to agree with this
|
Pitambar Singh Vs. State Of Bihar | there was no final publication made on the basis of the order dated 15.12.1977, Section 32B came into operation and, therefore, there could be the initiation of the fresh proceedings in terms of that Section. In our opinion, this is a completely erroneous view. In fact, after the order dated 15.12.1977 was passed, it was not for the appellants to do anything, but it was the duty of the State Government to issue a final draft statement on the basis of that order and then to publish it in the light of the order dated 15.12.1977, which duty emanated from the positive language of Section 11(1) of the Ceiling Act. It is not at all the fault of the land holders/appellants if the State Government did not do anything for four years i.e. between 16.12.1977 and 9.4.1981 when the Amendment Act came into force. Though the inaction on the part of the State Government is noted by the High Court, the Division Bench refused to act upon it and went on to observe:- "Thus although there is no just reason for the collector not finally publishing the draft statement immediately after the appellate order dated 15.12.1977 was passed, but still then in view of the mandate contained in Section 32B of the Act, fresh proceeding became necessary in respect of the land in question." We do not approve of such approach as it would be patently unjust to give a premium to the State Government on its inaction. We reiterate that the appellants had nothing to do with the creating or publishing of the draft statement. It was the duty of the State Government. If the State Government did not follow its duty, it has to suffer and the appellants cannot be made to suffer on account of the inaction shown by the State Government either deliberately or otherwise. We, therefore, under the circumstances, hold that Section 32B could not have been relied upon by the State Government and both the learned Single Judge as well as the Division Bench have erred in legalizing the subsequent reopening of the proceedings, which had come to a dead end on 15.12.1977.7. This is apart from the fact that even on the merits, the Division Bench has committed a patent error in treating the family as one family and proceeding to limit the entitlement of the family holding to 18 acres. It was an admitted position that the father of Pitambar Singh (appellant No. 1 herein) was alive on 9.9.1970. There is further no dispute that Pitambar Singh (appellant No. 1 herein) was a major at that time. Further, there can be no dispute again that the major sons are not part of the family. The definition of the `family runs as under:- "family means and includes a person, his or her spouse and minor children.Explanation I - In this clause the word person includes any company, institution, trust association or body of individuals whether incorporated or not;Explanation II - The personal law shall not be relevant or be taken into consideration in determining the composition of the family for the purposes of the Act" Therefore, the language clearly suggests that the major son would be outside the definition of `family.In this case, on 9.9.1970, Bhagwati Singh was alive and so was Pitambar Singh (appellant No. 1 herein) was major. Even otherwise, Rabindra Kumar Singh (appellant No. 2 herein) was also a major person in the family on 09.09.1970, as held by the appellate authority vide order dated 15.12.1977. Thus under no circumstance could it be held to be a single family. The Division Bench has tried to get over this by saying that there was no pleading that on or before 9.9.1970, there was any partition effected under the joint family and that Pitambar Singh (appellant No. 1 herein) became individually entitled to holding any land Raiyat. Now, there is no question of treating Pitambar Singh (appellant No. 1 herein) not to be a Raiyat, particularly, when Pitambar Singh (appellant No. 1 herein) and his father were the coparceners of a Mitakshara joint family holding the land in question and as such, each of them were entitled to the land to the extent of their share. The Division Bench has strangely held that they were only entitled to enforce their right by seeking disruption of the joint family by claiming and obtaining partition of the joint family properties; however, that having not been done their individual rights did not crystallize. The Division Bench also mentioned further that though they had "floating right" in the land in question, but having regard to the explanation inserted to the definition of the word `family, such floating right could not be taken into consideration for determining the composition of the family for the purpose of the Act. We disapprove of this approach. The right of a coparcener comes in his favour with his birth and considering the definition of `family, which includes only a person, his/her spouse and minor children the logic of the Division Bench is erroneous. Explanation II makes the matters clear when it says that personal law shall not be relevant or be taken into consideration in determining the composition of the family for the purposes of the Act. Therefore, it will be clear that though it was a joint family of Bhagwati Singh and Pitambar Singh (appellant No. 1) and thereafter of Ravindra Singh, the rights of Pitambar Singh (appellant No.1) and Ravindra Singh as coparceners would be intact. Further, since they were major on the relevant date, they could not have been held as member of one family and were entitled to be treated as independent families with the result that there would be two families and the total land being only 33.95 acres, there could be no surplus, as has been wrongly held by the Courts below, particularly, after the reopening of the proceedings under Section 32B of the Amendment Act. On both counts, therefore, the High Court has erred. | 1[ds]6. In our opinion, this contention was absolutely right in view of the language of Section 11(1) of the Ceiling Act, which runs asFinal publication of draft statement:(1) When the objection under(3) of Section 10, appeal and revision, if any, relating thereto have been disposed of, the Collector shall subject to the provision of Section 15A(5) make such alteration in the draft statement as may be necessary to give effect to any order passed on the objection or on appeal or revision and shall cause the said statement with the alteration, if any, to be finally published at such places and in such manner, as may be prescribed under(2) of Section 10 and a copy thereof duly certified by the Collector in the prescribed manner shall be given to the land holder concerned.Now, in this case, as has been noted by the High Court in the LPA, it was the old draft statement published when in fact even the matter was not finally decided in between the State and the land holders. A specific contention was, therefore, raised that unless the controversy between the State and the land holders was completed, there could be no draft statement, much less, publication thereof. Such draft statement which was published prematurely, could not be treated as a proper draft statement and there could be no publication thereof also. In fact, when we see the order passed by the Division Bench, it is correctly noted therein that the publication, as contemplated, is to be made only after the disposal of the objection, appeal and revision and if the publication is made before the disposal of the objection or appeal or revision and no change is brought in the draft statement by the disposal of the objection, the appeal or the revision, the publication will hold good, but if any orders in such objection, appeal or revision bring about a change, the publication will not hold good because themandates publication of a draft statement as changed while disposing of the objection or appeal or revision. The Division Bench has also drawn a correct conclusionlogical conclusion, therefore, would be that by reason of the appellate order dated 15.12.1977 final publication of the draft statement as was made prior thereto stood obliterated with the order passed on the objection, on the basis whereof the same had beenDivision Bench, however, noted that no such draft statement was ever published altering the earlier draft statement. Taking this in view, the Court then proceeded to hold that since there was no final publication made on the basis of the order dated 15.12.1977, Section 32B came into operation and, therefore, there could be the initiation of the fresh proceedings in terms of that Section. In our opinion, this is a completely erroneous view. In fact, after the order dated 15.12.1977 was passed, it was not for the appellants to do anything, but it was the duty of the State Government to issue a final draft statement on the basis of that order and then to publish it in the light of the order dated 15.12.1977, which duty emanated from the positive language of Section 11(1) of the Ceiling Act. It is not at all the fault of the land holders/appellants if the State Government did not do anything for four years i.e. between 16.12.1977 and 9.4.1981 when the Amendment Act came into force. Though the inaction on the part of the State Government is noted by the High Court, the Division Bench refused to act upon it and went on toalthough there is no just reason for the collector not finally publishing the draft statement immediately after the appellate order dated 15.12.1977 was passed, but still then in view of the mandate contained in Section 32B of the Act, fresh proceeding became necessary in respect of the land indo not approve of such approach as it would be patently unjust to give a premium to the State Government on its inaction. We reiterate that the appellants had nothing to do with the creating or publishing of the draft statement. It was the duty of the State Government. If the State Government did not follow its duty, it has to suffer and the appellants cannot be made to suffer on account of the inaction shown by the State Government either deliberately or otherwise. We, therefore, under the circumstances, hold that Section 32B could not have been relied upon by the State Government and both the learned Single Judge as well as the Division Bench have erred in legalizing the subsequent reopening of the proceedings, which had come to a dead end on 15.12.1977.7. This is apart from the fact that even on the merits, the Division Bench has committed a patent error in treating the family as one family and proceeding to limit the entitlement of the family holding to 18 acres. It was an admitted position that the father of Pitambar Singh (appellant No. 1 herein) was alive on 9.9.1970. There is further no dispute that Pitambar Singh (appellant No. 1 herein) was a major at that time. Further, there can be no dispute again that the major sons are not part of the family. The definition of the `family runs asmeans and includes a person, his or her spouse and minor children.Explanation IIn this clause the word person includes any company, institution, trust association or body of individuals whether incorporated or not;Explanation IIThe personal law shall not be relevant or be taken into consideration in determining the composition of the family for the purposes of thethe language clearly suggests that the major son would be outside the definition of `family.In this case, on 9.9.1970, Bhagwati Singh was alive and so was Pitambar Singh (appellant No. 1 herein) was major. Even otherwise, Rabindra Kumar Singh (appellant No. 2 herein) was also a major person in the family on 09.09.1970, as held by the appellate authority vide order dated 15.12.1977. Thus under no circumstance could it be held to be a single family. The Division Bench has tried to get over this by saying that there was no pleading that on or before 9.9.1970, there was any partition effected under the joint family and that Pitambar Singh (appellant No. 1 herein) became individually entitled to holding any land Raiyat. Now, there is no question of treating Pitambar Singh (appellant No. 1 herein) not to be a Raiyat, particularly, when Pitambar Singh (appellant No. 1 herein) and his father were the coparceners of a Mitakshara joint family holding the land in question and as such, each of them were entitled to the land to the extent of their share. The Division Bench has strangely held that they were only entitled to enforce their right by seeking disruption of the joint family by claiming and obtaining partition of the joint family properties; however, that having not been done their individual rights did not crystallize. The Division Bench also mentioned further that though they had "floating right" in the land in question, but having regard to the explanation inserted to the definition of the word `family, such floating right could not be taken into consideration for determining the composition of the family for the purpose of the Act. We disapprove of this approach. The right of a coparcener comes in his favour with his birth and considering the definition of `family, which includes only a person, his/her spouse and minor children the logic of the Division Bench is erroneous. Explanation II makes the matters clear when it says that personal law shall not be relevant or be taken into consideration in determining the composition of the family for the purposes of the Act. Therefore, it will be clear that though it was a joint family of Bhagwati Singh and Pitambar Singh (appellant No. 1) and thereafter of Ravindra Singh, the rights of Pitambar Singh (appellant No.1) and Ravindra Singh as coparceners would be intact. Further, since they were major on the relevant date, they could not have been held as member of one family and were entitled to be treated as independent families with the result that there would be two families and the total land being only 33.95 acres, there could be no surplus, as has been wrongly held by the Courts below, particularly, after the reopening of the proceedings under Section 32B of the Amendment Act. On both counts, therefore, the High Court has erred. | 1 | 3,501 | 1,573 | ### 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:
there was no final publication made on the basis of the order dated 15.12.1977, Section 32B came into operation and, therefore, there could be the initiation of the fresh proceedings in terms of that Section. In our opinion, this is a completely erroneous view. In fact, after the order dated 15.12.1977 was passed, it was not for the appellants to do anything, but it was the duty of the State Government to issue a final draft statement on the basis of that order and then to publish it in the light of the order dated 15.12.1977, which duty emanated from the positive language of Section 11(1) of the Ceiling Act. It is not at all the fault of the land holders/appellants if the State Government did not do anything for four years i.e. between 16.12.1977 and 9.4.1981 when the Amendment Act came into force. Though the inaction on the part of the State Government is noted by the High Court, the Division Bench refused to act upon it and went on to observe:- "Thus although there is no just reason for the collector not finally publishing the draft statement immediately after the appellate order dated 15.12.1977 was passed, but still then in view of the mandate contained in Section 32B of the Act, fresh proceeding became necessary in respect of the land in question." We do not approve of such approach as it would be patently unjust to give a premium to the State Government on its inaction. We reiterate that the appellants had nothing to do with the creating or publishing of the draft statement. It was the duty of the State Government. If the State Government did not follow its duty, it has to suffer and the appellants cannot be made to suffer on account of the inaction shown by the State Government either deliberately or otherwise. We, therefore, under the circumstances, hold that Section 32B could not have been relied upon by the State Government and both the learned Single Judge as well as the Division Bench have erred in legalizing the subsequent reopening of the proceedings, which had come to a dead end on 15.12.1977.7. This is apart from the fact that even on the merits, the Division Bench has committed a patent error in treating the family as one family and proceeding to limit the entitlement of the family holding to 18 acres. It was an admitted position that the father of Pitambar Singh (appellant No. 1 herein) was alive on 9.9.1970. There is further no dispute that Pitambar Singh (appellant No. 1 herein) was a major at that time. Further, there can be no dispute again that the major sons are not part of the family. The definition of the `family runs as under:- "family means and includes a person, his or her spouse and minor children.Explanation I - In this clause the word person includes any company, institution, trust association or body of individuals whether incorporated or not;Explanation II - The personal law shall not be relevant or be taken into consideration in determining the composition of the family for the purposes of the Act" Therefore, the language clearly suggests that the major son would be outside the definition of `family.In this case, on 9.9.1970, Bhagwati Singh was alive and so was Pitambar Singh (appellant No. 1 herein) was major. Even otherwise, Rabindra Kumar Singh (appellant No. 2 herein) was also a major person in the family on 09.09.1970, as held by the appellate authority vide order dated 15.12.1977. Thus under no circumstance could it be held to be a single family. The Division Bench has tried to get over this by saying that there was no pleading that on or before 9.9.1970, there was any partition effected under the joint family and that Pitambar Singh (appellant No. 1 herein) became individually entitled to holding any land Raiyat. Now, there is no question of treating Pitambar Singh (appellant No. 1 herein) not to be a Raiyat, particularly, when Pitambar Singh (appellant No. 1 herein) and his father were the coparceners of a Mitakshara joint family holding the land in question and as such, each of them were entitled to the land to the extent of their share. The Division Bench has strangely held that they were only entitled to enforce their right by seeking disruption of the joint family by claiming and obtaining partition of the joint family properties; however, that having not been done their individual rights did not crystallize. The Division Bench also mentioned further that though they had "floating right" in the land in question, but having regard to the explanation inserted to the definition of the word `family, such floating right could not be taken into consideration for determining the composition of the family for the purpose of the Act. We disapprove of this approach. The right of a coparcener comes in his favour with his birth and considering the definition of `family, which includes only a person, his/her spouse and minor children the logic of the Division Bench is erroneous. Explanation II makes the matters clear when it says that personal law shall not be relevant or be taken into consideration in determining the composition of the family for the purposes of the Act. Therefore, it will be clear that though it was a joint family of Bhagwati Singh and Pitambar Singh (appellant No. 1) and thereafter of Ravindra Singh, the rights of Pitambar Singh (appellant No.1) and Ravindra Singh as coparceners would be intact. Further, since they were major on the relevant date, they could not have been held as member of one family and were entitled to be treated as independent families with the result that there would be two families and the total land being only 33.95 acres, there could be no surplus, as has been wrongly held by the Courts below, particularly, after the reopening of the proceedings under Section 32B of the Amendment Act. On both counts, therefore, the High Court has erred.
### Response:
1
### Explanation:
the earlier draft statement. Taking this in view, the Court then proceeded to hold that since there was no final publication made on the basis of the order dated 15.12.1977, Section 32B came into operation and, therefore, there could be the initiation of the fresh proceedings in terms of that Section. In our opinion, this is a completely erroneous view. In fact, after the order dated 15.12.1977 was passed, it was not for the appellants to do anything, but it was the duty of the State Government to issue a final draft statement on the basis of that order and then to publish it in the light of the order dated 15.12.1977, which duty emanated from the positive language of Section 11(1) of the Ceiling Act. It is not at all the fault of the land holders/appellants if the State Government did not do anything for four years i.e. between 16.12.1977 and 9.4.1981 when the Amendment Act came into force. Though the inaction on the part of the State Government is noted by the High Court, the Division Bench refused to act upon it and went on toalthough there is no just reason for the collector not finally publishing the draft statement immediately after the appellate order dated 15.12.1977 was passed, but still then in view of the mandate contained in Section 32B of the Act, fresh proceeding became necessary in respect of the land indo not approve of such approach as it would be patently unjust to give a premium to the State Government on its inaction. We reiterate that the appellants had nothing to do with the creating or publishing of the draft statement. It was the duty of the State Government. If the State Government did not follow its duty, it has to suffer and the appellants cannot be made to suffer on account of the inaction shown by the State Government either deliberately or otherwise. We, therefore, under the circumstances, hold that Section 32B could not have been relied upon by the State Government and both the learned Single Judge as well as the Division Bench have erred in legalizing the subsequent reopening of the proceedings, which had come to a dead end on 15.12.1977.7. This is apart from the fact that even on the merits, the Division Bench has committed a patent error in treating the family as one family and proceeding to limit the entitlement of the family holding to 18 acres. It was an admitted position that the father of Pitambar Singh (appellant No. 1 herein) was alive on 9.9.1970. There is further no dispute that Pitambar Singh (appellant No. 1 herein) was a major at that time. Further, there can be no dispute again that the major sons are not part of the family. The definition of the `family runs asmeans and includes a person, his or her spouse and minor children.Explanation IIn this clause the word person includes any company, institution, trust association or body of individuals whether incorporated or not;Explanation IIThe personal law shall not be relevant or be taken into consideration in determining the composition of the family for the purposes of thethe language clearly suggests that the major son would be outside the definition of `family.In this case, on 9.9.1970, Bhagwati Singh was alive and so was Pitambar Singh (appellant No. 1 herein) was major. Even otherwise, Rabindra Kumar Singh (appellant No. 2 herein) was also a major person in the family on 09.09.1970, as held by the appellate authority vide order dated 15.12.1977. Thus under no circumstance could it be held to be a single family. The Division Bench has tried to get over this by saying that there was no pleading that on or before 9.9.1970, there was any partition effected under the joint family and that Pitambar Singh (appellant No. 1 herein) became individually entitled to holding any land Raiyat. Now, there is no question of treating Pitambar Singh (appellant No. 1 herein) not to be a Raiyat, particularly, when Pitambar Singh (appellant No. 1 herein) and his father were the coparceners of a Mitakshara joint family holding the land in question and as such, each of them were entitled to the land to the extent of their share. The Division Bench has strangely held that they were only entitled to enforce their right by seeking disruption of the joint family by claiming and obtaining partition of the joint family properties; however, that having not been done their individual rights did not crystallize. The Division Bench also mentioned further that though they had "floating right" in the land in question, but having regard to the explanation inserted to the definition of the word `family, such floating right could not be taken into consideration for determining the composition of the family for the purpose of the Act. We disapprove of this approach. The right of a coparcener comes in his favour with his birth and considering the definition of `family, which includes only a person, his/her spouse and minor children the logic of the Division Bench is erroneous. Explanation II makes the matters clear when it says that personal law shall not be relevant or be taken into consideration in determining the composition of the family for the purposes of the Act. Therefore, it will be clear that though it was a joint family of Bhagwati Singh and Pitambar Singh (appellant No. 1) and thereafter of Ravindra Singh, the rights of Pitambar Singh (appellant No.1) and Ravindra Singh as coparceners would be intact. Further, since they were major on the relevant date, they could not have been held as member of one family and were entitled to be treated as independent families with the result that there would be two families and the total land being only 33.95 acres, there could be no surplus, as has been wrongly held by the Courts below, particularly, after the reopening of the proceedings under Section 32B of the Amendment Act. On both counts, therefore, the High Court has erred.
|
Virji Ram Sutaria Vs. Nathalal Premji Bhanvadia And Ors | the expression Raiya Sabha.8. The real question is, whether the deviation, if any, from the form of oath in English as contained in the Third Schedule is so vital as to lead to the conclusion that no proper oath was taken by the returned candidate. There have been many instances where this Court has held that a substantial, compliance with the statute or with the rules framed thereunder is enough even if there be no literal compliance and in our view, there is no reason to adopt a different line of reasoning in the construction and interpretation of the Constitution. In all such cases, one must consider the real purpose of the provision whether statutory or constitutional to find out whether notwithstanding the apparently mandatory form of the words used any deviation therefrom was to be struck down.9. One of the questions which came up for consideration in Kamaraja Nadar v. Kunju Thevar, 1959 SCR 583 = (AIR 1958 SC 687 ) was whether the election petition ought to have been rejected merely because the deposit provided for under Section 117 of the Representation of the People Act was made in favour of the Election Commission and not in favour of the Secretary to the Election Commission as provided for in the said section. Turning down the argument advanced for rejecting the election petition it was observed:"What is of the essence of the provision contained in Section 117 is that the petitioner should furnish security for the costs of the petition, and should enclose along with the petition a Government Treasury receipt showing that a deposit of one thousand rupees has been made by him either in a Government Treasury or in the Reserve Bank of India, is at the disposal of the Election Commission to be utilised by it in the manner authorised by law........."In Murarka Radhey Shyam v. Roop Singh, (1964) 3 SCR 573 = (AIR 1964 SC1545) one of the points urged against the petitioner was that there was non-compliance with the provisions of Section 81 (3) of the Representation of the People Act because the copy of the election petition served on the appellant was not a true copy of the original filed before the Election Commission. Rejecting the said contention it was said:"......the word "copy" in sub-section (3) of Section 81 does not mean an absolutely exact copy, but means that the copy shall be so true that nobody can by any possibility misunderstand it."To the similar effect is the judgment in Ch. Subbarao v. Member. Election Tribunal, Hyderabad, (1964) 6 SCR 213 = AIR 1964 SC1027).10. In State of U. P. v. Manbodhan Lal Srivastava, 1958 SCR 533 = (AIR 1957 SC 912 ) one of the contentions urged on behalf of the respondent who was reduced in rank after departmental enquiry, was that the order of the Government was invalid for non-compliance with the provisions of Article 320 (3) (c) of the Constitution which read literally made it obligatory for the Government of India or a Government of a State to consult the Union Public Service Commission or the State Public Service Commission on all disciplinary matters affecting a person in service of the State. In turning down the above it was observed by this Court:"......the use of the word "shall" in statute, though generally taken in a mandatory sense, does not necessarily mean that in every case it shall have that effect, that is to say, that unless the words of the statute are punctiliously followed, the proceeding, or the outcome of the proceeding, would be invalid."In State of Punjab v. Sat Pal Dang and State of Punjab v. Dr. Baldev Perkash, Civil Appeals Nos. 1427 and 1428 of 1968, D/- 30-7-1968 = (reported in AIR 1969 SC 903 ) one of the points canvassed before this Court was, whether the certificate by the Deputy Speaker on a Money Bill was sufficient compliance with Article 199 (4) of the Constitution which provides that:"There shall be endorsed on every Money Bill when it is transmitted to the Legislative Council under Article 198, and when it is presented to the Governor for assent under Article 200, the certificate of the Speaker of the Legislative Assembly signed by him that it is a Money Bill."It was contended that the provisions of the above clause were mandatory and only this Speaker of the Legislative Assembly could sign the Money Bill. It was pointed out by the Court that the Speaker was not present when the Bills were passed and under Article 180 (2) the Deputy Speaker could act as the Speaker when the latter was absent. This Court proceeded to examine the several tests to determine when the provisions of a statute might be treated as mandatory and when not, and empahasis was laid on one of the distinctions, namely, in cases where strict compliance was necessary to be a condition precedent to the validity of the act itself, the neglect to perform it as indicated was fatal.11. The above cases are sufficient to show that non-compliance with the provisions of a statute or Constitution will not necessarily render a proceeding invalid if by considering its nature, its design and the consequences which follow from its non-observance one is not led to the conclusion that the legislature or the constitution-makers intended that there should be no departure from the strict words used.12. In this case, as we have already noted, the essential requirement of Article 173 read with Form VII-A was that the person taking the oath or making the affirmation would bear true faith and allegiance to the Constitution and uphold the sovereignty and integrity of India. The words which precede this portion are merely descriptive of the persons and of his nomination as a candidate. It is reasonable to think that a mere misprint in the form of the oath or a mere inaccuracy in rendering the expression "Legislative Assembly" in Gujarati would not be fatal to the election of candidate, if otherwise valid. | 0[ds]6. The High Court held that there was substantial compliance with the requirements of Article 173 (a) of the Constitution in the circumstances surrounding the making and the subscribing of the oath even if the compliance was not literal. we Are in full agreement with that view. The essential requirement of Article 173 (a) of the Constitution for our present purpose is that in order to be qualified to be chosen to fill a seat in the Legislature of a State a person (i) must be a citizen of India and (ii) must make and subscribe before a person duly authorised an oath or affirmation according to the form set out for the purpose in the Thirdwas contended that the provisions of the above clause were mandatory and only this Speaker of the Legislative Assembly could sign the Money Bill. It was pointed out by the Court that the Speaker was not present when the Bills were passed and under Article 180 (2) the Deputy Speaker could act as the Speaker when the latter was absent. This Court proceeded to examine the several tests to determine when the provisions of a statute might be treated as mandatory and when not, and empahasis was laid on one of the distinctions, namely, in cases where strict compliance was necessary to be a condition precedent to the validity of the act itself, the neglect to perform it as indicated was fatal.11. The above cases are sufficient to show that non-compliance with the provisions of a statute or Constitution will not necessarily render a proceeding invalid if by considering its nature, its design and the consequences which follow from its non-observance one is not led to the conclusion that the legislature or the constitution-makers intended that there should be no departure from the strict words used.12. In this case, as we have already noted, the essential requirement of Article 173 read with Form VII-A was that the person taking the oath or making the affirmation would bear true faith and allegiance to the Constitution and uphold the sovereignty and integrity of India. The words which precede this portion are merely descriptive of the persons and of his nomination as a candidate. It is reasonable to think that a mere misprint in the form of the oath or a mere inaccuracy in rendering the expression "Legislative Assembly" in Gujarati would not be fatal to the election of candidate, if otherwise valid. | 0 | 2,780 | 440 | ### Instruction:
Hypothesize the court's verdict (affirmation (1) or negation (0) of the appeal), and then clarify this hypothesis by interpreting significant sentences from the case proceeding.
### Input:
the expression Raiya Sabha.8. The real question is, whether the deviation, if any, from the form of oath in English as contained in the Third Schedule is so vital as to lead to the conclusion that no proper oath was taken by the returned candidate. There have been many instances where this Court has held that a substantial, compliance with the statute or with the rules framed thereunder is enough even if there be no literal compliance and in our view, there is no reason to adopt a different line of reasoning in the construction and interpretation of the Constitution. In all such cases, one must consider the real purpose of the provision whether statutory or constitutional to find out whether notwithstanding the apparently mandatory form of the words used any deviation therefrom was to be struck down.9. One of the questions which came up for consideration in Kamaraja Nadar v. Kunju Thevar, 1959 SCR 583 = (AIR 1958 SC 687 ) was whether the election petition ought to have been rejected merely because the deposit provided for under Section 117 of the Representation of the People Act was made in favour of the Election Commission and not in favour of the Secretary to the Election Commission as provided for in the said section. Turning down the argument advanced for rejecting the election petition it was observed:"What is of the essence of the provision contained in Section 117 is that the petitioner should furnish security for the costs of the petition, and should enclose along with the petition a Government Treasury receipt showing that a deposit of one thousand rupees has been made by him either in a Government Treasury or in the Reserve Bank of India, is at the disposal of the Election Commission to be utilised by it in the manner authorised by law........."In Murarka Radhey Shyam v. Roop Singh, (1964) 3 SCR 573 = (AIR 1964 SC1545) one of the points urged against the petitioner was that there was non-compliance with the provisions of Section 81 (3) of the Representation of the People Act because the copy of the election petition served on the appellant was not a true copy of the original filed before the Election Commission. Rejecting the said contention it was said:"......the word "copy" in sub-section (3) of Section 81 does not mean an absolutely exact copy, but means that the copy shall be so true that nobody can by any possibility misunderstand it."To the similar effect is the judgment in Ch. Subbarao v. Member. Election Tribunal, Hyderabad, (1964) 6 SCR 213 = AIR 1964 SC1027).10. In State of U. P. v. Manbodhan Lal Srivastava, 1958 SCR 533 = (AIR 1957 SC 912 ) one of the contentions urged on behalf of the respondent who was reduced in rank after departmental enquiry, was that the order of the Government was invalid for non-compliance with the provisions of Article 320 (3) (c) of the Constitution which read literally made it obligatory for the Government of India or a Government of a State to consult the Union Public Service Commission or the State Public Service Commission on all disciplinary matters affecting a person in service of the State. In turning down the above it was observed by this Court:"......the use of the word "shall" in statute, though generally taken in a mandatory sense, does not necessarily mean that in every case it shall have that effect, that is to say, that unless the words of the statute are punctiliously followed, the proceeding, or the outcome of the proceeding, would be invalid."In State of Punjab v. Sat Pal Dang and State of Punjab v. Dr. Baldev Perkash, Civil Appeals Nos. 1427 and 1428 of 1968, D/- 30-7-1968 = (reported in AIR 1969 SC 903 ) one of the points canvassed before this Court was, whether the certificate by the Deputy Speaker on a Money Bill was sufficient compliance with Article 199 (4) of the Constitution which provides that:"There shall be endorsed on every Money Bill when it is transmitted to the Legislative Council under Article 198, and when it is presented to the Governor for assent under Article 200, the certificate of the Speaker of the Legislative Assembly signed by him that it is a Money Bill."It was contended that the provisions of the above clause were mandatory and only this Speaker of the Legislative Assembly could sign the Money Bill. It was pointed out by the Court that the Speaker was not present when the Bills were passed and under Article 180 (2) the Deputy Speaker could act as the Speaker when the latter was absent. This Court proceeded to examine the several tests to determine when the provisions of a statute might be treated as mandatory and when not, and empahasis was laid on one of the distinctions, namely, in cases where strict compliance was necessary to be a condition precedent to the validity of the act itself, the neglect to perform it as indicated was fatal.11. The above cases are sufficient to show that non-compliance with the provisions of a statute or Constitution will not necessarily render a proceeding invalid if by considering its nature, its design and the consequences which follow from its non-observance one is not led to the conclusion that the legislature or the constitution-makers intended that there should be no departure from the strict words used.12. In this case, as we have already noted, the essential requirement of Article 173 read with Form VII-A was that the person taking the oath or making the affirmation would bear true faith and allegiance to the Constitution and uphold the sovereignty and integrity of India. The words which precede this portion are merely descriptive of the persons and of his nomination as a candidate. It is reasonable to think that a mere misprint in the form of the oath or a mere inaccuracy in rendering the expression "Legislative Assembly" in Gujarati would not be fatal to the election of candidate, if otherwise valid.
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0
### Explanation:
6. The High Court held that there was substantial compliance with the requirements of Article 173 (a) of the Constitution in the circumstances surrounding the making and the subscribing of the oath even if the compliance was not literal. we Are in full agreement with that view. The essential requirement of Article 173 (a) of the Constitution for our present purpose is that in order to be qualified to be chosen to fill a seat in the Legislature of a State a person (i) must be a citizen of India and (ii) must make and subscribe before a person duly authorised an oath or affirmation according to the form set out for the purpose in the Thirdwas contended that the provisions of the above clause were mandatory and only this Speaker of the Legislative Assembly could sign the Money Bill. It was pointed out by the Court that the Speaker was not present when the Bills were passed and under Article 180 (2) the Deputy Speaker could act as the Speaker when the latter was absent. This Court proceeded to examine the several tests to determine when the provisions of a statute might be treated as mandatory and when not, and empahasis was laid on one of the distinctions, namely, in cases where strict compliance was necessary to be a condition precedent to the validity of the act itself, the neglect to perform it as indicated was fatal.11. The above cases are sufficient to show that non-compliance with the provisions of a statute or Constitution will not necessarily render a proceeding invalid if by considering its nature, its design and the consequences which follow from its non-observance one is not led to the conclusion that the legislature or the constitution-makers intended that there should be no departure from the strict words used.12. In this case, as we have already noted, the essential requirement of Article 173 read with Form VII-A was that the person taking the oath or making the affirmation would bear true faith and allegiance to the Constitution and uphold the sovereignty and integrity of India. The words which precede this portion are merely descriptive of the persons and of his nomination as a candidate. It is reasonable to think that a mere misprint in the form of the oath or a mere inaccuracy in rendering the expression "Legislative Assembly" in Gujarati would not be fatal to the election of candidate, if otherwise valid.
|
Rachpal Mahraj Vs. Bhagwandas Darukaand Others | put on record that to secure the repayment of the money already due to you from us on account of the business transactions between yourselves and ourselves and the money that may hereafter become due on account of such transactions we have this day deposited with you the following title deeds in Calcutta at your place of business at No. 7, Sambhu Mullick Lane, relating to our properties at Samastipur with intent to create in equitable mortgage on the said properties to secure all moneys including interest that may be found due and payable by us to you on account of the said transactions . . . . ."(4) A mortgage by deposit of title deeds is a form of mortgage recognised by S. 58 (f), T. P. Act, which provides that it may be effected in certain towns (including Calcutta) by a person "delivering to his creditor or his agent documents of title to immovable property with intent to create a security thereon." That is to say, when the debtor deposits with the creditor the title deeds of his property with intent to create a security, the law implies a contract between the parties to create a mortgage, and no registered instrument is required under S. 59 as in other forms of mortgage. But if the parties choose to reduce the contract to writing, the implication is excluded by their express bargain, and the document will be the sole evidence of its terms. In such a case the deposit and the document both form integral parts of the transaction and are essential ingredients in the creation of the mortgage. As the deposit alone is not intended to create the charge and the document, which constitutes the bargain regarding the security, is also necessary and operates to create the charge in conjunction with the deposit, it requires registration under S. 17, Registration Act, 1903, as a non-testamentary instrument creating an interest in immovable property, where the value of such Property is one hundred rupees and upwards. The time factor is not decisive. The document may be handed over to the creditor along with the title deeds and yet may not be registrable, as in Obla Sundarachariar v. Narayan Ayyar. Or, it may be delivered at a later date and nevertheless be registrable, as in Hari Sankar Paul v. Kedar Nath Saha. The crucial question is : Did the parties intend to reduce their bargain regarding the deposit of the title deeds to the form of a document ? If so, the document requires registration. If, on the other hand, its proper construction and the surrounding circumstances lead to the conclusion that the parties did not intend to do so, then, there being no express bargain, the contract to create the mortgage arises by implication of the law from the deposit itself with the requisite intention, and the document, being merely evidential does not require registration.(5) There are numerous decisions, some of them not easy to reconcile, where this question was considered with reference to the document concerned in the particular case. It is unnecessary to review them, as the two latest pronouncements of the Privy Council, to which reference has been made aptly illustrate cases falling on either side of the line. In Obla Sundarachariar v. Narayan Ayyar, a signed memorandum was delivered to the mortgages along with the title deeds of certain properties deposited as security. The memorandum stated As agreed upon in person, I have delivered to you the under-mentioned documents as security," and listed the title deeds deposited. It was held that the memorandum was no more than a mere record of the particulars of the deeds and did not require registration. The criterion applied was :"No such memorandum can be within the section (S. 17, Registration Act) unless on its face it embodies such terms and is signed and delivered at such time and place and in such circumstances as to lead legitimately to the conclusion that, so far as the deposit is concerned, it constitutes the agreement between the parties."In Hari Sankar v. Kedar Nath, the title deeds were deposited accompanied by a memorandum when part of the advance arranged for was made. Some days later when the balance was advanced, another memorandum was delivered superseding the earlier one, and this was a formal document stating the essential terms of the transaction "hereby agreed" and referred to the moneys "hereby secured." It also conferred an express power of sale on the mortgagee. Lord Macmillan, after reviewing the earlier decisions of the Board, held that the document required registration, observing"where, as here, the parties professing to create a mortgage by a deposit of title deeds contemporaneously enter into a contractual agreement in writing, which is made an integral part the transaction, and is itself an operative instrument and not merely evidential, such a document must, under the statute, be registered."(6) Turning now to the memorandum before us, it is clear, on the face of it, that the parties did not intend thereby to create the charge. The document purports only to record a transaction which had been concluded and under which the rights and liabilities had been orally agreed upon. No doubt it was taken by the respondents to show that the title deeds of the appellants properties were deposited with them as security for the moneys advanced by them, and to obviate a possible plea that the deeds were left with them for other purposes, as indeed was contended by the appellant in his written statement, taking advantage of the non-registration of the memorandum in question. But that is far from intending to return the bargain in writing and make the document the basis of the rights and liabilities of the parties, In agreement with the High Court, we are of opinion, that the memorandum delivered by the appellant along with the title deeds deposited with the respondents did not require registration and was properly admitted in evidence to prove the creation of the charge. | 0[ds](4) A mortgage by deposit of title deeds is a form of mortgage recognised by S. 58 (f), T. P. Act, which provides that it may be effected in certain towns (including Calcutta) by a person "delivering to his creditor or his agent documents of title to immovable property with intent to create a security thereon." That is to say, when the debtor deposits with the creditor the title deeds of his property with intent to create a security, the law implies a contract between the parties to create a mortgage, and no registered instrument is required under S. 59 as in other forms of mortgage. But if the parties choose to reduce the contract to writing, the implication is excluded by their express bargain, and the document will be the sole evidence of its terms. In such a case the deposit and the document both form integral parts of the transaction and are essential ingredients in the creation of the mortgage. As the deposit alone is not intended to create the charge and the document, which constitutes the bargain regarding the security, is also necessary and operates to create the charge in conjunction with the deposit, it requires registration under S. 17, Registration Act, 1903, as a non-testamentary instrument creating an interest in immovable property, where the value of such Property is one hundred rupees and upwards. The time factor is not decisive. The document may be handed over to the creditor along with the title deeds and yet may not be registrable, as in Obla Sundarachariar v. Narayan Ayyar. Or, it may be delivered at a later date and nevertheless be registrable, as in Hari Sankar Paul v. Kedar Nath Saha. The crucial question is : Didthe parties intend to reduce their bargain regarding the deposit of the title deeds to the form of a document? If so, the document requires registration. If, on the other hand, its proper construction and the surrounding circumstances lead to the conclusion that the parties did not intend to do so, then, there being no express bargain, the contract to create the mortgage arises by implication of the law from the deposit itself with the requisite intention, and the document, being merely evidential does not requireTurning now to the memorandum before us, it is clear, on the face of it, that the parties did not intend thereby to create the charge. The document purports only to record a transaction which had been concluded and under which the rights and liabilities had been orally agreed upon. No doubt it was taken by the respondents to show that the title deeds of the appellants properties were deposited with them as security for the moneys advanced by them, and to obviate a possible plea that the deeds were left with them for other purposes, as indeed was contended by the appellant in his written statement, taking advantage of the non-registration of the memorandum in question. But that is far from intending to return the bargain in writing and make the document the basis of the rights and liabilities of the parties, In agreement with the High Court, we are of opinion, that the memorandum delivered by the appellant along with the title deeds deposited with the respondents did not require registration and was properly admitted in evidence to prove the creation of the charge. | 0 | 1,463 | 619 | ### 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:
put on record that to secure the repayment of the money already due to you from us on account of the business transactions between yourselves and ourselves and the money that may hereafter become due on account of such transactions we have this day deposited with you the following title deeds in Calcutta at your place of business at No. 7, Sambhu Mullick Lane, relating to our properties at Samastipur with intent to create in equitable mortgage on the said properties to secure all moneys including interest that may be found due and payable by us to you on account of the said transactions . . . . ."(4) A mortgage by deposit of title deeds is a form of mortgage recognised by S. 58 (f), T. P. Act, which provides that it may be effected in certain towns (including Calcutta) by a person "delivering to his creditor or his agent documents of title to immovable property with intent to create a security thereon." That is to say, when the debtor deposits with the creditor the title deeds of his property with intent to create a security, the law implies a contract between the parties to create a mortgage, and no registered instrument is required under S. 59 as in other forms of mortgage. But if the parties choose to reduce the contract to writing, the implication is excluded by their express bargain, and the document will be the sole evidence of its terms. In such a case the deposit and the document both form integral parts of the transaction and are essential ingredients in the creation of the mortgage. As the deposit alone is not intended to create the charge and the document, which constitutes the bargain regarding the security, is also necessary and operates to create the charge in conjunction with the deposit, it requires registration under S. 17, Registration Act, 1903, as a non-testamentary instrument creating an interest in immovable property, where the value of such Property is one hundred rupees and upwards. The time factor is not decisive. The document may be handed over to the creditor along with the title deeds and yet may not be registrable, as in Obla Sundarachariar v. Narayan Ayyar. Or, it may be delivered at a later date and nevertheless be registrable, as in Hari Sankar Paul v. Kedar Nath Saha. The crucial question is : Did the parties intend to reduce their bargain regarding the deposit of the title deeds to the form of a document ? If so, the document requires registration. If, on the other hand, its proper construction and the surrounding circumstances lead to the conclusion that the parties did not intend to do so, then, there being no express bargain, the contract to create the mortgage arises by implication of the law from the deposit itself with the requisite intention, and the document, being merely evidential does not require registration.(5) There are numerous decisions, some of them not easy to reconcile, where this question was considered with reference to the document concerned in the particular case. It is unnecessary to review them, as the two latest pronouncements of the Privy Council, to which reference has been made aptly illustrate cases falling on either side of the line. In Obla Sundarachariar v. Narayan Ayyar, a signed memorandum was delivered to the mortgages along with the title deeds of certain properties deposited as security. The memorandum stated As agreed upon in person, I have delivered to you the under-mentioned documents as security," and listed the title deeds deposited. It was held that the memorandum was no more than a mere record of the particulars of the deeds and did not require registration. The criterion applied was :"No such memorandum can be within the section (S. 17, Registration Act) unless on its face it embodies such terms and is signed and delivered at such time and place and in such circumstances as to lead legitimately to the conclusion that, so far as the deposit is concerned, it constitutes the agreement between the parties."In Hari Sankar v. Kedar Nath, the title deeds were deposited accompanied by a memorandum when part of the advance arranged for was made. Some days later when the balance was advanced, another memorandum was delivered superseding the earlier one, and this was a formal document stating the essential terms of the transaction "hereby agreed" and referred to the moneys "hereby secured." It also conferred an express power of sale on the mortgagee. Lord Macmillan, after reviewing the earlier decisions of the Board, held that the document required registration, observing"where, as here, the parties professing to create a mortgage by a deposit of title deeds contemporaneously enter into a contractual agreement in writing, which is made an integral part the transaction, and is itself an operative instrument and not merely evidential, such a document must, under the statute, be registered."(6) Turning now to the memorandum before us, it is clear, on the face of it, that the parties did not intend thereby to create the charge. The document purports only to record a transaction which had been concluded and under which the rights and liabilities had been orally agreed upon. No doubt it was taken by the respondents to show that the title deeds of the appellants properties were deposited with them as security for the moneys advanced by them, and to obviate a possible plea that the deeds were left with them for other purposes, as indeed was contended by the appellant in his written statement, taking advantage of the non-registration of the memorandum in question. But that is far from intending to return the bargain in writing and make the document the basis of the rights and liabilities of the parties, In agreement with the High Court, we are of opinion, that the memorandum delivered by the appellant along with the title deeds deposited with the respondents did not require registration and was properly admitted in evidence to prove the creation of the charge.
### Response:
0
### Explanation:
(4) A mortgage by deposit of title deeds is a form of mortgage recognised by S. 58 (f), T. P. Act, which provides that it may be effected in certain towns (including Calcutta) by a person "delivering to his creditor or his agent documents of title to immovable property with intent to create a security thereon." That is to say, when the debtor deposits with the creditor the title deeds of his property with intent to create a security, the law implies a contract between the parties to create a mortgage, and no registered instrument is required under S. 59 as in other forms of mortgage. But if the parties choose to reduce the contract to writing, the implication is excluded by their express bargain, and the document will be the sole evidence of its terms. In such a case the deposit and the document both form integral parts of the transaction and are essential ingredients in the creation of the mortgage. As the deposit alone is not intended to create the charge and the document, which constitutes the bargain regarding the security, is also necessary and operates to create the charge in conjunction with the deposit, it requires registration under S. 17, Registration Act, 1903, as a non-testamentary instrument creating an interest in immovable property, where the value of such Property is one hundred rupees and upwards. The time factor is not decisive. The document may be handed over to the creditor along with the title deeds and yet may not be registrable, as in Obla Sundarachariar v. Narayan Ayyar. Or, it may be delivered at a later date and nevertheless be registrable, as in Hari Sankar Paul v. Kedar Nath Saha. The crucial question is : Didthe parties intend to reduce their bargain regarding the deposit of the title deeds to the form of a document? If so, the document requires registration. If, on the other hand, its proper construction and the surrounding circumstances lead to the conclusion that the parties did not intend to do so, then, there being no express bargain, the contract to create the mortgage arises by implication of the law from the deposit itself with the requisite intention, and the document, being merely evidential does not requireTurning now to the memorandum before us, it is clear, on the face of it, that the parties did not intend thereby to create the charge. The document purports only to record a transaction which had been concluded and under which the rights and liabilities had been orally agreed upon. No doubt it was taken by the respondents to show that the title deeds of the appellants properties were deposited with them as security for the moneys advanced by them, and to obviate a possible plea that the deeds were left with them for other purposes, as indeed was contended by the appellant in his written statement, taking advantage of the non-registration of the memorandum in question. But that is far from intending to return the bargain in writing and make the document the basis of the rights and liabilities of the parties, In agreement with the High Court, we are of opinion, that the memorandum delivered by the appellant along with the title deeds deposited with the respondents did not require registration and was properly admitted in evidence to prove the creation of the charge.
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FOOD CORPORATION OF INDIA Vs. BRIHANMUMBAI MAHANAGAR PALIKA & ORS | to pay municipal tax under Section 113(2) of the Gujarat Municipalities Act. In the above case there was no question pertaining to claim of any exemption from payment of tax from property of the Union. Thus, the above judgment in no manner helps the respondent in the present case. 43. The Division Bench of the High Court in the impugned judgment relying only on sub-section (1) of Section 146 held the appellant liable to pay property tax without giving any reason as to why the appellant is not entitled to exemption from payment of property tax under Article 285. The High Court has also not come to any conclusion that the Corporation is entitled to levy property tax on the strength of Article 285 clause (2). The judgment of the Division Bench, thus, cannot be sustained. 44. As noted above, learned counsel for the appellant during his submission has not disputed the liability of the Corporation to pay charges for services rendered by the Corporation including water charges. He has further stated that the Corporation is willing to pay amount in lieu of the general taxes as contemplated by Section 144 of 1888 Act. In paragraph 6 of Writ Petition No.2672 of 2001 filed by the appellant, liability to make payment of services charges or other services provided by the Corporation was not denied. We may further notice that in the Review Petition No.37 of 2016 which was filed by the appellant to review the judgment dated 05.05.2016 of the Division Bench of the Bombay High Court, in paragraph 20 following prayers were made: 20. Petitioner therefore pray that:- (a) This Honble Court may be pleased to call for the Records and Proceedings in Writ Petition No.2672 of 2001 and after going through the legality, validity and propriety thereof, review and/or revoke the Order of this Honble Court dated 05.05.2016 therein; (b) this Honble Court may be pleased to direct the Respondent Nos.1 and 2 to conduct an enquiry in accordance with the provisions of Sections 143 and 144 of The Mumbai Municipal Corporation Act, 1888 and decide the ratable value of the properties on which taxes were to be paid; (c) pending the hearing and final disposal of the Review Petition, the Respondent Nos. 1 and 2 may please be restrained from either demanding the Property Tax and/or issuing any fresh tax bill and/or adopting any coercive steps for recovery of any property tax against the Petitioner; (d) cost of the Petition may please be provided for; (e) for such further and other reliefs as nature of the case may require. 45. From the above, it is clear that the appellant is not denying its liability to pay services charges and direction was sought to respondents to conduct an enquiry in accordance with the provisions of The Mumbai Municipal Corporation Act, 1888 and decide the ratable value of the properties on which taxes were to be paid. 46. At this stage, we may also notice the judgment of this Court in Union of India and others vs. State of Uttar Pradesh and others, (2007) 11 SCC 324 , wherein it is held that water charges and sewerage charges levied by the Jal Sansthan against the Railways for the services rendered by Sansthan were termed as taxes, charges were not taxes but fees for the services rendered by the Jal Sansthan which are not precluded by Article 285. This Court in paragraphs 11 and 23 laid down following: 11. The distinction has to be kept in mind between a tax and a fee. Exemption under Article 285 is on the levy of any tax on the property of the Union by the State, and exemption is not for charges for the services rendered by the State or its instrumentality which in reality amounts to a fee. In this connection, a reference was made to the decision of this Court in Sea Customs Act (1878), S. 20(2), In re 3 . This was a case in which a reference was made by the President of India with regard to levy of customs and excise duties on the State under Article 289 of the Constitution of India wherein Sinha, C.J., Gajendragadkar, Wanchoo and Shah, JJ. answered the question at para 31 as follows: (AIR p. 1777) 31. For the reasons given above, it must be held that the immunity granted to the States in respect of Union taxation does not extend to duties of customs including export duties or duties of excise. The answer to the three questions referred to us must, therefore, be in the negative.23. In this case what is being charged is for service rendered by the Jal Sansthan i.e. an instrumentality of the State under the Act of 1975. Section 52 of the Act states that the Jal Sansthan can levy tax, fee and charge for water supply and for sewerage services rendered by it as water tax and sewerage tax at the rates mentioned therein. Though the charge was loosely termed as tax but as already mentioned before, nomenclature is not important. In substance what is being charged is fee for the supply of water as well as maintenance of the sewerage system. Therefore, in our opinion, such service charges are a fee and cannot be said to be hit by Article 285 of the Constitution. In this context it is to be made clear that what is exempted by Article 285 is a tax on the property of the Union of India but not a charge for services which are being rendered in the nature of water supply, for maintenance of sewerage system. Therefore, in our opinion, the view taken by the Division Bench of the Allahabad High Court is correct that the charge is a fee, being service charges for supply of water and maintenance of sewerage system, which cannot be said to be tax on the property of the Union. Hence it is not violative of the provisions of Article 285 of the Constitution. | 1[ds]As noticed above, the land was acquired by the State of Bombay for the Central Government and it was the Central Government, which constructed the godowns thereon. The earlier Division Bench judgment of Bombay High Court dated 03.12.1992 in Civil Appeal No. 259 of 1989 has been referred to and relied by the appellant, by which judgment, the Division Bench has set aside the levy of non-agricultural assessments as imposed on the appellant. The Division Bench in the above judgment has also accepted the case of the appellant that legal ownership of the land and the structures vests with the Government27. The above Constitution Bench judgment of this Court clearly lays down that exemption from payment of taxes on the properties of Central Government as available under clause (1) of Article 285 can be denied only when the property in question was exigible to the Municipal Tax prior to the commencement of the Constitution or any Parliamentary law provides for properties to be exigible to pay tax to the Municipality31. From the above discussion we arrive at the conclusion that for the applicability of clause (2) of Article 285, the property on which tax is sought to be proposed ought to have been subject to property tax before the commencement of the Constitution. Since, object of the Article 285(2) of the Constitution was to continue the levy of the such tax which local authority was enjoying prior to the commencement of the Constitution so as to maintain the status quo regarding the financial resources of Municipal Corporation to avoid the complete exemption from property of Central Government as provided under Article 285(1). In the present case the constructions on which the property tax is sought to be imposed by Municipal Corporation came into existence only after 1964 and were not subject to property tax prior to the commencement of the Constitution, hence condition for applicability of Article 285(2) is not satisfied. Resultantly the Municipal Corporation is not competent to impose property tax denying the exemption under Article 285(1) of the Constitution.34. There cannot be any dispute to the proposition laid down by this Court in Food Corporation of India vs. Municipal Committee, Jalalabad (supra) and by the Constitution Bench in Electronics Corporation of India Ltd. (supra) Article 285 does not apply when the property that is to be taxed is not of the Union of India but a distinct and separate legal entity. Had the property in question which is sought to be taxed belonged to the Food Corporation of India, in the present case, the judgment of this Court in Municipal Committee, Jalalabad (supra) as well as Electronics Corporation of India Ltd. (supra) would have applied in full force, but in the present case the property being that of the Central Government, both the above judgments are not applicable36. The heading of Section 146 is Primary responsibility for property taxes from whom to rest. When there is a claim of exemption from payment of property tax with regard to property owned by the Government of India, the question of primary responsibility or secondary responsibility loses its importance. When payment of property tax is exempt under Article 285(1) to tax the occupier runs counter to the very claim of exemption as delineated by Article285. Section 146 of 1888 Act as it exists now has to be construed in a manner so as to give effect to the meaning and purpose of Constitutional protection granted under Article 285. The statutory provision, may it be Section 146 of 1888 Act, cannot be read in a manner so as to run contrary to a Constitutional provision37. In the event the claim of Municipality/Corporation to levy property tax is not covered by sub-clause (2) of Article 285, it cannot be allowed to take recourse to any statutory provision or device to make exemption under Article 285(1) nugatory. We are, thus, not persuaded to accept the submission of Shri Shishodia that since the appellant is occupier of premises owned by Union of India, is liable to pay property tax under Section 146(1) of 1888 Act. Both the premises and building therein are entitled for exemption from payment of property tax under Article 285(1). At this stage, it is required to be noted that the FCI is not in occupation of the godowns owned by the Government of India as a lessee. Nothing is on record and it is also not the case on behalf of the Corporation that any rent/lease amount is being recovered from the FCI. It appears that FCI is permitted to occupy and use the godowns owned by the Government of India for the purpose of storage of the goods which are required to be transported to the different Fair Price Shops under the public distribution system40. No exception can be taken to the above judgment of Gujarat High Court which has correctly relied on this Courts judgment in Food Corporation of India vs. Municipal Committee, Jalalabad (supra) and Electronics Corporation of India Ltd. (supra) when the property belonged to Corporation who has constructed the godowns, it was liable to pay municipal taxes and the Division Bench has rightly dismissed the appeal. The above judgment does not help the respondent, since, in the present case the construction was made by the Government of India and ownership of the Government of India of the premises including the construction in the present case has not been questioned42. The above judgment of the Gujarat High Court was on its own facts and was based on liability to pay municipal tax under Section 113(2) of the Gujarat Municipalities Act. In the above case there was no question pertaining to claim of any exemption from payment of tax from property of the Union. Thus, the above judgment in no manner helps the respondent in the present case43. The Division Bench of the High Court in the impugned judgment relying only on sub-section (1) of Section 146 held the appellant liable to pay property tax without giving any reason as to why the appellant is not entitled to exemption from payment of property tax under Article 285. The High Court has also not come to any conclusion that the Corporation is entitled to levy property tax on the strength of Article 285 clause (2). The judgment of the Division Bench, thus, cannot be sustained.45. From the above, it is clear that the appellant is not denying its liability to pay services charges and direction was sought to respondents to conduct an enquiry in accordance with the provisions of The Mumbai Municipal Corporation Act, 1888 and decide the ratable value of the properties on which taxes were to be paid46. At this stage, we may also notice the judgment of this Court in Union of India and others vs. State of Uttar Pradesh and others, (2007) 11 SCC 324 , wherein it is held that water charges and sewerage charges levied by the Jal Sansthan against the Railways for the services rendered by Sansthan were termed as taxes, charges were not taxes but fees for the services rendered by the Jal Sansthan which are not precluded by Article 285. This Court in paragraphs 11 and 23 laid down following:11. The distinction has to be kept in mind between a tax and a fee. Exemption under Article 285 is on the levy of any tax on the property of the Union by the State, and exemption is not for charges for the services rendered by the State or its instrumentality which in reality amounts to a fee. In this connection, a reference was made to the decision of this Court in Sea Customs Act (1878), S. 20(2), In re 3 . This was a case in which a reference was made by the President of India with regard to levy of customs and excise duties on the State under Article 289 of the Constitution of India wherein Sinha, C.J., Gajendragadkar, Wanchoo and Shah, JJ. answered the question at para 31 as follows: (AIR p. 1777)31. For the reasons given above, it must be held that the immunity granted to the States in respect of Union taxation does not extend to duties of customs including export duties or duties of excise. The answer to the three questions referred to us must, therefore, be in the negative23. In this case what is being charged is for service rendered by the Jal Sansthan i.e. an instrumentality of the State under the Act of 1975. Section 52 of the Act states that the Jal Sansthan can levy tax, fee and charge for water supply and for sewerage services rendered by it as water tax and sewerage tax at the rates mentioned therein. Though the charge was loosely termed as tax but as already mentioned before, nomenclature is not important. In substance what is being charged is fee for the supply of water as well as maintenance of the sewerage system. Therefore, in our opinion, such service charges are a fee and cannot be said to be hit by Article 285 of the Constitution. In this context it is to be made clear that what is exempted by Article 285 is a tax on the property of the Union of India but not a charge for services which are being rendered in the nature of water supply, for maintenance of sewerage system. Therefore, in our opinion, the view taken by the Division Bench of the Allahabad High Court is correct that the charge is a fee, being service charges for supply of water and maintenance of sewerage system, which cannot be said to be tax on the property of the Union. Hence it is not violative of the provisions of Article 285 of the Constitution. | 1 | 13,609 | 1,791 | ### Instruction:
Predict the outcome of the case proceeding (1 for acceptance, 0 for rejection) and subsequently provide an explanation based on significant sentences in the proceeding.
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to pay municipal tax under Section 113(2) of the Gujarat Municipalities Act. In the above case there was no question pertaining to claim of any exemption from payment of tax from property of the Union. Thus, the above judgment in no manner helps the respondent in the present case. 43. The Division Bench of the High Court in the impugned judgment relying only on sub-section (1) of Section 146 held the appellant liable to pay property tax without giving any reason as to why the appellant is not entitled to exemption from payment of property tax under Article 285. The High Court has also not come to any conclusion that the Corporation is entitled to levy property tax on the strength of Article 285 clause (2). The judgment of the Division Bench, thus, cannot be sustained. 44. As noted above, learned counsel for the appellant during his submission has not disputed the liability of the Corporation to pay charges for services rendered by the Corporation including water charges. He has further stated that the Corporation is willing to pay amount in lieu of the general taxes as contemplated by Section 144 of 1888 Act. In paragraph 6 of Writ Petition No.2672 of 2001 filed by the appellant, liability to make payment of services charges or other services provided by the Corporation was not denied. We may further notice that in the Review Petition No.37 of 2016 which was filed by the appellant to review the judgment dated 05.05.2016 of the Division Bench of the Bombay High Court, in paragraph 20 following prayers were made: 20. Petitioner therefore pray that:- (a) This Honble Court may be pleased to call for the Records and Proceedings in Writ Petition No.2672 of 2001 and after going through the legality, validity and propriety thereof, review and/or revoke the Order of this Honble Court dated 05.05.2016 therein; (b) this Honble Court may be pleased to direct the Respondent Nos.1 and 2 to conduct an enquiry in accordance with the provisions of Sections 143 and 144 of The Mumbai Municipal Corporation Act, 1888 and decide the ratable value of the properties on which taxes were to be paid; (c) pending the hearing and final disposal of the Review Petition, the Respondent Nos. 1 and 2 may please be restrained from either demanding the Property Tax and/or issuing any fresh tax bill and/or adopting any coercive steps for recovery of any property tax against the Petitioner; (d) cost of the Petition may please be provided for; (e) for such further and other reliefs as nature of the case may require. 45. From the above, it is clear that the appellant is not denying its liability to pay services charges and direction was sought to respondents to conduct an enquiry in accordance with the provisions of The Mumbai Municipal Corporation Act, 1888 and decide the ratable value of the properties on which taxes were to be paid. 46. At this stage, we may also notice the judgment of this Court in Union of India and others vs. State of Uttar Pradesh and others, (2007) 11 SCC 324 , wherein it is held that water charges and sewerage charges levied by the Jal Sansthan against the Railways for the services rendered by Sansthan were termed as taxes, charges were not taxes but fees for the services rendered by the Jal Sansthan which are not precluded by Article 285. This Court in paragraphs 11 and 23 laid down following: 11. The distinction has to be kept in mind between a tax and a fee. Exemption under Article 285 is on the levy of any tax on the property of the Union by the State, and exemption is not for charges for the services rendered by the State or its instrumentality which in reality amounts to a fee. In this connection, a reference was made to the decision of this Court in Sea Customs Act (1878), S. 20(2), In re 3 . This was a case in which a reference was made by the President of India with regard to levy of customs and excise duties on the State under Article 289 of the Constitution of India wherein Sinha, C.J., Gajendragadkar, Wanchoo and Shah, JJ. answered the question at para 31 as follows: (AIR p. 1777) 31. For the reasons given above, it must be held that the immunity granted to the States in respect of Union taxation does not extend to duties of customs including export duties or duties of excise. The answer to the three questions referred to us must, therefore, be in the negative.23. In this case what is being charged is for service rendered by the Jal Sansthan i.e. an instrumentality of the State under the Act of 1975. Section 52 of the Act states that the Jal Sansthan can levy tax, fee and charge for water supply and for sewerage services rendered by it as water tax and sewerage tax at the rates mentioned therein. Though the charge was loosely termed as tax but as already mentioned before, nomenclature is not important. In substance what is being charged is fee for the supply of water as well as maintenance of the sewerage system. Therefore, in our opinion, such service charges are a fee and cannot be said to be hit by Article 285 of the Constitution. In this context it is to be made clear that what is exempted by Article 285 is a tax on the property of the Union of India but not a charge for services which are being rendered in the nature of water supply, for maintenance of sewerage system. Therefore, in our opinion, the view taken by the Division Bench of the Allahabad High Court is correct that the charge is a fee, being service charges for supply of water and maintenance of sewerage system, which cannot be said to be tax on the property of the Union. Hence it is not violative of the provisions of Article 285 of the Constitution.
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### Explanation:
of Article 285, it cannot be allowed to take recourse to any statutory provision or device to make exemption under Article 285(1) nugatory. We are, thus, not persuaded to accept the submission of Shri Shishodia that since the appellant is occupier of premises owned by Union of India, is liable to pay property tax under Section 146(1) of 1888 Act. Both the premises and building therein are entitled for exemption from payment of property tax under Article 285(1). At this stage, it is required to be noted that the FCI is not in occupation of the godowns owned by the Government of India as a lessee. Nothing is on record and it is also not the case on behalf of the Corporation that any rent/lease amount is being recovered from the FCI. It appears that FCI is permitted to occupy and use the godowns owned by the Government of India for the purpose of storage of the goods which are required to be transported to the different Fair Price Shops under the public distribution system40. No exception can be taken to the above judgment of Gujarat High Court which has correctly relied on this Courts judgment in Food Corporation of India vs. Municipal Committee, Jalalabad (supra) and Electronics Corporation of India Ltd. (supra) when the property belonged to Corporation who has constructed the godowns, it was liable to pay municipal taxes and the Division Bench has rightly dismissed the appeal. The above judgment does not help the respondent, since, in the present case the construction was made by the Government of India and ownership of the Government of India of the premises including the construction in the present case has not been questioned42. The above judgment of the Gujarat High Court was on its own facts and was based on liability to pay municipal tax under Section 113(2) of the Gujarat Municipalities Act. In the above case there was no question pertaining to claim of any exemption from payment of tax from property of the Union. Thus, the above judgment in no manner helps the respondent in the present case43. The Division Bench of the High Court in the impugned judgment relying only on sub-section (1) of Section 146 held the appellant liable to pay property tax without giving any reason as to why the appellant is not entitled to exemption from payment of property tax under Article 285. The High Court has also not come to any conclusion that the Corporation is entitled to levy property tax on the strength of Article 285 clause (2). The judgment of the Division Bench, thus, cannot be sustained.45. From the above, it is clear that the appellant is not denying its liability to pay services charges and direction was sought to respondents to conduct an enquiry in accordance with the provisions of The Mumbai Municipal Corporation Act, 1888 and decide the ratable value of the properties on which taxes were to be paid46. At this stage, we may also notice the judgment of this Court in Union of India and others vs. State of Uttar Pradesh and others, (2007) 11 SCC 324 , wherein it is held that water charges and sewerage charges levied by the Jal Sansthan against the Railways for the services rendered by Sansthan were termed as taxes, charges were not taxes but fees for the services rendered by the Jal Sansthan which are not precluded by Article 285. This Court in paragraphs 11 and 23 laid down following:11. The distinction has to be kept in mind between a tax and a fee. Exemption under Article 285 is on the levy of any tax on the property of the Union by the State, and exemption is not for charges for the services rendered by the State or its instrumentality which in reality amounts to a fee. In this connection, a reference was made to the decision of this Court in Sea Customs Act (1878), S. 20(2), In re 3 . This was a case in which a reference was made by the President of India with regard to levy of customs and excise duties on the State under Article 289 of the Constitution of India wherein Sinha, C.J., Gajendragadkar, Wanchoo and Shah, JJ. answered the question at para 31 as follows: (AIR p. 1777)31. For the reasons given above, it must be held that the immunity granted to the States in respect of Union taxation does not extend to duties of customs including export duties or duties of excise. The answer to the three questions referred to us must, therefore, be in the negative23. In this case what is being charged is for service rendered by the Jal Sansthan i.e. an instrumentality of the State under the Act of 1975. Section 52 of the Act states that the Jal Sansthan can levy tax, fee and charge for water supply and for sewerage services rendered by it as water tax and sewerage tax at the rates mentioned therein. Though the charge was loosely termed as tax but as already mentioned before, nomenclature is not important. In substance what is being charged is fee for the supply of water as well as maintenance of the sewerage system. Therefore, in our opinion, such service charges are a fee and cannot be said to be hit by Article 285 of the Constitution. In this context it is to be made clear that what is exempted by Article 285 is a tax on the property of the Union of India but not a charge for services which are being rendered in the nature of water supply, for maintenance of sewerage system. Therefore, in our opinion, the view taken by the Division Bench of the Allahabad High Court is correct that the charge is a fee, being service charges for supply of water and maintenance of sewerage system, which cannot be said to be tax on the property of the Union. Hence it is not violative of the provisions of Article 285 of the Constitution.
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M/s. Uniplas India Ltd. and Ors Vs. State and Anr | (c) if it is proved to the satisfaction of the Court that the company is unable to pay its debts and, in determining whether a company is unable to pay its debts, the Court shall take into account the contingent and prospective liabilities of the company. (2) The demand referred to in Clause (a) of Sub-section (1) shall be deemed to have been duly given under the hand of the creditor if it is signed by any agent or legal adviser duly authorised on his behalf, or in the case of a firm, if it is signed by any such agent or legal adviser or by any member of the firm. 8. What is provided in the section is that a creditor should make a demand requiring the company to pay the amount due to the creditor. The mode of making such demand is also delineated in the section. If any such demand is made, could it be said that such demand would be useful only for the purpose of winding up of the company? Clause (b) of the proviso to Section 138 of the NI Act also contemplates the making of a demand for payment of the cheque amount as an indispensable step to snowball into a cause of action. The said proviso is extracted below for being used in this context : (b) the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice, in writing, to the drawer of the cheque, within fifteen days of the receipt of information by him from the Bank regarding the return of the cheque as unpaid. 9. If any notice is issued under Section 434 of the Companies Act within 15 days of the information from the Bank regarding return of the cheque drawn by a company as unpaid, such a notice would as well be good enough under Clause (b) of the proviso to Section 138 of the NI Act. This Court has held in Sadanandan Bhadran (supra) that a complainant cannot create successive causes of action with the same cheque. If no complaint is filed on the first cause of action the payee is disentitled to create another cause of action to file a complaint for the purpose of launching a prosecution on it. Para 6 of the said decision contains the thrust of the reasoning. After referring to the four factual premises necessary to concatenate into a cause of action M.K. Mukherjee, J. has said thus : If we were to proceed on the basis of the generic meaning of the term cause of action, certainly each of the above facts would constitute a part of the cause of action but then it is significant to note that Clause (b) of Section 142 gives it a restrictive meaning, in that, it refers to only one fact which will give rise to the cause of action and that is the failure to make the payment within 15 days from the date of the receipt of the notice. The reason behind giving such a restrictive meaning is not far to seek. Consequent upon the failure of the drawer to pay the money within the period of 15 days as envisaged under Clause (c) of the proviso to Section 138, the liability of the drawer for being prosecuted for the offence he has committed arises, and the period of one month for filing the complaint under Section 142 is to be reckoned accordingly. The combined reading of the above two sections of Act leaves no room for doubt that cause of action within the meaning of Section 142(c) arises — and can arise — only once. 10. The said decision was followed by this Court in SIL Import, USA v. Exim Aides Silk Exporters, Bangalore, III (1999) CCR 15 (SC)=IV (1999) SLT 317=I (2000) BC 668 (SC)=1999 (4) SCC 567 . 11. One of the indispensable factors to form the cause of action envisaged in Section 138 of the NI Act is contained in Clause (b) of the proviso to that section. It involves the making of a demand by giving a notice in writing to the drawer of the cheque within fifteen days of receipt of information by him from the bank regarding the return of the cheque as unpaid. If no such notice is given within the said period of 15 days no cause of action could have been created at all. 12. Thus, it is well neigh settled that if dishonour of a cheque has once snowballed into a cause of action it is not permissible for a payee to create another cause of action with the same cheque. The question in this case is, did the payee issue notice within 15 days after the first dishonour of the cheque. The question can as well be put in another form. Was the notice dated 1.12.1995 within 15 days of the date of intimation from the bank regarding dishonour, or was it sent after that period of 15 days ? In fact, that is the crux of the issue involved in this case. 13. Appellants have not stated that the interval between the date of the earlier dishonour of the cheque and the notice dated 1.12.1995 did not exceed the statutory period of 15 days. To a query by us learned Counsel for the appellants candidly admitted that the notice of 1.12.1995 was issued only after the expiry of 15 days from receipt of the intimation from Bank regarding the dishonour. If so the said dishonour remained without any further escalation and need not snowball into a cause of action. Its corollary is that the payee was not prevented from presenting the cheque once again within the permitted period and to make use of such presentation and the subsequent dishonour for a cause of action to be founded for launching a complaint as in the present case. 14. | 0[ds]. If any notice is issued under Section 434 of the Companies Act within 15 days of the information from the Bank regarding return of the cheque drawn by a company as unpaid, such a notice would as well be good enough under Clause (b) of the proviso to Section 138 of the NI Act. This Court has held in Sadanandan Bhadran (supra) that a complainant cannot create successive causes of action with the same cheque. If no complaint is filed on the first cause of action the payee is disentitled to create another cause of action to file a complaint for the purpose of launching a prosecution on it. Para 6 of the said decision contains the thrust of the reasoning. After referring to the four factual premises necessary to concatenate into a cause of action M.K. Mukherjee, J. has said thus :If we were to proceed on the basis of the generic meaning of the term cause of action, certainly each of the above facts would constitute a part of the cause of action but then it is significant to note that Clause (b) of Section 142 gives it a restrictive meaning, in that, it refers to only one fact which will give rise to the cause of action and that is the failure to make the payment within 15 days from the date of the receipt of the notice. The reason behind giving such a restrictive meaning is not far to seek. Consequent upon the failure of the drawer to pay the money within the period of 15 days as envisaged under Clause (c) of the proviso to Section 138, the liability of the drawer for being prosecuted for the offence he has committed arises, and the period of one month for filing the complaint under Section 142 is to be reckoned accordingly. The combined reading of the above two sections of Act leaves no room for doubt that cause of action within the meaning of Section 142(c) arises — and can arise — only once10. The said decision was followed by this Court in SIL Import, USA v. Exim Aides Silk Exporters, Bangalore, III (1999) CCR 15 (SC)=IV (1999) SLT 317=I (2000) BC 668 (SC)=1999 (4) SCC 567 11. One of the indispensable factors to form the cause of action envisaged in Section 138 of the NI Act is contained in Clause (b) of the proviso to that section. It involves the making of a demand by giving a notice in writing to the drawer of the cheque within fifteen days of receipt of information by him from the bank regarding the return of the cheque as unpaid. If no such notice is given within the said period of 15 days no cause of action could have been created at all12. Thus, it is well neigh settled that if dishonour of a cheque has once snowballed into a cause of action it is not permissible for a payee to create another cause of action with the same cheque. The question in this case is, did the payee issue notice within 15 days after the first dishonour of the cheque. The question can as well be put in another form. Was the notice dated 1.12.1995 within 15 days of the date of intimation from the bank regarding dishonour, or was it sent after that period of 15 days ? In fact, that is the crux of the issue involved in this case13. Appellants have not stated that the interval between the date of the earlier dishonour of the cheque and the notice dated 1.12.1995 did not exceed the statutory period of 15 days. To a query by us learned Counsel for the appellants candidly admitted that the notice of 1.12.1995 was issued only after the expiry of 15 days from receipt of the intimation from Bank regarding the dishonour. If so the said dishonour remained without any further escalation and need not snowball into a cause of action. Its corollary is that the payee was not prevented from presenting the cheque once again within the permitted period and to make use of such presentation and the subsequent dishonour for a cause of action to be founded for launching a complaint as in the present case. | 0 | 2,131 | 776 | ### Instruction:
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(c) if it is proved to the satisfaction of the Court that the company is unable to pay its debts and, in determining whether a company is unable to pay its debts, the Court shall take into account the contingent and prospective liabilities of the company. (2) The demand referred to in Clause (a) of Sub-section (1) shall be deemed to have been duly given under the hand of the creditor if it is signed by any agent or legal adviser duly authorised on his behalf, or in the case of a firm, if it is signed by any such agent or legal adviser or by any member of the firm. 8. What is provided in the section is that a creditor should make a demand requiring the company to pay the amount due to the creditor. The mode of making such demand is also delineated in the section. If any such demand is made, could it be said that such demand would be useful only for the purpose of winding up of the company? Clause (b) of the proviso to Section 138 of the NI Act also contemplates the making of a demand for payment of the cheque amount as an indispensable step to snowball into a cause of action. The said proviso is extracted below for being used in this context : (b) the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice, in writing, to the drawer of the cheque, within fifteen days of the receipt of information by him from the Bank regarding the return of the cheque as unpaid. 9. If any notice is issued under Section 434 of the Companies Act within 15 days of the information from the Bank regarding return of the cheque drawn by a company as unpaid, such a notice would as well be good enough under Clause (b) of the proviso to Section 138 of the NI Act. This Court has held in Sadanandan Bhadran (supra) that a complainant cannot create successive causes of action with the same cheque. If no complaint is filed on the first cause of action the payee is disentitled to create another cause of action to file a complaint for the purpose of launching a prosecution on it. Para 6 of the said decision contains the thrust of the reasoning. After referring to the four factual premises necessary to concatenate into a cause of action M.K. Mukherjee, J. has said thus : If we were to proceed on the basis of the generic meaning of the term cause of action, certainly each of the above facts would constitute a part of the cause of action but then it is significant to note that Clause (b) of Section 142 gives it a restrictive meaning, in that, it refers to only one fact which will give rise to the cause of action and that is the failure to make the payment within 15 days from the date of the receipt of the notice. The reason behind giving such a restrictive meaning is not far to seek. Consequent upon the failure of the drawer to pay the money within the period of 15 days as envisaged under Clause (c) of the proviso to Section 138, the liability of the drawer for being prosecuted for the offence he has committed arises, and the period of one month for filing the complaint under Section 142 is to be reckoned accordingly. The combined reading of the above two sections of Act leaves no room for doubt that cause of action within the meaning of Section 142(c) arises — and can arise — only once. 10. The said decision was followed by this Court in SIL Import, USA v. Exim Aides Silk Exporters, Bangalore, III (1999) CCR 15 (SC)=IV (1999) SLT 317=I (2000) BC 668 (SC)=1999 (4) SCC 567 . 11. One of the indispensable factors to form the cause of action envisaged in Section 138 of the NI Act is contained in Clause (b) of the proviso to that section. It involves the making of a demand by giving a notice in writing to the drawer of the cheque within fifteen days of receipt of information by him from the bank regarding the return of the cheque as unpaid. If no such notice is given within the said period of 15 days no cause of action could have been created at all. 12. Thus, it is well neigh settled that if dishonour of a cheque has once snowballed into a cause of action it is not permissible for a payee to create another cause of action with the same cheque. The question in this case is, did the payee issue notice within 15 days after the first dishonour of the cheque. The question can as well be put in another form. Was the notice dated 1.12.1995 within 15 days of the date of intimation from the bank regarding dishonour, or was it sent after that period of 15 days ? In fact, that is the crux of the issue involved in this case. 13. Appellants have not stated that the interval between the date of the earlier dishonour of the cheque and the notice dated 1.12.1995 did not exceed the statutory period of 15 days. To a query by us learned Counsel for the appellants candidly admitted that the notice of 1.12.1995 was issued only after the expiry of 15 days from receipt of the intimation from Bank regarding the dishonour. If so the said dishonour remained without any further escalation and need not snowball into a cause of action. Its corollary is that the payee was not prevented from presenting the cheque once again within the permitted period and to make use of such presentation and the subsequent dishonour for a cause of action to be founded for launching a complaint as in the present case. 14.
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. If any notice is issued under Section 434 of the Companies Act within 15 days of the information from the Bank regarding return of the cheque drawn by a company as unpaid, such a notice would as well be good enough under Clause (b) of the proviso to Section 138 of the NI Act. This Court has held in Sadanandan Bhadran (supra) that a complainant cannot create successive causes of action with the same cheque. If no complaint is filed on the first cause of action the payee is disentitled to create another cause of action to file a complaint for the purpose of launching a prosecution on it. Para 6 of the said decision contains the thrust of the reasoning. After referring to the four factual premises necessary to concatenate into a cause of action M.K. Mukherjee, J. has said thus :If we were to proceed on the basis of the generic meaning of the term cause of action, certainly each of the above facts would constitute a part of the cause of action but then it is significant to note that Clause (b) of Section 142 gives it a restrictive meaning, in that, it refers to only one fact which will give rise to the cause of action and that is the failure to make the payment within 15 days from the date of the receipt of the notice. The reason behind giving such a restrictive meaning is not far to seek. Consequent upon the failure of the drawer to pay the money within the period of 15 days as envisaged under Clause (c) of the proviso to Section 138, the liability of the drawer for being prosecuted for the offence he has committed arises, and the period of one month for filing the complaint under Section 142 is to be reckoned accordingly. The combined reading of the above two sections of Act leaves no room for doubt that cause of action within the meaning of Section 142(c) arises — and can arise — only once10. The said decision was followed by this Court in SIL Import, USA v. Exim Aides Silk Exporters, Bangalore, III (1999) CCR 15 (SC)=IV (1999) SLT 317=I (2000) BC 668 (SC)=1999 (4) SCC 567 11. One of the indispensable factors to form the cause of action envisaged in Section 138 of the NI Act is contained in Clause (b) of the proviso to that section. It involves the making of a demand by giving a notice in writing to the drawer of the cheque within fifteen days of receipt of information by him from the bank regarding the return of the cheque as unpaid. If no such notice is given within the said period of 15 days no cause of action could have been created at all12. Thus, it is well neigh settled that if dishonour of a cheque has once snowballed into a cause of action it is not permissible for a payee to create another cause of action with the same cheque. The question in this case is, did the payee issue notice within 15 days after the first dishonour of the cheque. The question can as well be put in another form. Was the notice dated 1.12.1995 within 15 days of the date of intimation from the bank regarding dishonour, or was it sent after that period of 15 days ? In fact, that is the crux of the issue involved in this case13. Appellants have not stated that the interval between the date of the earlier dishonour of the cheque and the notice dated 1.12.1995 did not exceed the statutory period of 15 days. To a query by us learned Counsel for the appellants candidly admitted that the notice of 1.12.1995 was issued only after the expiry of 15 days from receipt of the intimation from Bank regarding the dishonour. If so the said dishonour remained without any further escalation and need not snowball into a cause of action. Its corollary is that the payee was not prevented from presenting the cheque once again within the permitted period and to make use of such presentation and the subsequent dishonour for a cause of action to be founded for launching a complaint as in the present case.
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M/S. Ngef Ltd Vs. M/S. Chandra Developers Pvt. Ltd. | the question as to whether the impugned order is contrary to the statutory provisions contained in sub-section (4) of Section 20, we have thought it proper to consider the same. 61. The Company Judge moreover will have to bear in mind the provisions contained in Section 529-A of the Companies Act in terms whereof the dues of the workman and the debts due to the secured creditors to the extent such debts rank in clause (c) of the proviso appended to sub- section (1) of Section 529 pari passu therewith and shall have a priority over all other debts. 62. In Andhra Bank vs. Official Liquidator and Another [(2005) 5 SCC 75] , a three-Judge Bench of this Court, observed : "Section 446 of the Companies Act indisputably confers a wide power upon the Company Judge, but such a power can be exercised only upon consideration of the respective contentions of the parties raised in a suit or a proceeding or any claim made by or against the company. A question of determining the priorities would also fall for consideration if the parties claiming the same are before the court. Section 446 of the Companies Act ipso facto confers no power upon the court to pass interlocutory orders. The question as to whether the courts have inherent power to pass such orders, in our opinion, does not arise for consideration in this proceeding. Assuming such a power exists, it was imperative that the same should have been exercised on consideration of the factors laid down by this Court in Morgan Stanley Mutual Fund etc. vs. Kartick Das etc. [(1994) 4 SCC 225] . An unreasoned order does not subserve the doctrine of fair play [See M/s. Mangalore Ganesh Beedi Works Vs. The Commissioner of Income Tax, Mysore and Anr. JT 2005 (2) SC 442 ]". 63. It was further observed that for judging the correctness of an equitable order even the subsequent events can be taken into consideration. In any view of the matter an equitable order passed by a Company Court in exercise of its inherent jurisdiction or otherwise must conform to the requirements of the relevant statutes. [See Manohar Lal Chopra vs. Rai Bahadur Rao Raja Seth Hiralal -AIR 1962 SC 527 , Vareed Jacob vs. Sosamma Geevarghese and Others (2004) 6 SCC 378 & National Institute of Mental Health & Neuro Sciences vs. C. Parameshwara (2005) 2 SCC 256 ] 64. In re A.I. Levy (Holdings) Ltd. [1964 (1) Chancery Division 19] Buckley J. while considering the provisions of Section 227 of the English Companies Act which is pari materia with Section 536(2) of the Indian Companies Act, opined that the object of the said section was to protect the interests of the creditors from the possible unfortunate results which would ensue from the presentation of a petition and to protect their interests as much during the period while the petition was pending as after an order has been made on it. The said decision, therefore, does not lay down a law that the provision of Section 536(2) of the Act is meant to benefit the vendee. In fact such a provision enures to the benefit of the creditors. A Company Judge granting sanction in terms of the aforementioned provision, thus, has a duty to see that the transaction is one which must benefit the unsecured creditors of the company. 65. In A.I. Levy (Holdings) Ltd. (supra) it was held: "In these circumstances, this being a case in which it appears to me to be manifest that the transaction is one which must benefit the unsecured creditors of the company if in due course a winding up order is made, the reason which affected Vaisey J.s mind, that is to say, that the liquidator should be given an opportunity to investigate the matter and bring it before the court representing the interests of all the creditors, does not affect my mind, for I do not think the liquidator could make the position clearer to me than it is at the present time on the facts." CONCLUSION: 66. BIFR had admittedly power to sell the assets of the Company but the High Court until a winding up order is issued does not have the same. BIFR in its order dated 02.08.2002 might have made an observation to the effect that the Company may approach the High Court in case it intended to dispose of its property by private negotiation but the same would not mean that BIFR could delegate its power in favour of the High Court. BIFR being a statutory authority in absence of any provision empowering it to delegate its power in favour of any other authority had no jurisdiction to do so. Delegatus non potest delegare is a well-known maxim which means unless expressly authorized a delegatee cannot sub-delegate its power. Moreover, the said observations of BIFR would only mean that the Company Court could exercise its power in accordance with law and not dehors it. If the Company Court had no jurisdiction to pass the impugned order, it could not derive any jurisdiction only because BIFR said so. 67. In any view of the matter, BIFR had permitted only the Company to approach the High Court in case any occasion arises therefor. BIFR did not permit any other person to do so. The Company did not file such an application. It opposed the prayer of the First Respondent The Company, as noticed hereinbefore, had preferred an appeal before the Division Bench of the High Court questioning the correctness of the order passed by the learned Company Judge. The Company has since been directed to be wound up and is now being represented by the Official Liquidator who also questions the correctness of the order. Before us an application has been filed by the Government of Karnataka for impleading it as a party being I.A. Nos.2-4 of 2005 in Civil Appeal No.5199-5201 of 2004 wherein also, the validity of the impugned order is in question. | 1[ds]32. The Order issued by the Government of Karnataka on 30.07.2002 does not suggest either expressly or by necessary implication that it had granted its approval for the said sale. Whether such sanction was necessary is, however, another question which we shall advert to a little later33. We may at this juncture notice that arguments had been raised before the Division Bench of the High Court that the Government of Karnataka had not approved the said transaction which is itself a pointer to the fact that the Appellants herein never accepted that there had been a concluded contract34. It is also not correct to contend that the company will be acting as an appellate authority over the High Court, if its approval is sought for. The question should, in fact, be considered from a different angle. An application before the Company Judge, if at all, was maintainable only upon obtaining the approval of the Government of Karnataka and if such approval is granted, then only it would constitute a concluded contract37. The submission of Mr. Venugopal that in the event if it be held that the companys approval was necessary, the same would be contrary to the statutory power of the Company Court is, thus, misconceived38. It is also not correct to contend that the question as regard the concluded contract was not raised by the Appellants herein. In fact, the Company filed a Review Petition before the Company Judge on 30.10.2003 wherein it was clearly averred that such a submission was not made in view of the observations of the learned Company Judge during the course of hearing that the issue whether there existed concluded contract would not be determined and as such there existed an error on the face of its order dated 8.10.200346. It may be true that the High Courts jurisdiction is that of the Appellate Authority but keeping in view the terminology contained in sub- section (4) of Section 20 read with Section 32 of the Act leaves no manner of doubt that the provisions of SICA shall prevail over the provisions of the Companies Act. For the aforementioned purpose, it was not necessary for the Parliament to mention specifically the provisions of sub-section (4) of Section 20 that the same shall prevail over Section 536 of the Companies Act, as was suggested by the learned counsel appearing for the First Respondent. The construction of the provisions of both the Acts, as suggested by the learned counsel, that both the provisions of sub-section (4) of Section 20 and Section 536 should be read conjointly so as to enable an applicant to obtain a sanction of both BIFR and the Company Court, thus, do not appeal to us47. It is inconceivable that in law not only the approval will have to be taken from both the courts; in case of any private sale, the Company will have to obtain the consent of both the Company Court or BIFR. While interpreting the provisions of the two statutes, the court cannot remain oblivious of the fact that in a given case, possibility of a conflict in the orders passed by the two courts may arise, which must be avoided48. The Company Court has inherent power. Such inherent power of the Company Court is saved in terms of Rules 7 and 9 of the Companies (Court) Rules. The Company Court, therefore, may have the requisite jurisdiction to approve sale of the assets of a company but the question which arises for consideration is as to whether such inherent power can be exercised despite existence of a provision contained in another statute50. We may, however, observe that the opinion of the Division Bench in BPL Limited (supra) to the effect that the winding up proceeding in relation to a matter arising out of the recommendations of BIFR shall commence only on passing of an order of winding up of the company may not be correct. It may be true that no formal application is required to be filed for initiating a proceeding under Section 433 of the Companies Act as the recommendations therefor are made by BIFR or AAIFR, as the case may be, and, thus, the date on which such recommendations are made the Company Judge applies its mind to initiate a proceeding relying on or on the basis thereof, the proceeding for winding up would be deemed to have been started; but there cannot be any doubt whatsoever that having regard to the phraseology used in Section 20 of SICA that BIFR is the authority proprio vigore which continues to remain as custodian of the assets of the Company till a winding up order is passed by the High Court56. It may be true that therein the Allahabad High Court was considering the case involving a sick industrial company but the questions which have been raised herein were not raised there. The High Court considered the prayer made in the application and was of the opinion that the proposal given by the applicant was not a viable one for the benefit of the company or its creditors. In the instant case, the said relevant factors were also not considered by the High Court60. It may, furthermore, be true that before the Company Judge or before the High Court the secured creditors did not raise objections which have been raised before us although specifically taken in their objections, as would appear from paragraphs 7, 9, 11, 12 and 13 thereof, but if such considerations were relevant having regard to the statutory duties imposed upon the court, the learned Company Judge must be held to have failed and/or neglected to exercise its discretionary jurisdiction in a fair and reasonable manner. In any event having regard to the importance of the questions involved and in particular the question as to whether the impugned order is contrary to the statutory provisions contained in sub-section (4) of Section 20, we have thought it proper to consider the same63. It was further observed that for judging the correctness of an equitable order even the subsequent events can be taken into consideration. In any view of the matter an equitable order passed by a Company Court in exercise of its inherent jurisdiction or otherwise must conform to the requirements of the relevant statutes.66. BIFR had admittedly power to sell the assets of the Company but the High Court until a winding up order is issued does not have the same. BIFR in its order dated 02.08.2002 might have made an observation to the effect that the Company may approach the High Court in case it intended to dispose of its property by private negotiation but the same would not mean that BIFR could delegate its power in favour of the High Court. BIFR being a statutory authority in absence of any provision empowering it to delegate its power in favour of any other authority had no jurisdiction to do so. Delegatus non potest delegare is a well-known maxim which means unless expressly authorized a delegatee cannot sub-delegate its power. Moreover, the said observations of BIFR would only mean that the Company Court could exercise its power in accordance with law and not dehors it. If the Company Court had no jurisdiction to pass the impugned order, it could not derive any jurisdiction only because BIFR said so67. In any view of the matter, BIFR had permitted only the Company to approach the High Court in case any occasion arises therefor. BIFR did not permit any other person to do so. The Company did not file such an application. It opposed the prayer of the First Respondent The Company, as noticed hereinbefore, had preferred an appeal before the Division Bench of the High Court questioning the correctness of the order passed by the learned Company Judge. The Company has since been directed to be wound up and is now being represented by the Official Liquidator who also questions the correctness of the order. Before us an application has been filed by the Government of Karnataka for impleading it as a party being I.A. Nos.2-4 of 2005 in Civil Appeal No.5199-5201 of 2004 wherein also, the validity of the impugned order is in question | 1 | 9,443 | 1,474 | ### 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:
the question as to whether the impugned order is contrary to the statutory provisions contained in sub-section (4) of Section 20, we have thought it proper to consider the same. 61. The Company Judge moreover will have to bear in mind the provisions contained in Section 529-A of the Companies Act in terms whereof the dues of the workman and the debts due to the secured creditors to the extent such debts rank in clause (c) of the proviso appended to sub- section (1) of Section 529 pari passu therewith and shall have a priority over all other debts. 62. In Andhra Bank vs. Official Liquidator and Another [(2005) 5 SCC 75] , a three-Judge Bench of this Court, observed : "Section 446 of the Companies Act indisputably confers a wide power upon the Company Judge, but such a power can be exercised only upon consideration of the respective contentions of the parties raised in a suit or a proceeding or any claim made by or against the company. A question of determining the priorities would also fall for consideration if the parties claiming the same are before the court. Section 446 of the Companies Act ipso facto confers no power upon the court to pass interlocutory orders. The question as to whether the courts have inherent power to pass such orders, in our opinion, does not arise for consideration in this proceeding. Assuming such a power exists, it was imperative that the same should have been exercised on consideration of the factors laid down by this Court in Morgan Stanley Mutual Fund etc. vs. Kartick Das etc. [(1994) 4 SCC 225] . An unreasoned order does not subserve the doctrine of fair play [See M/s. Mangalore Ganesh Beedi Works Vs. The Commissioner of Income Tax, Mysore and Anr. JT 2005 (2) SC 442 ]". 63. It was further observed that for judging the correctness of an equitable order even the subsequent events can be taken into consideration. In any view of the matter an equitable order passed by a Company Court in exercise of its inherent jurisdiction or otherwise must conform to the requirements of the relevant statutes. [See Manohar Lal Chopra vs. Rai Bahadur Rao Raja Seth Hiralal -AIR 1962 SC 527 , Vareed Jacob vs. Sosamma Geevarghese and Others (2004) 6 SCC 378 & National Institute of Mental Health & Neuro Sciences vs. C. Parameshwara (2005) 2 SCC 256 ] 64. In re A.I. Levy (Holdings) Ltd. [1964 (1) Chancery Division 19] Buckley J. while considering the provisions of Section 227 of the English Companies Act which is pari materia with Section 536(2) of the Indian Companies Act, opined that the object of the said section was to protect the interests of the creditors from the possible unfortunate results which would ensue from the presentation of a petition and to protect their interests as much during the period while the petition was pending as after an order has been made on it. The said decision, therefore, does not lay down a law that the provision of Section 536(2) of the Act is meant to benefit the vendee. In fact such a provision enures to the benefit of the creditors. A Company Judge granting sanction in terms of the aforementioned provision, thus, has a duty to see that the transaction is one which must benefit the unsecured creditors of the company. 65. In A.I. Levy (Holdings) Ltd. (supra) it was held: "In these circumstances, this being a case in which it appears to me to be manifest that the transaction is one which must benefit the unsecured creditors of the company if in due course a winding up order is made, the reason which affected Vaisey J.s mind, that is to say, that the liquidator should be given an opportunity to investigate the matter and bring it before the court representing the interests of all the creditors, does not affect my mind, for I do not think the liquidator could make the position clearer to me than it is at the present time on the facts." CONCLUSION: 66. BIFR had admittedly power to sell the assets of the Company but the High Court until a winding up order is issued does not have the same. BIFR in its order dated 02.08.2002 might have made an observation to the effect that the Company may approach the High Court in case it intended to dispose of its property by private negotiation but the same would not mean that BIFR could delegate its power in favour of the High Court. BIFR being a statutory authority in absence of any provision empowering it to delegate its power in favour of any other authority had no jurisdiction to do so. Delegatus non potest delegare is a well-known maxim which means unless expressly authorized a delegatee cannot sub-delegate its power. Moreover, the said observations of BIFR would only mean that the Company Court could exercise its power in accordance with law and not dehors it. If the Company Court had no jurisdiction to pass the impugned order, it could not derive any jurisdiction only because BIFR said so. 67. In any view of the matter, BIFR had permitted only the Company to approach the High Court in case any occasion arises therefor. BIFR did not permit any other person to do so. The Company did not file such an application. It opposed the prayer of the First Respondent The Company, as noticed hereinbefore, had preferred an appeal before the Division Bench of the High Court questioning the correctness of the order passed by the learned Company Judge. The Company has since been directed to be wound up and is now being represented by the Official Liquidator who also questions the correctness of the order. Before us an application has been filed by the Government of Karnataka for impleading it as a party being I.A. Nos.2-4 of 2005 in Civil Appeal No.5199-5201 of 2004 wherein also, the validity of the impugned order is in question.
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### Explanation:
of sub-section (4) of Section 20 that the same shall prevail over Section 536 of the Companies Act, as was suggested by the learned counsel appearing for the First Respondent. The construction of the provisions of both the Acts, as suggested by the learned counsel, that both the provisions of sub-section (4) of Section 20 and Section 536 should be read conjointly so as to enable an applicant to obtain a sanction of both BIFR and the Company Court, thus, do not appeal to us47. It is inconceivable that in law not only the approval will have to be taken from both the courts; in case of any private sale, the Company will have to obtain the consent of both the Company Court or BIFR. While interpreting the provisions of the two statutes, the court cannot remain oblivious of the fact that in a given case, possibility of a conflict in the orders passed by the two courts may arise, which must be avoided48. The Company Court has inherent power. Such inherent power of the Company Court is saved in terms of Rules 7 and 9 of the Companies (Court) Rules. The Company Court, therefore, may have the requisite jurisdiction to approve sale of the assets of a company but the question which arises for consideration is as to whether such inherent power can be exercised despite existence of a provision contained in another statute50. We may, however, observe that the opinion of the Division Bench in BPL Limited (supra) to the effect that the winding up proceeding in relation to a matter arising out of the recommendations of BIFR shall commence only on passing of an order of winding up of the company may not be correct. It may be true that no formal application is required to be filed for initiating a proceeding under Section 433 of the Companies Act as the recommendations therefor are made by BIFR or AAIFR, as the case may be, and, thus, the date on which such recommendations are made the Company Judge applies its mind to initiate a proceeding relying on or on the basis thereof, the proceeding for winding up would be deemed to have been started; but there cannot be any doubt whatsoever that having regard to the phraseology used in Section 20 of SICA that BIFR is the authority proprio vigore which continues to remain as custodian of the assets of the Company till a winding up order is passed by the High Court56. It may be true that therein the Allahabad High Court was considering the case involving a sick industrial company but the questions which have been raised herein were not raised there. The High Court considered the prayer made in the application and was of the opinion that the proposal given by the applicant was not a viable one for the benefit of the company or its creditors. In the instant case, the said relevant factors were also not considered by the High Court60. It may, furthermore, be true that before the Company Judge or before the High Court the secured creditors did not raise objections which have been raised before us although specifically taken in their objections, as would appear from paragraphs 7, 9, 11, 12 and 13 thereof, but if such considerations were relevant having regard to the statutory duties imposed upon the court, the learned Company Judge must be held to have failed and/or neglected to exercise its discretionary jurisdiction in a fair and reasonable manner. In any event having regard to the importance of the questions involved and in particular the question as to whether the impugned order is contrary to the statutory provisions contained in sub-section (4) of Section 20, we have thought it proper to consider the same63. It was further observed that for judging the correctness of an equitable order even the subsequent events can be taken into consideration. In any view of the matter an equitable order passed by a Company Court in exercise of its inherent jurisdiction or otherwise must conform to the requirements of the relevant statutes.66. BIFR had admittedly power to sell the assets of the Company but the High Court until a winding up order is issued does not have the same. BIFR in its order dated 02.08.2002 might have made an observation to the effect that the Company may approach the High Court in case it intended to dispose of its property by private negotiation but the same would not mean that BIFR could delegate its power in favour of the High Court. BIFR being a statutory authority in absence of any provision empowering it to delegate its power in favour of any other authority had no jurisdiction to do so. Delegatus non potest delegare is a well-known maxim which means unless expressly authorized a delegatee cannot sub-delegate its power. Moreover, the said observations of BIFR would only mean that the Company Court could exercise its power in accordance with law and not dehors it. If the Company Court had no jurisdiction to pass the impugned order, it could not derive any jurisdiction only because BIFR said so67. In any view of the matter, BIFR had permitted only the Company to approach the High Court in case any occasion arises therefor. BIFR did not permit any other person to do so. The Company did not file such an application. It opposed the prayer of the First Respondent The Company, as noticed hereinbefore, had preferred an appeal before the Division Bench of the High Court questioning the correctness of the order passed by the learned Company Judge. The Company has since been directed to be wound up and is now being represented by the Official Liquidator who also questions the correctness of the order. Before us an application has been filed by the Government of Karnataka for impleading it as a party being I.A. Nos.2-4 of 2005 in Civil Appeal No.5199-5201 of 2004 wherein also, the validity of the impugned order is in question
|
Assst. C.I.T., Vadodara Vs. Elecon Engineering Co. Ltd | more aspect needs to be highlighted. Under Section 43A, as it stood at the relevant time, it was inter alia provided that where an assessee had acquired an asset from a country outside India for the purposes of his business, and in consequence of a change in the rate of exchange at any time after such acquisition, there is an increase or reduction in the liability of the assessee as expressed in Indian currency for making payment towards the whole or part of the cost of the asset or for repayment of the whole or part of the moneys borrowed by him for the purpose of acquiring the asset, the amount by which the liability stood increased or reduced during the previous year shall be added to or deducted from the actual cost of the asset as defined in Section 43(1). This analysis indicates that during the relevant assessment year adjustment to the actual cost was required to be done each year on the closing date, i.e., year- end. Subsequently, Section 43A underwent a drastic change by virtue of a new Section 43A inserted vide Finance Act, 2002. Under the new Section 43A such adjustment to the cost had to be done only in the year in which actual payment is made. In this case, we are not concerned with the position emerging after Finance Act, 2002. Under Explanation 3 to Section 43A, if the assessee had covered his liability in foreign exchange by entering into forward contract with an authorized dealer for the purchase of foreign exchange, the gain or loss arising from such forward contract was required to be taken into account. 10. In the present case, one of the main arguments advanced on behalf of the assessee before us was that Section 43A was not applicable because roll over charge stood paid to avoid increase or reduction in liability as a consequence of the change in the rate of exchange. According to the assessee, Section 43A, as it stood at the material time, applied only to cases where there existed a fluctuation in the rate of exchange and since the roll over charge was paid to the authorized dealer by the assessee to avoid increase or reduction in liability on account of such fluctuation, Section 43A read with Explanation 3 thereto would not apply to such roll over charges. We find no merit in this argument advanced on behalf of the assessee. According to the assessee, the cost for carrying forward the contracted foreign currency, not immediately required for repayment, is called the roll over charge(s). As stated above, according to the assessee, Section 43A was not applicable in this case as there was no increase or reduction in liability because such roll over charges were paid to avoid increase or reduction in liability consequent upon change in the rate of exchange. To answer this submission, one needs to keep in mind that during the relevant assessment years Section 43A applied to the entire liability remaining outstanding at the year-end, and it was not restricted merely to the instalments actually paid during the year. Therefore, at the relevant time, the year-end liability of the assessee had to be looked into. Further, it cannot be said that roll over charge has nothing to do with the fluctuation in the rate of exchange. In the present case, the Notes to the Accounts for the year ending 31st December, 1986 (Schedule 17) indicates adverse fluctuations in the exchange rate in respect of liabilities pertaining to the assets acquired. This Note clearly establishes existence of adverse fluctuations in the exchange rate which made the assessee opts for forward cover and which made the assessee pays roll over charges. The word "adverse" in the Note itself presupposes increase in the liability incurred by the assessee during the year ending 31st December, 1986. In the circumstances, we find no merit in the contention of the assessee that roll over charges have nothing to do with the fluctuation in the rate of exchange. Lastly, in this case we are concerned with capitalization of exchange difference in respect of acquisition of fixed assets acquired from abroad. According to Indian Accounting Standards by Dolphy DSouza, roll over charges are indicative of the increase or decrease in the liability of the company in the next specified period, generally of six months. Roll over charges represent the difference arising on account of change in foreign exchange rates. Roll over charges paid/ received in respect of liabilities relating to the acquisition of fixed assets should be debited/ credited to the asset in respect of which liability was incurred. However, roll over charges not relating to fixed assets should be charged to the Profit & Loss Account. [See page 325] 11. Before concluding, we may state that this judgment is confined to the facts of the present case. We may also clarify that the judgments cited on behalf of the assessee concerning commitment charges, warranty charges, etc., do not apply to the present case. None of these judgments deal with roll over charges. Hence, it is not necessary to discuss those judgments. 12. An alternative argument was advanced on behalf of the assessee that in the event this Court holds that roll over charges are to be capitalized in terms of Explanation 3 to Section 43A as it stood prior to assessment year 2003-04, then, in that event the Tribunal may be directed to grant depreciation allowance on the written down value of the asset not only for the concerned years but also for the subsequent years till the entire value of the asset is written off. According to the assessee, such a direction is required to be given because the depreciation, according to the assessee, is available even for the assessment years after AY 1994-95. On behalf of the assessee it was further submitted, as and by way of alternative submission, that the Department may not be allowed to charge interest or penalty as the issue involved is debatable. | 1[ds]10. In the present case, one of the main arguments advanced on behalf of the assessee before us was that Section 43A was not applicable because roll over charge stood paid to avoid increase or reduction in liability as a consequence of the change in the rate of exchange. According to the assessee, Section 43A, as it stood at the material time, applied only to cases where there existed a fluctuation in the rate of exchange and since the roll over charge was paid to the authorized dealer by the assessee to avoid increase or reduction in liability on account of such fluctuation, Section 43A read with Explanation 3 thereto would not apply to such roll over charges. We find no merit in this argument advanced on behalf of the assessee. According to the assessee, the cost for carrying forward the contracted foreign currency, not immediately required for repayment, is called the roll over charge(s). As stated above, according to the assessee, Section 43A was not applicable in this case as there was no increase or reduction in liability because such roll over charges were paid to avoid increase or reduction in liability consequent upon change in the rate of exchange. To answer this submission, one needs to keep in mind that during the relevant assessment years Section 43A applied to the entire liability remaining outstanding at the year-end, and it was not restricted merely to the instalments actually paid during the year. Therefore, at the relevant time, the year-end liability of the assessee had to be looked into. Further, it cannot be said that roll over charge has nothing to do with the fluctuation in the rate of exchange. In the present case, the Notes to the Accounts for the year ending 31st December, 1986 (Schedule 17) indicates adverse fluctuations in the exchange rate in respect of liabilities pertaining to the assets acquired. This Note clearly establishes existence of adverse fluctuations in the exchange rate which made the assessee opts for forward cover and which made the assessee pays roll over charges. The word "adverse" in the Note itself presupposes increase in the liability incurred by the assessee during the year ending 31st December, 1986. In the circumstances, we find no merit in the contention of the assessee that roll over charges have nothing to do with the fluctuation in the rate of exchange. Lastly, in this case we are concerned with capitalization of exchange difference in respect of acquisition of fixed assets acquired from abroad. According to Indian Accounting Standards by Dolphy DSouza, roll over charges are indicative of the increase or decrease in the liability of the company in the next specified period, generally of six months. Roll over charges represent the difference arising on account of change in foreign exchange rates. Roll over charges paid/ received in respect of liabilities relating to the acquisition of fixed assets should be debited/ credited to the asset in respect of which liability was incurred. However, roll over charges not relating to fixed assets should be charged to the Profit & Loss Account. [See page 325]In the present case, it appears that the relevant contract and correspondence has not been produced by the assessee. We are proceeding on the basis that the purpose of the loan taken by the assessee from ICICI was to finance the purchase of plant and machinery. | 1 | 4,042 | 620 | ### 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:
more aspect needs to be highlighted. Under Section 43A, as it stood at the relevant time, it was inter alia provided that where an assessee had acquired an asset from a country outside India for the purposes of his business, and in consequence of a change in the rate of exchange at any time after such acquisition, there is an increase or reduction in the liability of the assessee as expressed in Indian currency for making payment towards the whole or part of the cost of the asset or for repayment of the whole or part of the moneys borrowed by him for the purpose of acquiring the asset, the amount by which the liability stood increased or reduced during the previous year shall be added to or deducted from the actual cost of the asset as defined in Section 43(1). This analysis indicates that during the relevant assessment year adjustment to the actual cost was required to be done each year on the closing date, i.e., year- end. Subsequently, Section 43A underwent a drastic change by virtue of a new Section 43A inserted vide Finance Act, 2002. Under the new Section 43A such adjustment to the cost had to be done only in the year in which actual payment is made. In this case, we are not concerned with the position emerging after Finance Act, 2002. Under Explanation 3 to Section 43A, if the assessee had covered his liability in foreign exchange by entering into forward contract with an authorized dealer for the purchase of foreign exchange, the gain or loss arising from such forward contract was required to be taken into account. 10. In the present case, one of the main arguments advanced on behalf of the assessee before us was that Section 43A was not applicable because roll over charge stood paid to avoid increase or reduction in liability as a consequence of the change in the rate of exchange. According to the assessee, Section 43A, as it stood at the material time, applied only to cases where there existed a fluctuation in the rate of exchange and since the roll over charge was paid to the authorized dealer by the assessee to avoid increase or reduction in liability on account of such fluctuation, Section 43A read with Explanation 3 thereto would not apply to such roll over charges. We find no merit in this argument advanced on behalf of the assessee. According to the assessee, the cost for carrying forward the contracted foreign currency, not immediately required for repayment, is called the roll over charge(s). As stated above, according to the assessee, Section 43A was not applicable in this case as there was no increase or reduction in liability because such roll over charges were paid to avoid increase or reduction in liability consequent upon change in the rate of exchange. To answer this submission, one needs to keep in mind that during the relevant assessment years Section 43A applied to the entire liability remaining outstanding at the year-end, and it was not restricted merely to the instalments actually paid during the year. Therefore, at the relevant time, the year-end liability of the assessee had to be looked into. Further, it cannot be said that roll over charge has nothing to do with the fluctuation in the rate of exchange. In the present case, the Notes to the Accounts for the year ending 31st December, 1986 (Schedule 17) indicates adverse fluctuations in the exchange rate in respect of liabilities pertaining to the assets acquired. This Note clearly establishes existence of adverse fluctuations in the exchange rate which made the assessee opts for forward cover and which made the assessee pays roll over charges. The word "adverse" in the Note itself presupposes increase in the liability incurred by the assessee during the year ending 31st December, 1986. In the circumstances, we find no merit in the contention of the assessee that roll over charges have nothing to do with the fluctuation in the rate of exchange. Lastly, in this case we are concerned with capitalization of exchange difference in respect of acquisition of fixed assets acquired from abroad. According to Indian Accounting Standards by Dolphy DSouza, roll over charges are indicative of the increase or decrease in the liability of the company in the next specified period, generally of six months. Roll over charges represent the difference arising on account of change in foreign exchange rates. Roll over charges paid/ received in respect of liabilities relating to the acquisition of fixed assets should be debited/ credited to the asset in respect of which liability was incurred. However, roll over charges not relating to fixed assets should be charged to the Profit & Loss Account. [See page 325] 11. Before concluding, we may state that this judgment is confined to the facts of the present case. We may also clarify that the judgments cited on behalf of the assessee concerning commitment charges, warranty charges, etc., do not apply to the present case. None of these judgments deal with roll over charges. Hence, it is not necessary to discuss those judgments. 12. An alternative argument was advanced on behalf of the assessee that in the event this Court holds that roll over charges are to be capitalized in terms of Explanation 3 to Section 43A as it stood prior to assessment year 2003-04, then, in that event the Tribunal may be directed to grant depreciation allowance on the written down value of the asset not only for the concerned years but also for the subsequent years till the entire value of the asset is written off. According to the assessee, such a direction is required to be given because the depreciation, according to the assessee, is available even for the assessment years after AY 1994-95. On behalf of the assessee it was further submitted, as and by way of alternative submission, that the Department may not be allowed to charge interest or penalty as the issue involved is debatable.
### Response:
1
### Explanation:
10. In the present case, one of the main arguments advanced on behalf of the assessee before us was that Section 43A was not applicable because roll over charge stood paid to avoid increase or reduction in liability as a consequence of the change in the rate of exchange. According to the assessee, Section 43A, as it stood at the material time, applied only to cases where there existed a fluctuation in the rate of exchange and since the roll over charge was paid to the authorized dealer by the assessee to avoid increase or reduction in liability on account of such fluctuation, Section 43A read with Explanation 3 thereto would not apply to such roll over charges. We find no merit in this argument advanced on behalf of the assessee. According to the assessee, the cost for carrying forward the contracted foreign currency, not immediately required for repayment, is called the roll over charge(s). As stated above, according to the assessee, Section 43A was not applicable in this case as there was no increase or reduction in liability because such roll over charges were paid to avoid increase or reduction in liability consequent upon change in the rate of exchange. To answer this submission, one needs to keep in mind that during the relevant assessment years Section 43A applied to the entire liability remaining outstanding at the year-end, and it was not restricted merely to the instalments actually paid during the year. Therefore, at the relevant time, the year-end liability of the assessee had to be looked into. Further, it cannot be said that roll over charge has nothing to do with the fluctuation in the rate of exchange. In the present case, the Notes to the Accounts for the year ending 31st December, 1986 (Schedule 17) indicates adverse fluctuations in the exchange rate in respect of liabilities pertaining to the assets acquired. This Note clearly establishes existence of adverse fluctuations in the exchange rate which made the assessee opts for forward cover and which made the assessee pays roll over charges. The word "adverse" in the Note itself presupposes increase in the liability incurred by the assessee during the year ending 31st December, 1986. In the circumstances, we find no merit in the contention of the assessee that roll over charges have nothing to do with the fluctuation in the rate of exchange. Lastly, in this case we are concerned with capitalization of exchange difference in respect of acquisition of fixed assets acquired from abroad. According to Indian Accounting Standards by Dolphy DSouza, roll over charges are indicative of the increase or decrease in the liability of the company in the next specified period, generally of six months. Roll over charges represent the difference arising on account of change in foreign exchange rates. Roll over charges paid/ received in respect of liabilities relating to the acquisition of fixed assets should be debited/ credited to the asset in respect of which liability was incurred. However, roll over charges not relating to fixed assets should be charged to the Profit & Loss Account. [See page 325]In the present case, it appears that the relevant contract and correspondence has not been produced by the assessee. We are proceeding on the basis that the purpose of the loan taken by the assessee from ICICI was to finance the purchase of plant and machinery.
|
Kulchhinder Singh & Ors Vs. Hardayal Singh Brar & Ors | Bank is State within the meaning of Art. 12 of the Constitution and, therefore, subject to Art. 16 of the Constitution and the writ jurisdiction under Art. 226. A further argument has been built on the edifice of the statutory provisions contained in the Punjab Cooperative Societies, Act, 1961. Section 84A of this Act empowers apex societies under certain circumstances, to frame rules for their employees and such rules, it is contended, have been framed, having the force of law. The Cooperative Bank is therefore a public authority which, in any view, is vulnerable to the writ of the High Court under its extra-ordinary constitutional power. Of course, Shri M. K. Ramamurthy has contended that even apart from all these considerations, any cooperative society, in view of its constitution under statutory provisions, may be amenable to the writ jurisdiction of the High Court.His specific grievance in the present case is that promotions to three categories of higher posts, viz., Assistant Inspecting Officers, Junior Accountants and Accountants were made by direct recruitment contrary to what he contends are service rules but, in substance, are the result of collective bargaining with the management, as the writ petition itself reveals. These triple categories of new posts have been filled, admittedly, without reference to the quota set apart for promotees, the defence of the respondent being that these new cadres are not covered by the agreement referred to in the writ petition.5. The High Court was approached when a real apprehension of direct recruitment arose, praying for a writ, order or direction in the nature of mandamus requiring the respondent not to proceed with the processes resulting in filling up the posts of Accountants, Junior Accountants and Assistant Inspecting Officers in violation of the quota of 75% claimed by the appellant, under the agreement alleged to be binding on the Cooperative Bank and the employees. Of Course, the recruitment went on and the new appointees are also arrayed as respondents in the writ petition. However, the High Court dismissed the writ petition on the preliminary ground that the writ was, in fact, directed against a Cooperative Bank registered under the Cooperative Societies Act and no writ would lie against such a body in the circumstances set out in the writ petition. Indeed, the distinction between a body with a personality created by and owing its existence solely to a statute and an entity which is recognised by and is registered under a statute is real, dramatic and makes for a world of difference in jural impact. Considerable argument was addressed before us based on the rulings reported as Mohanlal; Tewary, Sukhdev; and Praga Tools, apart from the ruling of this Court in Lakshmi Narain.The question as to whether a Cooperative Society is a public authority has fallen for judicial notice and Amir Jamia contains an elaborate discussion of the controversal topic covering decisions, English and Indian. It is also true that at least Madhya Pradesh (Dukhooram-1961 v . M. P. 269) and Calcutta (Madan Mohan 1966 Cal. 23) have considered whether a writ will issue against a Cooperative Society, simpliciter, Kumkum Khanna deals with a private college governed by a University Ordinance.Many other rulings have also been brought to our notice, but we do not think it necessary elaborately to investigate these issues notwithstanding the fact that Shri Gupta, appearing for the contesting respondent, challenged each one of the grounds stabilising his submissions on rulings of the Court, of the High Courts and the English Courts.The reason why we are not inclined to add to the enormous erudition on the point already accumulated in case- law is that a close perusal of the writ petition will disclose that essentially the appellant is seeking merely to enforce an agreement entered into between the employees and the Cooperative Bank.6. There is no doubt that some of the legal problems argued by Sri Ramamurthy deserve in an appropriate case jurisprudential study in depth, although much of it is covered by authority. But assuming, for arguments sake, that what he urges has validity, the present case meets with its instant funeral from one fatal circumstance. The writ petition, stripped of embroidery and legalistics, stands naked as a simple contract between the staff and the Society, agreeing upon a certain percentage of promotions to various posts or an omnibus, all-embracing promise to give a quota to the existing employees. At its best, the writ petition seeks enforcement of a binding contract but the neat and necessary repellant is that the remedy of Art. 226 is unavailable to enforce a contract qua contract. We fail to see how a supplier of chalk to a government school or cheese to a government hospital can ask for a constitutional remedy under Art. 226 in the event of a breach of a contract, bypassing the normal channels of civil litigation. We are not convinced that a mere contract agreeing to a quota of promotions can be exalted into a service rule or statutory duty. What is immediately relevant is not whether the respondent is State or public authority but whether what is enforced is a statutory duty or sovereign obligation or public function of a public authority. Private law may involve a State, a statutory body, or a public body in contractual or tortious actions. But they cannot be siphoned off into the writ jurisdiction.The controversy before us in substance will turn on the construction and scope of the agreement when the claim to a quota as founded cannot be decided in writ jurisdiction without going back on well-settled guidelines and even subverting the normal processual law-except perhaps in extreme cases which shock the conscience of the Court or other extra-ordinary situation, an aspect we are not called upon to explore here. We are aware of the wide amplitude of Art. 226 and its potent use to correct manifest injustice but cannot agree that contractual obligations in the ordinary course, without even statutory complexion, can be enforced by this short, though, wrong cut.7. | 0[ds]The purpose of this branch of the appellants submission is to make out that the Cooperative Bank is State within the meaning of Art. 12 of the Constitution and, therefore, subject to Art. 16 of the Constitution and the writ jurisdiction under Art. 226. A further argument has been built on the edifice of the statutory provisions contained in the Punjab Cooperative Societies, Act, 1961. Section 84A of this Act empowers apex societies under certain circumstances, to frame rules for their employees and such rules, it is contended, have been framed, having the force of law. The Cooperative Bank is therefore a public authority which, in any view, is vulnerable to the writ of the High Court under its extra-ordinary constitutionalreason why we are not inclined to add to the enormous erudition on the point already accumulated in case- law is that a close perusal of the writ petition will disclose that essentially the appellant is seeking merely to enforce an agreement entered into between the employees and the Cooperativeis no doubt that some of the legal problems argued by Sri Ramamurthy deserve in an appropriate case jurisprudential study in depth, although much of it is covered by authority. But assuming, for arguments sake, that what he urges has validity, the present case meets with its instant funeral from one fatal circumstance. The writ petition, stripped of embroidery and legalistics, stands naked as a simple contract between the staff and the Society, agreeing upon a certain percentage of promotions to various posts or an omnibus, all-embracing promise to give a quota to the existing employees. At its best, the writ petition seeks enforcement of a binding contract but the neat and necessary repellant is that the remedy of Art. 226 is unavailable to enforce a contract qua contract. We fail to see how a supplier of chalk to a government school or cheese to a government hospital can ask for a constitutional remedy under Art. 226 in the event of a breach of a contract, bypassing the normal channels of civil litigation. We are not convinced that a mere contract agreeing to a quota of promotions can be exalted into a service rule or statutory duty. What is immediately relevant is not whether the respondent is State or public authority but whether what is enforced is a statutory duty or sovereign obligation or public function of a public authority. Private law may involve a State, a statutory body, or a public body in contractual or tortious actions. But they cannot be siphoned off into the writ jurisdiction.The controversy before us in substance will turn on the construction and scope of the agreement when the claim to a quota as founded cannot be decided in writ jurisdiction without going back on well-settled guidelines and even subverting the normal processual law-except perhaps in extreme cases which shock the conscience of the Court or other extra-ordinary situation, an aspect we are not called upon to explore here. We are aware of the wide amplitude of Art. 226 and its potent use to correct manifest injustice but cannot agree that contractual obligations in the ordinary course, without even statutory complexion, can be enforced by this short, though, wrong cut. | 0 | 1,889 | 588 | ### 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:
Bank is State within the meaning of Art. 12 of the Constitution and, therefore, subject to Art. 16 of the Constitution and the writ jurisdiction under Art. 226. A further argument has been built on the edifice of the statutory provisions contained in the Punjab Cooperative Societies, Act, 1961. Section 84A of this Act empowers apex societies under certain circumstances, to frame rules for their employees and such rules, it is contended, have been framed, having the force of law. The Cooperative Bank is therefore a public authority which, in any view, is vulnerable to the writ of the High Court under its extra-ordinary constitutional power. Of course, Shri M. K. Ramamurthy has contended that even apart from all these considerations, any cooperative society, in view of its constitution under statutory provisions, may be amenable to the writ jurisdiction of the High Court.His specific grievance in the present case is that promotions to three categories of higher posts, viz., Assistant Inspecting Officers, Junior Accountants and Accountants were made by direct recruitment contrary to what he contends are service rules but, in substance, are the result of collective bargaining with the management, as the writ petition itself reveals. These triple categories of new posts have been filled, admittedly, without reference to the quota set apart for promotees, the defence of the respondent being that these new cadres are not covered by the agreement referred to in the writ petition.5. The High Court was approached when a real apprehension of direct recruitment arose, praying for a writ, order or direction in the nature of mandamus requiring the respondent not to proceed with the processes resulting in filling up the posts of Accountants, Junior Accountants and Assistant Inspecting Officers in violation of the quota of 75% claimed by the appellant, under the agreement alleged to be binding on the Cooperative Bank and the employees. Of Course, the recruitment went on and the new appointees are also arrayed as respondents in the writ petition. However, the High Court dismissed the writ petition on the preliminary ground that the writ was, in fact, directed against a Cooperative Bank registered under the Cooperative Societies Act and no writ would lie against such a body in the circumstances set out in the writ petition. Indeed, the distinction between a body with a personality created by and owing its existence solely to a statute and an entity which is recognised by and is registered under a statute is real, dramatic and makes for a world of difference in jural impact. Considerable argument was addressed before us based on the rulings reported as Mohanlal; Tewary, Sukhdev; and Praga Tools, apart from the ruling of this Court in Lakshmi Narain.The question as to whether a Cooperative Society is a public authority has fallen for judicial notice and Amir Jamia contains an elaborate discussion of the controversal topic covering decisions, English and Indian. It is also true that at least Madhya Pradesh (Dukhooram-1961 v . M. P. 269) and Calcutta (Madan Mohan 1966 Cal. 23) have considered whether a writ will issue against a Cooperative Society, simpliciter, Kumkum Khanna deals with a private college governed by a University Ordinance.Many other rulings have also been brought to our notice, but we do not think it necessary elaborately to investigate these issues notwithstanding the fact that Shri Gupta, appearing for the contesting respondent, challenged each one of the grounds stabilising his submissions on rulings of the Court, of the High Courts and the English Courts.The reason why we are not inclined to add to the enormous erudition on the point already accumulated in case- law is that a close perusal of the writ petition will disclose that essentially the appellant is seeking merely to enforce an agreement entered into between the employees and the Cooperative Bank.6. There is no doubt that some of the legal problems argued by Sri Ramamurthy deserve in an appropriate case jurisprudential study in depth, although much of it is covered by authority. But assuming, for arguments sake, that what he urges has validity, the present case meets with its instant funeral from one fatal circumstance. The writ petition, stripped of embroidery and legalistics, stands naked as a simple contract between the staff and the Society, agreeing upon a certain percentage of promotions to various posts or an omnibus, all-embracing promise to give a quota to the existing employees. At its best, the writ petition seeks enforcement of a binding contract but the neat and necessary repellant is that the remedy of Art. 226 is unavailable to enforce a contract qua contract. We fail to see how a supplier of chalk to a government school or cheese to a government hospital can ask for a constitutional remedy under Art. 226 in the event of a breach of a contract, bypassing the normal channels of civil litigation. We are not convinced that a mere contract agreeing to a quota of promotions can be exalted into a service rule or statutory duty. What is immediately relevant is not whether the respondent is State or public authority but whether what is enforced is a statutory duty or sovereign obligation or public function of a public authority. Private law may involve a State, a statutory body, or a public body in contractual or tortious actions. But they cannot be siphoned off into the writ jurisdiction.The controversy before us in substance will turn on the construction and scope of the agreement when the claim to a quota as founded cannot be decided in writ jurisdiction without going back on well-settled guidelines and even subverting the normal processual law-except perhaps in extreme cases which shock the conscience of the Court or other extra-ordinary situation, an aspect we are not called upon to explore here. We are aware of the wide amplitude of Art. 226 and its potent use to correct manifest injustice but cannot agree that contractual obligations in the ordinary course, without even statutory complexion, can be enforced by this short, though, wrong cut.7.
### Response:
0
### Explanation:
The purpose of this branch of the appellants submission is to make out that the Cooperative Bank is State within the meaning of Art. 12 of the Constitution and, therefore, subject to Art. 16 of the Constitution and the writ jurisdiction under Art. 226. A further argument has been built on the edifice of the statutory provisions contained in the Punjab Cooperative Societies, Act, 1961. Section 84A of this Act empowers apex societies under certain circumstances, to frame rules for their employees and such rules, it is contended, have been framed, having the force of law. The Cooperative Bank is therefore a public authority which, in any view, is vulnerable to the writ of the High Court under its extra-ordinary constitutionalreason why we are not inclined to add to the enormous erudition on the point already accumulated in case- law is that a close perusal of the writ petition will disclose that essentially the appellant is seeking merely to enforce an agreement entered into between the employees and the Cooperativeis no doubt that some of the legal problems argued by Sri Ramamurthy deserve in an appropriate case jurisprudential study in depth, although much of it is covered by authority. But assuming, for arguments sake, that what he urges has validity, the present case meets with its instant funeral from one fatal circumstance. The writ petition, stripped of embroidery and legalistics, stands naked as a simple contract between the staff and the Society, agreeing upon a certain percentage of promotions to various posts or an omnibus, all-embracing promise to give a quota to the existing employees. At its best, the writ petition seeks enforcement of a binding contract but the neat and necessary repellant is that the remedy of Art. 226 is unavailable to enforce a contract qua contract. We fail to see how a supplier of chalk to a government school or cheese to a government hospital can ask for a constitutional remedy under Art. 226 in the event of a breach of a contract, bypassing the normal channels of civil litigation. We are not convinced that a mere contract agreeing to a quota of promotions can be exalted into a service rule or statutory duty. What is immediately relevant is not whether the respondent is State or public authority but whether what is enforced is a statutory duty or sovereign obligation or public function of a public authority. Private law may involve a State, a statutory body, or a public body in contractual or tortious actions. But they cannot be siphoned off into the writ jurisdiction.The controversy before us in substance will turn on the construction and scope of the agreement when the claim to a quota as founded cannot be decided in writ jurisdiction without going back on well-settled guidelines and even subverting the normal processual law-except perhaps in extreme cases which shock the conscience of the Court or other extra-ordinary situation, an aspect we are not called upon to explore here. We are aware of the wide amplitude of Art. 226 and its potent use to correct manifest injustice but cannot agree that contractual obligations in the ordinary course, without even statutory complexion, can be enforced by this short, though, wrong cut.
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The Commissioner of Income Tax-Iv Vs. Mr. Emilio Ruiz Berdejo .Respondent C/O Tetra Pak India Limited & Others | India in terms of section 9(1) (ii) (which is one of the heads of income). Section 9(1) (ii) lays down that income which falls under the head Salaries, if it is earned in India, shall be deemed to accrue or arise in India. In fact, section 9 explains the expression is deemed to accrue or arise to him in India used in section 5(2) (b). Section 9 is not only a machinery section, it has the effect of rendering a person liable to tax on incomes which do not accrue or arise or are not received in India but which are deemed to be taxable by virtue of section 9 which applies to residents and nonresidents. Section 9 is, therefore, a typical example of a combination of a machinery provision which also provides for chargeability. 22] It is thus, clear that if a sum is to be paid to the nonresident is chargeable to tax, tax is required to be deducted. 23] Having seen the aforesaid scheme of the Act and law laid down by the Apex Court, the further question which needs consideration is : the consequences of failure to deduct advance tax in whole or part or after deducting, one fails to pay the tax under the Act, then such person is made liable to pay simple interest at certain percentage for every month or part of a month on such amount from the date on which such tax was deductible to the date on which such tax is actually paid in accordance with the provisions of subsection (3) of section 200. The said section 200 creates an obligation on the person deducting tax to pay the same within prescribed time to the credit of Central Government or as the Board may direct. Section 201 provides for consequences of failure to deduct or to pay tax, whereas subsection (A) of Section 201 provides for liability to pay interest. Now, liability to pay interest as stated under Section 201 is on the person who fails to deduct advance tax. As against this, if one turns to the Chapter XVII of the Act, it provides for chargeability of interest in certain cases. Section 234A provides for payment of interest for defaults in furnishing return of income, whereas Section 234B provides for payment of interest for defaults in payment of advance tax and Section 234C provides for payment of interest for deferment of advance tax. All these three sections create liability on the assessee to pay interest for the default committed by him in the circumstances mentioned in the said sections. 24] The Apex Court also had an occasion to consider the very same question with regard to the nature of liability of interest in the case of Dr.Prannoy Roy and Anr. Vs. CIT and Anr. 2002(254) ITR 755, wherein the Apex Court was pleased to hold that interest charged under Section 234A of the Act is not by way of penalty. It is levied to compensate revenue in order to avoid from being deprived of payment of tax on the due date. Interest held to be payable where the tax had not been deposited prior to the due date of filing of the income-tax return. In other words, it was held that where the tax already paid by the assessee was not less than the tax payable on the returned income which was accepted, the question of levy of interest under Section 234A does not arise.25] Section 234B which provides for interest for defaults in payment of advance tax was also a subject matter of scrutiny at the hands of Uttaranchal High Court in the case of CIT Vs. Sedco Forex International Drilling Co.Ltd. 264 ITR 320, wherein the Court was pleased to hold that Section 234 which imposes interest is compensatory in nature and not as a penalty. The very same view holds good for Section 234C of the Act. 26] The Division Bench of this Court had an occasion to consider the very same issue in the case of Director of Income-Tax (International Taxation) Vs. NGC Network Asia LLC, reported in 2009 (313) ITR 187 (Bom) , where in this Court ruled as under: We are in respectful agreement with the view taken in the case of CIT v. Sedco Forex International Drilling Co. Ltd. [2003] 264 ITR 320, by the Uttaranchal High Court. We are clearly of the opinion that when a duty is cast on the payer to pay the tax at source, on failure, no interest can be imposed on the payee-assessee. 27] The aforesaid view of the Division Bench is in consonance with the view taken by the Apex court in the case of Commissioner of Income-Tax Vs. Eli Lilly and Co.(India) P. Ltd. and Dr. Prannoy Roy and another Vs. Commissioner of Income-Tax and Anr. cited supra. 28] At this juncture, it is also relevant to mention that the Apex Court also had an occasion to consider the effect of payment of TDS by deductee u/s.201(1) (c) of the Act and consequences thereof in the case of Hindustan Coca Cola Beverage P. Ltd. Vs. Commissioner of Income-Tax (supra), wherein the Apex Court was pleased to hold that once the deductor has satisfied, the officer in charge of TDS, that taxes due have been paid by the deductee-assessee, then assessee has to pay only interest for late payment under Section 201(1)(a) and then no tax can further be recorded. The Apex Court has also considered the effect of circular dated 29th January, 1997 issued by the CBDT, which declares that: no demand visualized under Section 201(1) of the Income Tax Act should be enforced after the tax deductor has satisfied the officer in charge of TDS, that taxes due have been paid by the deductee-assessee. However, this will not alter the liability to charge interest under Section 201(1A) of the Act till the date of payment of taxes by the deductee-assessee or the liability for penalty under Section 271C of the Income Tax Act. | 0[ds]20] Having heard both parties and having examined provisions of the Act relevant for the purpose of deciding the issues involved in the present appeal, one has to turn to the Chapter XVII of the Act which provides for collection and recovery of tax. Chapter XVII is divided into various parts A to F.provides for deduction at source and advance payment with which presently we are concerned for deciding the appeal. Section 190(1) interalia provides that, notwithstanding regular assessment in respect of any income is to be made in a later assessment year, the tax on such income shall be payable by deduction (or collection) at source [or by advance payment or by payment under subsection (1A) of Section 192], as the case may be, in accordance with the provisions of Chapter XVII. Section 191 provides for in the case of income in respect of which provision is not made under Chapter XVII for deductingat the time of payment of payment, and in any case where income tax has not been deducted in accordance with the provisions of this Chapter,shall be payable directly by the asessee. Part B of Section XVII consists of group of sections which provide for deduction of tax at source. Section 192 provides for deduction of tax on income chargeable under the head Salary by any person responsible for paying any income chargeable under the head Salaries. Section 4(2) interalia provides in respect of income chargeable under subsection (1),shall be deducted at the source or paid in advance, where it is so deductible or payable under any provision of the Income Tax, 1961. Section 192 is a machinery provision. It deals with collection and recovery of tax, this provision is referable to Section 4(2). The scheme of TDS, not only applies to the amount paid, such as salaries etc. but the said provisions also apply to gross sums, the whole of which may not be income or profits in the hands of the recipient, such as payment to contractors and subcontractors. The purpose of the TDS provisions in Chapter XVIIB is to see that the sum which is chargeable under section 4 for levy and collection ofthe payer should deduct tax thereon at the rates in force. The said TDS provisions are meant for tentative deduction ofsubject to regularThe aforesaid provisions and the scheme of the ActTDS deduction were the subject matter of consideration by the Apex Court in the case of Commissioner ofVs. Eli Lilly and Co. (India) P. Ltd., reported in 2009 (312) ITR 225 (SC) . The Apex Court, while considering the question Whether the TDS provisions in Chapter XVIIB, which are in the nature of machinery provisions enabling collection and recovery of tax are at all applicable to payments made abroad by the foreign company/head office which had seconded the expatriate(s) for rendering services in India to the(employer) was pleased to hold that Section 192 of the Act is very much applicable even to a nonresident company and observed asif a sum that is to be paid to thechargeable to tax, tax is required to be deducted. The sum which is to be paid may be income out of different heads of income mentioned in section 14, that is to say, income from salaries, income from house property, profits and gains of business, capital gains and income from other sources. The scheme of the TDS provisions applies not only to the amount paid, which bears the character of income such as salaries, dividends, interest on securities, etc., but the said provisions also apply to gross sums, the whole of which may not be income or profits in the hands of the recipient, such as payment to contractors and subcontractors. The purpose of the TDS provisions in Chapter XVIIB is to see that the sum which is chargeable under section 4 for levy and collection ofthe payer should deduct tax thereon at the rates in force, if the amount is to be paid to aThe said TDS provisions are meant for tentative deduction ofsubject to regularassessment. (see Transmission Corporation of A.P. Ltd. V. CIT reported in [1999] 239 ITR 587 at page 594).The Apex Court further observed:Applying the above test, we are of the view that if the payments of home salary abroad by the foreign company to the expatriate has any connection or nexus with his rendition of service in India, then such payment would constitute income which is deemed to accrue or arise to the recipient in India as salary earned in India in terms of section 9(1) (ii) (which is one of the heads of income). Section 9(1) (ii) lays down that income which falls under the head Salaries, if it is earned in India, shall be deemed to accrue or arise in India. In fact, section 9 explains the expression is deemed to accrue or arise to him in India used in section 5(2) (b). Section 9 is not only a machinery section, it has the effect of rendering a person liable to tax on incomes which do not accrue or arise or are not received in India but which are deemed to be taxable by virtue of section 9 which applies to residents and nonresidents. Section 9 is, therefore, a typical example of a combination of a machinery provision which also provides forIt is thus, clear that if a sum is to be paid to the nonresident is chargeable to tax, tax is required to beHaving seen the aforesaid scheme of the Act and law laid down by the Apex Court, the further question which needs consideration is : the consequences of failure to deduct advance tax in whole or part or after deducting, one fails to pay the tax under the Act, then such person is made liable to pay simple interest at certain percentage for every month or part of a month on such amount from the date on which such tax was deductible to the date on which such tax is actually paid in accordance with the provisions of subsection (3) of section 200. The said section 200 creates an obligation on the person deducting tax to pay the same within prescribed time to the credit of Central Government or as the Board may direct. Section 201 provides for consequences of failure to deduct or to pay tax, whereas subsection (A) of Section 201 provides for liability to pay interest. Now, liability to pay interest as stated under Section 201 is on the person who fails to deduct advance tax. As against this, if one turns to the Chapter XVII of the Act, it provides for chargeability of interest in certain cases. Section 234A provides for payment of interest for defaults in furnishing return of income, whereas Section 234B provides for payment of interest for defaults in payment of advance tax and Section 234C provides for payment of interest for deferment of advance tax. All these three sections create liability on the assessee to pay interest for the default committed by him in the circumstances mentioned in the saidThe Apex Court also had an occasion to consider the very same question with regard to the nature of liability of interest in the case of Dr.Prannoy Roy and Anr. Vs. CIT and Anr. 2002(254) ITR 755, wherein the Apex Court was pleased to hold that interest charged under Section 234A of the Act is not by way of penalty. It is levied to compensate revenue in order to avoid from being deprived of payment of tax on the due date. Interest held to be payable where the tax had not been deposited prior to the due date of filing of thereturn. In other words, it was held that where the tax already paid by the assessee was not less than the tax payable on the returned income which was accepted, the question of levy of interest under Section 234A does not arise.25] Section 234B which provides for interest for defaults in payment of advance tax was also a subject matter of scrutiny at the hands of Uttaranchal High Court in the case of CIT Vs. Sedco Forex International Drilling Co.Ltd. 264 ITR 320, wherein the Court was pleased to hold that Section 234 which imposes interest is compensatory in nature and not as a penalty. The very same view holds good for Section 234C of theThe Division Bench of this Court had an occasion to consider the very same issue in the case of Director of(International Taxation) Vs. NGC Network Asia LLC, reported in 2009 (313) ITR 187 (Bom) , where in this Court ruled asare in respectful agreement with the view taken in the case of CIT v. Sedco Forex International Drilling Co. Ltd. [2003] 264 ITR 320, by the Uttaranchal High Court. We are clearly of the opinion that when a duty is cast on the payer to pay the tax at source, on failure, no interest can be imposed on theThe aforesaid view of the Division Bench is in consonance with the view taken by the Apex court in the case of Commissioner ofVs. Eli Lilly and Co.(India) P. Ltd. and Dr. Prannoy Roy and another Vs. Commissioner ofand Anr. citedAt this juncture, it is also relevant to mention that the Apex Court also had an occasion to consider the effect of payment of TDS by deductee u/s.201(1) (c) of the Act and consequences thereof in the case of Hindustan Coca Cola Beverage P. Ltd. Vs. Commissioner of(supra), wherein the Apex Court was pleased to hold that once the deductor has satisfied, the officer in charge of TDS, that taxes due have been paid by thethen assessee has to pay only interest for late payment under Section 201(1)(a) and then no tax can further be recorded. The Apex Court has also considered the effect of circular dated 29th January, 1997 issued by the CBDT, which declaresdemand visualized under Section 201(1) of the Income Tax Act should be enforced after the tax deductor has satisfied the officer in charge of TDS, that taxes due have been paid by theHowever, this will not alter the liability to charge interest under Section 201(1A) of the Act till the date of payment of taxes by theor the liability for penalty under Section 271C of the Income Tax Act. | 0 | 8,474 | 1,918 | ### 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:
India in terms of section 9(1) (ii) (which is one of the heads of income). Section 9(1) (ii) lays down that income which falls under the head Salaries, if it is earned in India, shall be deemed to accrue or arise in India. In fact, section 9 explains the expression is deemed to accrue or arise to him in India used in section 5(2) (b). Section 9 is not only a machinery section, it has the effect of rendering a person liable to tax on incomes which do not accrue or arise or are not received in India but which are deemed to be taxable by virtue of section 9 which applies to residents and nonresidents. Section 9 is, therefore, a typical example of a combination of a machinery provision which also provides for chargeability. 22] It is thus, clear that if a sum is to be paid to the nonresident is chargeable to tax, tax is required to be deducted. 23] Having seen the aforesaid scheme of the Act and law laid down by the Apex Court, the further question which needs consideration is : the consequences of failure to deduct advance tax in whole or part or after deducting, one fails to pay the tax under the Act, then such person is made liable to pay simple interest at certain percentage for every month or part of a month on such amount from the date on which such tax was deductible to the date on which such tax is actually paid in accordance with the provisions of subsection (3) of section 200. The said section 200 creates an obligation on the person deducting tax to pay the same within prescribed time to the credit of Central Government or as the Board may direct. Section 201 provides for consequences of failure to deduct or to pay tax, whereas subsection (A) of Section 201 provides for liability to pay interest. Now, liability to pay interest as stated under Section 201 is on the person who fails to deduct advance tax. As against this, if one turns to the Chapter XVII of the Act, it provides for chargeability of interest in certain cases. Section 234A provides for payment of interest for defaults in furnishing return of income, whereas Section 234B provides for payment of interest for defaults in payment of advance tax and Section 234C provides for payment of interest for deferment of advance tax. All these three sections create liability on the assessee to pay interest for the default committed by him in the circumstances mentioned in the said sections. 24] The Apex Court also had an occasion to consider the very same question with regard to the nature of liability of interest in the case of Dr.Prannoy Roy and Anr. Vs. CIT and Anr. 2002(254) ITR 755, wherein the Apex Court was pleased to hold that interest charged under Section 234A of the Act is not by way of penalty. It is levied to compensate revenue in order to avoid from being deprived of payment of tax on the due date. Interest held to be payable where the tax had not been deposited prior to the due date of filing of the income-tax return. In other words, it was held that where the tax already paid by the assessee was not less than the tax payable on the returned income which was accepted, the question of levy of interest under Section 234A does not arise.25] Section 234B which provides for interest for defaults in payment of advance tax was also a subject matter of scrutiny at the hands of Uttaranchal High Court in the case of CIT Vs. Sedco Forex International Drilling Co.Ltd. 264 ITR 320, wherein the Court was pleased to hold that Section 234 which imposes interest is compensatory in nature and not as a penalty. The very same view holds good for Section 234C of the Act. 26] The Division Bench of this Court had an occasion to consider the very same issue in the case of Director of Income-Tax (International Taxation) Vs. NGC Network Asia LLC, reported in 2009 (313) ITR 187 (Bom) , where in this Court ruled as under: We are in respectful agreement with the view taken in the case of CIT v. Sedco Forex International Drilling Co. Ltd. [2003] 264 ITR 320, by the Uttaranchal High Court. We are clearly of the opinion that when a duty is cast on the payer to pay the tax at source, on failure, no interest can be imposed on the payee-assessee. 27] The aforesaid view of the Division Bench is in consonance with the view taken by the Apex court in the case of Commissioner of Income-Tax Vs. Eli Lilly and Co.(India) P. Ltd. and Dr. Prannoy Roy and another Vs. Commissioner of Income-Tax and Anr. cited supra. 28] At this juncture, it is also relevant to mention that the Apex Court also had an occasion to consider the effect of payment of TDS by deductee u/s.201(1) (c) of the Act and consequences thereof in the case of Hindustan Coca Cola Beverage P. Ltd. Vs. Commissioner of Income-Tax (supra), wherein the Apex Court was pleased to hold that once the deductor has satisfied, the officer in charge of TDS, that taxes due have been paid by the deductee-assessee, then assessee has to pay only interest for late payment under Section 201(1)(a) and then no tax can further be recorded. The Apex Court has also considered the effect of circular dated 29th January, 1997 issued by the CBDT, which declares that: no demand visualized under Section 201(1) of the Income Tax Act should be enforced after the tax deductor has satisfied the officer in charge of TDS, that taxes due have been paid by the deductee-assessee. However, this will not alter the liability to charge interest under Section 201(1A) of the Act till the date of payment of taxes by the deductee-assessee or the liability for penalty under Section 271C of the Income Tax Act.
### Response:
0
### Explanation:
foreign company to the expatriate has any connection or nexus with his rendition of service in India, then such payment would constitute income which is deemed to accrue or arise to the recipient in India as salary earned in India in terms of section 9(1) (ii) (which is one of the heads of income). Section 9(1) (ii) lays down that income which falls under the head Salaries, if it is earned in India, shall be deemed to accrue or arise in India. In fact, section 9 explains the expression is deemed to accrue or arise to him in India used in section 5(2) (b). Section 9 is not only a machinery section, it has the effect of rendering a person liable to tax on incomes which do not accrue or arise or are not received in India but which are deemed to be taxable by virtue of section 9 which applies to residents and nonresidents. Section 9 is, therefore, a typical example of a combination of a machinery provision which also provides forIt is thus, clear that if a sum is to be paid to the nonresident is chargeable to tax, tax is required to beHaving seen the aforesaid scheme of the Act and law laid down by the Apex Court, the further question which needs consideration is : the consequences of failure to deduct advance tax in whole or part or after deducting, one fails to pay the tax under the Act, then such person is made liable to pay simple interest at certain percentage for every month or part of a month on such amount from the date on which such tax was deductible to the date on which such tax is actually paid in accordance with the provisions of subsection (3) of section 200. The said section 200 creates an obligation on the person deducting tax to pay the same within prescribed time to the credit of Central Government or as the Board may direct. Section 201 provides for consequences of failure to deduct or to pay tax, whereas subsection (A) of Section 201 provides for liability to pay interest. Now, liability to pay interest as stated under Section 201 is on the person who fails to deduct advance tax. As against this, if one turns to the Chapter XVII of the Act, it provides for chargeability of interest in certain cases. Section 234A provides for payment of interest for defaults in furnishing return of income, whereas Section 234B provides for payment of interest for defaults in payment of advance tax and Section 234C provides for payment of interest for deferment of advance tax. All these three sections create liability on the assessee to pay interest for the default committed by him in the circumstances mentioned in the saidThe Apex Court also had an occasion to consider the very same question with regard to the nature of liability of interest in the case of Dr.Prannoy Roy and Anr. Vs. CIT and Anr. 2002(254) ITR 755, wherein the Apex Court was pleased to hold that interest charged under Section 234A of the Act is not by way of penalty. It is levied to compensate revenue in order to avoid from being deprived of payment of tax on the due date. Interest held to be payable where the tax had not been deposited prior to the due date of filing of thereturn. In other words, it was held that where the tax already paid by the assessee was not less than the tax payable on the returned income which was accepted, the question of levy of interest under Section 234A does not arise.25] Section 234B which provides for interest for defaults in payment of advance tax was also a subject matter of scrutiny at the hands of Uttaranchal High Court in the case of CIT Vs. Sedco Forex International Drilling Co.Ltd. 264 ITR 320, wherein the Court was pleased to hold that Section 234 which imposes interest is compensatory in nature and not as a penalty. The very same view holds good for Section 234C of theThe Division Bench of this Court had an occasion to consider the very same issue in the case of Director of(International Taxation) Vs. NGC Network Asia LLC, reported in 2009 (313) ITR 187 (Bom) , where in this Court ruled asare in respectful agreement with the view taken in the case of CIT v. Sedco Forex International Drilling Co. Ltd. [2003] 264 ITR 320, by the Uttaranchal High Court. We are clearly of the opinion that when a duty is cast on the payer to pay the tax at source, on failure, no interest can be imposed on theThe aforesaid view of the Division Bench is in consonance with the view taken by the Apex court in the case of Commissioner ofVs. Eli Lilly and Co.(India) P. Ltd. and Dr. Prannoy Roy and another Vs. Commissioner ofand Anr. citedAt this juncture, it is also relevant to mention that the Apex Court also had an occasion to consider the effect of payment of TDS by deductee u/s.201(1) (c) of the Act and consequences thereof in the case of Hindustan Coca Cola Beverage P. Ltd. Vs. Commissioner of(supra), wherein the Apex Court was pleased to hold that once the deductor has satisfied, the officer in charge of TDS, that taxes due have been paid by thethen assessee has to pay only interest for late payment under Section 201(1)(a) and then no tax can further be recorded. The Apex Court has also considered the effect of circular dated 29th January, 1997 issued by the CBDT, which declaresdemand visualized under Section 201(1) of the Income Tax Act should be enforced after the tax deductor has satisfied the officer in charge of TDS, that taxes due have been paid by theHowever, this will not alter the liability to charge interest under Section 201(1A) of the Act till the date of payment of taxes by theor the liability for penalty under Section 271C of the Income Tax Act.
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M/S A.P. Steel Re-Rolling Mill Ltd Vs. State Of Kerala | transported and installed after the construction of the factory building. Undoubtedly, the application was moved on 17.7.1995 in anticipation. The material on record suggests that there was acute shortage of electricity as a result of which even domestic power connections were being refused. The high tension power supply required by the appellant had to be specially arranged by drawing the electrical lines on OYEC basis by construction of PSC polls along the line at the Appellants cost. This amount was deposited on 11.12.1996, only a few days before the concession was about to lapse. Having examined the correspondence on record, we are not in a position to accept the contention of the appellant that the respondents had acted with undue tardiness or lethargy. Further, the remittances of Rs.8,54,700/- and Rs.3,45,200/- made by way of security deposit for executing the power supply agreement were actually made on 1.2.1997 and 4.2.1997, after the expiry of the period of concession." 28. The general principles with regard to construction of exemption notification are not of much dispute. Generally, an exemption notification is to be construed strictly, but once it is found that the entrepreneur fulfils the conditions laid down therein, liberal construction would be made. 29. In M/s. O.N.G.C. Ltd. vs. Commnr. Of Customs, Mumbai [(2006) 8 SCALE 551] , this Court held: "This Court, times without number, has construed such exemption notifications in liberal manner. [See Commissioner of Customs (Imports), Mumbai v. Tullow India Operations Ltd., (2005) 13 SCC 789 , [See Tata Iron & Steel Co. Ltd. v. State of Jharkhand and Others, (2005) 4 SCC 272 , Government of India and Ors. v. Indian Tobacco Association, (2005) 7 SCC 396 , Commnr. Of Central Excise, Raipur v. Hira Cement, JT 2006 (2) SC 369 . and P.R. Prabhakar v. Commnr. Of Income Tax, Coimbatore, 2006 (7) SCALE 191 ]. If, thus, the Appellant was entitled to the same, it should not be denied the benefits thereof. It is directed accordingly." 30. A question as to whether, in a given situation, an entrepreneur was entitled to the benefit under an exemption notification or not, thus, would depend upon the fact of each case. A bare perusal of the notification dated 6.2.1992 issued by the 1st respondent would show that the purport and object thereof was to grant benefit of a concessional power tariff which came into force on and from 1.1.1992. The phraseology used in the said notification postulates that the benefit was to be granted in regard to the enhanced power tariff. Thus, where the new units had started production between 1.1.1992 and 31.12.1992, such exemption was available to the entrepreneurs.31. Evidently, except in a situation as might have been existing in Hitech Electrothermics (supra) that any application filed by the entrepreneur had not been processed within a reasonable time, in which case benefit might not be denied on equitable ground; in cases where there has been a substantial failure on the part of the industrial unit to obtain such benefit owing to acts of omission and commission on its part, in our opinion, no such benefit can be given.32. The High Court has arrived at a finding of fact that the appellant herein had failed and/or neglected to comply with the terms and conditions of the scheme or contributed to a large extent in not being able to obtain such sanction within a reasonable time.33. The appellant applied for grant of electrical connection on 9.11.1994. It, however, on its own showing did not receive any sanction till 17.11.1995. But even on that date the project was not complete. It was only at an advanced stage.34. From the appellants letter dated 24th June, 1996, as noticed supra, it would appear that it merely had been complaining of about non-grant of sanction, but then, evidently, it was not ready for commencing commercial production. Machineries were obtained by it only on 4.6.1996. How much time was taken for installation of machinery and completion of the project, is not known.35. Sanction, evidently, had been allocated on 24.2.1997. It accepted the same without any demur. It had been making payments in terms of the new tariff. It filed the writ petition only in the year 2003, i.e., only after this Court rendered its decision in Hitech Electrothermics (supra) on 17th December, 2002.36. The benefit of a judgment is not extended to a case automatically. While granting relief in a writ petition, the High Court is entitled to consider the fact situation obtaining in each case including the conduct of the petitioner. In doing so, the Court is entitled to take into consideration the fact as to whether the writ petitioner had chosen to sit over the matter and then wake up after the decision of this Court. If it is found that the appellant approached the Court after a long delay, the same may disentitle him to obtain a discretionary relief. {See Chairman, U.P. Jal Nigam & Anr. vs. Jaswant Singh & Anr. [2006 (12) SCALE 347 ]. 37. We are, thus, of the opinion that the principle of promissory estoppel will apply where an entrepreneur has altered its position pursuant to a promise made by the State, but the application thereof would depend upon the facts and circumstances of each case. Having regard to the findings of fact arrived at by the High Court, we are of the opinion that it cannot be said to have committed any illegality in passing the impugned judgment. So far as the case of M/s. A.P. Steel Re-Rolling Mill Ltd. is concerned, evidently the question involved therein was a disputed question of fact. Although, the High Court could have entertained a writ petition, as has been done in the case of M/s. Victory Papers and Boards India Ltd., but as M/s. A.P. Steel Re-Rolling Mill Ltd. withdrew its writ application, in our opinion, no case has been made out for interference with the impugned judgment. As the appellant has still its remedies open, it may avail the same. | 0[ds]14. Applicability of doctrine of promissory estoppel in a case where entrepreneur alters his position pursuant to or in furtherance of a promise made by the State to grant exemption from payment of charges on the basis of current tariff is not in dispute. The State made its policy decision. The said policy decision could be made by the State in exercise of its power under Section 78A of the Electricity (Supply) Act, 1948. The Electricity Board framed tariff for supply of electrical energy in terms of Sections 46 and 49 of the 1948 Act. While framing its tariff, the Board could take into consideration the policy decision of the State. It was, therefore, permissible both for the State to issue a policy decision and for the Board to adopt the same in exercise of their respective statutory powers under the 1948 Act. When a beneficent scheme is made by the State, the doctrine of promissory estoppel would undoubtedly apply.The general principles with regard to construction of exemption notification are not of much dispute. Generally, an exemption notification is to be construed strictly, but once it is found that the entrepreneur fulfils the conditions laid down therein, liberal construction would be made.A question as to whether, in a given situation, an entrepreneur was entitled to the benefit under an exemption notification or not, thus, would depend upon the fact of each case. A bare perusal of the notification dated 6.2.1992 issued by the 1st respondent would show that the purport and object thereof was to grant benefit of a concessional power tariff which came into force on and from 1.1.1992. The phraseology used in the said notification postulates that the benefit was to be granted in regard to the enhanced power tariff. Thus, where the new units had started production between 1.1.1992 and 31.12.1992, such exemption was available to the entrepreneurs.31. Evidently, except in a situation as might have been existing in Hitech Electrothermics (supra) that any application filed by the entrepreneur had not been processed within a reasonable time, in which case benefit might not be denied on equitable ground; in cases where there has been a substantial failure on the part of the industrial unit to obtain such benefit owing to acts of omission and commission on its part, in our opinion, no such benefit can be given.32. The High Court has arrived at a finding of fact that the appellant herein had failed and/or neglected to comply with the terms and conditions of the scheme or contributed to a large extent in not being able to obtain such sanction within a reasonable time.33. The appellant applied for grant of electrical connection on 9.11.1994. It, however, on its own showing did not receive any sanction till 17.11.1995. But even on that date the project was not complete. It was only at an advanced stage.34. From the appellants letter dated 24th June, 1996, as noticed supra, it would appear that it merely had been complaining of about non-grant of sanction, but then, evidently, it was not ready for commencing commercial production. Machineries were obtained by it only on 4.6.1996. How much time was taken for installation of machinery and completion of the project, is not known.35. Sanction, evidently, had been allocated on 24.2.1997. It accepted the same without any demur. It had been making payments in terms of the new tariff. It filed the writ petition only in the year 2003, i.e., only after this Court rendered its decision in Hitech Electrothermics (supra) on 17th December, 2002.36. The benefit of a judgment is not extended to a case automatically. While granting relief in a writ petition, the High Court is entitled to consider the fact situation obtaining in each case including the conduct of the petitioner. In doing so, the Court is entitled to take into consideration the fact as to whether the writ petitioner had chosen to sit over the matter and then wake up after the decision of this Court. If it is found that the appellant approached the Court after a long delay, the same may disentitle him to obtain a discretionary relief.We are, thus, of the opinion that the principle of promissory estoppel will apply where an entrepreneur has altered its position pursuant to a promise made by the State, but the application thereof would depend upon the facts and circumstances of each case. Having regard to the findings of fact arrived at by the High Court, we are of the opinion that it cannot be said to have committed any illegality in passing the impugned judgment. So far as the case of M/s. A.P. Steel Re-Rolling Mill Ltd. is concerned, evidently the question involved therein was a disputed question of fact. Although, the High Court could have entertained a writ petition, as has been done in the case of M/s. Victory Papers and Boards India Ltd., but as M/s. A.P. Steel Re-Rolling Mill Ltd. withdrew its writ application, in our opinion, no case has been made out for interference with the impugned judgment. As the appellant has still its remedies open, it may avail the same. | 0 | 6,542 | 948 | ### 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:
transported and installed after the construction of the factory building. Undoubtedly, the application was moved on 17.7.1995 in anticipation. The material on record suggests that there was acute shortage of electricity as a result of which even domestic power connections were being refused. The high tension power supply required by the appellant had to be specially arranged by drawing the electrical lines on OYEC basis by construction of PSC polls along the line at the Appellants cost. This amount was deposited on 11.12.1996, only a few days before the concession was about to lapse. Having examined the correspondence on record, we are not in a position to accept the contention of the appellant that the respondents had acted with undue tardiness or lethargy. Further, the remittances of Rs.8,54,700/- and Rs.3,45,200/- made by way of security deposit for executing the power supply agreement were actually made on 1.2.1997 and 4.2.1997, after the expiry of the period of concession." 28. The general principles with regard to construction of exemption notification are not of much dispute. Generally, an exemption notification is to be construed strictly, but once it is found that the entrepreneur fulfils the conditions laid down therein, liberal construction would be made. 29. In M/s. O.N.G.C. Ltd. vs. Commnr. Of Customs, Mumbai [(2006) 8 SCALE 551] , this Court held: "This Court, times without number, has construed such exemption notifications in liberal manner. [See Commissioner of Customs (Imports), Mumbai v. Tullow India Operations Ltd., (2005) 13 SCC 789 , [See Tata Iron & Steel Co. Ltd. v. State of Jharkhand and Others, (2005) 4 SCC 272 , Government of India and Ors. v. Indian Tobacco Association, (2005) 7 SCC 396 , Commnr. Of Central Excise, Raipur v. Hira Cement, JT 2006 (2) SC 369 . and P.R. Prabhakar v. Commnr. Of Income Tax, Coimbatore, 2006 (7) SCALE 191 ]. If, thus, the Appellant was entitled to the same, it should not be denied the benefits thereof. It is directed accordingly." 30. A question as to whether, in a given situation, an entrepreneur was entitled to the benefit under an exemption notification or not, thus, would depend upon the fact of each case. A bare perusal of the notification dated 6.2.1992 issued by the 1st respondent would show that the purport and object thereof was to grant benefit of a concessional power tariff which came into force on and from 1.1.1992. The phraseology used in the said notification postulates that the benefit was to be granted in regard to the enhanced power tariff. Thus, where the new units had started production between 1.1.1992 and 31.12.1992, such exemption was available to the entrepreneurs.31. Evidently, except in a situation as might have been existing in Hitech Electrothermics (supra) that any application filed by the entrepreneur had not been processed within a reasonable time, in which case benefit might not be denied on equitable ground; in cases where there has been a substantial failure on the part of the industrial unit to obtain such benefit owing to acts of omission and commission on its part, in our opinion, no such benefit can be given.32. The High Court has arrived at a finding of fact that the appellant herein had failed and/or neglected to comply with the terms and conditions of the scheme or contributed to a large extent in not being able to obtain such sanction within a reasonable time.33. The appellant applied for grant of electrical connection on 9.11.1994. It, however, on its own showing did not receive any sanction till 17.11.1995. But even on that date the project was not complete. It was only at an advanced stage.34. From the appellants letter dated 24th June, 1996, as noticed supra, it would appear that it merely had been complaining of about non-grant of sanction, but then, evidently, it was not ready for commencing commercial production. Machineries were obtained by it only on 4.6.1996. How much time was taken for installation of machinery and completion of the project, is not known.35. Sanction, evidently, had been allocated on 24.2.1997. It accepted the same without any demur. It had been making payments in terms of the new tariff. It filed the writ petition only in the year 2003, i.e., only after this Court rendered its decision in Hitech Electrothermics (supra) on 17th December, 2002.36. The benefit of a judgment is not extended to a case automatically. While granting relief in a writ petition, the High Court is entitled to consider the fact situation obtaining in each case including the conduct of the petitioner. In doing so, the Court is entitled to take into consideration the fact as to whether the writ petitioner had chosen to sit over the matter and then wake up after the decision of this Court. If it is found that the appellant approached the Court after a long delay, the same may disentitle him to obtain a discretionary relief. {See Chairman, U.P. Jal Nigam & Anr. vs. Jaswant Singh & Anr. [2006 (12) SCALE 347 ]. 37. We are, thus, of the opinion that the principle of promissory estoppel will apply where an entrepreneur has altered its position pursuant to a promise made by the State, but the application thereof would depend upon the facts and circumstances of each case. Having regard to the findings of fact arrived at by the High Court, we are of the opinion that it cannot be said to have committed any illegality in passing the impugned judgment. So far as the case of M/s. A.P. Steel Re-Rolling Mill Ltd. is concerned, evidently the question involved therein was a disputed question of fact. Although, the High Court could have entertained a writ petition, as has been done in the case of M/s. Victory Papers and Boards India Ltd., but as M/s. A.P. Steel Re-Rolling Mill Ltd. withdrew its writ application, in our opinion, no case has been made out for interference with the impugned judgment. As the appellant has still its remedies open, it may avail the same.
### Response:
0
### Explanation:
14. Applicability of doctrine of promissory estoppel in a case where entrepreneur alters his position pursuant to or in furtherance of a promise made by the State to grant exemption from payment of charges on the basis of current tariff is not in dispute. The State made its policy decision. The said policy decision could be made by the State in exercise of its power under Section 78A of the Electricity (Supply) Act, 1948. The Electricity Board framed tariff for supply of electrical energy in terms of Sections 46 and 49 of the 1948 Act. While framing its tariff, the Board could take into consideration the policy decision of the State. It was, therefore, permissible both for the State to issue a policy decision and for the Board to adopt the same in exercise of their respective statutory powers under the 1948 Act. When a beneficent scheme is made by the State, the doctrine of promissory estoppel would undoubtedly apply.The general principles with regard to construction of exemption notification are not of much dispute. Generally, an exemption notification is to be construed strictly, but once it is found that the entrepreneur fulfils the conditions laid down therein, liberal construction would be made.A question as to whether, in a given situation, an entrepreneur was entitled to the benefit under an exemption notification or not, thus, would depend upon the fact of each case. A bare perusal of the notification dated 6.2.1992 issued by the 1st respondent would show that the purport and object thereof was to grant benefit of a concessional power tariff which came into force on and from 1.1.1992. The phraseology used in the said notification postulates that the benefit was to be granted in regard to the enhanced power tariff. Thus, where the new units had started production between 1.1.1992 and 31.12.1992, such exemption was available to the entrepreneurs.31. Evidently, except in a situation as might have been existing in Hitech Electrothermics (supra) that any application filed by the entrepreneur had not been processed within a reasonable time, in which case benefit might not be denied on equitable ground; in cases where there has been a substantial failure on the part of the industrial unit to obtain such benefit owing to acts of omission and commission on its part, in our opinion, no such benefit can be given.32. The High Court has arrived at a finding of fact that the appellant herein had failed and/or neglected to comply with the terms and conditions of the scheme or contributed to a large extent in not being able to obtain such sanction within a reasonable time.33. The appellant applied for grant of electrical connection on 9.11.1994. It, however, on its own showing did not receive any sanction till 17.11.1995. But even on that date the project was not complete. It was only at an advanced stage.34. From the appellants letter dated 24th June, 1996, as noticed supra, it would appear that it merely had been complaining of about non-grant of sanction, but then, evidently, it was not ready for commencing commercial production. Machineries were obtained by it only on 4.6.1996. How much time was taken for installation of machinery and completion of the project, is not known.35. Sanction, evidently, had been allocated on 24.2.1997. It accepted the same without any demur. It had been making payments in terms of the new tariff. It filed the writ petition only in the year 2003, i.e., only after this Court rendered its decision in Hitech Electrothermics (supra) on 17th December, 2002.36. The benefit of a judgment is not extended to a case automatically. While granting relief in a writ petition, the High Court is entitled to consider the fact situation obtaining in each case including the conduct of the petitioner. In doing so, the Court is entitled to take into consideration the fact as to whether the writ petitioner had chosen to sit over the matter and then wake up after the decision of this Court. If it is found that the appellant approached the Court after a long delay, the same may disentitle him to obtain a discretionary relief.We are, thus, of the opinion that the principle of promissory estoppel will apply where an entrepreneur has altered its position pursuant to a promise made by the State, but the application thereof would depend upon the facts and circumstances of each case. Having regard to the findings of fact arrived at by the High Court, we are of the opinion that it cannot be said to have committed any illegality in passing the impugned judgment. So far as the case of M/s. A.P. Steel Re-Rolling Mill Ltd. is concerned, evidently the question involved therein was a disputed question of fact. Although, the High Court could have entertained a writ petition, as has been done in the case of M/s. Victory Papers and Boards India Ltd., but as M/s. A.P. Steel Re-Rolling Mill Ltd. withdrew its writ application, in our opinion, no case has been made out for interference with the impugned judgment. As the appellant has still its remedies open, it may avail the same.
|
Shri Ambalal M. Shah And Another Vs. Hathisingh Manufacturing Co., Ltd | On this question the High Court came to a conclusion adverse to the appellants. It is not clear how the respondents though abandoning the ground that Government had no material before it for forming the opinion that the undertaking was being managed in a manner highly detrimental to the scheduled industry concerned or to public interest could still urge that no investigation had been, actually held into the question whether the industrial undertaking was being managed in a manner highly detrimental to the scheduled industry concerned or to public interest. The question whether investigation had in fact been held or not into the question whether the industrial undertaking was being managed in a manner highly detrimental to the scheduled industry concerned or to public interest would be relevant only to show that the Government acted without any material before it or acted mala fide. If the allegation of mala fide or the allegation that there was no material before the Government for forming its opinion is abandoned, the question whether an investigation had in act been held into the question whether the industrial undertaking was being managed in a manner highly detrimental to the scheduled industry concerned or to public interest becomes irrelevant.15. We are satisfied however that the High Court was wrong in its view that it was not established that investigation had in fact been held into this question. We find that the assertion in the petition under Art. 226 that the investigation had not been directed "towards any alleged mis-management of the mills" was denied in the affidavit sworn on behalf of the Union of India. When thereafter on October 10, 1960 affidavits in rejoinder filed on behalf of the petitioners affirmed that "no question was put which would suggest that the committee was investigating into any mismanagement of the mills," an affidavit of Mr. Thomas de Sa, who was a member of the investigating committee was filed on behalf of the Union of India. This affidavit made the categorical assertion that the "committee investigated not only into the question relating to the fall in the volume of production in respect of cotton textiles manufactured in the said industrial undertaking but also made a full and complete investigation into the circumstances of the working of the said industrial undertaking including the management thereof and as to whether the said undertaking was being managed in a manner detrimental to the industry concerned or to public interest," The High Court has thought it fit to reject this testimony of Mr. De Sa for reasons which appear to us to be wholly insufficient. It appears that during the hearing the Advocate-General asked or time to file an affidavit preferably of Mr. P. H. Bhuta who was the non-official member of the committee of investigation but ultimately filed the affidavit of Mr. De Sa and not the affidavit of Mr. Bhuta. The High Court seems to think that as Mr. Bhuta was an independent member of the investigation committee while Mr. De Sa was in the service of the Government Mr. De Sas statement is open to suspicion. In our view such suspicion of high public officials is not ordinarily justified. Mr. De Sa was as much a member of the investigating committee as Mr. Bhuta and so no less competent than Mr. Bhuta to testify as regards the matter in issue. We do not think it right to suspect his honesty merely because he is an officer of the Union of India. The learned judges of the High Court appear also to have lost sight of the fact that the questionnaire which is annexed as annexure X to the affidavit of the second respondent Rajendra Prosad Manek Lal itself includes a number of questions which show unmistakably that the quality of management was being enquired into.16. A circumstance which appears to have weighed with the High Court is that the report of the committee which as the learned judges rightly say would be the best evidence to show "that there was in fact an investigation into the question of the management of the said undertaking" was not produced by the Union of India when called upon to do so by Mr. Nanavati on behalf of the petitioners. It is proper to mention that it does not appear that the learned judges themselves directed or desired the Advocate General to produce the report for their inspection. It further appears that no written application for the production of the document was made on behalf of the petitioners. It does not seem to us to be fair to draw an inference against the Union of India merely because an informal request by the petitioners advocate was not acceded to. In view of what happened in the court below we asked the appellants counsel whether he was prepared to produce the report before us. The learned counsel readily produced the report and after examining the relevant portion where the report deals with the question of management, we read it out in Court so that the respondents counsel could know the exact situation. This portion of the report says :-"that the management is in the hands of a young and inexperienced person ..................................................... and the committee is of the opinion that the present manager is incapable of handling the affairs of the mills. . . . . . .. ... . ; the present managing agents are incapable of investing any further. . . . . . . . "The fact that the report does contain such an opinion is sufficient to show that an investigation was actually held into the question of the quality of the management as affirmed by Mr. De Sa. The High Courts view therefore that no investigation was held into the question of the management of the undertaking was wrong.17. We have therefore come to the conclusion that the respondents were not entitled to any writ directing these appellants not to give effect to the Governments order under S. 18A(1)(b). | 1[ds]7. The contention made on behalf of the respondents before us which found favour with the High Court is that when the legislature used the words "an investigation has been made under Section 15" it meant "an investigation has been made under Section 15 based on an opinion of the Central Government that the industrial undertaking is being managed in a manner highly detrimental to the scheduled industry concerned or to public interest". We should have thought that if the legislature wanted to express such an intention it would not have hesitated to use the additional words mentioned above. It was urged however on behalf of the respondents that these further words, viz., "based on an opinion of the Central Government that the industrial undertaking is being managed in a manner highly detrimental to the scheduled industry concerned or to public interest" are implicit in cl. (b) of S. 18A. In his lengthy address to convince us of the correctness of this contention the learned counsel advanced in substance only twoappears to us that where the investigation has been initiated, in respect of an industrial undertaking, on an opinion that there has been or is likely to be a fall in the volume of production for which having regard to the economic conditions there is no justification (S. 15(a)(i)) or an opinion that there has been or is likely to be a marked deterioration in the quality of any article which could have been or can be avoided (S. 15(a) (ii) ) ; or an opinion that there has been or is likely to be a rise in the price of any article for which there is no justification (S. 15(a) (iii) ); or an opinion that it is necessary to take action for the purpose of conserving any resources of national importance (S. 15(a) (iv) ), the investigation in order to be complete must also consider the quality of the management of the undertaking just as it would so consider the quality of management where the investigation is initiated on an opinion that the industrial undertaking is being managed in a manner highly detrimental to the scheduled industry concerned or to publicS. 18 it empowered the person or body of persons appointed to take investigation to choose one or more persons possessing special knowledge to assist in the investigation and further vested the investigating committee with all the powers of the Civil Court under the Code of Civil Procedure for the purpose of taking evidence on oath and for enforcing the attendance of witnesses and compelling the production of documents and material objects. The whole purpose of the legislation would be frustrated unless the investigation could be "full and complete." No investigation which has not examined the quality of management of the industrial undertaking could be said to be full or complete.8. It was next contended that the use of the words "circumstances of the case" shows that the investigation had to be made only into the matter in respect of which the government has formed an opinion and not into anything else. Assuming that it is so and that the investigator has primarily to conduct his investigation where the investigation has been initiated on the basis of an opinion as regards fall in production, into questions as regards such fall; and similarly, where the investigation has been initiated on an opinion as regards the deterioration in quality, into the question of such deterioration, that does not alter the fact that the investigator would have to try to ascertain the causes of the fall in production or the deterioration in quality and this part of the investigation would necessarily include an investigation into the quality of the management.We are satisfied however that the High Court was wrong in its view that it was not established that investigation had in fact been held into this question. We find that the assertion in the petition under Art. 226 that the investigation had not been directed "towards any alleged mis-management of the mills" was denied in the affidavit sworn on behalf of the Union of India. When thereafter on October 10, 1960 affidavits in rejoinder filed on behalf of the petitioners affirmed that "no question was put which would suggest that the committee was investigating into any mismanagement of the mills," an affidavit of Mr. Thomas de Sa, who was a member of the investigating committee was filed on behalf of the Union of India. This affidavit made the categorical assertion that the "committee investigated not only into the question relating to the fall in the volume of production in respect of cotton textiles manufactured in the said industrial undertaking but also made a full and complete investigation into the circumstances of the working of the said industrial undertaking including the management thereof and as to whether the said undertaking was being managed in a manner detrimental to the industry concerned or to public interest," The High Court has thought it fit to reject this testimony of Mr. De Sa for reasons which appear to us to be wholly insufficient. It appears that during the hearing the Advocate-General asked or time to file an affidavit preferably of Mr. P. H. Bhuta who was the non-official member of the committee of investigation but ultimately filed the affidavit of Mr. De Sa and not the affidavit of Mr. Bhuta. The High Court seems to think that as Mr. Bhuta was an independent member of the investigation committee while Mr. De Sa was in the service of the Government Mr. De Sas statement is open to suspicion. In our view such suspicion of high public officials is not ordinarily justified. Mr. De Sa was as much a member of the investigating committee as Mr. Bhuta and so no less competent than Mr. Bhuta to testify as regards the matter in issue. We do not think it right to suspect his honesty merely because he is an officer of the Union of India. The learned judges of the High Court appear also to have lost sight of the fact that the questionnaire which is annexed as annexure X to the affidavit of the second respondent Rajendra Prosad Manek Lal itself includes a number of questions which show unmistakably that the quality of management was being enquired into.16. A circumstance which appears to have weighed with the High Court is that the report of the committee which as the learned judges rightly say would be the best evidence to show "that there was in fact an investigation into the question of the management of the said undertaking" was not produced by the Union of India when called upon to do so by Mr. Nanavati on behalf of the petitioners. It is proper to mention that it does not appear that the learned judges themselves directed or desired the Advocate General to produce the report for their inspection. It further appears that no written application for the production of the document was made on behalf of the petitioners. It does not seem to us to be fair to draw an inference against the Union of India merely because an informal request by the petitioners advocate was not acceded to. In view of what happened in the court below we asked the appellants counsel whether he was prepared to produce the report before us. The learned counsel readily produced the report and after examining the relevant portion where the report deals with the question of management, we read it out in Court so that the respondents counsel could know the exact situation.We have therefore come to the conclusion that the respondents were not entitled to any writ directing these appellants not to give effect to the Governments order under S. 18A(1)(b). | 1 | 4,858 | 1,391 | ### 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:
On this question the High Court came to a conclusion adverse to the appellants. It is not clear how the respondents though abandoning the ground that Government had no material before it for forming the opinion that the undertaking was being managed in a manner highly detrimental to the scheduled industry concerned or to public interest could still urge that no investigation had been, actually held into the question whether the industrial undertaking was being managed in a manner highly detrimental to the scheduled industry concerned or to public interest. The question whether investigation had in fact been held or not into the question whether the industrial undertaking was being managed in a manner highly detrimental to the scheduled industry concerned or to public interest would be relevant only to show that the Government acted without any material before it or acted mala fide. If the allegation of mala fide or the allegation that there was no material before the Government for forming its opinion is abandoned, the question whether an investigation had in act been held into the question whether the industrial undertaking was being managed in a manner highly detrimental to the scheduled industry concerned or to public interest becomes irrelevant.15. We are satisfied however that the High Court was wrong in its view that it was not established that investigation had in fact been held into this question. We find that the assertion in the petition under Art. 226 that the investigation had not been directed "towards any alleged mis-management of the mills" was denied in the affidavit sworn on behalf of the Union of India. When thereafter on October 10, 1960 affidavits in rejoinder filed on behalf of the petitioners affirmed that "no question was put which would suggest that the committee was investigating into any mismanagement of the mills," an affidavit of Mr. Thomas de Sa, who was a member of the investigating committee was filed on behalf of the Union of India. This affidavit made the categorical assertion that the "committee investigated not only into the question relating to the fall in the volume of production in respect of cotton textiles manufactured in the said industrial undertaking but also made a full and complete investigation into the circumstances of the working of the said industrial undertaking including the management thereof and as to whether the said undertaking was being managed in a manner detrimental to the industry concerned or to public interest," The High Court has thought it fit to reject this testimony of Mr. De Sa for reasons which appear to us to be wholly insufficient. It appears that during the hearing the Advocate-General asked or time to file an affidavit preferably of Mr. P. H. Bhuta who was the non-official member of the committee of investigation but ultimately filed the affidavit of Mr. De Sa and not the affidavit of Mr. Bhuta. The High Court seems to think that as Mr. Bhuta was an independent member of the investigation committee while Mr. De Sa was in the service of the Government Mr. De Sas statement is open to suspicion. In our view such suspicion of high public officials is not ordinarily justified. Mr. De Sa was as much a member of the investigating committee as Mr. Bhuta and so no less competent than Mr. Bhuta to testify as regards the matter in issue. We do not think it right to suspect his honesty merely because he is an officer of the Union of India. The learned judges of the High Court appear also to have lost sight of the fact that the questionnaire which is annexed as annexure X to the affidavit of the second respondent Rajendra Prosad Manek Lal itself includes a number of questions which show unmistakably that the quality of management was being enquired into.16. A circumstance which appears to have weighed with the High Court is that the report of the committee which as the learned judges rightly say would be the best evidence to show "that there was in fact an investigation into the question of the management of the said undertaking" was not produced by the Union of India when called upon to do so by Mr. Nanavati on behalf of the petitioners. It is proper to mention that it does not appear that the learned judges themselves directed or desired the Advocate General to produce the report for their inspection. It further appears that no written application for the production of the document was made on behalf of the petitioners. It does not seem to us to be fair to draw an inference against the Union of India merely because an informal request by the petitioners advocate was not acceded to. In view of what happened in the court below we asked the appellants counsel whether he was prepared to produce the report before us. The learned counsel readily produced the report and after examining the relevant portion where the report deals with the question of management, we read it out in Court so that the respondents counsel could know the exact situation. This portion of the report says :-"that the management is in the hands of a young and inexperienced person ..................................................... and the committee is of the opinion that the present manager is incapable of handling the affairs of the mills. . . . . . .. ... . ; the present managing agents are incapable of investing any further. . . . . . . . "The fact that the report does contain such an opinion is sufficient to show that an investigation was actually held into the question of the quality of the management as affirmed by Mr. De Sa. The High Courts view therefore that no investigation was held into the question of the management of the undertaking was wrong.17. We have therefore come to the conclusion that the respondents were not entitled to any writ directing these appellants not to give effect to the Governments order under S. 18A(1)(b).
### Response:
1
### Explanation:
action for the purpose of conserving any resources of national importance (S. 15(a) (iv) ), the investigation in order to be complete must also consider the quality of the management of the undertaking just as it would so consider the quality of management where the investigation is initiated on an opinion that the industrial undertaking is being managed in a manner highly detrimental to the scheduled industry concerned or to publicS. 18 it empowered the person or body of persons appointed to take investigation to choose one or more persons possessing special knowledge to assist in the investigation and further vested the investigating committee with all the powers of the Civil Court under the Code of Civil Procedure for the purpose of taking evidence on oath and for enforcing the attendance of witnesses and compelling the production of documents and material objects. The whole purpose of the legislation would be frustrated unless the investigation could be "full and complete." No investigation which has not examined the quality of management of the industrial undertaking could be said to be full or complete.8. It was next contended that the use of the words "circumstances of the case" shows that the investigation had to be made only into the matter in respect of which the government has formed an opinion and not into anything else. Assuming that it is so and that the investigator has primarily to conduct his investigation where the investigation has been initiated on the basis of an opinion as regards fall in production, into questions as regards such fall; and similarly, where the investigation has been initiated on an opinion as regards the deterioration in quality, into the question of such deterioration, that does not alter the fact that the investigator would have to try to ascertain the causes of the fall in production or the deterioration in quality and this part of the investigation would necessarily include an investigation into the quality of the management.We are satisfied however that the High Court was wrong in its view that it was not established that investigation had in fact been held into this question. We find that the assertion in the petition under Art. 226 that the investigation had not been directed "towards any alleged mis-management of the mills" was denied in the affidavit sworn on behalf of the Union of India. When thereafter on October 10, 1960 affidavits in rejoinder filed on behalf of the petitioners affirmed that "no question was put which would suggest that the committee was investigating into any mismanagement of the mills," an affidavit of Mr. Thomas de Sa, who was a member of the investigating committee was filed on behalf of the Union of India. This affidavit made the categorical assertion that the "committee investigated not only into the question relating to the fall in the volume of production in respect of cotton textiles manufactured in the said industrial undertaking but also made a full and complete investigation into the circumstances of the working of the said industrial undertaking including the management thereof and as to whether the said undertaking was being managed in a manner detrimental to the industry concerned or to public interest," The High Court has thought it fit to reject this testimony of Mr. De Sa for reasons which appear to us to be wholly insufficient. It appears that during the hearing the Advocate-General asked or time to file an affidavit preferably of Mr. P. H. Bhuta who was the non-official member of the committee of investigation but ultimately filed the affidavit of Mr. De Sa and not the affidavit of Mr. Bhuta. The High Court seems to think that as Mr. Bhuta was an independent member of the investigation committee while Mr. De Sa was in the service of the Government Mr. De Sas statement is open to suspicion. In our view such suspicion of high public officials is not ordinarily justified. Mr. De Sa was as much a member of the investigating committee as Mr. Bhuta and so no less competent than Mr. Bhuta to testify as regards the matter in issue. We do not think it right to suspect his honesty merely because he is an officer of the Union of India. The learned judges of the High Court appear also to have lost sight of the fact that the questionnaire which is annexed as annexure X to the affidavit of the second respondent Rajendra Prosad Manek Lal itself includes a number of questions which show unmistakably that the quality of management was being enquired into.16. A circumstance which appears to have weighed with the High Court is that the report of the committee which as the learned judges rightly say would be the best evidence to show "that there was in fact an investigation into the question of the management of the said undertaking" was not produced by the Union of India when called upon to do so by Mr. Nanavati on behalf of the petitioners. It is proper to mention that it does not appear that the learned judges themselves directed or desired the Advocate General to produce the report for their inspection. It further appears that no written application for the production of the document was made on behalf of the petitioners. It does not seem to us to be fair to draw an inference against the Union of India merely because an informal request by the petitioners advocate was not acceded to. In view of what happened in the court below we asked the appellants counsel whether he was prepared to produce the report before us. The learned counsel readily produced the report and after examining the relevant portion where the report deals with the question of management, we read it out in Court so that the respondents counsel could know the exact situation.We have therefore come to the conclusion that the respondents were not entitled to any writ directing these appellants not to give effect to the Governments order under S. 18A(1)(b).
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Kamlesh Kumar And Ors Vs. State Of Jharkhand And Ors | Court observed in paragraph 15 which reads as follows:- “15. …. The point which we wish to emphasise, however, is that a party to a proceeding cannot as a matter of right come to this Court for revision of any order passed by the lower Court, but it is a matter of practice that such applications are entertained by this Court as a matter of expediency. But no party has any vested right either in procedure or in practice.” 17. The First Schedule to Cr.P.C. deals with the Classification of Offences. Part-1 thereof deals with the offences under the Indian Penal Code, Part-II deals with classification of offences against other laws, which would include offences under laws such as FERA. The petitioners were being prosecuted under Section 56 of FERA, wherein the maximum punishment that could be awarded was up to seven years. The second entry of this Part-II laid down that such offences were triable by Magistrate of first Class, provided those offences were cognizable offences. As noted earlier, Section 62 of FERA made the offence under Section 56 non-cognizable. Besides, Section 61 (1) of FERA stated that ‘it shall be lawful’ for the Magistrate to pass the necessary sentence under Section 56. It does not state that the Magistrate alone is empowered to pass the necessary sentence, in which case the proceeding cannot be transferred from his Court. This provision is not like the one in the case of A.R. Antulay (supra) where under Section 7(1) of Criminal Law Amendment 1952 Act, the offence was ‘triable by special judge only’. In the instant case it was merely lawful for the Magistrate to try the offences under Section 61, but the Court of Magistrate was not a court of exclusive jurisdiction as in Antulay’s case. The offence was a non-cognizable one, and therefore it was not mandatory that it ought to have been tried only by the Magistrate of the First Class. Thus the petitioner could not claim that the Magistrate had the special jurisdiction to try the offence, and that the State could not transfer the case to the Sessions Judge. In view of what is stated above, it cannot be said that the Magistrate’s Court had an exclusive jurisdiction to try the cases relating to violations of the provisions of FERA, and those cases could not be transferred to the Special Judge. In the present case the accused were common, many of the witnesses would be common, and so also their evidence. The administrative power of the High Court in such a situation to effect transfer has been upheld in the case of Ranvir Yadav (supra), and there is no reason for this Court to take a different view in the facts of the present case.18. The petitioner had relied upon the judgment of a Division Bench of Delhi High Court in the case of A.S. Impex Limited (supra), on the question of transfer of a proceeding. Mr. Malhotra pointed out that although the judgment in Ranvir Yadav (supra) was brought to the notice of the Division Bench in that matter, the Division Bench had erroneously held that the reliance thereon to be a ‘misplaced’ one, as can be seen from the sentence at the end of paragraph 12 of that judgment. This judgment has been distinguished and found to be not laying down a good law by another Division Bench of Delhi High Court in Mahender Singh v. High Court of Delhi and Anr. reported in 2009 (151) Company Cases 485 (Delhi). In that matter, the Court was concerned with transfer of prosecutions under Securities and Exchange Board Act, 1992 from the Magistrate’s Court to Court of Sessions, and the High Court has held it to be valid and permissible. The Division Bench in Mahender Singh (supra) has in terms held that reliance on the judgment in A.R. Antulay (supra) to oppose such transfer was of no help, and rightly so. There is no difficulty in stating that A.S. Impex Limited (supra) does not lay down the correct proposition of law.19. The High Court does have the power to transfer the cases and appeals under Section 407 of the Cr.P.C. which is essentially a judicial power. Section 407 (1) (c) of Cr.P.C. lays down that, where it will tend to the general convenience of the parties or witnesses, or where it was expedient for the ends of justice, the High Court could transfer such a case for trial to a Court of Sessions. That does not mean that the High Court cannot transfer cases by exercising its administrative power of superintendence which is available to it under Article 227 of the Constitution of India. While repelling the objection to the exercise of this power, this Court observed in paragraph 13 of Ranvir Yadav (supra) as follows:- “13. We are unable to share the above view of Mr. Jethmalani. So long as power can be and is exercised purely for administrative exigency without impinging upon and prejudicially affecting the rights or interests of the parties to any judicial proceeding we do not find any reason to hold that administrative powers must yield place to judicial powers simply because in a given circumstance they coexist……” 20. For the reasons stated above, there is no substance in the objections raised by the petitioners. The High Court has looked into Section 407 of Cr.P.C., referred to Articles 227 and 235 of the Constitution of India, and thereafter in its impugned judgment has observed as follows:- “Having perused Section 407 Cr.P.C. and Article 227 and 235, I have no hesitation to hold that this Court either in the administration side or in the judicial side has absolute jurisdiction to transfer any criminal cases pending before one competent Court to be heard and decided by another Court within the jurisdiction of this Court. This Court in its administrative power can issue direction that cases of particular nature shall be heard by particular court having jurisdiction.” In view of what is stated earlier, | 0[ds]The First Schedule to Cr.P.C. deals with the Classification of Offences. Part-1 thereof deals with the offences under the Indian Penal Code, Part-II deals with classification of offences against other laws, which would include offences under laws such as FERA. The petitioners were being prosecuted under Section 56 of FERA, wherein the maximum punishment that could be awarded was up to seven years. The second entry of this Part-II laid down that such offences were triable by Magistrate of first Class, provided those offences were cognizable offences. As noted earlier, Section 62 of FERA made the offence under Section 56 non-cognizable. Besides, Section 61 (1) of FERA stated that ‘it shall befor the Magistrate to pass the necessary sentence under Section 56. It does not state that the Magistrate alone is empowered to pass the necessary sentence, in which case the proceeding cannot be transferred from his Court. This provision is not like the one in the case of A.R. Antulay (supra) where under Section 7(1) of Criminal Law Amendment 1952 Act, the offence was ‘triable by special judgeIn the instant case it was merely lawful for the Magistrate to try the offences under Section 61, but the Court of Magistrate was not a court of exclusive jurisdiction as incase. The offence was a non-cognizable one, and therefore it was not mandatory that it ought to have been tried only by the Magistrate of the First Class. Thus the petitioner could not claim that the Magistrate had the special jurisdiction to try the offence, and that the State could not transfer the case to the Sessions Judge. In view of what is stated above, it cannot be said that theCourt had an exclusive jurisdiction to try the cases relating to violations of the provisions of FERA, and those cases could not be transferred to the Special Judge. In the present case the accused were common, many of the witnesses would be common, and so also their evidence. The administrative power of the High Court in such a situation to effect transfer has been upheld in the case of Ranvir Yadav (supra), and there is no reason for this Court to take a different view in the facts of the present case.18. The petitioner had relied upon the judgment of a Division Bench of Delhi High Court in the case of A.S. Impex Limited (supra), on the question of transfer of a proceeding. Mr. Malhotra pointed out that although the judgment in Ranvir Yadav (supra) was brought to the notice of the Division Bench in that matter, the Division Bench had erroneously held that the reliance thereon to be aone, as can be seen from the sentence at the end of paragraph 12 of that judgment. This judgment has been distinguished and found to be not laying down a good law by another Division Bench of Delhi High Court in Mahender Singh v. High Court of Delhi and Anr. reported in 2009 (151) Company Cases 485 (Delhi). In that matter, the Court was concerned with transfer of prosecutions under Securities and Exchange Board Act, 1992 from theCourt to Court of Sessions, and the High Court has held it to be valid and permissible. The Division Bench in Mahender Singh (supra) has in terms held that reliance on the judgment in A.R. Antulay (supra) to oppose such transfer was of no help, and rightly so. There is no difficulty in stating that A.S. Impex Limited (supra) does not lay down the correct proposition of law.19. The High Court does have the power to transfer the cases and appeals under Section 407 of the Cr.P.C. which is essentially a judicial power. Section 407 (1) (c) of Cr.P.C. lays down that, where it will tend to the general convenience of the parties or witnesses, or where it was expedient for the ends of justice, the High Court could transfer such a case for trial to a Court of Sessions. That does not mean that the High Court cannot transfer cases by exercising its administrative power of superintendence which is available to it under Article 227 of the Constitution ofHigh Court could have exercised its judicial power of transfer under Section 407 of the Code (if called upon to do so) and it could also have exercised its administrative power of transfer under Article 227 of the Constitution, which it did, as is evident from the letter dated 6th May 2002 issued by the Registrar General of the High Court of Jharkhand to the Secretary to the Government, Law (Judl.) Department, Government of Jharkhand. The fact that for an administrative exigency, the High Court decided to exercise its plenary administrative power does not per se lead to the conclusion that the transfer of the case from the Magistrate to the Special Judge was unlawful. The legality of the action cannot be called in question in this case since no prejudice has been caused to the petitioners by such athe revisional power of a superior court actually enables it to correct a grave error, the existence of that power does not confer any corresponding right on a litigant. This is the reason why, in a given case, a superior court may decline to exercise its power of revision, if the facts and circumstances of the case do not warrant the exercise of its discretion. This is also the reason why it is felicitously stated that a revision is not a right but only ale to a party. If the matter is looked at in this light, the transfer of a case from a Magistrate to a Special Judge does not take away this procedural facility available to the petitioners. It only changes the forum and as already held above, the petitioners have no right to choose the forum in which to file an appeal or move a petition for revising an interlocutory order. | 0 | 4,558 | 1,090 | ### Instruction:
Assess the case to predict the court's ruling (favorably (1) or unfavorably (0)), and then expound on this prediction by highlighting and analyzing key textual elements from the proceeding.
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Court observed in paragraph 15 which reads as follows:- “15. …. The point which we wish to emphasise, however, is that a party to a proceeding cannot as a matter of right come to this Court for revision of any order passed by the lower Court, but it is a matter of practice that such applications are entertained by this Court as a matter of expediency. But no party has any vested right either in procedure or in practice.” 17. The First Schedule to Cr.P.C. deals with the Classification of Offences. Part-1 thereof deals with the offences under the Indian Penal Code, Part-II deals with classification of offences against other laws, which would include offences under laws such as FERA. The petitioners were being prosecuted under Section 56 of FERA, wherein the maximum punishment that could be awarded was up to seven years. The second entry of this Part-II laid down that such offences were triable by Magistrate of first Class, provided those offences were cognizable offences. As noted earlier, Section 62 of FERA made the offence under Section 56 non-cognizable. Besides, Section 61 (1) of FERA stated that ‘it shall be lawful’ for the Magistrate to pass the necessary sentence under Section 56. It does not state that the Magistrate alone is empowered to pass the necessary sentence, in which case the proceeding cannot be transferred from his Court. This provision is not like the one in the case of A.R. Antulay (supra) where under Section 7(1) of Criminal Law Amendment 1952 Act, the offence was ‘triable by special judge only’. In the instant case it was merely lawful for the Magistrate to try the offences under Section 61, but the Court of Magistrate was not a court of exclusive jurisdiction as in Antulay’s case. The offence was a non-cognizable one, and therefore it was not mandatory that it ought to have been tried only by the Magistrate of the First Class. Thus the petitioner could not claim that the Magistrate had the special jurisdiction to try the offence, and that the State could not transfer the case to the Sessions Judge. In view of what is stated above, it cannot be said that the Magistrate’s Court had an exclusive jurisdiction to try the cases relating to violations of the provisions of FERA, and those cases could not be transferred to the Special Judge. In the present case the accused were common, many of the witnesses would be common, and so also their evidence. The administrative power of the High Court in such a situation to effect transfer has been upheld in the case of Ranvir Yadav (supra), and there is no reason for this Court to take a different view in the facts of the present case.18. The petitioner had relied upon the judgment of a Division Bench of Delhi High Court in the case of A.S. Impex Limited (supra), on the question of transfer of a proceeding. Mr. Malhotra pointed out that although the judgment in Ranvir Yadav (supra) was brought to the notice of the Division Bench in that matter, the Division Bench had erroneously held that the reliance thereon to be a ‘misplaced’ one, as can be seen from the sentence at the end of paragraph 12 of that judgment. This judgment has been distinguished and found to be not laying down a good law by another Division Bench of Delhi High Court in Mahender Singh v. High Court of Delhi and Anr. reported in 2009 (151) Company Cases 485 (Delhi). In that matter, the Court was concerned with transfer of prosecutions under Securities and Exchange Board Act, 1992 from the Magistrate’s Court to Court of Sessions, and the High Court has held it to be valid and permissible. The Division Bench in Mahender Singh (supra) has in terms held that reliance on the judgment in A.R. Antulay (supra) to oppose such transfer was of no help, and rightly so. There is no difficulty in stating that A.S. Impex Limited (supra) does not lay down the correct proposition of law.19. The High Court does have the power to transfer the cases and appeals under Section 407 of the Cr.P.C. which is essentially a judicial power. Section 407 (1) (c) of Cr.P.C. lays down that, where it will tend to the general convenience of the parties or witnesses, or where it was expedient for the ends of justice, the High Court could transfer such a case for trial to a Court of Sessions. That does not mean that the High Court cannot transfer cases by exercising its administrative power of superintendence which is available to it under Article 227 of the Constitution of India. While repelling the objection to the exercise of this power, this Court observed in paragraph 13 of Ranvir Yadav (supra) as follows:- “13. We are unable to share the above view of Mr. Jethmalani. So long as power can be and is exercised purely for administrative exigency without impinging upon and prejudicially affecting the rights or interests of the parties to any judicial proceeding we do not find any reason to hold that administrative powers must yield place to judicial powers simply because in a given circumstance they coexist……” 20. For the reasons stated above, there is no substance in the objections raised by the petitioners. The High Court has looked into Section 407 of Cr.P.C., referred to Articles 227 and 235 of the Constitution of India, and thereafter in its impugned judgment has observed as follows:- “Having perused Section 407 Cr.P.C. and Article 227 and 235, I have no hesitation to hold that this Court either in the administration side or in the judicial side has absolute jurisdiction to transfer any criminal cases pending before one competent Court to be heard and decided by another Court within the jurisdiction of this Court. This Court in its administrative power can issue direction that cases of particular nature shall be heard by particular court having jurisdiction.” In view of what is stated earlier,
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The First Schedule to Cr.P.C. deals with the Classification of Offences. Part-1 thereof deals with the offences under the Indian Penal Code, Part-II deals with classification of offences against other laws, which would include offences under laws such as FERA. The petitioners were being prosecuted under Section 56 of FERA, wherein the maximum punishment that could be awarded was up to seven years. The second entry of this Part-II laid down that such offences were triable by Magistrate of first Class, provided those offences were cognizable offences. As noted earlier, Section 62 of FERA made the offence under Section 56 non-cognizable. Besides, Section 61 (1) of FERA stated that ‘it shall befor the Magistrate to pass the necessary sentence under Section 56. It does not state that the Magistrate alone is empowered to pass the necessary sentence, in which case the proceeding cannot be transferred from his Court. This provision is not like the one in the case of A.R. Antulay (supra) where under Section 7(1) of Criminal Law Amendment 1952 Act, the offence was ‘triable by special judgeIn the instant case it was merely lawful for the Magistrate to try the offences under Section 61, but the Court of Magistrate was not a court of exclusive jurisdiction as incase. The offence was a non-cognizable one, and therefore it was not mandatory that it ought to have been tried only by the Magistrate of the First Class. Thus the petitioner could not claim that the Magistrate had the special jurisdiction to try the offence, and that the State could not transfer the case to the Sessions Judge. In view of what is stated above, it cannot be said that theCourt had an exclusive jurisdiction to try the cases relating to violations of the provisions of FERA, and those cases could not be transferred to the Special Judge. In the present case the accused were common, many of the witnesses would be common, and so also their evidence. The administrative power of the High Court in such a situation to effect transfer has been upheld in the case of Ranvir Yadav (supra), and there is no reason for this Court to take a different view in the facts of the present case.18. The petitioner had relied upon the judgment of a Division Bench of Delhi High Court in the case of A.S. Impex Limited (supra), on the question of transfer of a proceeding. Mr. Malhotra pointed out that although the judgment in Ranvir Yadav (supra) was brought to the notice of the Division Bench in that matter, the Division Bench had erroneously held that the reliance thereon to be aone, as can be seen from the sentence at the end of paragraph 12 of that judgment. This judgment has been distinguished and found to be not laying down a good law by another Division Bench of Delhi High Court in Mahender Singh v. High Court of Delhi and Anr. reported in 2009 (151) Company Cases 485 (Delhi). In that matter, the Court was concerned with transfer of prosecutions under Securities and Exchange Board Act, 1992 from theCourt to Court of Sessions, and the High Court has held it to be valid and permissible. The Division Bench in Mahender Singh (supra) has in terms held that reliance on the judgment in A.R. Antulay (supra) to oppose such transfer was of no help, and rightly so. There is no difficulty in stating that A.S. Impex Limited (supra) does not lay down the correct proposition of law.19. The High Court does have the power to transfer the cases and appeals under Section 407 of the Cr.P.C. which is essentially a judicial power. Section 407 (1) (c) of Cr.P.C. lays down that, where it will tend to the general convenience of the parties or witnesses, or where it was expedient for the ends of justice, the High Court could transfer such a case for trial to a Court of Sessions. That does not mean that the High Court cannot transfer cases by exercising its administrative power of superintendence which is available to it under Article 227 of the Constitution ofHigh Court could have exercised its judicial power of transfer under Section 407 of the Code (if called upon to do so) and it could also have exercised its administrative power of transfer under Article 227 of the Constitution, which it did, as is evident from the letter dated 6th May 2002 issued by the Registrar General of the High Court of Jharkhand to the Secretary to the Government, Law (Judl.) Department, Government of Jharkhand. The fact that for an administrative exigency, the High Court decided to exercise its plenary administrative power does not per se lead to the conclusion that the transfer of the case from the Magistrate to the Special Judge was unlawful. The legality of the action cannot be called in question in this case since no prejudice has been caused to the petitioners by such athe revisional power of a superior court actually enables it to correct a grave error, the existence of that power does not confer any corresponding right on a litigant. This is the reason why, in a given case, a superior court may decline to exercise its power of revision, if the facts and circumstances of the case do not warrant the exercise of its discretion. This is also the reason why it is felicitously stated that a revision is not a right but only ale to a party. If the matter is looked at in this light, the transfer of a case from a Magistrate to a Special Judge does not take away this procedural facility available to the petitioners. It only changes the forum and as already held above, the petitioners have no right to choose the forum in which to file an appeal or move a petition for revising an interlocutory order.
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SUSHIL KUMAR AGARWAL Vs. MEENAKSHI SADHU | that compensation in money for non-performance of the contract is not an adequate relief. The intent of the section is to make a distinction between cases where a breach of an agreement can be remedied by means of compensation in terms of money and those cases where no other remedy other than specific performance will afford adequate relief. Therefore, before granting the remedy of specific performance, we need to analyse the extent of the alleged harm or injury suffered by the developer and whether compensation in money will suffice in order to make good the losses incurred due to the alleged breach of the agreement by the owner. From the facts of the case, it is clear that the case of the developer is that he incurred an expenditure of ? 18,41,000/- towards clearing outstanding dues, security deposit and development, incidental and miscellaneous expenses. The alleged losses/damages incurred by the Plaintiff can be quantified. The plaintiff can be provided recompense for the losses allegedly incurred by payment of adequate compensation in the form of money. The developer has failed to satisfy the conditions under sub-clause (i) and (ii) of Section 14(3)(c) of the Act. In such a case, specific performance cannot be granted. 28. By the Specific Relief (Amendment) Act 2018 , Section 14 has been amended to read as follows:?14. The following contracts cannot be specifically enforced, namely:— (a) where a party to the contract has obtained substituted performance of contract in accordance with the provisions of section 20; (b) a contract, the performance of which involves the performance of a continuous duty which the court cannot supervise; (c) a contract which is so dependent on the personal qualifications of the parties that the court cannot enforce specific performance of its material terms; and (d) a contract which is in its nature determinable.?However, the amended section has been notified on 19 September 2018 and the central government has appointed 1 October 2018 as the date on which the provision of Act 18 of 2018 will come into force However, in the present case, we are not called upon to examine the effect of this amended provision. In any case, we have indicated the reasons why Section 14(3)(c) was not attracted. 29. The appellants have relied on the decision of this Court in Her Highness Maharani Shantidevi P Gaikwad v Savjibai Haribai Patel AIR 2001 SC 1462 , where an agreement was entered into between the landowner and the developer for the purpose of construction of houses for the weaker sections on excess vacant land under a scheme sanctioned under Section 21 of the Urban Land (Ceiling and Regulation) Act 1976. This Court reversed the decision of the High Court that granted the decree of specific performance to the developer on the grounds that it was inequitable to enforce specific performance in view of a change in the Master Plan. The court noted that a contract which involved continuous supervision of the court, was not specifically enforceable. Further, in the opinion of the court, at best the plaintiff - builder could claim damages and the expenditure incurred by him for the implementation of the terms of the agreement. The above case has no applicability to the facts of the present case and is of no relevance as the issue in relation to the maintainability of a suit for specific performance by the builder against the owner has not been discussed. 30. The appellant has also placed reliance on the decision in Faqir Chand Gulati v Uppal Agencies Private Limited (2008) 10 SCC 345 , where the issue before this Court was whether a landowner, who enters into an agreement with the builder, for construction of an apartment building is a ?consumer? entitled to maintain a complaint against the builder as a service provider under the Consumer Protection Act, 1986. The Court held:?We may notice here that if there is a breach by the landowner of his obligations, the builder will have to approach a civil court as the landowner is not providing any service to the builder but merely undertakes certain obligations towards the builder, breach of which would furnish a cause of action for specific performance and/or damages. On the other hand, where the builder commits breach of his obligations, the owner has two options. He has the right to enforce specific performance and/or claim damages by approaching the civil court. Or he can approach the Forum under Consumer Protection Act, 1986 for relief as consumer, against the builder as a service- provider.?The issue involved before this Court was in relation to the interpretation of the Consumer Protection Act, 1986 and not on the maintainability of a suit filed by the developer against the owner for specific performance in view of Section 14(3)(c) of the Act. Therefore, the decision cannot be relied upon in relation to the issue before us. 31. Ordinarily, if there was an alternative plea for damages or monetary relief, we would have remanded the case to the High Court for consideration of the prayer. However, in the impugned judgment, the Division Bench has observed thus: ?Although we find no merit in this appeal, we wanted to give liberty to the plaintiff for amendment of the plaint for the purpose of getting alternative relief by way of return of security of money and damages, if at all suffered, in terms of Section 22 of the Specific Relief Act; but Mr. Das, the learned Advocate appearing on behalf of the appellant after taking instruction from his client submitted before us that his client did not want to avail of such remedy and wanted to challenge our decision by preferring an appeal if we decided to refuse the prayer for specific performance of the contract. ?The same statement has been made before this Court, as was made before the High Court. In the absence of any plea for damages or monetary relief by the respondents, there is no reason to remit the appeal back to the High Court. | 0[ds]12. The consistent position of the common law is that courts do not normally order specific performance of a contract to build or repair. But this rule is subject to important exceptions, and a decree for specific performance of a contract to build will be made only upon meeting the requisite requirements under law. According to Halsbury?s Laws of England, the discretion to grant specificHalsbury?s Laws ofme 44(1), para 801performance is not arbitrary or capricious; it is governed by principles developed in precedents. The judge must exercise the discretion in a judicious manner. Circumstances bearing on the conduct of the plaintiff, such as delay, acquiescence and breach or some other circumstances outside the contract, may render it inequitable to enforce it.The expression ?development agreement? has not been defined statutorily. In a sense, it is anomenclature which is used to be describe a wide range of agreements which an owner of a property may enter into for development of immovable property. As real estate transactions have grown in complexity, the nature of these agreements has become increasingly intricate. Broadly speaking, (without intending to be exhaustive), development agreements may be of various kinds:(i) An agreement may envisage that the owner of the immovable property engages someone to carry out the work of construction on theHudson?s Building and Engineeringme 1, page 677[1978] 1 Ch. 337 at page 359property for monetary consideration. This is a pure construction contract;(ii) An agreement by which the owner or a person holding other rights in an immovable property grants rights to a third party to carry on development for a monetary consideration payable by the developer to the other. In such a situation, the owner or right holder may in effect create an interest in the property in favour of the developer for a monetary consideration;(iii) An agreement where the owner or a person holding any other rights in an immovable property grants rights to another person to carry out development. In consideration, the developer has to hand over a part of the constructed area to the owner. The developer is entitled to deal with the balance of the constructed area. In some situations, a society or similar other association is formed and the land is conveyed or leased to the society or association;(iv) A development agreement may be entered into in a situation where the immovable property is occupied by tenants or other right holders. In some cases, the property may be encroached upon. The developer may take on the entire responsibility to settle with the occupants and to thereafter carry out construction; and(v) An owner may negotiate with a developer to develop a plot of land which is occupied by slum dwellers and which has been declared as a slum. Alternately, there may be old and dilapidated buildings which are occupied by a number of occupants or tenants. The developer may undertake to rehabilitate the occupants or, as the case may be, the slum dwellers and thereafter share the saleable constructed area with the owner.When a pure construction contact is entered into, the contractor has no interest in either the land or the construction which is carried out. But in various other categories of development agreements, the developer may have acquired a valuable right either in the property or in the constructed area. The terms of the agreement are crucial in determining whether any interest has been created in the land or in respect of rights in the land in favour of the developer and if so, the nature and extent of the rights.In a construction contract, the contractor has no interest in either the land or the construction carried out on the land. But, in other species of development agreements, the developer may have acquired a valuable right either in the property or the constructed area. There are various incidents of ownership of in respect of an immovable property. Primarily, ownership imports the right of exclusive possession and the enjoyment of the thing owned. The owner in possession of the thing has the right to exclude all others from its possession and enjoyment. The right to ownership of a property carries with it the right to its enjoyment, right to its access and to other beneficial enjoyments incidental to it. (B Gangadhar v BG Rajalingam). Ownership denotes the relationship(1995) 5 SCC 239 at para 6between a person and an object forming the subject matter of the ownership. It consists of a complex of rights, all of which are rights in rem, being good against the world and not merely against specific persons. There are various rights or incidents of ownership all of which need not necessarily be present in every case. They may include a right to possess, use and enjoy the thing owned; and a right to consume, destroy or alienate it. (Swadesh Ranjan Sinha v Haradeb Banerjee). An essential incident of ownership of land is the right to exploit the development, potential to construct and to deal with the constructed area. In some situations, under a development agreement, an owner may part with such rights to a developer. This in is essence is a parting of some of the incidents of ownership of the immovable property. There could be situations where pursuant to the grant of such rights, the developer has incurred a substantial investment, altered the state of the property and even created third party rights in the property or the construction carried out to be carried out. There could be situations where it is the developer who by his efforts has rendered a property developable by taking steps in law. In development agreements of this nature, where an interest is created in the land or in the development in favour of the developer, it may be difficult to hold that the agreement is not capable of being specifically performed. For example, the developer may have evicted or settled with occupants, got land which was agricultural converted intouse, carried out a partial development of the property and pursuant to the rights conferred under the agreement, created third party rights in favour of flat(1991) 4 SCC 572 purchasers in the proposed building. In such a situation, if for no fault of the developer, the owner seeks to resile from the agreement and terminates the development agreement, it may be difficult to hold that the developer is not entitled to enforce his rights. This of course is dependent on the terms of the agreement in each case. There cannot be a uniform formula for determining whether an agreement granting development rights can be specifically enforced and it would depend on the nature of the agreement in each case and the rights created under it.In the present case, the respondent agreed to pay the appellant the costs and expenses along with the agreed remuneration upon completion of the construction. If the respondent failed to pay, the appellant was entitled to realise its money by selling 58% of the total constructed area. Clauses 6, 10 and 11 of the agreement indicate that the respondent would retain 42% of the total constructed area and the balance 58% would remain secured for due payment of the construction costs. It was further agreed, that the total construction costs shall not exceed 58% of the constructed area. The intention of the parties is clear from the agreement. This was an agreement to carry out the construction of the building for which payment of the construction costs and agreed remuneration had to be made. The agreement did not create an interest in the land for the developer. If the payment due to the developer was made, there would arise no security interest. Moreover, the security interest in respect of 42% of the constructed area would arise only if the construction came up and the payment due to the builder was not made. In present case, admittedly there is no construction at all.Various High Courts have interpreted the requirements under Section 14(3)(c) of the Act andon the maintainability of a suitby the developer for specific performance against the owner of the property for a breach in the conditions of the development agreement. A common thread that runs through the analysis in decided cases is the following:(i) The courts do not normally order specific performance of a contract to build or repair. But this rule is subject to important exceptions, and a decree for specific performance of a contract to build will be made only upon meeting the requirements under law;(ii) The discretion to grant specific performance is not arbitrary or capricious but judicious; it is to besettled principles; the conduct of the plaintiff, such as delay, acquiescence, breach or some other circumstances outside the contract, may render it inequitable to enforce it;(iii) In order to determine the exact nature of the agreement signed between the parties, the intent of the parties has to be construed by reading the agreement as a whole in order to determine whether it is an agreement simpliciter for construction or an agreement that also creates an interest for the builder in the property. Where under a development agreement, the developer has an interest in land, it would be difficult to hold that such an agreement is not capable of being specifically enforced; and(iv) A decree for specific performance of a contract to build will be made if the following conditions are fulfilled:a) the work of construction should be described in the contract in a sufficiently precise manner in order for the court to determine the exact nature of the building or work;b) the plaintiff must have a substantial interest in the performance of the contract and the interest should be of such a nature that compensation in money forof the contract is not an adequate relief; andc) the defendant should have, by virtue of the agreement, obtained possession of the whole or any part of the land on which the building is to be constructed or other work is to be executed.condition under Section 14(3)(c)(iii) is that the defendant has, by virtue of the agreement, obtained possession of the whole or any part of the land on which the building is to be constructed or other work is to be executed. If the rule of literal interpretation is adopted to interpret Section 14(3)(c)(iii), it would lead to a situation where a suit for specific performance can only be instituted at the behest of the owner against a developer, denying the benefit of the provision to the developer despite an interest in the property having been created. This anomaly is created by the use of thedefendant has, by virtue of the agreement, obtained possession of the whole or any part of theSection 14(3)(c)(iii). Under a development agreement, an interest in the property may have been created in favour of the developer. If the developer is the plaintiff and the suit is against the owner, strictly applied, clause (iii) would require that the defendant should have obtained possession under the agreement. In such a case if the developer files a suit for specific performance against the owner, and the owner is in possession of the land by virtue of a lawful title, the defendant (i.e. the owner) cannot be said to have obtained possession of the land by way of the agreement. This would lead to an anomalous situation where the condition in Section 14(3)(c)(iii) would not be fulfilled in the case of a suit by a developer. Application of the literal rule of interpretation to Section 14(3)(c)(iii), would lead to an absurdity and would be inconsistent with the intent of the Act.The conditions that should be present to justify a departure from the plain words of any statute, have been elucidated in Justice GP Singh?s treatise on Principles of Statutory Interpretation(while discussing the decision of the House of Lords in Stock v Frank Jones (Tipton) Ltd.a court would only be justified in departing from the plain words of the statute when it is satisfied that (1) there is clear and gross balance of anomaly; (2) Parliament, the legislative promoters and the draftsman could not have envisaged such anomaly and could not have been prepared to accept it in the interest of a supervening legislative objective; (3) the anomaly can be obviated without detriment to such a legislative objective; and (4) the language of the statute is susceptible of the modification required to obviate thePrinciples of Statutoryth Edition2010, Lexis Nexis(1978) 1 WLR 231The principle has been also adverted to in Maxwell on Interpretation of Statutese the language of a statute, in its ordinary meaning and grammatical construction, leads to a manifest contradiction of the apparent purpose of the enactment, or to some inconvenience or absurdity, hardship or injustice, presumably not intended, a construction may be put upon it which modifies the meaning of the words, and even the structure of thegiving a purposive interpretation to Section 14(3)(c)(iii), the anomaly and absurdity created by the third condition will have no applicability in a situation where the developer who has an interest in the property, brings a suit for specific performance against the owner. The developer will have to satisfy the two conditions laid out in sub clause (i) and (ii) of Section 14(3)(c), for the suit for specific performance to be maintainable against the owner. This will ensure that both owners and developers can avail of the remedy of specific performance under the Act. A suit for specific performance filed by the developer would then be maintainable. Whether specific performance should in the facts of a case be granted is a separate matter, bearing on the discretion of the court.The condition under Section 14(3)(c)(i) is that the building or other work described in the contract is sufficiently precise to enable the court to determine the exact nature of the building or work. To examine the question as to whether the scope of the building or work described in the agreement is sufficiently defined, the Court needs to determine the exact nature of the work by referring to the relevant clauses of the agreement. Clause 8 of the agreement provides that the building shall be constructed in accordance with approved plans and built with ?first class materials? with wooden doors, mosaic floor, basin and lavatories, tap water arrangement, masonry work, electric points, finished distemper and bath room fittings of glazed tiles up to 6? height and lift, ?etc.? Further, at clause 13 of the agreement, the parties have agreed that the contractor would construct a building at the premises consisting of ?residential apartments of various sizes and denomination? in the said building complex in accordance with plans sanctioned by the Calcutta Municipal Corporation and the owner shall convey the proportionate share in the land to the respective buyers. Clauseof the agreement states thatif for any reason after the plan is sanctionedany act or omission on the part of thebuilding cannot be constructed; the owner shall refund to the contractor ?4,00,000/in addition to all costs, charges and expenses incurred by the contractor. At clause 20 of the agreement, the parties have agreed that the apartments of the owner shall be constructed and be made in ?similar condition? as that of the contractor with water connection, sewerage, electric wiring except ?special fittings?. Use of such vague terms in the agreement such as ?first class materials?, ?residential apartment of various sizes and denomination?, ?etc.?, ?similar condition?, and ?special fittings?, while discussing the scope of work clearly shows that the exact extent of work to be carried out by the developer and the obligations of the parties, have not been clearly brought out. Parties have not clearly defined, inter alia, the nature of material to be used, the requirements of quality, structure of the building, sizes of the flats and obligations of the owner after the plan is sanctioned. Further, clause 9of the agreement states thatthe owner shall pay the contractor costs, expenses along with agreed remuneration only after completion of the building on receiving the possession. However, the exact amount of remuneration payable by the owner to the contractor is not to be found in the agreement. The agreement between the parties is vague. The court cannot determine the exact nature of the building or work. The first condition in Section 14(3)(c)(i) is not fulfilled.Another condition under Section 14(3)(c)(ii) is that the plaintiff has a substantial interest in the performance of the contract and the interest is of such a nature that compensation in money forof the contract is not an adequate relief. The intent of the section is to make a distinction between cases where a breach of an agreement can be remedied by means of compensation in terms of money and those cases where no other remedy other than specific performance will afford adequate relief. Therefore, before granting the remedy of specific performance, we need to analyse the extent of the alleged harm or injury suffered by the developer and whether compensation in money will suffice in order to make good the losses incurred due to the alleged breach of the agreement by the owner. From the facts of the case, it is clear that the case of the developer is that he incurred an expenditure of ? 18,41,000/towards clearing outstanding dues, security deposit and development, incidental and miscellaneous expenses. The alleged losses/damages incurred by the Plaintiff can be quantified. The plaintiff can be provided recompense for the losses allegedly incurred by payment of adequate compensation in the form of money. The developer has failed to satisfy the conditions under(i) and (ii) of Section 14(3)(c) of the Act. In such a case, specific performance cannot be granted.By the Specific Relief (Amendment) Act 2018, Section 14 has been amended to read asThe following contracts cannot be specifically enforced, namely:—(a) where a party to the contract has obtained substituted performance of contract in accordance with the provisions of section 20;(b) a contract, the performance of which involves the performance of a continuous duty which the court cannot supervise;(c) a contract which is so dependent on the personal qualifications of the parties that the court cannot enforce specific performance of its material terms; and(d) a contract which is in its natureAct 18 of 2018However, the amended section has been19 September 2018 and the central government has appointed 1 October 2018 as the date on which the provision ofAct 18 of 2018will come into force. However, in thepresent case, we are not called upon to examine the effect of this amended provision. In any case, we have indicated the reasons why Section 14(3)(c) was not attracted.The appellants haveon the decisionof this Court in Her Highness Maharani Shantidevi P Gaikwad v Savjibai Haribai Patel, where an agreement was entered into between the landowner and the developer for the purpose of construction of houses for the weaker sections on excess vacant land under a scheme sanctioned under Section 21 of the Urban Land (Ceiling and Regulation) Act 1976. This Court reversed the decision ofhat granted the decree of specific performance to the developer on the grounds that it was inequitable to enforce specific performance in view of a change in the Master Plan. The court noted that a contract which involved continuous supervision of the court, was not specifically enforceable. Further, in the opinion of the court, at best the plaintiffbuilder could claim damages and the expenditure incurred by him for the implementation of the terms of the agreement. The above case has no applicability to the facts of the present case and is of no relevance as the issue in relation to the maintainability of a suit for specific performance by the builder against the owner has not been discussed.issue involved before this Court was in relation to the interpretation of the Consumer Protection Act, 1986 and noton the maintainability of a suitfiled by the developer against the owner for specific performance in view of Section 14(3)(c) of the Act. Therefore, the decision cannot be relied upon in relation to the issue before us.same statement has been made before this Court, as was made beforet. Inthe absence of any plea for damages or monetary relief by the respondents, there is no reason to remit the appeal back to | 0 | 8,307 | 3,859 | ### Instruction:
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that compensation in money for non-performance of the contract is not an adequate relief. The intent of the section is to make a distinction between cases where a breach of an agreement can be remedied by means of compensation in terms of money and those cases where no other remedy other than specific performance will afford adequate relief. Therefore, before granting the remedy of specific performance, we need to analyse the extent of the alleged harm or injury suffered by the developer and whether compensation in money will suffice in order to make good the losses incurred due to the alleged breach of the agreement by the owner. From the facts of the case, it is clear that the case of the developer is that he incurred an expenditure of ? 18,41,000/- towards clearing outstanding dues, security deposit and development, incidental and miscellaneous expenses. The alleged losses/damages incurred by the Plaintiff can be quantified. The plaintiff can be provided recompense for the losses allegedly incurred by payment of adequate compensation in the form of money. The developer has failed to satisfy the conditions under sub-clause (i) and (ii) of Section 14(3)(c) of the Act. In such a case, specific performance cannot be granted. 28. By the Specific Relief (Amendment) Act 2018 , Section 14 has been amended to read as follows:?14. The following contracts cannot be specifically enforced, namely:— (a) where a party to the contract has obtained substituted performance of contract in accordance with the provisions of section 20; (b) a contract, the performance of which involves the performance of a continuous duty which the court cannot supervise; (c) a contract which is so dependent on the personal qualifications of the parties that the court cannot enforce specific performance of its material terms; and (d) a contract which is in its nature determinable.?However, the amended section has been notified on 19 September 2018 and the central government has appointed 1 October 2018 as the date on which the provision of Act 18 of 2018 will come into force However, in the present case, we are not called upon to examine the effect of this amended provision. In any case, we have indicated the reasons why Section 14(3)(c) was not attracted. 29. The appellants have relied on the decision of this Court in Her Highness Maharani Shantidevi P Gaikwad v Savjibai Haribai Patel AIR 2001 SC 1462 , where an agreement was entered into between the landowner and the developer for the purpose of construction of houses for the weaker sections on excess vacant land under a scheme sanctioned under Section 21 of the Urban Land (Ceiling and Regulation) Act 1976. This Court reversed the decision of the High Court that granted the decree of specific performance to the developer on the grounds that it was inequitable to enforce specific performance in view of a change in the Master Plan. The court noted that a contract which involved continuous supervision of the court, was not specifically enforceable. Further, in the opinion of the court, at best the plaintiff - builder could claim damages and the expenditure incurred by him for the implementation of the terms of the agreement. The above case has no applicability to the facts of the present case and is of no relevance as the issue in relation to the maintainability of a suit for specific performance by the builder against the owner has not been discussed. 30. The appellant has also placed reliance on the decision in Faqir Chand Gulati v Uppal Agencies Private Limited (2008) 10 SCC 345 , where the issue before this Court was whether a landowner, who enters into an agreement with the builder, for construction of an apartment building is a ?consumer? entitled to maintain a complaint against the builder as a service provider under the Consumer Protection Act, 1986. The Court held:?We may notice here that if there is a breach by the landowner of his obligations, the builder will have to approach a civil court as the landowner is not providing any service to the builder but merely undertakes certain obligations towards the builder, breach of which would furnish a cause of action for specific performance and/or damages. On the other hand, where the builder commits breach of his obligations, the owner has two options. He has the right to enforce specific performance and/or claim damages by approaching the civil court. Or he can approach the Forum under Consumer Protection Act, 1986 for relief as consumer, against the builder as a service- provider.?The issue involved before this Court was in relation to the interpretation of the Consumer Protection Act, 1986 and not on the maintainability of a suit filed by the developer against the owner for specific performance in view of Section 14(3)(c) of the Act. Therefore, the decision cannot be relied upon in relation to the issue before us. 31. Ordinarily, if there was an alternative plea for damages or monetary relief, we would have remanded the case to the High Court for consideration of the prayer. However, in the impugned judgment, the Division Bench has observed thus: ?Although we find no merit in this appeal, we wanted to give liberty to the plaintiff for amendment of the plaint for the purpose of getting alternative relief by way of return of security of money and damages, if at all suffered, in terms of Section 22 of the Specific Relief Act; but Mr. Das, the learned Advocate appearing on behalf of the appellant after taking instruction from his client submitted before us that his client did not want to avail of such remedy and wanted to challenge our decision by preferring an appeal if we decided to refuse the prayer for specific performance of the contract. ?The same statement has been made before this Court, as was made before the High Court. In the absence of any plea for damages or monetary relief by the respondents, there is no reason to remit the appeal back to the High Court.
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built with ?first class materials? with wooden doors, mosaic floor, basin and lavatories, tap water arrangement, masonry work, electric points, finished distemper and bath room fittings of glazed tiles up to 6? height and lift, ?etc.? Further, at clause 13 of the agreement, the parties have agreed that the contractor would construct a building at the premises consisting of ?residential apartments of various sizes and denomination? in the said building complex in accordance with plans sanctioned by the Calcutta Municipal Corporation and the owner shall convey the proportionate share in the land to the respective buyers. Clauseof the agreement states thatif for any reason after the plan is sanctionedany act or omission on the part of thebuilding cannot be constructed; the owner shall refund to the contractor ?4,00,000/in addition to all costs, charges and expenses incurred by the contractor. At clause 20 of the agreement, the parties have agreed that the apartments of the owner shall be constructed and be made in ?similar condition? as that of the contractor with water connection, sewerage, electric wiring except ?special fittings?. Use of such vague terms in the agreement such as ?first class materials?, ?residential apartment of various sizes and denomination?, ?etc.?, ?similar condition?, and ?special fittings?, while discussing the scope of work clearly shows that the exact extent of work to be carried out by the developer and the obligations of the parties, have not been clearly brought out. Parties have not clearly defined, inter alia, the nature of material to be used, the requirements of quality, structure of the building, sizes of the flats and obligations of the owner after the plan is sanctioned. Further, clause 9of the agreement states thatthe owner shall pay the contractor costs, expenses along with agreed remuneration only after completion of the building on receiving the possession. However, the exact amount of remuneration payable by the owner to the contractor is not to be found in the agreement. The agreement between the parties is vague. The court cannot determine the exact nature of the building or work. The first condition in Section 14(3)(c)(i) is not fulfilled.Another condition under Section 14(3)(c)(ii) is that the plaintiff has a substantial interest in the performance of the contract and the interest is of such a nature that compensation in money forof the contract is not an adequate relief. The intent of the section is to make a distinction between cases where a breach of an agreement can be remedied by means of compensation in terms of money and those cases where no other remedy other than specific performance will afford adequate relief. Therefore, before granting the remedy of specific performance, we need to analyse the extent of the alleged harm or injury suffered by the developer and whether compensation in money will suffice in order to make good the losses incurred due to the alleged breach of the agreement by the owner. From the facts of the case, it is clear that the case of the developer is that he incurred an expenditure of ? 18,41,000/towards clearing outstanding dues, security deposit and development, incidental and miscellaneous expenses. The alleged losses/damages incurred by the Plaintiff can be quantified. The plaintiff can be provided recompense for the losses allegedly incurred by payment of adequate compensation in the form of money. The developer has failed to satisfy the conditions under(i) and (ii) of Section 14(3)(c) of the Act. In such a case, specific performance cannot be granted.By the Specific Relief (Amendment) Act 2018, Section 14 has been amended to read asThe following contracts cannot be specifically enforced, namely:—(a) where a party to the contract has obtained substituted performance of contract in accordance with the provisions of section 20;(b) a contract, the performance of which involves the performance of a continuous duty which the court cannot supervise;(c) a contract which is so dependent on the personal qualifications of the parties that the court cannot enforce specific performance of its material terms; and(d) a contract which is in its natureAct 18 of 2018However, the amended section has been19 September 2018 and the central government has appointed 1 October 2018 as the date on which the provision ofAct 18 of 2018will come into force. However, in thepresent case, we are not called upon to examine the effect of this amended provision. In any case, we have indicated the reasons why Section 14(3)(c) was not attracted.The appellants haveon the decisionof this Court in Her Highness Maharani Shantidevi P Gaikwad v Savjibai Haribai Patel, where an agreement was entered into between the landowner and the developer for the purpose of construction of houses for the weaker sections on excess vacant land under a scheme sanctioned under Section 21 of the Urban Land (Ceiling and Regulation) Act 1976. This Court reversed the decision ofhat granted the decree of specific performance to the developer on the grounds that it was inequitable to enforce specific performance in view of a change in the Master Plan. The court noted that a contract which involved continuous supervision of the court, was not specifically enforceable. Further, in the opinion of the court, at best the plaintiffbuilder could claim damages and the expenditure incurred by him for the implementation of the terms of the agreement. The above case has no applicability to the facts of the present case and is of no relevance as the issue in relation to the maintainability of a suit for specific performance by the builder against the owner has not been discussed.issue involved before this Court was in relation to the interpretation of the Consumer Protection Act, 1986 and noton the maintainability of a suitfiled by the developer against the owner for specific performance in view of Section 14(3)(c) of the Act. Therefore, the decision cannot be relied upon in relation to the issue before us.same statement has been made before this Court, as was made beforet. Inthe absence of any plea for damages or monetary relief by the respondents, there is no reason to remit the appeal back to
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Mst. Gulab Bai Vs. Manphool Bai | show an intention to alter the law their Lordships do not think it right to put a construction upon them which would cause an alteration. It would thus be seen that this decision is an authority for the proposition that the rule of res judicata as interpreted even under the Code of 1877 was held to be the same as it obtained under the Code of 1859 as interpreted by the Privy Council in the light of the general considerations as to res judicata, enunciated in the case of Duchess of Kingston, 2 Sm L C (13th Ed) 644. 12. This position has been clearly stated in another decision of the Privy Council in Gokul Mandar v. Pudmanund Singh, ILR 29 Cal 707. On this occasion the Privy Council had to consider the effect of S.13 of the Code of 1882. The argument which was urged before the Privy Council on S.13 was that a decree in a previous suit cannot be pleaded as res judicata in a subsequent suit unless the judge by whom it was made had jurisdiction to try and decide not only the particular matter in issue but also the subsequent suit itself in which the issue is subsequently raised, and in upholding this argument their Lordships observed that in this respect the enactment goes beyond S. 13 of the previous Act X of 1877, and also, as appears to their Lordships, beyond the law laid down by the judges in the Duchess of Kingstons case, 2 Sen LC (13th Ed) 644. In other words, this decision would show that even though in the earlier Codes there may have been some doubt about the test of competent jurisdiction which has to be applied to the Court which tried the earlier suit, the position under the Code of 1882 is absolutely clear. The question to he asked under S. 13 of the said Code is could the Court which tried the earlier suit have tried the subsequent suit if it had been then filed ?In other words, it is the whole of the suit which should he within the competence of the Court at the earlier time and not a part of it. Having regard to this legislative background of S. 11 we feel no hesitation in holding that the word suit in the context must be construed literally and it denotes the whole of the suit and not a part of it or a material issue arising in it. 13. Several decisions have been cited before us where this question has been considered. We do not think any useful purpose would be served by referring to them. It may be enough to state that in a large majority of decisions the word suit has been literally construed (vide: Ram Dayal v. Jankidas, ILR 24 Bom 466 and Shibu Rout v. Baban Rout, ILR 35 Cal 353, though in some cases and under special circumstances a liberal construction has been accepted (vide: Sheikh Maqsood Ali v. H. Hunter, AIR 1943 Oudh 338 (FB). We must accordingly hold that the High Court was right in coming to the conclusion that the present suit is not barred by res judicata. 14. That takes us to the question of the construction of the rent note. The High Court has held that on a fair and reasonable construction of the document it must be held that the rent note has been passed by appellant 2 in favour of the respondent alone though incidentally out of respect the name of appellant 1 has been introduced in it. In our opinion this conclusion is right. It is true that the rent note has been executed in favour of both appellant 1 and the respondent; but it is significant that the rent note stipulates that when the rent is paid by appellant 2 he has to obtain a receipt from the owner. The word owner is used in singular and not plural and that indicates that the rent note proceeded on the assumption that the property which was the subject-matter of the rent note belonged to one owner and not two. There is another clause in the rent note which is clearer still. This clause reads : therefore, I have executed in my proper senses this rent note on a stamped paper valued Rs. 6/- in the names of each of the two, mother-in-law and the daughter in-law, Sethanji Gulab Bai widow of Phoolchandji in the capacity of being elder in the family and Sethanji Manphool Bai alias Bhanwar Bai widow of Lalchandji the heir in the family and the owner of the property, which will stand and may be used in times of need. This clause makes it perfectly clear that the inclusion of the name of appellant 1 was merely formal and it was intended to show respect to the elderly lady in the family. It also shows that the respondent was treated as the owner of the property as the heir of her deceased husband Lal Chand. Reading this clause together with the earlier clause as to the receipt for the payment of rent which we have already considered it is absolutely clear that the name of appellant 1 was not included in the rent note because she had any right to the property let out but solely as a matter of respect which the respondent showed to appellant 1. Threfore, in our opinion, the contention that the rent note has been passed by appellant 2 in favour of the respondent and appellant 1 cannot be sustained. If that be the true position there call be no doubt whatever that appellant 2 is precluded from disputing the title of the respondent in the present proceedings. As the High Court has pointed out the sequence of events leading to the execution of the suit rent note unambiguously shows that appellant 2 has recognised the respondent as the lessor and as such the principles of S. 116 of the Evidence Act clearly apply. | 0[ds]In ordinary course we might have called for finding on issues arising between to parties on his application, but since the matter is very old we do not wish to give it a further lease of life by adopting that course. We have, therefore, allowed Dhan Kumar to join the present proceedings without deciding the question as to the factum or validity of his alleged adoption. We may also add that the question about the factum and validity of the adoption of the respondents husband Lal Chand was also put in issue in the Courts below and in fact the District Court had made a finding against Lal Chands adoption. The High Court thought it unnecessary to decide this matter. Thus there is a dispute between Dhan Kumar and the respondent on two grounds : Dhan Kumar seeks to challenge the factum and validity of Lal Chands adoption, whereas the respondent seeks to challenge the factum and validity of Dhan Kumars adoption. Both these points have not been considered by us, and so the parties would be at liberty to agitate them in proper proceedings if they are so advised. In the present appeal we propose to consider only two points, one of res judicata and the other about the construction of the rent noteIf this contention is right then the relevant issue decided in the earlier litigation would be a part of the subsequent suit, and since the Munsiff who tried the earlier suit was competent to try this part of the subsequent suit the requisite condition is a satisfied and the suit is thus barred by res judicataThe basis of the rule of res judicata is that an individual should not be vexed twice for the same cause, and the liberal construction of the word suit would be consistent with this basis; otherwise if the competence of the earlier Court is going to be judged by reference to its competence to try the entire suit as subsequently instituted, in many cases where the matter directly and substantially in issue has been tried between the parties by the earlier Court it may have to be tried again in a subsequent suit because the earlier Court had no jurisdiction to try the subsequent suit having regard to its pecuniary jurisdiction. That, it is urged, would be anomalous and inconsistent with the principle underlying the doctrine of res judicataBesides, if considerations of anomaly are relevant it may be urged in support of the literal construction of the word suit that the finding recorded on a material issue by the Court of the lowest jurisdiction is intended not to bar the trial of the same issue in a subsequent suit filed before a Court of unlimited jurisdiction. To hold otherwise would itself introduce another kind of anomaly. Therefore, it seems to us that as a matter of construction the suggestion that the word suit should be liberally construed cannot be acceptedIt would thus be seen that in dealing with S. 2 of the Code of 1859 the Privy Council introduced the notion of concurrent jurisdiction though the words used in the section were a Court of competent jurisdiction, and, it was held that the jurisdiction must be concurrent as regards the pecuniary limit as well as the subject matter. This decision proceeded on the assumption that in order to make the decision of one Court final and conclusive in another Court, it trust be a decision of a Court which would have had jurisdiction over the matter in the subsequent suit in which the first decision is given in evidence as con- clusiveIn other words, this decision would show that even though in the earlier Codes there may have been some doubt about the test of competent jurisdiction which has to be applied to the Court which tried the earlier suit, the position under the Code of 1882 is absolutely clearIn other words, it is the whole of the suit which should he within the competence of the Court at the earlier time and not a part of it. Having regard to this legislative background of S. 11 we feel no hesitation in holding that the word suit in the context must be construed literally and it denotes the whole of the suit and not a part of it or a material issue arising in itWe do not think any useful purpose would be served by referring to them. It may be enough to state that in a large majority of decisions the word suit has been literally construedthough in some cases and under special circumstances a liberal construction has been. We must accordingly hold that the High Court was right in coming to the conclusion that the present suit is not barred by res judicataThe High Court has held that on a fair and reasonable construction of the document it must be held that the rent note has been passed by appellant 2 in favour of the respondent alone though incidentally out of respect the name of appellant 1 has been introduced in it. In our opinion this conclusion is right. It is true that the rent note has been executed in favour of both appellant 1 and the respondent; but it is significant that the rent note stipulates that when the rent is paid by appellant 2 he has to obtain a receipt from the owner. The word owner is used in singular and not plural and that indicates that the rent note proceeded on the assumption that the property which was the subject-matter of the rent note belonged to one owner and not two. There is another clause in the rent note which is clearer stillThis clause makes it perfectly clear that the inclusion of the name of appellant 1 was merely formal and it was intended to show respect to the elderly lady in the family. It also shows that the respondent was treated as the owner of the property as the heir of her deceased husband Lal Chand. Reading this clause together with the earlier clause as to the receipt for the payment of rent which we have already considered it is absolutely clear that the name of appellant 1 was not included in the rent note because she had any right to the property let out but solely as a matter of respect which the respondent showed to appellant 1. Threfore, in our opinion, the contention that the rent note has been passed by appellant 2 in favour of the respondent and appellant 1 cannot be sustained. If that be the true position there call be no doubt whatever that appellant 2 is precluded from disputing the title of the respondent in the present proceedings. As the High Court has pointed out the sequence of events leading to the execution of the suit rent note unambiguously shows that appellant 2 has recognised the respondent as the lessor and as such the principles of S. 116 of the Evidence Act clearly apply. | 0 | 4,344 | 1,217 | ### Instruction:
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show an intention to alter the law their Lordships do not think it right to put a construction upon them which would cause an alteration. It would thus be seen that this decision is an authority for the proposition that the rule of res judicata as interpreted even under the Code of 1877 was held to be the same as it obtained under the Code of 1859 as interpreted by the Privy Council in the light of the general considerations as to res judicata, enunciated in the case of Duchess of Kingston, 2 Sm L C (13th Ed) 644. 12. This position has been clearly stated in another decision of the Privy Council in Gokul Mandar v. Pudmanund Singh, ILR 29 Cal 707. On this occasion the Privy Council had to consider the effect of S.13 of the Code of 1882. The argument which was urged before the Privy Council on S.13 was that a decree in a previous suit cannot be pleaded as res judicata in a subsequent suit unless the judge by whom it was made had jurisdiction to try and decide not only the particular matter in issue but also the subsequent suit itself in which the issue is subsequently raised, and in upholding this argument their Lordships observed that in this respect the enactment goes beyond S. 13 of the previous Act X of 1877, and also, as appears to their Lordships, beyond the law laid down by the judges in the Duchess of Kingstons case, 2 Sen LC (13th Ed) 644. In other words, this decision would show that even though in the earlier Codes there may have been some doubt about the test of competent jurisdiction which has to be applied to the Court which tried the earlier suit, the position under the Code of 1882 is absolutely clear. The question to he asked under S. 13 of the said Code is could the Court which tried the earlier suit have tried the subsequent suit if it had been then filed ?In other words, it is the whole of the suit which should he within the competence of the Court at the earlier time and not a part of it. Having regard to this legislative background of S. 11 we feel no hesitation in holding that the word suit in the context must be construed literally and it denotes the whole of the suit and not a part of it or a material issue arising in it. 13. Several decisions have been cited before us where this question has been considered. We do not think any useful purpose would be served by referring to them. It may be enough to state that in a large majority of decisions the word suit has been literally construed (vide: Ram Dayal v. Jankidas, ILR 24 Bom 466 and Shibu Rout v. Baban Rout, ILR 35 Cal 353, though in some cases and under special circumstances a liberal construction has been accepted (vide: Sheikh Maqsood Ali v. H. Hunter, AIR 1943 Oudh 338 (FB). We must accordingly hold that the High Court was right in coming to the conclusion that the present suit is not barred by res judicata. 14. That takes us to the question of the construction of the rent note. The High Court has held that on a fair and reasonable construction of the document it must be held that the rent note has been passed by appellant 2 in favour of the respondent alone though incidentally out of respect the name of appellant 1 has been introduced in it. In our opinion this conclusion is right. It is true that the rent note has been executed in favour of both appellant 1 and the respondent; but it is significant that the rent note stipulates that when the rent is paid by appellant 2 he has to obtain a receipt from the owner. The word owner is used in singular and not plural and that indicates that the rent note proceeded on the assumption that the property which was the subject-matter of the rent note belonged to one owner and not two. There is another clause in the rent note which is clearer still. This clause reads : therefore, I have executed in my proper senses this rent note on a stamped paper valued Rs. 6/- in the names of each of the two, mother-in-law and the daughter in-law, Sethanji Gulab Bai widow of Phoolchandji in the capacity of being elder in the family and Sethanji Manphool Bai alias Bhanwar Bai widow of Lalchandji the heir in the family and the owner of the property, which will stand and may be used in times of need. This clause makes it perfectly clear that the inclusion of the name of appellant 1 was merely formal and it was intended to show respect to the elderly lady in the family. It also shows that the respondent was treated as the owner of the property as the heir of her deceased husband Lal Chand. Reading this clause together with the earlier clause as to the receipt for the payment of rent which we have already considered it is absolutely clear that the name of appellant 1 was not included in the rent note because she had any right to the property let out but solely as a matter of respect which the respondent showed to appellant 1. Threfore, in our opinion, the contention that the rent note has been passed by appellant 2 in favour of the respondent and appellant 1 cannot be sustained. If that be the true position there call be no doubt whatever that appellant 2 is precluded from disputing the title of the respondent in the present proceedings. As the High Court has pointed out the sequence of events leading to the execution of the suit rent note unambiguously shows that appellant 2 has recognised the respondent as the lessor and as such the principles of S. 116 of the Evidence Act clearly apply.
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have not been considered by us, and so the parties would be at liberty to agitate them in proper proceedings if they are so advised. In the present appeal we propose to consider only two points, one of res judicata and the other about the construction of the rent noteIf this contention is right then the relevant issue decided in the earlier litigation would be a part of the subsequent suit, and since the Munsiff who tried the earlier suit was competent to try this part of the subsequent suit the requisite condition is a satisfied and the suit is thus barred by res judicataThe basis of the rule of res judicata is that an individual should not be vexed twice for the same cause, and the liberal construction of the word suit would be consistent with this basis; otherwise if the competence of the earlier Court is going to be judged by reference to its competence to try the entire suit as subsequently instituted, in many cases where the matter directly and substantially in issue has been tried between the parties by the earlier Court it may have to be tried again in a subsequent suit because the earlier Court had no jurisdiction to try the subsequent suit having regard to its pecuniary jurisdiction. That, it is urged, would be anomalous and inconsistent with the principle underlying the doctrine of res judicataBesides, if considerations of anomaly are relevant it may be urged in support of the literal construction of the word suit that the finding recorded on a material issue by the Court of the lowest jurisdiction is intended not to bar the trial of the same issue in a subsequent suit filed before a Court of unlimited jurisdiction. To hold otherwise would itself introduce another kind of anomaly. Therefore, it seems to us that as a matter of construction the suggestion that the word suit should be liberally construed cannot be acceptedIt would thus be seen that in dealing with S. 2 of the Code of 1859 the Privy Council introduced the notion of concurrent jurisdiction though the words used in the section were a Court of competent jurisdiction, and, it was held that the jurisdiction must be concurrent as regards the pecuniary limit as well as the subject matter. This decision proceeded on the assumption that in order to make the decision of one Court final and conclusive in another Court, it trust be a decision of a Court which would have had jurisdiction over the matter in the subsequent suit in which the first decision is given in evidence as con- clusiveIn other words, this decision would show that even though in the earlier Codes there may have been some doubt about the test of competent jurisdiction which has to be applied to the Court which tried the earlier suit, the position under the Code of 1882 is absolutely clearIn other words, it is the whole of the suit which should he within the competence of the Court at the earlier time and not a part of it. Having regard to this legislative background of S. 11 we feel no hesitation in holding that the word suit in the context must be construed literally and it denotes the whole of the suit and not a part of it or a material issue arising in itWe do not think any useful purpose would be served by referring to them. It may be enough to state that in a large majority of decisions the word suit has been literally construedthough in some cases and under special circumstances a liberal construction has been. We must accordingly hold that the High Court was right in coming to the conclusion that the present suit is not barred by res judicataThe High Court has held that on a fair and reasonable construction of the document it must be held that the rent note has been passed by appellant 2 in favour of the respondent alone though incidentally out of respect the name of appellant 1 has been introduced in it. In our opinion this conclusion is right. It is true that the rent note has been executed in favour of both appellant 1 and the respondent; but it is significant that the rent note stipulates that when the rent is paid by appellant 2 he has to obtain a receipt from the owner. The word owner is used in singular and not plural and that indicates that the rent note proceeded on the assumption that the property which was the subject-matter of the rent note belonged to one owner and not two. There is another clause in the rent note which is clearer stillThis clause makes it perfectly clear that the inclusion of the name of appellant 1 was merely formal and it was intended to show respect to the elderly lady in the family. It also shows that the respondent was treated as the owner of the property as the heir of her deceased husband Lal Chand. Reading this clause together with the earlier clause as to the receipt for the payment of rent which we have already considered it is absolutely clear that the name of appellant 1 was not included in the rent note because she had any right to the property let out but solely as a matter of respect which the respondent showed to appellant 1. Threfore, in our opinion, the contention that the rent note has been passed by appellant 2 in favour of the respondent and appellant 1 cannot be sustained. If that be the true position there call be no doubt whatever that appellant 2 is precluded from disputing the title of the respondent in the present proceedings. As the High Court has pointed out the sequence of events leading to the execution of the suit rent note unambiguously shows that appellant 2 has recognised the respondent as the lessor and as such the principles of S. 116 of the Evidence Act clearly apply.
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Birendra Pratap Singh And Another Vs. Gulwant Singh And Others | with effect from that date, the rights of the appellants as sub-tenants of Parmeshwar Singh became extinguished. The sub-lease in favour of the appellants terminated on that date.The appellants continued to remain in possession even after 15th January, 1951, but that possession could no longer be held to be in the capacity of sub-tenants of Parmeshwar Singh. The subsequent possession was, however, under a legal right and that right accrued to the appellants under sub-section (4) of Section 47 which is as follows :-"Where, at the time of the extinction by surrender or abandonment, or by death without any heir entitled to inherit such interest, of the interest in a holding of a tenant other than a permanent tenure-holder or fixed rate tenant, there is in existence a valid sub-lease of the whole or of a portion of the holding, executed on or after the first day of January, 1902, all covenants, binding and enforceable as between the tenant and the sub-tenant shall, subject to the provisions of sub-section (5), be binding and enforceable as between the tenants land-holder and the sub-tenant for the remainder of the term of the sub-lease or for five years, whichever period may be shorter." This sub-section does not lay down that the original sub-lease executed by the chief tenant, who surrenders his rights, is to continue in force. What this provision does is to create a new right in the sub-tenant and that is the limited right to continue in possession for the remainder of the term of the sub-lease or for five years whichever period may be shorter. During this period when the sub-tenant of the chief tenant, who has surrendered his rights, is entitled to remain in possession, he is allowed the benefit of all covenants between him and the chief tenant and to treat them as binding and enforceable between him and his chief, tenants landholder, subject to the slight modification in special cases governed by sub-section (5) of Section 47 when he is required to pay to the land-holder the rent which was payable by the chief tenant in ease it happens to be more than the rent which was payable by him. as sub-tenant to his chief tenant. This special tight granted by Section 47 (4) is exercisable for the limited term mentioned therein. Where the remaining term of a sub-lease is more than five years, this right would be exercisable for five years but, where the remaining period of a sublease is less than five years, the right would be exercisable only for the remainder of the term of the sub-lease. In the present case, we have already held above that, on 15th January, 1951, the appellants were holding the land under a sub-lease under which they were entitled to continue as sub-tenants upto 30th rune, 1951.Consequently, the right granted by Section 47 (4) to the: appellants could be exercised by them only up to 30th June, 1951. No such right could remain vested in them subsequent to that date. 7. We are unable to accept the submission made on behalf of the appellants that it should be held that this right granted by Section 47(4) would again accrue to the appellants. 1st July, 1951 in accordance with the terms of the sub-lease because the sub-lease in their favour was from year to year.We have already mentioned earlier the effect of Section 47 (1) of the Tenancy Act was that that sub-lease was extinguished and no accrual of a fresh right with reference to that sub-lease could be claimed thereafter. The right that accrued under Section 47 (4) was no longer. In the same terms as the right under the sub-lease and was only limited to the period during which that sub-lease was to remain effective on the date when Section 47 (1) and Section 47 (4) became applicable On that date, the remaining term of the sub-lease was up to 30th June, 1951. so that the right that accrued under Section 47 (4) was limited upto 30th June, 1951 only and it could not arise afresh on 1st July 1951 as it was not a tecurring right like that of a sub-tenant, holding under a sub-lease from year to year. 8. Learned counsel for the appellants relying on a decision of the; Full Bench of the Allahabad High Court in Ram Dular Singh v. Babu Sukhu Ram, 1963 All LJ 667 = (AIR 1964 All 498 ) (FB) urged that, in any case, we should hold that when the appellants, continued in possession of the disputed land after 30th June, 1951, they did so in exercise of the same right which they possessed on 30th June, 1951, as that right was not extinguished by their eviction from the land. The principle laid down by the Allahabad High Court in that case does not apply, because the decision in that case depended on the circumstance, that, under the Tenancy Act the rights of a tenant continuing in possession after the expiry of the period of lease did not extinguish under section 45 or 47 of the Tenancy Act which were the only sections which deal with the extinction of the rights of tenants.So far as the right granted by Section 47 (4) is concerned, it is granted by the statute itself for a limited period and, once that period expires, it cannot be held that the right continues thereafter. There is no requirement in law that, after the expiry of that period, there must be eviction from the land in order to extinguish the right granted by Section 47(4). The possession subsequent to 30th June, 1951 cannot, therefore, be held to be in pursuance of a right conferred on a sub-tenant referred to in Section 47 (4) of the Tenancy Act and. consequently, the land was not held by the appellants thereafter in the capacity mentioned in Section 19 (vii) of the Act. The High Court, in these circumstances, was right in rejecting the claim of the appellants. | 0[ds]In this case, there is no doubt that a written lease consistent with the provisions of the Tenancy Act was executed together with a counterpart thereof on the 5th June, 1947; and learned Counsels argument was that this lease and the counterpart having been delivered in accordance with this provision on 5th June, 1947, it should be deemed that the appellants became tenants with effect from that very date.The argument fails for two reasons. One is that the mere delivery of the lease and the counterpart by one party to the other does not make the lessee under the lease a lessee from the date of delivery of the written documents, nor is any such principle laid down in S. 55 (1). The rights under the lease can only arise in accordance with the terms of the lease. In the present case, the terms of the sub-lease themselves laid down that the appellants were to be sub-lessees from 1st July, 1947 and, consequently, the mere delivery of the documents could not bring into existence the relationship of lessor and lessee from an earlier date. The second reason is that, even on facts, there is nothing to show that the written lease and its counterpart were actually delivered by one party to the other on the 5th June, 1947.On the other hand, there is material on the record which makes it clear that there could not possibly have been such delivery of the written documents prior to 14th June, 1947 The sub-lease itself shows that it was registered on 22nd June, 1947. The sub-lease was not valid and effective until it was registered. This registration was required under S. 56 of the Tenancy Act which lays down that a lease for a period exceeding one year or from year to year shall be made by a registered instrument only. The appellants themselves came forward with the case that this was not a lease for a period not exceeding one year, so that the lease to be valid had to be registered in accordance with S. 56 of the Tenancy Act. The registration took place on 22nd June, 1947 and it is, therefore, clear that the written lease properly executed and effective could not have been delivered by Parmeshwar Singh to the appellants before 22nd June, 1947. Consequently, even if for the sake of argument it may be accepted, though we consider that it is entirely wrong, that on delivery of the written lease under S. 55 the rights as a lessee commence, such rights as sub-lessee in favour of the appellants could not arise before 22nd June, 1947 as there could not possibly be delivery of the written lease to the appellants by Parmeshwar Singh prior to that date.In these circumstances, the conclusion is irresistible that the appellants were not sub-tenants on 14th June, 1947, which was the date of commencement of the United Provinces Tenancy (Amendment) Act, 1947 and, therefore, Section 295-A of the Tenancy Act never became applicable to the case of the appellants4. The applicability of S. 19 (vii) of the Act was claimed, in the alternative, on the ground that the appellants were holding this land as sub-tenants referred to in S. 47 (4) of the Tenancy Act. The case put forward on behalf of the appellants was that the sub-lease in their favour by Parmeshwar Singh was not for any fixed term mentioned in the sub-lease itself, but from the surrounding facts and circumstances it should be held that it was a sub-lease for a period of five years. The appellate Bench of the High Court, in deciding the case against the appellants, has held that the sub-lease was a lease from year to year and not for a period of five years as contended on behalf of the appellants. The term of five years as the period of sub-lease was claimed on the basis that, under the Tenancy Act, an ex-proprietary tenant could sublet his holding for a period not exceeding five years and any sub-lease for a period exceeding five years would be invalid The argument was that when Parmeshwar Singh sublet his ex-proprietary holding to the appellants without mentioning any period, it must be inferred that he intended it to be a sub-lease for the full period of five years for which he was entitled to sublet his holding. We do not think that this argument can be accepted. If Parmeshwar Singh had intended to sublet the land for a period of five years only, or for a period less than five years, there was no difficulty in his making a mention of that period in the sub-lease itself. Parmeshwar Singh chose not to mention any period at all and, consequently, this sub-lease cannot be held to be a lease for any fixed period. The sub-lease reserves an annual rent, and the period of the lease has to be determined on the basis of his reservation of rent. We are unable to find any reasons in support of the plea put forward on behalf of the appellants that the term of the sub-lease should be held to be five years simply because no period at all was mentioned in the sub-lease itself. No principle of law could be cited on behalf of the appellants in support of this pleaIt is true, as urged by learned Counsel, that there is a distinction between a lease from year to year and a lease for a fixed period of one year only. The sub-lease in favour of the appellants was not for a fixed period of one year. Being a sub-lease from year to year, the right of the appellants acquired under it was to hold the land as sub-lessees year after year as those years commencedIn our opinion, this is the correct principle to be applied in giving effect to a lease from year to year.In the present case, the appellants had obtained this sub-lease with effect from 1st July. 1947 and, as we have held earlier, it was a sub-lease from year to year.On 1st July, 1947, therefore, the appellants were entitled to hold the land for one year which would expire on the 30th June, 1948, but, if they were allowed to continue by their landholder on 1st July, 1948, they became entitled to hold the land for another year expiring on 30th June, 1949. During that year, therefore the sub-lease would be held to be a sub-lease for two years. Similarly since the appellants were allowed to continue by Parmeshwar Singh in possession until 15th January 1951, it must be held that under that same sub-lease, the appellants were sub-lessees for the subsequent years 1949-50 and 1950-51 also. On 15-1-1951, consequently, the appellants were sub-tenants of Parmeshwar Singh under this sub-lease and their term vas to continue up to 30th June, 1951.On 15th January. 1951, Parmeshwar Singh lost his right as chief-tenant and the effect of Section 47 (1) of the Tenancy Act was, that with effect from that date, the rights of the appellants as sub-tenants of Parmeshwar Singh became extinguished. The sub-lease in favour of the appellants terminated on that date.The appellants continued to remain in possession even after 15th January, 1951, but that possession could no longer be held to be in the capacity of sub-tenants of Parmeshwar Singh7. We are unable to accept the submission made on behalf of the appellants that it should be held that this right granted by Section 47(4) would again accrue to the appellants. 1st July, 1951 in accordance with the terms of the sub-lease because the sub-lease in their favour was from year to year.We have already mentioned earlier the effect of Section 47 (1) of the Tenancy Act was that that sub-lease was extinguished and no accrual of a fresh right with reference to that sub-lease could be claimed thereafter. The right that accrued under Section 47 (4) was no longer. In the same terms as the right under the sub-lease and was only limited to the period during which that sub-lease was to remain effective on the date when Section 47 (1) and Section 47 (4) became applicable On that date, the remaining term of the sub-lease was up to 30th June, 1951. so that the right that accrued under Section 47 (4) was limited upto 30th June, 1951 only and it could not arise afresh on 1st July 1951 as it was not a tecurring right like that of a sub-tenant, holding under a sub-lease from year to yearSo far as the right granted by Section 47 (4) is concerned, it is granted by the statute itself for a limited period and, once that period expires, it cannot be held that the right continues thereafter. There is no requirement in law that, after the expiry of that period, there must be eviction from the land in order to extinguish the right granted by Section 47(4). The possession subsequent to 30th June, 1951 cannot, therefore, be held to be in pursuance of a right conferred on a sub-tenant referred to in Section 47 (4) of the Tenancy Act and. consequently, the land was not held by the appellants thereafter in the capacity mentioned in Section 19 (vii) of the Act. The High Court, in these circumstances, was right in rejecting the claim of the appellants. | 0 | 4,761 | 1,718 | ### Instruction:
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with effect from that date, the rights of the appellants as sub-tenants of Parmeshwar Singh became extinguished. The sub-lease in favour of the appellants terminated on that date.The appellants continued to remain in possession even after 15th January, 1951, but that possession could no longer be held to be in the capacity of sub-tenants of Parmeshwar Singh. The subsequent possession was, however, under a legal right and that right accrued to the appellants under sub-section (4) of Section 47 which is as follows :-"Where, at the time of the extinction by surrender or abandonment, or by death without any heir entitled to inherit such interest, of the interest in a holding of a tenant other than a permanent tenure-holder or fixed rate tenant, there is in existence a valid sub-lease of the whole or of a portion of the holding, executed on or after the first day of January, 1902, all covenants, binding and enforceable as between the tenant and the sub-tenant shall, subject to the provisions of sub-section (5), be binding and enforceable as between the tenants land-holder and the sub-tenant for the remainder of the term of the sub-lease or for five years, whichever period may be shorter." This sub-section does not lay down that the original sub-lease executed by the chief tenant, who surrenders his rights, is to continue in force. What this provision does is to create a new right in the sub-tenant and that is the limited right to continue in possession for the remainder of the term of the sub-lease or for five years whichever period may be shorter. During this period when the sub-tenant of the chief tenant, who has surrendered his rights, is entitled to remain in possession, he is allowed the benefit of all covenants between him and the chief tenant and to treat them as binding and enforceable between him and his chief, tenants landholder, subject to the slight modification in special cases governed by sub-section (5) of Section 47 when he is required to pay to the land-holder the rent which was payable by the chief tenant in ease it happens to be more than the rent which was payable by him. as sub-tenant to his chief tenant. This special tight granted by Section 47 (4) is exercisable for the limited term mentioned therein. Where the remaining term of a sub-lease is more than five years, this right would be exercisable for five years but, where the remaining period of a sublease is less than five years, the right would be exercisable only for the remainder of the term of the sub-lease. In the present case, we have already held above that, on 15th January, 1951, the appellants were holding the land under a sub-lease under which they were entitled to continue as sub-tenants upto 30th rune, 1951.Consequently, the right granted by Section 47 (4) to the: appellants could be exercised by them only up to 30th June, 1951. No such right could remain vested in them subsequent to that date. 7. We are unable to accept the submission made on behalf of the appellants that it should be held that this right granted by Section 47(4) would again accrue to the appellants. 1st July, 1951 in accordance with the terms of the sub-lease because the sub-lease in their favour was from year to year.We have already mentioned earlier the effect of Section 47 (1) of the Tenancy Act was that that sub-lease was extinguished and no accrual of a fresh right with reference to that sub-lease could be claimed thereafter. The right that accrued under Section 47 (4) was no longer. In the same terms as the right under the sub-lease and was only limited to the period during which that sub-lease was to remain effective on the date when Section 47 (1) and Section 47 (4) became applicable On that date, the remaining term of the sub-lease was up to 30th June, 1951. so that the right that accrued under Section 47 (4) was limited upto 30th June, 1951 only and it could not arise afresh on 1st July 1951 as it was not a tecurring right like that of a sub-tenant, holding under a sub-lease from year to year. 8. Learned counsel for the appellants relying on a decision of the; Full Bench of the Allahabad High Court in Ram Dular Singh v. Babu Sukhu Ram, 1963 All LJ 667 = (AIR 1964 All 498 ) (FB) urged that, in any case, we should hold that when the appellants, continued in possession of the disputed land after 30th June, 1951, they did so in exercise of the same right which they possessed on 30th June, 1951, as that right was not extinguished by their eviction from the land. The principle laid down by the Allahabad High Court in that case does not apply, because the decision in that case depended on the circumstance, that, under the Tenancy Act the rights of a tenant continuing in possession after the expiry of the period of lease did not extinguish under section 45 or 47 of the Tenancy Act which were the only sections which deal with the extinction of the rights of tenants.So far as the right granted by Section 47 (4) is concerned, it is granted by the statute itself for a limited period and, once that period expires, it cannot be held that the right continues thereafter. There is no requirement in law that, after the expiry of that period, there must be eviction from the land in order to extinguish the right granted by Section 47(4). The possession subsequent to 30th June, 1951 cannot, therefore, be held to be in pursuance of a right conferred on a sub-tenant referred to in Section 47 (4) of the Tenancy Act and. consequently, the land was not held by the appellants thereafter in the capacity mentioned in Section 19 (vii) of the Act. The High Court, in these circumstances, was right in rejecting the claim of the appellants.
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their favour by Parmeshwar Singh was not for any fixed term mentioned in the sub-lease itself, but from the surrounding facts and circumstances it should be held that it was a sub-lease for a period of five years. The appellate Bench of the High Court, in deciding the case against the appellants, has held that the sub-lease was a lease from year to year and not for a period of five years as contended on behalf of the appellants. The term of five years as the period of sub-lease was claimed on the basis that, under the Tenancy Act, an ex-proprietary tenant could sublet his holding for a period not exceeding five years and any sub-lease for a period exceeding five years would be invalid The argument was that when Parmeshwar Singh sublet his ex-proprietary holding to the appellants without mentioning any period, it must be inferred that he intended it to be a sub-lease for the full period of five years for which he was entitled to sublet his holding. We do not think that this argument can be accepted. If Parmeshwar Singh had intended to sublet the land for a period of five years only, or for a period less than five years, there was no difficulty in his making a mention of that period in the sub-lease itself. Parmeshwar Singh chose not to mention any period at all and, consequently, this sub-lease cannot be held to be a lease for any fixed period. The sub-lease reserves an annual rent, and the period of the lease has to be determined on the basis of his reservation of rent. We are unable to find any reasons in support of the plea put forward on behalf of the appellants that the term of the sub-lease should be held to be five years simply because no period at all was mentioned in the sub-lease itself. No principle of law could be cited on behalf of the appellants in support of this pleaIt is true, as urged by learned Counsel, that there is a distinction between a lease from year to year and a lease for a fixed period of one year only. The sub-lease in favour of the appellants was not for a fixed period of one year. Being a sub-lease from year to year, the right of the appellants acquired under it was to hold the land as sub-lessees year after year as those years commencedIn our opinion, this is the correct principle to be applied in giving effect to a lease from year to year.In the present case, the appellants had obtained this sub-lease with effect from 1st July. 1947 and, as we have held earlier, it was a sub-lease from year to year.On 1st July, 1947, therefore, the appellants were entitled to hold the land for one year which would expire on the 30th June, 1948, but, if they were allowed to continue by their landholder on 1st July, 1948, they became entitled to hold the land for another year expiring on 30th June, 1949. During that year, therefore the sub-lease would be held to be a sub-lease for two years. Similarly since the appellants were allowed to continue by Parmeshwar Singh in possession until 15th January 1951, it must be held that under that same sub-lease, the appellants were sub-lessees for the subsequent years 1949-50 and 1950-51 also. On 15-1-1951, consequently, the appellants were sub-tenants of Parmeshwar Singh under this sub-lease and their term vas to continue up to 30th June, 1951.On 15th January. 1951, Parmeshwar Singh lost his right as chief-tenant and the effect of Section 47 (1) of the Tenancy Act was, that with effect from that date, the rights of the appellants as sub-tenants of Parmeshwar Singh became extinguished. The sub-lease in favour of the appellants terminated on that date.The appellants continued to remain in possession even after 15th January, 1951, but that possession could no longer be held to be in the capacity of sub-tenants of Parmeshwar Singh7. We are unable to accept the submission made on behalf of the appellants that it should be held that this right granted by Section 47(4) would again accrue to the appellants. 1st July, 1951 in accordance with the terms of the sub-lease because the sub-lease in their favour was from year to year.We have already mentioned earlier the effect of Section 47 (1) of the Tenancy Act was that that sub-lease was extinguished and no accrual of a fresh right with reference to that sub-lease could be claimed thereafter. The right that accrued under Section 47 (4) was no longer. In the same terms as the right under the sub-lease and was only limited to the period during which that sub-lease was to remain effective on the date when Section 47 (1) and Section 47 (4) became applicable On that date, the remaining term of the sub-lease was up to 30th June, 1951. so that the right that accrued under Section 47 (4) was limited upto 30th June, 1951 only and it could not arise afresh on 1st July 1951 as it was not a tecurring right like that of a sub-tenant, holding under a sub-lease from year to yearSo far as the right granted by Section 47 (4) is concerned, it is granted by the statute itself for a limited period and, once that period expires, it cannot be held that the right continues thereafter. There is no requirement in law that, after the expiry of that period, there must be eviction from the land in order to extinguish the right granted by Section 47(4). The possession subsequent to 30th June, 1951 cannot, therefore, be held to be in pursuance of a right conferred on a sub-tenant referred to in Section 47 (4) of the Tenancy Act and. consequently, the land was not held by the appellants thereafter in the capacity mentioned in Section 19 (vii) of the Act. The High Court, in these circumstances, was right in rejecting the claim of the appellants.
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Girdhari Paramand Vadhava Vs. State Of Maharashtra | part of Girdhari only reflects that Girdhari did not intend to kill Vaibhav. Such submission cannot, however, be accepted because of the subsequent role of Girdhari. If after making such statement Girdhari had not taken any active role in helping Birju to commit the murder of Vaibhav, the said statement of Girdhari perhaps would have indicated about his intention not to kill Vaibhav. In our view, in all probability, as submitted by Mr Tulsi, Girdhari wanted that Vaibhav should be kept alive for some more time so that the ransom amount would be realised by keeping him detained. But when Birju after talking to the mother of Vaibhav declared that the amount as demanded by Birju was not going to be paid by the family of Vaibhav and Vaibhav should be killed so as to set an example that if the demand of Birju and his associates was not met it would invite death and then proceeded to kill Vaibhav after undressing him and torturing him brutally, Girdhari along with other accused actively assisted Birju in murdering Vaibhav by holding Vaibhav tightly till he breathed his last. It may also be indicated here that when searches were made by the members of the family to trace out Vaibhav, the family members had also gone to Girdharis house because Vaibhav had left his home in the company of Girdhari. On enquiry at the house of Girdhari, the family members disclosed that Girdhari had left for Bombay in the morning. The fact remains that Girdhari had not left for Bombay but he was very much in the town itself. It is quite likely that in view of the conspiracy to hold Vaibhav for ransom, Girdhari knew that he would not come back to his home at night and presumably to explain his absence from his home, he had made a false representation to the members of his family that he would go to Bombay 38. It has been clearly proved by PW 3 and PW 5 that all the accused including Girdhari had taken part in killing Vaibhav after holding him for ransom and attempting to realise money from the family of Vaibhav. From the evidence, it has transpired that Birju was a dreaded criminal. He had extorted money from other persons on previous occasions. He also masterminded the crimes committed by the accused including Girdhari and had also taken the leading role and finally killed Vaibhav by strangulating him with his own belt. But from the evidence adduced in the case, it has also been clearly established that all the other accused including Girdhari conspired to hold Vaibhav for ransom when he would be brought to Mithun Farm. All the said accused were also actively associated with Birju in murdering Vaibhav. 39. A crime even if perpetrated with extreme brutality may not constitute "terrorist activity" within the meaning of Section 3(1) of TADA. For constituting "terrorist activity" under Section 3(1) of TADA, the activity must be intended to strike terror in people or a section of the people or bring about other consequences referred to in the said Section 3(1). Terrorist activity is not confined to unlawful activity or crime committed against an individual or individual but it aims at bringing about terror in the minds of people or section of people disturbing public order, public peace and tranquillity, social and communal harmony, disturbing or destabilising public administration and threatening security and integrity of the country. In the instant case, the intention to strike terror in the minds of the people can be reasonably inferred because Birju declared such intention in no uncertain terms by indicating that Vaibhav should be killed in order to send the message to the people in the locality that if the demand of Birju and his associates was not met, extreme consequence of killing of an innocent person would be resorted to. In order to send such message to the society, it was decided that Vaibhav would be killed and Vaibhav was killed for giving effect to the intended threat to the people. If an innocent boy is killed only because the demand for ransom amount was not met by the family members, such killing cannot but send a shockwave and bring about terror in the minds of the people of the locality. In Niranjan Singh case this - Court has also indicated that killing of underworld dons who were held to be rivals of the accused for gaining supremacy in the underworld cannot be held to have been intended to strike terror in the minds of the people or a section of the people but it will assume altogether a different dimension if in order to strike terror in people or a section of people some innocent persons are killed because in that case, the intention to strike terror will achieve that objective. It is the impact of the crime and its fallout on the society and the potentiality of such crime in producing fear in the minds of the people or a section of the people which makes a crime, a terrorist activity under Section 3(1) of TADA. In our view, in the facts of the case, the learned Designated Judge has rightly convicted the accused for offences under Section 3(1) of TADA besides convicting each of them under Section 120-B and Section 302 read with Section 120-B of the IPC. We may, however, indicate here that in any event, for the offence of murder the accused have been convicted and sentenced to life imprisonment. It will be of little consequence so far as sentence part is concerned, if the conviction under Section 3(2)(1) of TADA is not made. 40. So far as the other co-accused are concerned, some of them had even tortured Vaibhav both physically and mentally apart from taking active role in holding Vaibhav for ransom and murdering him. Hence, convictions of all the accused for the aforesaid offences are fully justified and no interference is called for against such convictions. | 0[ds]36. After giving our careful consideration to the facts and circumstances of the case and the evidences through which we have been taken by the learned counsel appearing for the parties, it appears that a young schoolboy was brutally murdered after subjecting him to various physical and mental tortures with utmost cruelty. The deceased Vaibhav was taken from his home by Accused 3 Girdhari to Mithun Farmhouse which was situated at a lonely place. It has been clearly established by the deposition of the mother of the mother of the deceased PW 2 Meena that Girdhari was a friend of the deceased and was on visiting terms with Vaibhav. It has also come out in the evidence that Girdhari negotiated for the sale of a casio piano which belonged to Vaibhav and purchased by PW 3 who was also known to Girdhari. According to PW 3, he had paid the price of the said piano on the previous day when such piano was delivered by girdhari. Even then, on a false pretext that the price of the piano would be realised by Vaibhav from PW 3 by coming to his house at Mithun Farm, Vaibhav was taken to the said Mithun Farm by Girdhari. When Girdhari told PW 3 that the owner of the said casio piano had come with him to realise the price of the said piano, PW 3 immediately replied that why would the owner come when he had already paid the price for the said piano to Girdhari on the previous day. Girdhari did not make any protest against such assertion about the payment of price of piano by PW 3. Such assertion by PW 3, without any protest by Girdhari, stands corroborated by the deposition of PW 5. It is, therefore, quite evident that Girdhari had received the price from PW 3 but on a false plea of realising the sale price of the piano, he induced the deceased Vaibhav to come with him to MithunA crime even if perpetrated with extreme brutality may not constitute "terrorist activity" within the meaning of Section 3(1) of TADA. For constituting "terrorist activity" under Section 3(1) of TADA, the activity must be intended to strike terror in people or a section of the people or bring about other consequences referred to in the said Section 3(1). Terrorist activity is not confined to unlawful activity or crime committed against an individual or individual but it aims at bringing about terror in the minds of people or section of people disturbing public order, public peace and tranquillity, social and communal harmony, disturbing or destabilising public administration and threatening security and integrity of the country. In the instant case, the intention to strike terror in the minds of the people can be reasonably inferred because Birju declared such intention in no uncertain terms by indicating that Vaibhav should be killed in order to send the message to the people in the locality that if the demand of Birju and his associates was not met, extreme consequence of killing of an innocent person would be resorted to. In order to send such message to the society, it was decided that Vaibhav would be killed and Vaibhav was killed for giving effect to the intended threat to the people. If an innocent boy is killed only because the demand for ransom amount was not met by the family members, such killing cannot but send a shockwave and bring about terror in the minds of the people of the locality. In Niranjan Singh case thisCourt has also indicated that killing of underworld dons who were held to be rivals of the accused for gaining supremacy in the underworld cannot be held to have been intended to strike terror in the minds of the people or a section of the people but it will assume altogether a different dimension if in order to strike terror in people or a section of people some innocent persons are killed because in that case, the intention to strike terror will achieve that objective. It is the impact of the crime and its fallout on the society and the potentiality of such crime in producing fear in the minds of the people or a section of the people which makes a crime, a terrorist activity under Section 3(1) of TADA. In our view, in the facts of the case, the learned Designated Judge has rightly convicted the accused for offences under Section 3(1) of TADA besides convicting each of them under Section302 read with Sectionof the IPC. We may, however, indicate here that in any event, for the offence of murder the accused have been convicted and sentenced to life imprisonment. It will be of little consequence so far as sentence part is concerned, if the conviction under Section 3(2)(1) of TADA is notSo far as the otherare concerned, some of them had even tortured Vaibhav both physically and mentally apart from taking active role in holding Vaibhav for ransom and murdering him. Hence, convictions of all the accused for the aforesaid offences are fully justified and no interference is called for against such convictions | 0 | 9,714 | 936 | ### Instruction:
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part of Girdhari only reflects that Girdhari did not intend to kill Vaibhav. Such submission cannot, however, be accepted because of the subsequent role of Girdhari. If after making such statement Girdhari had not taken any active role in helping Birju to commit the murder of Vaibhav, the said statement of Girdhari perhaps would have indicated about his intention not to kill Vaibhav. In our view, in all probability, as submitted by Mr Tulsi, Girdhari wanted that Vaibhav should be kept alive for some more time so that the ransom amount would be realised by keeping him detained. But when Birju after talking to the mother of Vaibhav declared that the amount as demanded by Birju was not going to be paid by the family of Vaibhav and Vaibhav should be killed so as to set an example that if the demand of Birju and his associates was not met it would invite death and then proceeded to kill Vaibhav after undressing him and torturing him brutally, Girdhari along with other accused actively assisted Birju in murdering Vaibhav by holding Vaibhav tightly till he breathed his last. It may also be indicated here that when searches were made by the members of the family to trace out Vaibhav, the family members had also gone to Girdharis house because Vaibhav had left his home in the company of Girdhari. On enquiry at the house of Girdhari, the family members disclosed that Girdhari had left for Bombay in the morning. The fact remains that Girdhari had not left for Bombay but he was very much in the town itself. It is quite likely that in view of the conspiracy to hold Vaibhav for ransom, Girdhari knew that he would not come back to his home at night and presumably to explain his absence from his home, he had made a false representation to the members of his family that he would go to Bombay 38. It has been clearly proved by PW 3 and PW 5 that all the accused including Girdhari had taken part in killing Vaibhav after holding him for ransom and attempting to realise money from the family of Vaibhav. From the evidence, it has transpired that Birju was a dreaded criminal. He had extorted money from other persons on previous occasions. He also masterminded the crimes committed by the accused including Girdhari and had also taken the leading role and finally killed Vaibhav by strangulating him with his own belt. But from the evidence adduced in the case, it has also been clearly established that all the other accused including Girdhari conspired to hold Vaibhav for ransom when he would be brought to Mithun Farm. All the said accused were also actively associated with Birju in murdering Vaibhav. 39. A crime even if perpetrated with extreme brutality may not constitute "terrorist activity" within the meaning of Section 3(1) of TADA. For constituting "terrorist activity" under Section 3(1) of TADA, the activity must be intended to strike terror in people or a section of the people or bring about other consequences referred to in the said Section 3(1). Terrorist activity is not confined to unlawful activity or crime committed against an individual or individual but it aims at bringing about terror in the minds of people or section of people disturbing public order, public peace and tranquillity, social and communal harmony, disturbing or destabilising public administration and threatening security and integrity of the country. In the instant case, the intention to strike terror in the minds of the people can be reasonably inferred because Birju declared such intention in no uncertain terms by indicating that Vaibhav should be killed in order to send the message to the people in the locality that if the demand of Birju and his associates was not met, extreme consequence of killing of an innocent person would be resorted to. In order to send such message to the society, it was decided that Vaibhav would be killed and Vaibhav was killed for giving effect to the intended threat to the people. If an innocent boy is killed only because the demand for ransom amount was not met by the family members, such killing cannot but send a shockwave and bring about terror in the minds of the people of the locality. In Niranjan Singh case this - Court has also indicated that killing of underworld dons who were held to be rivals of the accused for gaining supremacy in the underworld cannot be held to have been intended to strike terror in the minds of the people or a section of the people but it will assume altogether a different dimension if in order to strike terror in people or a section of people some innocent persons are killed because in that case, the intention to strike terror will achieve that objective. It is the impact of the crime and its fallout on the society and the potentiality of such crime in producing fear in the minds of the people or a section of the people which makes a crime, a terrorist activity under Section 3(1) of TADA. In our view, in the facts of the case, the learned Designated Judge has rightly convicted the accused for offences under Section 3(1) of TADA besides convicting each of them under Section 120-B and Section 302 read with Section 120-B of the IPC. We may, however, indicate here that in any event, for the offence of murder the accused have been convicted and sentenced to life imprisonment. It will be of little consequence so far as sentence part is concerned, if the conviction under Section 3(2)(1) of TADA is not made. 40. So far as the other co-accused are concerned, some of them had even tortured Vaibhav both physically and mentally apart from taking active role in holding Vaibhav for ransom and murdering him. Hence, convictions of all the accused for the aforesaid offences are fully justified and no interference is called for against such convictions.
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36. After giving our careful consideration to the facts and circumstances of the case and the evidences through which we have been taken by the learned counsel appearing for the parties, it appears that a young schoolboy was brutally murdered after subjecting him to various physical and mental tortures with utmost cruelty. The deceased Vaibhav was taken from his home by Accused 3 Girdhari to Mithun Farmhouse which was situated at a lonely place. It has been clearly established by the deposition of the mother of the mother of the deceased PW 2 Meena that Girdhari was a friend of the deceased and was on visiting terms with Vaibhav. It has also come out in the evidence that Girdhari negotiated for the sale of a casio piano which belonged to Vaibhav and purchased by PW 3 who was also known to Girdhari. According to PW 3, he had paid the price of the said piano on the previous day when such piano was delivered by girdhari. Even then, on a false pretext that the price of the piano would be realised by Vaibhav from PW 3 by coming to his house at Mithun Farm, Vaibhav was taken to the said Mithun Farm by Girdhari. When Girdhari told PW 3 that the owner of the said casio piano had come with him to realise the price of the said piano, PW 3 immediately replied that why would the owner come when he had already paid the price for the said piano to Girdhari on the previous day. Girdhari did not make any protest against such assertion about the payment of price of piano by PW 3. Such assertion by PW 3, without any protest by Girdhari, stands corroborated by the deposition of PW 5. It is, therefore, quite evident that Girdhari had received the price from PW 3 but on a false plea of realising the sale price of the piano, he induced the deceased Vaibhav to come with him to MithunA crime even if perpetrated with extreme brutality may not constitute "terrorist activity" within the meaning of Section 3(1) of TADA. For constituting "terrorist activity" under Section 3(1) of TADA, the activity must be intended to strike terror in people or a section of the people or bring about other consequences referred to in the said Section 3(1). Terrorist activity is not confined to unlawful activity or crime committed against an individual or individual but it aims at bringing about terror in the minds of people or section of people disturbing public order, public peace and tranquillity, social and communal harmony, disturbing or destabilising public administration and threatening security and integrity of the country. In the instant case, the intention to strike terror in the minds of the people can be reasonably inferred because Birju declared such intention in no uncertain terms by indicating that Vaibhav should be killed in order to send the message to the people in the locality that if the demand of Birju and his associates was not met, extreme consequence of killing of an innocent person would be resorted to. In order to send such message to the society, it was decided that Vaibhav would be killed and Vaibhav was killed for giving effect to the intended threat to the people. If an innocent boy is killed only because the demand for ransom amount was not met by the family members, such killing cannot but send a shockwave and bring about terror in the minds of the people of the locality. In Niranjan Singh case thisCourt has also indicated that killing of underworld dons who were held to be rivals of the accused for gaining supremacy in the underworld cannot be held to have been intended to strike terror in the minds of the people or a section of the people but it will assume altogether a different dimension if in order to strike terror in people or a section of people some innocent persons are killed because in that case, the intention to strike terror will achieve that objective. It is the impact of the crime and its fallout on the society and the potentiality of such crime in producing fear in the minds of the people or a section of the people which makes a crime, a terrorist activity under Section 3(1) of TADA. In our view, in the facts of the case, the learned Designated Judge has rightly convicted the accused for offences under Section 3(1) of TADA besides convicting each of them under Section302 read with Sectionof the IPC. We may, however, indicate here that in any event, for the offence of murder the accused have been convicted and sentenced to life imprisonment. It will be of little consequence so far as sentence part is concerned, if the conviction under Section 3(2)(1) of TADA is notSo far as the otherare concerned, some of them had even tortured Vaibhav both physically and mentally apart from taking active role in holding Vaibhav for ransom and murdering him. Hence, convictions of all the accused for the aforesaid offences are fully justified and no interference is called for against such convictions
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UNIVERSITY OF AGRICULTURAL SCIENCES Vs. SMT. SAROJ GUPTA | land had been acquired by the University. After dismissal of the suit the first appeal and the suit itself was withdrawn, however, without reserving any liberty to institute fresh suit. The suit and appeal arising out of aforesaid 1993 suit were withdrawn on 13.8.2001. 5. Thereafter fresh suit for declaration and permanent injunction was filed on 9.10.2002 out of which the present appeal arises. The same had been decreed by the trial court which had been affirmed by the High Court in the first appeal mainly on the ground that the defendant-University was unable to prove that the suit land had been acquired by it in the acquisition proceedings. However, certain documents had been filed later on indicating that the suit land had been acquired. 6. The main submission raised by Sh. Krishanan Venugopal, learned senior counsel appearing on behalf of the appellant-University is that the suit is barred by the provisions of Order 23 Rule 1(4) of the Code of Civil Procedure, 1973, and it is also barred by the provisions of Order 2 Rule 2 of the CPC. Suit was hopelessly barred by limitation and the documents which have been filed indicate that suit land in fact had been acquired. 7. It was urged by the learned counsel appearing on behalf of the respondent that the plea of Order 23 Rule 1(4) had not been raised in the written statement as such the defendant is barred from raising it. It was further submitted that since plaintiff was in possession the suit could not be said to be barred by limitation as the defendant has miserably failed to prove that the land in question had been acquired, as such, no case for interference in the appeal is made out. 8. After hearing learned counsel for the parties, we are of the considered opinion that appeal deserves to be allowed on the singular ground that too in view of the admitted fact that the judgment of the previous case had been exhibited before the trial court. The previous suit was admittedly filed with respect to the very same suit land for relief of permanent injunction based on title with the averment that suit land had not been acquired for the purpose of the Agricultural University. The said suit was dismissed on merits on the basis of the finding that land had not been acquired. The Regular First Appeal arising out of the same was withdrawn vide order dated 13.08.2001 and also the suit. Since the suit as well as the appeal was withdrawn and the liberty has not been reserved for instituting a fresh suit under Order 23 Rule 1(3). Hence the provision under Order 23 Rule 1(4) preclude the plaintiff to institute the fresh suit . 9. Order 23 Rule 1 is extracted hereunder: Withdrawal of suit or abandonment of part of claim -(1) At any time after the institution of a suit, the plaintiff may as against all or any of the defendants abandon his suit or abandon a part of his claim; Provided that where the plaintiff is a minor or other person to whom the provisions contained in Rules 1 to 14 of Order 32 extend, neither the suit nor any part of the claim shall be abandoned without the leave of the Court. 2. An application for leave under the proviso to sub-rule (1) shall be accompanied by an affidavit of the next friend and also, if the minor or such other person is represented by a pleader, by a certificate of the pleader to the effect that the abandonment proposed is, in his opinion, for the benefit of the minor or such other person. 3. Where the Court is satisfied,- (a) that a suit must fail by reason of some formal defect, or (b) that there are sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject-matter of a suit or part of a claim, it may, on such terms as it thinks fit, grant the plaintiff permission to withdraw from such suit or such part of the claim with liberty to institute a fresh suit in respect of the subject-matter of such suit or such part of the claim. (4) Where the plaintiff (a) abandons any suit or part of claim under sub-rule (1), or (b) withdraws from a suit or part of a claim without the permission referred to in sub-rule (3), he shall be liable for such costs as the Court may award and shall be precluded from instituting any fresh suit in respect of such subject-matter or such part of the claim. (5) Nothing in this rule shall be deemed to authorise the Court to permit one of several plaintiffs to abandon a suit or part of a claim under sub-rule (1), or to withdraw, under sub-rule (3), any suit or part of a claim, without the consent of the other plaintiffs. 10. Bare reading of the aforesaid Order 23 Rule 1(4) makes it crystal clear that the plaintiff can, as against all or any of the defendants, abandon his suit or abandon a part of his claim with the permission to file fresh suit in respect of the very same subject matter or such part of the claim. The Court under Order 23 Rule 1(3) can grant permission to file fresh suit in the exigencies provided under Order 23 Rule 1(3)(a)(b) in case permission has not been granted under Order 23 Rule 1(3), the Rule 1(4) of Order 23 preclude institution of fresh suit in respect of such subject matter or its part of the claim. Merely by the fact that in the fresh suit prayer had been added for declaration of title alongwith injunction would not change the complexion of the case. The relief of declaration of title could have been claimed in the earlier suit otherwise also previous suit was based on title. The bar of Order 23, Rule 1(4) is clearly attracted and fresh suit could not be said to be maintainable. | 0[ds]8. After hearing learned counsel for the parties, we are of the considered opinion that appeal deserves to be allowed on the singular ground that too in view of the admitted fact that the judgment of the previous case had been exhibited before the trial court. The previous suit was admittedly filed with respect to the very same suit land for relief of permanent injunction based on title with the averment that suit land had not been acquired for the purpose of the Agricultural University. The said suit was dismissed on merits on the basis of the finding that land had not been acquired. The Regular First Appeal arising out of the same was withdrawn vide order dated 13.08.2001 and also the suit. Since the suit as well as the appeal was withdrawn and the liberty has not been reserved for instituting a fresh suit under Order 23 Rule 1(3). Hence the provision under Order 23 Rule 1(4) preclude the plaintiff to institute the fresh suit .10. Bare reading of the aforesaid Order 23 Rule 1(4) makes it crystal clear that the plaintiff can, as against all or any of the defendants, abandon his suit or abandon a part of his claim with the permission to file fresh suit in respect of the very same subject matter or such part of the claim. The Court under Order 23 Rule 1(3) can grant permission to file fresh suit in the exigencies provided under Order 23 Rule 1(3)(a)(b) in case permission has not been granted under Order 23 Rule 1(3), the Rule 1(4) of Order 23 preclude institution of fresh suit in respect of such subject matter or its part of the claim. Merely by the fact that in the fresh suit prayer had been added for declaration of title alongwith injunction would not change the complexion of the case. The relief of declaration of title could have been claimed in the earlier suit otherwise also previous suit was based on title. The bar of Order 23, Rule 1(4) is clearly attracted and fresh suit could not be said to be maintainable. | 0 | 1,440 | 401 | ### Instruction:
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land had been acquired by the University. After dismissal of the suit the first appeal and the suit itself was withdrawn, however, without reserving any liberty to institute fresh suit. The suit and appeal arising out of aforesaid 1993 suit were withdrawn on 13.8.2001. 5. Thereafter fresh suit for declaration and permanent injunction was filed on 9.10.2002 out of which the present appeal arises. The same had been decreed by the trial court which had been affirmed by the High Court in the first appeal mainly on the ground that the defendant-University was unable to prove that the suit land had been acquired by it in the acquisition proceedings. However, certain documents had been filed later on indicating that the suit land had been acquired. 6. The main submission raised by Sh. Krishanan Venugopal, learned senior counsel appearing on behalf of the appellant-University is that the suit is barred by the provisions of Order 23 Rule 1(4) of the Code of Civil Procedure, 1973, and it is also barred by the provisions of Order 2 Rule 2 of the CPC. Suit was hopelessly barred by limitation and the documents which have been filed indicate that suit land in fact had been acquired. 7. It was urged by the learned counsel appearing on behalf of the respondent that the plea of Order 23 Rule 1(4) had not been raised in the written statement as such the defendant is barred from raising it. It was further submitted that since plaintiff was in possession the suit could not be said to be barred by limitation as the defendant has miserably failed to prove that the land in question had been acquired, as such, no case for interference in the appeal is made out. 8. After hearing learned counsel for the parties, we are of the considered opinion that appeal deserves to be allowed on the singular ground that too in view of the admitted fact that the judgment of the previous case had been exhibited before the trial court. The previous suit was admittedly filed with respect to the very same suit land for relief of permanent injunction based on title with the averment that suit land had not been acquired for the purpose of the Agricultural University. The said suit was dismissed on merits on the basis of the finding that land had not been acquired. The Regular First Appeal arising out of the same was withdrawn vide order dated 13.08.2001 and also the suit. Since the suit as well as the appeal was withdrawn and the liberty has not been reserved for instituting a fresh suit under Order 23 Rule 1(3). Hence the provision under Order 23 Rule 1(4) preclude the plaintiff to institute the fresh suit . 9. Order 23 Rule 1 is extracted hereunder: Withdrawal of suit or abandonment of part of claim -(1) At any time after the institution of a suit, the plaintiff may as against all or any of the defendants abandon his suit or abandon a part of his claim; Provided that where the plaintiff is a minor or other person to whom the provisions contained in Rules 1 to 14 of Order 32 extend, neither the suit nor any part of the claim shall be abandoned without the leave of the Court. 2. An application for leave under the proviso to sub-rule (1) shall be accompanied by an affidavit of the next friend and also, if the minor or such other person is represented by a pleader, by a certificate of the pleader to the effect that the abandonment proposed is, in his opinion, for the benefit of the minor or such other person. 3. Where the Court is satisfied,- (a) that a suit must fail by reason of some formal defect, or (b) that there are sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject-matter of a suit or part of a claim, it may, on such terms as it thinks fit, grant the plaintiff permission to withdraw from such suit or such part of the claim with liberty to institute a fresh suit in respect of the subject-matter of such suit or such part of the claim. (4) Where the plaintiff (a) abandons any suit or part of claim under sub-rule (1), or (b) withdraws from a suit or part of a claim without the permission referred to in sub-rule (3), he shall be liable for such costs as the Court may award and shall be precluded from instituting any fresh suit in respect of such subject-matter or such part of the claim. (5) Nothing in this rule shall be deemed to authorise the Court to permit one of several plaintiffs to abandon a suit or part of a claim under sub-rule (1), or to withdraw, under sub-rule (3), any suit or part of a claim, without the consent of the other plaintiffs. 10. Bare reading of the aforesaid Order 23 Rule 1(4) makes it crystal clear that the plaintiff can, as against all or any of the defendants, abandon his suit or abandon a part of his claim with the permission to file fresh suit in respect of the very same subject matter or such part of the claim. The Court under Order 23 Rule 1(3) can grant permission to file fresh suit in the exigencies provided under Order 23 Rule 1(3)(a)(b) in case permission has not been granted under Order 23 Rule 1(3), the Rule 1(4) of Order 23 preclude institution of fresh suit in respect of such subject matter or its part of the claim. Merely by the fact that in the fresh suit prayer had been added for declaration of title alongwith injunction would not change the complexion of the case. The relief of declaration of title could have been claimed in the earlier suit otherwise also previous suit was based on title. The bar of Order 23, Rule 1(4) is clearly attracted and fresh suit could not be said to be maintainable.
### Response:
0
### Explanation:
8. After hearing learned counsel for the parties, we are of the considered opinion that appeal deserves to be allowed on the singular ground that too in view of the admitted fact that the judgment of the previous case had been exhibited before the trial court. The previous suit was admittedly filed with respect to the very same suit land for relief of permanent injunction based on title with the averment that suit land had not been acquired for the purpose of the Agricultural University. The said suit was dismissed on merits on the basis of the finding that land had not been acquired. The Regular First Appeal arising out of the same was withdrawn vide order dated 13.08.2001 and also the suit. Since the suit as well as the appeal was withdrawn and the liberty has not been reserved for instituting a fresh suit under Order 23 Rule 1(3). Hence the provision under Order 23 Rule 1(4) preclude the plaintiff to institute the fresh suit .10. Bare reading of the aforesaid Order 23 Rule 1(4) makes it crystal clear that the plaintiff can, as against all or any of the defendants, abandon his suit or abandon a part of his claim with the permission to file fresh suit in respect of the very same subject matter or such part of the claim. The Court under Order 23 Rule 1(3) can grant permission to file fresh suit in the exigencies provided under Order 23 Rule 1(3)(a)(b) in case permission has not been granted under Order 23 Rule 1(3), the Rule 1(4) of Order 23 preclude institution of fresh suit in respect of such subject matter or its part of the claim. Merely by the fact that in the fresh suit prayer had been added for declaration of title alongwith injunction would not change the complexion of the case. The relief of declaration of title could have been claimed in the earlier suit otherwise also previous suit was based on title. The bar of Order 23, Rule 1(4) is clearly attracted and fresh suit could not be said to be maintainable.
|
E.A.ABOOBACKER Vs. STATE OF KERALA | has to be authorized under Section 3 (c) of the Land Acquisition Act. Hence the notification. It has been urged by the State that the explanatory note not being part of the notification should not be taken into consideration. 7. According to the appellants the language of the notification is very clear that the Special Tahsildar (LA), K.R.L. has been appointed as Collector only in respect of those lands for which the notification of acquisition under Section 4 has already been published. Therefore, according to the appellants, the Special Tahsildar (LA), K.R.L. has no power to act as Collector in respect of other acquisitions for which he is not empowered under the notification. The appellants also place reliance on the explanatory note and submit that though it may not be part of the notification but it clearly indicates that the appointment of the Special Tahsildar (LA), K.R.L. was only in respect of 320 acres of land involved in the expansion of Cochin Refineries Limited and not for any other purpose. On the other hand, the stand of the respondents is that by this notification the Special Tahsildar (LA) K.R.L. has been specifically appointed as ?Collector? for Ernakulam District and is, therefore, empowered to act as Collector for all acquisitions of land in Ernakulam District. It has been submitted on behalf of the State that the words ?has been? cannot be read only in the past tense and the words ?has been? may be read as ?is?. It is also contended that the District Collector has distributed the work to the Special Tahsildar (LA), K.R.L. vide order dated 15.12.2005. 8. On perusal of the notification it is apparent that by the said notification the Government of Kerala had appointed an officer by the name of Special Tahsildar (LA), K.R.L., to perform the functions of a Collector under the Act only within the area of Ernakulam District, only in respect of any land within his jurisdiction for the acquisition of which a notification under sub-section (1) of Section 4 of the Act has been published. 9. On a careful analysis of the notification, in our opinion, the State has empowered the specified officer i.e. the Special Tahsildar (LA), K.R.L. only in respect of the land for which the notification under sub-section (1) of Section 4 had already been issued. The Special Tahsildar (LA) K.R.L. was not empowered by the notification of 21.08.1989 to issue any fresh notification in respect of other land. Though the explanatory note may not be part of the notification the same can definitely be used to resolve the ambiguity, if any, in the notification. The explanatory note clearly indicates that the notification has been issued only to empower the officer to act as Collector in respect of 320 acres of land. 10. As far as the G.O. dated 15.12.2005 is concerned, all that we need to say is that under Section 3(c) of the Act, it is only the appropriate Government which can specifically appoint any other officer as Collector.The District Collector has no power to do so. 11. The High Court took the view that since public interest is concerned a liberal view has to be taken and when acquisition proceedings are completed or going on for acquiring large portions of lands required for public purpose, such acquisition cannot be stopped on ?cryptic hyper technical ground?. We are not at all in agreement with this view of the High Court. It is a settled position of jurisprudence that when the law prescribes a procedure to be followed for doing any act or thing then that procedure has to be followed and any violation of such procedure would make the act voidable, if not void.There is no doubt that the State is empowered to appoint any officer other than a Collector or Deputy Commissioner to act as Collector. However, the notification should be clear as to for what purpose such Collector is being appointed. As far as the present case is concerned the Special Tahsildar (LA), K.R.L. was appointed as Collector only in respect of acquisition of land relating to Cochin Refineries Limited within Ernakulam District. If the State wanted him to act as Collector in respect of other acquisitions, nothing prevented the State from issuing a fresh notification in this regard, but relying upon the notification dated 21.08.1989 the Special Tahsildar (LA), K.R.L. cannot act as Collector in respect of other acquisitions. This is not a hyper technical ground. When the State wants to acquire the property of a citizen which is a constitutional right of any citizen under Article 300(A) of the Constitution of India it must strictly follow the procedure prescribed by law. It cannot urge that because the acquisition is in public interest a more liberal view is to be taken.There is no question of taking a liberal or conservative view. The only view which has to be taken is the legal view. In our considered opinion the Special Tahsildar (LA), K.R.L. was not authorized to act as Collector for the entire District of Ernakulam and is empowered only in respect of acquisitions for which notification had already been issued for acquiring land for the Cochin Refineries Limited. 12. It has been urged by Shri K.N. Balgopal that Special Tahsildar (LA), K.R.L. has acted as Collector not only in the case of Infopark but in many other cases and many land owners have accepted the award and if we decide the matter against the State many complications may arise. We, therefore, make it clear that if any land owners have, without any objection to the authority of the Special Tahsildar (LA) K.R.L., accepted the award of the Collector or have filed objections with regard to quantum and area only and have not disputed the authority of the Special Tahsildar (LA) K.R.L. to act as Collector, such land owners cannot take benefit of this decision. As far as this decision is concerned it will only enure for the benefit of the appellants before us. 13. | 1[ds]9. On a careful analysis of the notification, in our opinion, the State has empowered the specified officer i.e. the Special Tahsildar (LA), K.R.L. only in respect of the land for which the notification under sub-section (1) of Section 4 had already been issued. The Special Tahsildar (LA) K.R.L. was not empowered by the notification of 21.08.1989 to issue any fresh notification in respect of other land. Though the explanatory note may not be part of the notification the same can definitely be used to resolve the ambiguity, if any, in the notification. The explanatory note clearly indicates that the notification has been issued only to empower the officer to act as Collector in respect of 320 acres of. As far as the G.O. dated 15.12.2005 is concerned, all that we need to say is that under Section 3(c) of the Act, it is only the appropriate Government which can specifically appoint any other officer as Collector.The District Collector has no power to do so.The High Court took the viewthat since publicinterest is concerneda liberal view has tobe taken and when acquisition proceedings are completed or going on for acquiring large portions of landsrequired for public purpose, such acquisition cannot be stopped on ?cryptic hyper technical ground?.We are not at all in agreement with this view of the High Court. It is a settled position of jurisprudence that whenthe law prescribes a procedure to be followed for doing any act or thing then that procedure has to be followed and any violation of such procedure would make the act voidable, if not void.There is no doubt that the State is empowered to appoint any officer other than a Collector or Deputy Commissioner to act as Collector. However, the notification should be clear as to for what purpose such Collector is being appointed.As far as the present case is concerned the Special Tahsildar (LA), K.R.L. was appointed as Collector only in respect of acquisition of land relating to Cochin Refineries Limited within Ernakulam District. If the State wanted him toact as Collector in respect of other acquisitions, nothing prevented the State from issuing a fresh notification in this regard, but relying upon the notification dated 21.08.1989 the Special Tahsildar (LA), K.R.L. cannot act as Collector in respect of other acquisitions. This is not a hyper technical ground. When the State wants to acquire the property of a citizen which is a constitutional right of any citizen under Article 300(A) of the Constitution of India it must strictly follow the procedure prescribed by law. It cannot urge that because the acquisition is in public interest a more liberal view is to be taken.There is no question of taking a liberal or conservative view. The only view which has to be taken is the legal view. In our considered opinion the Special Tahsildar (LA), K.R.L. was not authorized to act as Collector for the entire District of Ernakulam and is empowered only in respect of acquisitions for which notification had already been issued for acquiring land for the Cochin Refineries. It has been urged by Shri K.N. Balgopal that Special Tahsildar (LA), K.R.L. has acted as Collector not only in the case of Infopark but in many other cases and many land owners have accepted the awardand if we decide the matter against the State many complications may arise. We, therefore, make it clear that if any land owners have, without any objection to the authority of the Special Tahsildar (LA) K.R.L., accepted the award of the Collector or have filed objections with regard to quantum and area only and have not disputed the authority of the Special Tahsildar (LA) K.R.L. to act as Collector, such land owners cannot take benefit of this decision. As far as this decision is concerned it will only enure for the benefit of the appellants before us. | 1 | 2,180 | 723 | ### 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:
has to be authorized under Section 3 (c) of the Land Acquisition Act. Hence the notification. It has been urged by the State that the explanatory note not being part of the notification should not be taken into consideration. 7. According to the appellants the language of the notification is very clear that the Special Tahsildar (LA), K.R.L. has been appointed as Collector only in respect of those lands for which the notification of acquisition under Section 4 has already been published. Therefore, according to the appellants, the Special Tahsildar (LA), K.R.L. has no power to act as Collector in respect of other acquisitions for which he is not empowered under the notification. The appellants also place reliance on the explanatory note and submit that though it may not be part of the notification but it clearly indicates that the appointment of the Special Tahsildar (LA), K.R.L. was only in respect of 320 acres of land involved in the expansion of Cochin Refineries Limited and not for any other purpose. On the other hand, the stand of the respondents is that by this notification the Special Tahsildar (LA) K.R.L. has been specifically appointed as ?Collector? for Ernakulam District and is, therefore, empowered to act as Collector for all acquisitions of land in Ernakulam District. It has been submitted on behalf of the State that the words ?has been? cannot be read only in the past tense and the words ?has been? may be read as ?is?. It is also contended that the District Collector has distributed the work to the Special Tahsildar (LA), K.R.L. vide order dated 15.12.2005. 8. On perusal of the notification it is apparent that by the said notification the Government of Kerala had appointed an officer by the name of Special Tahsildar (LA), K.R.L., to perform the functions of a Collector under the Act only within the area of Ernakulam District, only in respect of any land within his jurisdiction for the acquisition of which a notification under sub-section (1) of Section 4 of the Act has been published. 9. On a careful analysis of the notification, in our opinion, the State has empowered the specified officer i.e. the Special Tahsildar (LA), K.R.L. only in respect of the land for which the notification under sub-section (1) of Section 4 had already been issued. The Special Tahsildar (LA) K.R.L. was not empowered by the notification of 21.08.1989 to issue any fresh notification in respect of other land. Though the explanatory note may not be part of the notification the same can definitely be used to resolve the ambiguity, if any, in the notification. The explanatory note clearly indicates that the notification has been issued only to empower the officer to act as Collector in respect of 320 acres of land. 10. As far as the G.O. dated 15.12.2005 is concerned, all that we need to say is that under Section 3(c) of the Act, it is only the appropriate Government which can specifically appoint any other officer as Collector.The District Collector has no power to do so. 11. The High Court took the view that since public interest is concerned a liberal view has to be taken and when acquisition proceedings are completed or going on for acquiring large portions of lands required for public purpose, such acquisition cannot be stopped on ?cryptic hyper technical ground?. We are not at all in agreement with this view of the High Court. It is a settled position of jurisprudence that when the law prescribes a procedure to be followed for doing any act or thing then that procedure has to be followed and any violation of such procedure would make the act voidable, if not void.There is no doubt that the State is empowered to appoint any officer other than a Collector or Deputy Commissioner to act as Collector. However, the notification should be clear as to for what purpose such Collector is being appointed. As far as the present case is concerned the Special Tahsildar (LA), K.R.L. was appointed as Collector only in respect of acquisition of land relating to Cochin Refineries Limited within Ernakulam District. If the State wanted him to act as Collector in respect of other acquisitions, nothing prevented the State from issuing a fresh notification in this regard, but relying upon the notification dated 21.08.1989 the Special Tahsildar (LA), K.R.L. cannot act as Collector in respect of other acquisitions. This is not a hyper technical ground. When the State wants to acquire the property of a citizen which is a constitutional right of any citizen under Article 300(A) of the Constitution of India it must strictly follow the procedure prescribed by law. It cannot urge that because the acquisition is in public interest a more liberal view is to be taken.There is no question of taking a liberal or conservative view. The only view which has to be taken is the legal view. In our considered opinion the Special Tahsildar (LA), K.R.L. was not authorized to act as Collector for the entire District of Ernakulam and is empowered only in respect of acquisitions for which notification had already been issued for acquiring land for the Cochin Refineries Limited. 12. It has been urged by Shri K.N. Balgopal that Special Tahsildar (LA), K.R.L. has acted as Collector not only in the case of Infopark but in many other cases and many land owners have accepted the award and if we decide the matter against the State many complications may arise. We, therefore, make it clear that if any land owners have, without any objection to the authority of the Special Tahsildar (LA) K.R.L., accepted the award of the Collector or have filed objections with regard to quantum and area only and have not disputed the authority of the Special Tahsildar (LA) K.R.L. to act as Collector, such land owners cannot take benefit of this decision. As far as this decision is concerned it will only enure for the benefit of the appellants before us. 13.
### Response:
1
### Explanation:
9. On a careful analysis of the notification, in our opinion, the State has empowered the specified officer i.e. the Special Tahsildar (LA), K.R.L. only in respect of the land for which the notification under sub-section (1) of Section 4 had already been issued. The Special Tahsildar (LA) K.R.L. was not empowered by the notification of 21.08.1989 to issue any fresh notification in respect of other land. Though the explanatory note may not be part of the notification the same can definitely be used to resolve the ambiguity, if any, in the notification. The explanatory note clearly indicates that the notification has been issued only to empower the officer to act as Collector in respect of 320 acres of. As far as the G.O. dated 15.12.2005 is concerned, all that we need to say is that under Section 3(c) of the Act, it is only the appropriate Government which can specifically appoint any other officer as Collector.The District Collector has no power to do so.The High Court took the viewthat since publicinterest is concerneda liberal view has tobe taken and when acquisition proceedings are completed or going on for acquiring large portions of landsrequired for public purpose, such acquisition cannot be stopped on ?cryptic hyper technical ground?.We are not at all in agreement with this view of the High Court. It is a settled position of jurisprudence that whenthe law prescribes a procedure to be followed for doing any act or thing then that procedure has to be followed and any violation of such procedure would make the act voidable, if not void.There is no doubt that the State is empowered to appoint any officer other than a Collector or Deputy Commissioner to act as Collector. However, the notification should be clear as to for what purpose such Collector is being appointed.As far as the present case is concerned the Special Tahsildar (LA), K.R.L. was appointed as Collector only in respect of acquisition of land relating to Cochin Refineries Limited within Ernakulam District. If the State wanted him toact as Collector in respect of other acquisitions, nothing prevented the State from issuing a fresh notification in this regard, but relying upon the notification dated 21.08.1989 the Special Tahsildar (LA), K.R.L. cannot act as Collector in respect of other acquisitions. This is not a hyper technical ground. When the State wants to acquire the property of a citizen which is a constitutional right of any citizen under Article 300(A) of the Constitution of India it must strictly follow the procedure prescribed by law. It cannot urge that because the acquisition is in public interest a more liberal view is to be taken.There is no question of taking a liberal or conservative view. The only view which has to be taken is the legal view. In our considered opinion the Special Tahsildar (LA), K.R.L. was not authorized to act as Collector for the entire District of Ernakulam and is empowered only in respect of acquisitions for which notification had already been issued for acquiring land for the Cochin Refineries. It has been urged by Shri K.N. Balgopal that Special Tahsildar (LA), K.R.L. has acted as Collector not only in the case of Infopark but in many other cases and many land owners have accepted the awardand if we decide the matter against the State many complications may arise. We, therefore, make it clear that if any land owners have, without any objection to the authority of the Special Tahsildar (LA) K.R.L., accepted the award of the Collector or have filed objections with regard to quantum and area only and have not disputed the authority of the Special Tahsildar (LA) K.R.L. to act as Collector, such land owners cannot take benefit of this decision. As far as this decision is concerned it will only enure for the benefit of the appellants before us.
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Municipal Board, Kishangarh Vs. Chand Mal and Company | 1. The land in question (area 4500 sq. yards), in respect of which the respondent had obtained a decree for permanent injunction against the appellant, was sanctioned for allotment by the State Government on 28-11-1964 and in pursuance thereof the Collector, Ajmer, executed a ninety-nine years lease in favour of the respondent on 16-12-1964. The appellant, namely, Municipal Board, Kishangarh, claimed the land to have vested in it as it was not cultivated since 1944. The Board claimed to be in possession over the land over which a cattle fair was held every year for one week beginning from the day succeeding Deepawali. The respondent wanted to raise construction on that land, but the Collector restrained him from raising the constructions whereupon the respondent filed Writ Petition No. 763 of 1966 in the High Court which was allowed on 11-11-1966 and it was held that the Collector could not, by a mere executive order, restrain the respondent from raising constructions. The High Court, however, made it clear that it would be open to the Municipal Board to proceed according to law if the constructions were raised in contravention of the provisions of the Rajasthan Municipalities Act, 1959.2. When the respondent made another attempt to raise constructions, the Municipal Board intervened and prevented the respondent from raising those constructions whereupon the respondent filed a suit for permanent injunction in the Court of Munsif, Ajmer. The suit was decreed on 12-11-1968. The appeal filed by the appellant before the District Judge was dismissed and the decree passed by the Munsif was upheld, but it was observed that if constructions were raised in contravention of the provisions of Section 170 of the Rajasthan Municipalities Act, it would be open to the Board to stop the constructions.3. Second appeal filed by the appellant Board in the High Court was dismissed on 8-1-1973. The observations of the District Judge with regard to the effect of Section 170 of the Act were not disturbed by the High Court. Consequently, when the respondent started raising constructions on the suit land without obtaining the permission from the Board under Section 170 of the Act, the Board again intervened in the matter. It was at this stage that the respondent put the decree for injunction to execution which was resisted by the appellant who filed objections under Section 47 CPC claiming, inter alia, that the respondent was not entitled to raise any constructions on the land in question without the permission of the Municipal Board, but the objections were dismissed and the order was upheld in appeal by the High Court. 4. During the pendency of the appeal in the High Court, an application under Order 41 Rule 27 CPC was moved on behalf of the appellant in which it was pointed out that the lease in favour of the respondent had since been cancelled by the State Government by its order dated 1-11-1976. It was also stated that by a notification dated 22-1-1976, the whole area including the area where the land in question was situated, had been included in the municipal limits and, therefore, the respondent could not raise any constructions without the permission of the appellant. On the basis of these documents it was contended before the High Court that the decree passed in favour of the respondent could not be executed. 5. When this application was filed, the High Court on 8-2-1977 passed the following order :"Heard learned counsel for the parties. An application under Order 41 Rule 27 CPC shall be heard and decided along with the appeal.The learned counsel for the respondent states that the appellant is not maintaining status quo of the property. Arguments were heard. It appears expedient and necessary in the interests of justice that the parties be directed to maintain status quo till the disposal of the appeal.The appeal shall be listed for hearing on March 29, 1977."6. The appeal was ultimately decided by the High Court by the impugned judgment on 23-7-1986. The High Court held that the subsequent events could not be looked into by the executing court and dismissed the appeal and directed the executing court to dispose of the execution petition expeditiously.7. Since the High Court was of the opinion that subsequent events cannot be looked into by the executing court, it did not dispose of the application filed under Order 41 Rule 27 CPC by the appellant. The lease in favour of the respondent having been cancelled and the land in question having been included in the municipal area, could the decree be still executed is the question which has to be answered by the executing court. | 1[ds]7. Since the High Court was of the opinion that subsequent events cannot be looked into by the executing court, it did not dispose of the application filed under Order 41 Rule 27 CPC by the appellant. The lease in favour of the respondent having been cancelled and the land in question having been included in the municipal area, could the decree be still executed is the question which has to be answered by the executing court. | 1 | 840 | 87 | ### 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. The land in question (area 4500 sq. yards), in respect of which the respondent had obtained a decree for permanent injunction against the appellant, was sanctioned for allotment by the State Government on 28-11-1964 and in pursuance thereof the Collector, Ajmer, executed a ninety-nine years lease in favour of the respondent on 16-12-1964. The appellant, namely, Municipal Board, Kishangarh, claimed the land to have vested in it as it was not cultivated since 1944. The Board claimed to be in possession over the land over which a cattle fair was held every year for one week beginning from the day succeeding Deepawali. The respondent wanted to raise construction on that land, but the Collector restrained him from raising the constructions whereupon the respondent filed Writ Petition No. 763 of 1966 in the High Court which was allowed on 11-11-1966 and it was held that the Collector could not, by a mere executive order, restrain the respondent from raising constructions. The High Court, however, made it clear that it would be open to the Municipal Board to proceed according to law if the constructions were raised in contravention of the provisions of the Rajasthan Municipalities Act, 1959.2. When the respondent made another attempt to raise constructions, the Municipal Board intervened and prevented the respondent from raising those constructions whereupon the respondent filed a suit for permanent injunction in the Court of Munsif, Ajmer. The suit was decreed on 12-11-1968. The appeal filed by the appellant before the District Judge was dismissed and the decree passed by the Munsif was upheld, but it was observed that if constructions were raised in contravention of the provisions of Section 170 of the Rajasthan Municipalities Act, it would be open to the Board to stop the constructions.3. Second appeal filed by the appellant Board in the High Court was dismissed on 8-1-1973. The observations of the District Judge with regard to the effect of Section 170 of the Act were not disturbed by the High Court. Consequently, when the respondent started raising constructions on the suit land without obtaining the permission from the Board under Section 170 of the Act, the Board again intervened in the matter. It was at this stage that the respondent put the decree for injunction to execution which was resisted by the appellant who filed objections under Section 47 CPC claiming, inter alia, that the respondent was not entitled to raise any constructions on the land in question without the permission of the Municipal Board, but the objections were dismissed and the order was upheld in appeal by the High Court. 4. During the pendency of the appeal in the High Court, an application under Order 41 Rule 27 CPC was moved on behalf of the appellant in which it was pointed out that the lease in favour of the respondent had since been cancelled by the State Government by its order dated 1-11-1976. It was also stated that by a notification dated 22-1-1976, the whole area including the area where the land in question was situated, had been included in the municipal limits and, therefore, the respondent could not raise any constructions without the permission of the appellant. On the basis of these documents it was contended before the High Court that the decree passed in favour of the respondent could not be executed. 5. When this application was filed, the High Court on 8-2-1977 passed the following order :"Heard learned counsel for the parties. An application under Order 41 Rule 27 CPC shall be heard and decided along with the appeal.The learned counsel for the respondent states that the appellant is not maintaining status quo of the property. Arguments were heard. It appears expedient and necessary in the interests of justice that the parties be directed to maintain status quo till the disposal of the appeal.The appeal shall be listed for hearing on March 29, 1977."6. The appeal was ultimately decided by the High Court by the impugned judgment on 23-7-1986. The High Court held that the subsequent events could not be looked into by the executing court and dismissed the appeal and directed the executing court to dispose of the execution petition expeditiously.7. Since the High Court was of the opinion that subsequent events cannot be looked into by the executing court, it did not dispose of the application filed under Order 41 Rule 27 CPC by the appellant. The lease in favour of the respondent having been cancelled and the land in question having been included in the municipal area, could the decree be still executed is the question which has to be answered by the executing court.
### Response:
1
### Explanation:
7. Since the High Court was of the opinion that subsequent events cannot be looked into by the executing court, it did not dispose of the application filed under Order 41 Rule 27 CPC by the appellant. The lease in favour of the respondent having been cancelled and the land in question having been included in the municipal area, could the decree be still executed is the question which has to be answered by the executing court.
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Lakhmi Chand Vs. Reliance General Insurance | was not responsible for the accident. Merely by lifting a person or two, or even three, by the driver or the cleaner of the vehicle, without the knowledge of the owner, cannot be said to be such a fundamental breach that the owner should, in all events, be denied indemnification. The misuse of the vehicle was somewhat irregular though, but not so fundamental in nature so as to put an end to the contract, unless some factors existed which by themselves, had gone to contribute to the causing of the accident.”(emphasis laid by this Court) 16. Further, in the case of National Insurance Company Ltd. v. Swaran Singh & Ors (2004) 3 SCC 297 ). a three judge bench of this Court has held as under:- ”49. Such a breach on the part of the insured must be established by the insurer to show that not only the insured used or caused or permitted to be used the vehicle in breach of the Act but also that the damage he suffered flowed from the breach.52. In Narvinva’s case (supra) a Division Bench of this Court observed: “The insurance company complains of breach of a term of contract which would permit it to disown its liability under the contract of insurance. If a breach of a term of contract permits a party to the contract complaints of breach to prove that the breach has been committed by the other party to the contract. The test in such a situation would be who would fail if no evidence is led.69. The proposition of law is no longer resintegra that the person who alleges breach must prove the same. The insurance company is, thus, required to establish the said breach by cogent evident. In the event the insurance company fails to prove that there has been breach of conditions of policy on the part of the insured, the insurance company cannot be absolved of its liability.”(emphasis laid by this Court) 17. The judgment in the case of Swaran Singh (supra) has been followed subsequently in the case of Oriental Insurance Company Ltd. v. Meena Variyal ((2007) 5 SCC 428 ), wherein this Court held as under:- “We shall now examine the decision in Swaran Singh on which practically the whole of the arguments on behalf of the claimants were rested. On examining the facts, it is found that, that was a case which related to a claim by a third party. In claims by a third party, there cannot be much doubt that once the liability of the owner is found, the insurance company is liable to indemnify the owner, subject of course, to any defence that may be available to it under Section 149(2) of the Act. In case where the liability is satisfied by the insurance company in the first instance, it may have recourse to the owner in respect of a claim available in that behalf, it may have recourse to the owner in respect of a claim available that behalf. Swaran Singh was a case where the insurance company raised a defence that the owner had permitted the vehicle to be driven by a driver who really had no licence and the driving licence produced by him was a fake one. There Lordships discussed the position and held ultimately that a defence under Section 149(2)(a)(ii) of the Act was available to an insurer when a claim is filed either under Section 163-A or under Section 166 of the Act. The breach of a policy condition has to be proved to have been committed by the insured for avoiding liability by the insurer. Mere absence of or production of fake or invalid driving licence or disqualification of the driver for driving at the relevant time, are not in themselves defences available to the insurer against either the insured or the third party. The insurance company to avoid liability, must not only establish the available defence raised in the proceeding concerned but must also establish breach on the part of the owner of the vehicle for which the burden of proof would rest with the insurance company. Whether such a burden had been discharged, would depend upon the facts breach on the part of the insured concerning a policy condition, the insurer would not be allowed to avoid its liability towards the insured unless the said breach of condition is so fundamental as to be found to have contributed to the cause of the accident.”(emphasis laid by this Court) 18. It becomes very clear from a perusal of the above mentioned case law of this Court that the insurance company, in order to avoid liability must not only establish the defence claimed in the proceeding concerned, but also establish breach on the part of the owner/insured of the vehicle for which the burden of proof would rest with the insurance company. In the instant case, the respondent-Company has not produced any evidence on record to prove that the accident occurred on account of the overloading of passengers in the goods carrying vehicle. Further, as has been held in the case of B.V. Nagaraju (supra) that for the insurer to avoid his liability, the breach of the policy must be so fundamental in nature that it brings the contract to an end. In the instant case, it is undisputed that the accident was infact caused on account of the rash and negligent driving of the offending vehicle by its driver, against whom a criminal case vide FIR no. 66 of 2010 was registered for the offences referred to supra under the provisions of the IPC. These facts have not been taken into consideration by either the State Commission or National Commission while exercising their jurisdiction and setting aside the order of the District Forum. Therefore, the judgment and order of the National Commission dated 26.04.2013 passed in the Revision Petition No. 2032 of 2012 is liable to be set aside, as the said findings recorded in the judgment are erroneous in law. | 1[ds]14. It is an admitted fact that the accident of the vehicle of the appellant was caused on account of rash and negligent driving of the offending vehicle bearing registration no.An FIR No. 66 of 2010 dated 11.02.2010 was registered under Sections 279, 337, 338,304A and 427 of the Indian Penal Codeagainst the driver of the said vehicle for the offences referred to supra. The vehicle of the appellant was badly damaged in the accident and it is an undisputed fact that the report of Surveyor assessed the loss atbut the actual amount incurred by the appellant on the repair of his vehicle was Rs.The said claim was arbitrarily rejected by theon the ground that the damage caused to the vehicle did not fall within the scope and purview of the insurance policy, as there was a contravention of terms and conditions of the policy of the vehicle.15. The National Commission upheld the order of dismissal of the complaint of the appellant passed by the State Commission. The National Commission however, did not consider the judgment of this Court in the case of B.V. Nagaraju v. Oriental Insurance Co. Ltd Divisional Officer, Hassan ((1996) 4 SCC 647 ). In that case, the insurance company had taken the defence that the vehicle in question was carrying more passengers than the permitted capacity in terms of the policy at the time of the accident. The said plea of the insurance company was rejected. This Court held that the mere factum of carrying more passengers than the permitted seating capacity in the goods carrying vehicle by the insured does not amount to a fundamental breach of the terms and conditions of the policy so as to allow the insurer to eschew its liability towards the damage caused to the vehicle.This Court in the said case has held asis plain from the terms of the Insurance Policy that the insured vehicle was entitled to carry six workmen, excluding the driver. If those six workmen when travelling in the vehicle, are assumed not to have increased risk from the point of view of the Insurance Company on occurring of an accident, how could those added persons be said to have contributed to the causing of it is the pose, keeping apart the load it was carrying. In the present case the driver of the vehicle was not responsible for the accident. Merely by lifting a person or two, or even three, by the driver or the cleaner of the vehicle, without the knowledge of the owner, cannot be said to be such a fundamental breach that the owner should, in all events, be denied indemnification. The misuse of the vehicle was somewhat irregular though, but not so fundamental in nature so as to put an end to the contract, unless some factors existed which by themselves, had gone to contribute to the causing of thelaid by thisIt becomes very clear from a perusal of the above mentioned case law of this Court that the insurance company, in order to avoid liability must not only establish the defence claimed in the proceeding concerned, but also establish breach on the part of the owner/insured of the vehicle for which the burden of proof would rest with the insurance company. In the instant case, thehas not produced any evidence on record to prove that the accident occurred on account of the overloading of passengers in the goods carrying vehicle. Further, as has been held in the case of B.V. Nagaraju (supra) that for the insurer to avoid his liability, the breach of the policy must be so fundamental in nature that it brings the contract to an end. In the instant case, it is undisputed that the accident was infact caused on account of the rash and negligent driving of the offending vehicle by its driver, against whom a criminal case vide FIR no. 66 of 2010 was registered for the offences referred to supra under the provisions of the IPC. These facts have not been taken into consideration by either the State Commission or National Commission while exercising their jurisdiction and setting aside the order of the District Forum. Therefore, the judgment and order of the National Commission dated 26.04.2013 passed in the Revision Petition No. 2032 of 2012 is liable to be set aside, as the said findings recorded in the judgment are erroneous in law. | 1 | 2,950 | 788 | ### Instruction:
Speculate on the likely judgment (yes (1) or no (0) to the appeal) and then delve into the case proceeding to elucidate your prediction, focusing on critical sentences.
### Input:
was not responsible for the accident. Merely by lifting a person or two, or even three, by the driver or the cleaner of the vehicle, without the knowledge of the owner, cannot be said to be such a fundamental breach that the owner should, in all events, be denied indemnification. The misuse of the vehicle was somewhat irregular though, but not so fundamental in nature so as to put an end to the contract, unless some factors existed which by themselves, had gone to contribute to the causing of the accident.”(emphasis laid by this Court) 16. Further, in the case of National Insurance Company Ltd. v. Swaran Singh & Ors (2004) 3 SCC 297 ). a three judge bench of this Court has held as under:- ”49. Such a breach on the part of the insured must be established by the insurer to show that not only the insured used or caused or permitted to be used the vehicle in breach of the Act but also that the damage he suffered flowed from the breach.52. In Narvinva’s case (supra) a Division Bench of this Court observed: “The insurance company complains of breach of a term of contract which would permit it to disown its liability under the contract of insurance. If a breach of a term of contract permits a party to the contract complaints of breach to prove that the breach has been committed by the other party to the contract. The test in such a situation would be who would fail if no evidence is led.69. The proposition of law is no longer resintegra that the person who alleges breach must prove the same. The insurance company is, thus, required to establish the said breach by cogent evident. In the event the insurance company fails to prove that there has been breach of conditions of policy on the part of the insured, the insurance company cannot be absolved of its liability.”(emphasis laid by this Court) 17. The judgment in the case of Swaran Singh (supra) has been followed subsequently in the case of Oriental Insurance Company Ltd. v. Meena Variyal ((2007) 5 SCC 428 ), wherein this Court held as under:- “We shall now examine the decision in Swaran Singh on which practically the whole of the arguments on behalf of the claimants were rested. On examining the facts, it is found that, that was a case which related to a claim by a third party. In claims by a third party, there cannot be much doubt that once the liability of the owner is found, the insurance company is liable to indemnify the owner, subject of course, to any defence that may be available to it under Section 149(2) of the Act. In case where the liability is satisfied by the insurance company in the first instance, it may have recourse to the owner in respect of a claim available in that behalf, it may have recourse to the owner in respect of a claim available that behalf. Swaran Singh was a case where the insurance company raised a defence that the owner had permitted the vehicle to be driven by a driver who really had no licence and the driving licence produced by him was a fake one. There Lordships discussed the position and held ultimately that a defence under Section 149(2)(a)(ii) of the Act was available to an insurer when a claim is filed either under Section 163-A or under Section 166 of the Act. The breach of a policy condition has to be proved to have been committed by the insured for avoiding liability by the insurer. Mere absence of or production of fake or invalid driving licence or disqualification of the driver for driving at the relevant time, are not in themselves defences available to the insurer against either the insured or the third party. The insurance company to avoid liability, must not only establish the available defence raised in the proceeding concerned but must also establish breach on the part of the owner of the vehicle for which the burden of proof would rest with the insurance company. Whether such a burden had been discharged, would depend upon the facts breach on the part of the insured concerning a policy condition, the insurer would not be allowed to avoid its liability towards the insured unless the said breach of condition is so fundamental as to be found to have contributed to the cause of the accident.”(emphasis laid by this Court) 18. It becomes very clear from a perusal of the above mentioned case law of this Court that the insurance company, in order to avoid liability must not only establish the defence claimed in the proceeding concerned, but also establish breach on the part of the owner/insured of the vehicle for which the burden of proof would rest with the insurance company. In the instant case, the respondent-Company has not produced any evidence on record to prove that the accident occurred on account of the overloading of passengers in the goods carrying vehicle. Further, as has been held in the case of B.V. Nagaraju (supra) that for the insurer to avoid his liability, the breach of the policy must be so fundamental in nature that it brings the contract to an end. In the instant case, it is undisputed that the accident was infact caused on account of the rash and negligent driving of the offending vehicle by its driver, against whom a criminal case vide FIR no. 66 of 2010 was registered for the offences referred to supra under the provisions of the IPC. These facts have not been taken into consideration by either the State Commission or National Commission while exercising their jurisdiction and setting aside the order of the District Forum. Therefore, the judgment and order of the National Commission dated 26.04.2013 passed in the Revision Petition No. 2032 of 2012 is liable to be set aside, as the said findings recorded in the judgment are erroneous in law.
### Response:
1
### Explanation:
14. It is an admitted fact that the accident of the vehicle of the appellant was caused on account of rash and negligent driving of the offending vehicle bearing registration no.An FIR No. 66 of 2010 dated 11.02.2010 was registered under Sections 279, 337, 338,304A and 427 of the Indian Penal Codeagainst the driver of the said vehicle for the offences referred to supra. The vehicle of the appellant was badly damaged in the accident and it is an undisputed fact that the report of Surveyor assessed the loss atbut the actual amount incurred by the appellant on the repair of his vehicle was Rs.The said claim was arbitrarily rejected by theon the ground that the damage caused to the vehicle did not fall within the scope and purview of the insurance policy, as there was a contravention of terms and conditions of the policy of the vehicle.15. The National Commission upheld the order of dismissal of the complaint of the appellant passed by the State Commission. The National Commission however, did not consider the judgment of this Court in the case of B.V. Nagaraju v. Oriental Insurance Co. Ltd Divisional Officer, Hassan ((1996) 4 SCC 647 ). In that case, the insurance company had taken the defence that the vehicle in question was carrying more passengers than the permitted capacity in terms of the policy at the time of the accident. The said plea of the insurance company was rejected. This Court held that the mere factum of carrying more passengers than the permitted seating capacity in the goods carrying vehicle by the insured does not amount to a fundamental breach of the terms and conditions of the policy so as to allow the insurer to eschew its liability towards the damage caused to the vehicle.This Court in the said case has held asis plain from the terms of the Insurance Policy that the insured vehicle was entitled to carry six workmen, excluding the driver. If those six workmen when travelling in the vehicle, are assumed not to have increased risk from the point of view of the Insurance Company on occurring of an accident, how could those added persons be said to have contributed to the causing of it is the pose, keeping apart the load it was carrying. In the present case the driver of the vehicle was not responsible for the accident. Merely by lifting a person or two, or even three, by the driver or the cleaner of the vehicle, without the knowledge of the owner, cannot be said to be such a fundamental breach that the owner should, in all events, be denied indemnification. The misuse of the vehicle was somewhat irregular though, but not so fundamental in nature so as to put an end to the contract, unless some factors existed which by themselves, had gone to contribute to the causing of thelaid by thisIt becomes very clear from a perusal of the above mentioned case law of this Court that the insurance company, in order to avoid liability must not only establish the defence claimed in the proceeding concerned, but also establish breach on the part of the owner/insured of the vehicle for which the burden of proof would rest with the insurance company. In the instant case, thehas not produced any evidence on record to prove that the accident occurred on account of the overloading of passengers in the goods carrying vehicle. Further, as has been held in the case of B.V. Nagaraju (supra) that for the insurer to avoid his liability, the breach of the policy must be so fundamental in nature that it brings the contract to an end. In the instant case, it is undisputed that the accident was infact caused on account of the rash and negligent driving of the offending vehicle by its driver, against whom a criminal case vide FIR no. 66 of 2010 was registered for the offences referred to supra under the provisions of the IPC. These facts have not been taken into consideration by either the State Commission or National Commission while exercising their jurisdiction and setting aside the order of the District Forum. Therefore, the judgment and order of the National Commission dated 26.04.2013 passed in the Revision Petition No. 2032 of 2012 is liable to be set aside, as the said findings recorded in the judgment are erroneous in law.
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Central Indian Machinery Manufacturing Company Limited Vs. State of Madhya Pradesh and Another | 1. This appeal is filed against the judgment of the High Court of Madhya Pradesh (Gwalior Bench) dated 26-7-1977 whereby the writ petition (MP No. 25 of 1972) filed by the appellant has been dismissed. In the said writ petition the appellant had assailed the assessment and recovery of house tax in respect of the factory and other buildings of the appellant at Birla Nagar, Gwalior. House tax has been imposed within the Gwalior Municipal limits by notification issued in 1945 under Section 56(8) of the Gwalior Municipalities Act, Samvat 1993 (hereinafter referred to as "the Gwalior Act"). By the Madhya Bharat Municipalities Act, 1954 (hereinafter referred to as "the 1954 Act") the Gwalior Act was repealed. Under the saving clause contained in proviso (c) of Section 2 all rules made or deemed to have been made, orders passed or deemed to have been passed, bye-laws framed or deemed to have been framed, notifications and notices issued or deemed to have been issued and taxes and rates imposed or deemed to have been imposed under the repealed enactments (including the Gwalior Act), so far as they are not inconsistent with the 1954 Act, are to be deemed to have been made, passed, framed, issued or imposed as the case may be under the 1954 Act 2. Before the High Court it was submitted on behalf of the appellant that the notification issued in 1945 under the Gwalior Act was no longer applicable after the repeal of the said Act by the 1954 Act and that the said notification was not continued by the saving clause aforementioned on the ground that the provisions of the Gwalior Act were inconsistent with the provisions of the 1954 Act. While dealing with the said contention the High Court has held that Section 52(1) of the Gwalior Act authorised the imposition of house tax on buildings situate within the municipal limits and it also provided that the house tax shall not exceed 4% of the gross annual letting value of the building while under Section 69(1) (i) of the 1954 Act, municipalities have been authorised to impose a tax on houses and buildings or lands situate within the municipal limits and that under Section 73 of the 1954 Act the tax is to be assessed on the net annual letting value after deducting a statutory allowance of 10% in lieu of costs of repairs etc. from the gross annual letting value. The High Court has observed that the notification issued under the Gwalior Act cannot be said to be wholly inconsistent with the 1954 Act and that the inconsistency is only to the extent that the 1954 Act permits a statutory allowance of 10% of the gross annual letting value which was not allowed by the Gwalior Act and that to this extent alone the notification under the Gwalior Act will not have effect. The High Court has, therefore, directed that the municipality will have to permit a deduction of 10% from the gross annual letting value while assessing the tax. The High Court has further stated that there was no clear averment in the writ petition that tax was being assessed on the gross annual letting value and not on the net annual letting value after making a deduction of 10% and, therefore, it could not be said that action that was being taken against the appellant is contrary to the provisions of the 1954 Act 3. The other contention that was raised on behalf of the appellant before the High Court was that the notification imposing the tax did not apply to the 3 area where the appellants factory and buildings are situate. The said contention was rejected by the High Court on the view that the appellants factory and buildings are situate in an area known as additional industrial area which was included within the Gwalior Municipal limits in October 1954. The High Court has referred to the provisions of Section 7(4)(a) of the 1954 Act wherein it is prescribed that "when any area is added to the municipality by a notification, the Act, rules, bye-laws, orders, notices and notifications of the Municipality concerned shall be applicable to that area". The High Court has held that in view of the said provision the 1945 notification passed under the Gwalior Act imposing house tax which was applicable after the 1954 Act, became applicable to the area wherein the properties of the appellant are situate. On that view the High Court has dismissed the writ petition filed by the appellant. Hence this appeal 4. The learned counsel for the appellant has urged the contentions aforementioned which have been rejected by the High Court. We do not find any reason to take a view different from that taken by the High Court. In our view, the said contentions were rightly rejected by the High Court for the reasons mentioned above 5. The learned counsel for the appellant has sought to urge a new contention, namely, that the area in which the properties of the appellant are situate is not included in the notification of October 1954 to which reference has been made by the High Court. This is a question of fact which was not agitated by the appellant before the High Court. It cannot be permitted to be raised for the first time in this Court6. | 0[ds]The learned counsel for the appellant has sought to urge a new contention, namely, that the area in which the properties of the appellant are situate is not included in the notification of October 1954 to which reference has been made by the High Court. This is a question of fact which was not agitated by the appellant before the High Court. It cannot be permitted to be raised for the first time in this Court | 0 | 984 | 85 | ### 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:
1. This appeal is filed against the judgment of the High Court of Madhya Pradesh (Gwalior Bench) dated 26-7-1977 whereby the writ petition (MP No. 25 of 1972) filed by the appellant has been dismissed. In the said writ petition the appellant had assailed the assessment and recovery of house tax in respect of the factory and other buildings of the appellant at Birla Nagar, Gwalior. House tax has been imposed within the Gwalior Municipal limits by notification issued in 1945 under Section 56(8) of the Gwalior Municipalities Act, Samvat 1993 (hereinafter referred to as "the Gwalior Act"). By the Madhya Bharat Municipalities Act, 1954 (hereinafter referred to as "the 1954 Act") the Gwalior Act was repealed. Under the saving clause contained in proviso (c) of Section 2 all rules made or deemed to have been made, orders passed or deemed to have been passed, bye-laws framed or deemed to have been framed, notifications and notices issued or deemed to have been issued and taxes and rates imposed or deemed to have been imposed under the repealed enactments (including the Gwalior Act), so far as they are not inconsistent with the 1954 Act, are to be deemed to have been made, passed, framed, issued or imposed as the case may be under the 1954 Act 2. Before the High Court it was submitted on behalf of the appellant that the notification issued in 1945 under the Gwalior Act was no longer applicable after the repeal of the said Act by the 1954 Act and that the said notification was not continued by the saving clause aforementioned on the ground that the provisions of the Gwalior Act were inconsistent with the provisions of the 1954 Act. While dealing with the said contention the High Court has held that Section 52(1) of the Gwalior Act authorised the imposition of house tax on buildings situate within the municipal limits and it also provided that the house tax shall not exceed 4% of the gross annual letting value of the building while under Section 69(1) (i) of the 1954 Act, municipalities have been authorised to impose a tax on houses and buildings or lands situate within the municipal limits and that under Section 73 of the 1954 Act the tax is to be assessed on the net annual letting value after deducting a statutory allowance of 10% in lieu of costs of repairs etc. from the gross annual letting value. The High Court has observed that the notification issued under the Gwalior Act cannot be said to be wholly inconsistent with the 1954 Act and that the inconsistency is only to the extent that the 1954 Act permits a statutory allowance of 10% of the gross annual letting value which was not allowed by the Gwalior Act and that to this extent alone the notification under the Gwalior Act will not have effect. The High Court has, therefore, directed that the municipality will have to permit a deduction of 10% from the gross annual letting value while assessing the tax. The High Court has further stated that there was no clear averment in the writ petition that tax was being assessed on the gross annual letting value and not on the net annual letting value after making a deduction of 10% and, therefore, it could not be said that action that was being taken against the appellant is contrary to the provisions of the 1954 Act 3. The other contention that was raised on behalf of the appellant before the High Court was that the notification imposing the tax did not apply to the 3 area where the appellants factory and buildings are situate. The said contention was rejected by the High Court on the view that the appellants factory and buildings are situate in an area known as additional industrial area which was included within the Gwalior Municipal limits in October 1954. The High Court has referred to the provisions of Section 7(4)(a) of the 1954 Act wherein it is prescribed that "when any area is added to the municipality by a notification, the Act, rules, bye-laws, orders, notices and notifications of the Municipality concerned shall be applicable to that area". The High Court has held that in view of the said provision the 1945 notification passed under the Gwalior Act imposing house tax which was applicable after the 1954 Act, became applicable to the area wherein the properties of the appellant are situate. On that view the High Court has dismissed the writ petition filed by the appellant. Hence this appeal 4. The learned counsel for the appellant has urged the contentions aforementioned which have been rejected by the High Court. We do not find any reason to take a view different from that taken by the High Court. In our view, the said contentions were rightly rejected by the High Court for the reasons mentioned above 5. The learned counsel for the appellant has sought to urge a new contention, namely, that the area in which the properties of the appellant are situate is not included in the notification of October 1954 to which reference has been made by the High Court. This is a question of fact which was not agitated by the appellant before the High Court. It cannot be permitted to be raised for the first time in this Court6.
### Response:
0
### Explanation:
The learned counsel for the appellant has sought to urge a new contention, namely, that the area in which the properties of the appellant are situate is not included in the notification of October 1954 to which reference has been made by the High Court. This is a question of fact which was not agitated by the appellant before the High Court. It cannot be permitted to be raised for the first time in this Court
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Tara Singh and Others Vs. State of Punjab | report reaching the Magistrate and therefore a reasonable doubt arises that this time should have been utilised for consultation with a view to implicate some of the appellants falsely out of enmity. It is also submitted that the possibility of false implication of these accused cannot be ruled out. It is also his submission that the very fact that the Investigating Officer took such a long time for sending the report to the Magistrate itself suggests that he must have colluded with the members of the prosecution party in preparing the first report and therefore the entire investigation is tainted and according to the learned counsel the case based on such tainted investigation must be thrown out in a wholesale manner as there is no scope to separate grain from the chaff. He relied on a judgment of this Court in Balaka Singh v. State of Punjab 1975 (4) SCC 511 : 1975 (81) CrLJ 1734). In that case the names of the four accused alleged to have taken part in assault on the deceased were not at all mentioned in the inquest report and in the brief statement of the person who has lodged the FIR four hours before. That was also a case arising out of faction and the witnesses also were found to be interested. Taking these circumstances into consideration this Court observed (at p. 1737 of Cri LJ) "This circumstance speaks volumes against the prosecution case. If, therefore, it is once established that the names of the four accused were deliberately added in the inquest report at the instance of the prosecution there is no guarantee regarding the truth about the participation in the assault on the deceased by the appellants." * It is further observed that (at p. 1738 of Cri LJ) "It is true that there are as many as eight witnesses who are alleged to have seen the occurrence and they have given a parrot-like version of the entire case regarding the assault on the deceased by the various accused persons. All these witnesses have with one voice and with complete unanimity implicated even the four accused persons, acquitted by the High Court, equally with the appellants making absolutely no distinction between one and the other In these circumstances, therefore, we are satisfied that in view of the finding of the High Court that the FIR was a belated document having come into existence mush later than the time it is said to have been recorded and which adds the names of the four accused against whom the prosecution case is absolutely identical with the appellants, the case of the appellants cannot at all be distinguished." * But the facts in the instant case are altogether different. The names of the accused are consistently mentioned throughout. There is absolutely no ground to hold that the FIR was brought into existence subsequently during the investigation and the mere delay in lodging the report by itself cannot give scope for an adverse inference leading to rejection of the prosecution case outright4. It is well settled that the delay in giving the FIR by itself cannot be a ground to doubt the prosecution case. Knowing the Indian conditions as they are we cannot expect these villagers to rush to the police station immediately after the occurrence. Human nature as it is, the kith and kin who have witnessed the occurrence cannot be expected to act mechanically with all the promptitude in giving the report to the police. At times being grief-stricken because of the capacity it may not immediately occur to them that they should give a report. After all it is but natural in these circumstances for them to take some time to go to the police station for giving the report. Of course the Supreme Court as well as the High Courts have pointed out that in cases arising out of acute factions there is a tendency to implicate persons belonging to the opposite faction falsely. In order to avert the danger of convicting such innocent persons the courts are cautioned to scrutinise the evidence of such interested witnesses with greater care and caution and separate grain from the chaff after subjecting the evidence to a closer scrutiny and in doing so the contents of the FIR also will have to be scrutinised carefully. However, unless there are indications of fabrication, the Court cannot reject the prosecution version as given in the FIR and later substantiated by the evidence merely on the ground of delay. These are all matters for appreciation and much depends on the facts and circumstances of each case. In the instant case there are three eye-witnesses. They have consistently deposed that the two appellants inflicted injuries on the neck with kirpans. The medical evidence amply supports the same. In these circumstances we are unable to agree with the learned counsel that the entire case should be thrown out on the mere ground that there was some delay in the FIR reaching the local Magistrate. In the report given by P.W. 2 to the police all the necessary details are mentioned. It is particularly mentioned that these two appellants inflicted injuries with kirpans on the neck of the deceased. This report according to the prosecution, was given at about 8.45 p.m. and on the basis of the report the Investigating Officer prepared copies of the FIR and despatched the same to all the concerned officers including the local Magistrate who received the same at about 2.45 a.m. Therefore we are unable to say that there was inordinate and unexplained delay. There is no ground to doubt the presence of the eye-witnesses at the scene of occurrence. We have perused their evidence and they have withstood the cross-examination.There are no material contradictions or omissions which in any manner throw a doubt on their veracity. The High Court by way of an abundant caution gave the benefit of doubt to the other three accused since the allegation against them is an omnibus one. | 0[ds]But the facts in the instant case are altogether different. The names of the accused are consistently mentioned throughout. There is absolutely no ground to hold that the FIR was brought into existence subsequently during the investigation and the mere delay in lodging the report by itself cannot give scope for an adverse inference leading to rejection of the prosecution case outright4. It is well settled that the delay in giving the FIR by itself cannot be a ground to doubt the prosecution case. Knowing the Indian conditions as they are we cannot expect these villagers to rush to the police station immediately after the occurrence. Human nature as it is, the kith and kin who have witnessed the occurrence cannot be expected to act mechanically with all the promptitude in giving the report to the police. At times beingbecause of the capacity it may not immediately occur to them that they should give a report. After all it is but natural in these circumstances for them to take some time to go to the police station for giving the report. Of course the Supreme Court as well as the High Courts have pointed out that in cases arising out of acute factions there is a tendency to implicate persons belonging to the opposite faction falsely. In order to avert the danger of convicting such innocent persons the courts are cautioned to scrutinise the evidence of such interested witnesses with greater care and caution and separate grain from the chaff after subjecting the evidence to a closer scrutiny and in doing so the contents of the FIR also will have to be scrutinised carefully. However, unless there are indications of fabrication, the Court cannot reject the prosecution version as given in the FIR and later substantiated by the evidence merely on the ground of delay. These are all matters for appreciation and much depends on the facts and circumstances of each case. In the instant case there are threeThey have consistently deposed that the two appellants inflicted injuries on the neck with kirpans. The medical evidence amply supports the same. In these circumstances we are unable to agree with the learned counsel that the entire case should be thrown out on the mere ground that there was some delay in the FIR reaching the local Magistrate. In the report given by P.W. 2 to the police all the necessary details are mentioned. It is particularly mentioned that these two appellants inflicted injuries with kirpans on the neck of the deceased. This report according to the prosecution, was given at about 8.45 p.m. and on the basis of the report the Investigating Officer prepared copies of the FIR and despatched the same to all the concerned officers including the local Magistrate who received the same at about 2.45 a.m. Therefore we are unable to say that there was inordinate and unexplained delay. There is no ground to doubt the presence of theat the scene of occurrence. We have perused their evidence and they have withstood theare no material contradictions or omissions which in any manner throw a doubt on their veracity. The High Court by way of an abundant caution gave the benefit of doubt to the other three accused since the allegation against them is an omnibus one. | 0 | 1,944 | 584 | ### 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:
report reaching the Magistrate and therefore a reasonable doubt arises that this time should have been utilised for consultation with a view to implicate some of the appellants falsely out of enmity. It is also submitted that the possibility of false implication of these accused cannot be ruled out. It is also his submission that the very fact that the Investigating Officer took such a long time for sending the report to the Magistrate itself suggests that he must have colluded with the members of the prosecution party in preparing the first report and therefore the entire investigation is tainted and according to the learned counsel the case based on such tainted investigation must be thrown out in a wholesale manner as there is no scope to separate grain from the chaff. He relied on a judgment of this Court in Balaka Singh v. State of Punjab 1975 (4) SCC 511 : 1975 (81) CrLJ 1734). In that case the names of the four accused alleged to have taken part in assault on the deceased were not at all mentioned in the inquest report and in the brief statement of the person who has lodged the FIR four hours before. That was also a case arising out of faction and the witnesses also were found to be interested. Taking these circumstances into consideration this Court observed (at p. 1737 of Cri LJ) "This circumstance speaks volumes against the prosecution case. If, therefore, it is once established that the names of the four accused were deliberately added in the inquest report at the instance of the prosecution there is no guarantee regarding the truth about the participation in the assault on the deceased by the appellants." * It is further observed that (at p. 1738 of Cri LJ) "It is true that there are as many as eight witnesses who are alleged to have seen the occurrence and they have given a parrot-like version of the entire case regarding the assault on the deceased by the various accused persons. All these witnesses have with one voice and with complete unanimity implicated even the four accused persons, acquitted by the High Court, equally with the appellants making absolutely no distinction between one and the other In these circumstances, therefore, we are satisfied that in view of the finding of the High Court that the FIR was a belated document having come into existence mush later than the time it is said to have been recorded and which adds the names of the four accused against whom the prosecution case is absolutely identical with the appellants, the case of the appellants cannot at all be distinguished." * But the facts in the instant case are altogether different. The names of the accused are consistently mentioned throughout. There is absolutely no ground to hold that the FIR was brought into existence subsequently during the investigation and the mere delay in lodging the report by itself cannot give scope for an adverse inference leading to rejection of the prosecution case outright4. It is well settled that the delay in giving the FIR by itself cannot be a ground to doubt the prosecution case. Knowing the Indian conditions as they are we cannot expect these villagers to rush to the police station immediately after the occurrence. Human nature as it is, the kith and kin who have witnessed the occurrence cannot be expected to act mechanically with all the promptitude in giving the report to the police. At times being grief-stricken because of the capacity it may not immediately occur to them that they should give a report. After all it is but natural in these circumstances for them to take some time to go to the police station for giving the report. Of course the Supreme Court as well as the High Courts have pointed out that in cases arising out of acute factions there is a tendency to implicate persons belonging to the opposite faction falsely. In order to avert the danger of convicting such innocent persons the courts are cautioned to scrutinise the evidence of such interested witnesses with greater care and caution and separate grain from the chaff after subjecting the evidence to a closer scrutiny and in doing so the contents of the FIR also will have to be scrutinised carefully. However, unless there are indications of fabrication, the Court cannot reject the prosecution version as given in the FIR and later substantiated by the evidence merely on the ground of delay. These are all matters for appreciation and much depends on the facts and circumstances of each case. In the instant case there are three eye-witnesses. They have consistently deposed that the two appellants inflicted injuries on the neck with kirpans. The medical evidence amply supports the same. In these circumstances we are unable to agree with the learned counsel that the entire case should be thrown out on the mere ground that there was some delay in the FIR reaching the local Magistrate. In the report given by P.W. 2 to the police all the necessary details are mentioned. It is particularly mentioned that these two appellants inflicted injuries with kirpans on the neck of the deceased. This report according to the prosecution, was given at about 8.45 p.m. and on the basis of the report the Investigating Officer prepared copies of the FIR and despatched the same to all the concerned officers including the local Magistrate who received the same at about 2.45 a.m. Therefore we are unable to say that there was inordinate and unexplained delay. There is no ground to doubt the presence of the eye-witnesses at the scene of occurrence. We have perused their evidence and they have withstood the cross-examination.There are no material contradictions or omissions which in any manner throw a doubt on their veracity. The High Court by way of an abundant caution gave the benefit of doubt to the other three accused since the allegation against them is an omnibus one.
### Response:
0
### Explanation:
But the facts in the instant case are altogether different. The names of the accused are consistently mentioned throughout. There is absolutely no ground to hold that the FIR was brought into existence subsequently during the investigation and the mere delay in lodging the report by itself cannot give scope for an adverse inference leading to rejection of the prosecution case outright4. It is well settled that the delay in giving the FIR by itself cannot be a ground to doubt the prosecution case. Knowing the Indian conditions as they are we cannot expect these villagers to rush to the police station immediately after the occurrence. Human nature as it is, the kith and kin who have witnessed the occurrence cannot be expected to act mechanically with all the promptitude in giving the report to the police. At times beingbecause of the capacity it may not immediately occur to them that they should give a report. After all it is but natural in these circumstances for them to take some time to go to the police station for giving the report. Of course the Supreme Court as well as the High Courts have pointed out that in cases arising out of acute factions there is a tendency to implicate persons belonging to the opposite faction falsely. In order to avert the danger of convicting such innocent persons the courts are cautioned to scrutinise the evidence of such interested witnesses with greater care and caution and separate grain from the chaff after subjecting the evidence to a closer scrutiny and in doing so the contents of the FIR also will have to be scrutinised carefully. However, unless there are indications of fabrication, the Court cannot reject the prosecution version as given in the FIR and later substantiated by the evidence merely on the ground of delay. These are all matters for appreciation and much depends on the facts and circumstances of each case. In the instant case there are threeThey have consistently deposed that the two appellants inflicted injuries on the neck with kirpans. The medical evidence amply supports the same. In these circumstances we are unable to agree with the learned counsel that the entire case should be thrown out on the mere ground that there was some delay in the FIR reaching the local Magistrate. In the report given by P.W. 2 to the police all the necessary details are mentioned. It is particularly mentioned that these two appellants inflicted injuries with kirpans on the neck of the deceased. This report according to the prosecution, was given at about 8.45 p.m. and on the basis of the report the Investigating Officer prepared copies of the FIR and despatched the same to all the concerned officers including the local Magistrate who received the same at about 2.45 a.m. Therefore we are unable to say that there was inordinate and unexplained delay. There is no ground to doubt the presence of theat the scene of occurrence. We have perused their evidence and they have withstood theare no material contradictions or omissions which in any manner throw a doubt on their veracity. The High Court by way of an abundant caution gave the benefit of doubt to the other three accused since the allegation against them is an omnibus one.
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You One Engineering & Const Co. Ltd.&Anr Vs. National Highways Authority Of India | settled in accordance with the Arbitration and Conciliation Act, 1996. The Arbitral Tribunal shall consist of 3 Arbitrators, one each to be appointed by the employer and the contractor. The third arbitrator shall be chosen by the two arbitrators so appointed by the parties and shall act as Presiding Arbitrator. In case of the failure of the two arbitrators appointed by the parties to reach upon a consensus within a period of 30 days from the appointment of the arbitrator appointed subsequently, the Presiding Arbitrator shall be appointed by the Council of Indian Road Congress. (emphasis supplied) 7. A bare reading of the above clause leaves no room for doubt that in case of failure of the two Arbitrators appointed by the parties to reach upon a consensus, the Presiding Arbitrator shall be appointed by the Council of IRC. 8. It may be stated at this stage that when the matter was placed before me on April 24, 2007, the parties invited my attention to the aforesaid clause and it was submitted that no consensus could be arrived at by the parties. Considering the fact situation and the Agreement, I thought it proper that the parties should undertake fresh exercise in the direction. I accordingly passed an order to make one more attempt. Unfortunately, however, the effort could not succeed and both the counsel stated that the matter will have to be decided on merits. Accordingly, the matter was heard. In my opinion, the learned counsel for the respondent is right that apart from clear language of Arbitration Clause, the point is also covered by YOU ONE Engineering. Almost in identical circumstances, this Court was called upon to consider the provisions of the Act and the right of the respondent to appoint Presiding Arbitrator under the Agreement. The Court held that it is the right of IRC to appoint Presiding Arbitrator in case the parties are not ad idem in appointment of Third/Presiding Arbitrator. 9. This Court stated: The arbitration agreement clearly envisages the appointment of the presiding arbitrator by IRC. There is no qualification that the arbitrator has to be a different person depending on the nature of the dispute. If the parties have entered into such an agreement with open eyes, it is not open to ignore it and invoke exercise of powers in Section 11(6). (emphasis supplied) 10. It is, no doubt, true that the High Court of Delhi has appointed Honble Mr. Justice Arun Kumar, retired Judge of this Court as Presiding Arbitrator in OMP No. 342 of 2004 vide its order dated May 22, 2006. The said order is on record of this case. Three paragraphs of the said order are important and they read as under: 3. Learned counsel for the parties jointly state that whole issue can be sorted out by having a panel of three arbitrators, with one arbitrator as nominated by each of the parties and the presiding arbitrator to be appointed by this Court with the joint consent of the learned counsel for the parties. It may be noticed that as on date the petitioner has nominated Mr.L.R.Gupta, Director General Works, CPWD (Retd.) while respondent has nominated Justice S.B.Wad (Retd.). Justice S.B.Wad was nominated in place of Justice A.K.Srivastava (Retd.), who expressed his inability to act as an arbitrator. 4. Learned counsel for the parties propose that Justice Arun Kumar (Retd. Judge of the Supreme Court), 10, Krishna Menon Marg, New Delhi - 110 001 (Phone : 2301-2175) be appointed as the presiding arbitrator and arbitral tribunal be constituted accordingly. 5. The constitution of the presiding arbitrator and arbitral tribunal as proposed by learned counsel for the parties is accepted by this Court and the said tribunal shall proceed to enter upon reference and determine the dispute between the parties. Ordered accordingly. The constitution of the tribunal be Justice Arun Kumar (Retd.) as the presiding arbitrator, Mr.L.R. Gupta and Justice S.B. Wad (Retd.) as the two other members of the arbitral tribunal. The fee shall be fixed by the tribunal itself. (emphasis supplied) 11. The learned counsel for the respondent was right when he submitted that the order was based on consent of the parties. As in the present case, there is no such consent, the Court has to consider the matter by interpreting an Arbitration Clause. Clause 3, as observed earlier, is explicitly clear and there is no ambiguity. Again, the controversy is decided by this Court in YOU ONE Engineering. In my view, therefore, the petitioners cannot compel the respondent to agree for a retired Judge of this Court or retired Chief Justice of a High Court, senior to Honble Mr. Justice Mohta as Presiding Arbitrator. 12. It was finally submitted that even if this Court is of the view that no such direction can be issued or order can be passed, it may be appreciated that the petitioners have chosen a retired Chief Justice of a High Court as their Arbitrator and appropriate observations may be made so that IRC may appoint retired Judge of this Court or a retired Chief Justice of a High Court to be the Presiding Arbitrator. That would enable the petitioners to avail services of an Arbitrator appointed by them. I appreciate the anxiety of the petitioners. In my view, however, when the Arbitration Clause is clear and the point is concluded by a decision of this Court, it would not be proper on my part to make any such observation. It is, however, open to the respondent to take an appropriate decision in the matter keeping in view the facts in their entirety. I may only state that this decision will not inhibit the respondent in taking any decision as it thinks fit. In view of the above legal position, I express no opinion on the contention of the parties as to whether the controversy raised is or is not of a technical nature. Since it is not necessary for me to enter into that question, I leave the matter there. | 0[ds]7. A bare reading of the above clause leaves no room for doubt that in case of failure of the two Arbitrators appointed by the parties to reach upon a consensus, the Presiding Arbitrator shall be appointed by the Council of IRC8. It may be stated at this stage that when the matter was placed before me on April 24, 2007, the parties invited my attention to the aforesaid clause and it was submitted that no consensus could be arrived at by the parties. Considering the fact situation and the Agreement, I thought it proper that the parties should undertake fresh exercise in the direction. I accordingly passed an order to make one more attempt. Unfortunately, however, the effort could not succeed and both the counsel stated that the matter will have to be decided on merits. Accordingly, the matter was heard. In my opinion, the learned counsel for the respondent is right that apart from clear language of Arbitration Clause, the point is also covered by YOU ONE Engineering. Almost in identical circumstances, this Court was called upon to consider the provisions of the Act and the right of the respondent to appoint Presiding Arbitrator under the Agreement. The Court held that it is the right of IRC to appoint Presiding Arbitrator in case the parties are not ad idem in appointment of Third/Presiding ArbitratorThe arbitration agreement clearly envisages the appointment of the presiding arbitrator by IRC. There is no qualification that the arbitrator has to be a different person depending on the nature of the dispute. If the parties have entered into such an agreement with open eyes, it is not open to ignore it and invoke exercise of powers in Section 11(6).10. It is, no doubt, true that the High Court of Delhi has appointed Honble Mr. Justice Arun Kumar, retired Judge of this Court as Presiding Arbitrator in OMP No. 342 of 2004 vide its order dated May 22, 2006. The said order is on record of this case. Three paragraphs of the said order are important and they read as under:3. Learned counsel for the parties jointly state that whole issue can be sorted out by having a panel of three arbitrators, with one arbitrator as nominated by each of the parties and the presiding arbitrator to be appointed by this Court with the joint consent of the learned counsel for the parties. It may be noticed that as on date the petitioner has nominated Mr.L.R.Gupta, Director General Works, CPWD (Retd.) while respondent has nominated Justice S.B.Wad (Retd.). Justice S.B.Wad was nominated in place of Justice A.K.Srivastava (Retd.), who expressed his inability to act as an arbitrator4. Learned counsel for the parties propose that Justice Arun Kumar (Retd. Judge of the Supreme Court), 10, Krishna Menon Marg, New Delhi - 110 001 (Phone : 2301-2175) be appointed as the presiding arbitrator and arbitral tribunal be constituted accordingly5. The constitution of the presiding arbitrator and arbitral tribunal as proposed by learned counsel for the parties is accepted by this Court and the said tribunal shall proceed to enter upon reference and determine the dispute between the parties. Ordered accordingly. The constitution of the tribunal be Justice Arun Kumar (Retd.) as the presiding arbitrator, Mr.L.R. Gupta and Justice S.B. Wad (Retd.) as the two other members of the arbitral tribunal. The fee shall be fixed by the tribunal itself. (emphasis supplied)11. The learned counsel for the respondent was right when he submitted that the order was based on consent of the parties. As in the present case, there is no such consent, the Court has to consider the matter by interpreting an Arbitration Clause. Clause 3, as observed earlier, is explicitly clear and there is no ambiguity. Again, the controversy is decided by this Court in YOU ONE Engineering. In my view, therefore, the petitioners cannot compel the respondent to agree for a retired Judge of this Court or retired Chief Justice of a High Court, senior to Honble Mr. Justice Mohta as Presiding Arbitrator12. It was finally submitted that even if this Court is of the view that no such direction can be issued or order can be passed, it may be appreciated that the petitioners have chosen a retired Chief Justice of a High Court as their Arbitrator and appropriate observations may be made so that IRC may appoint retired Judge of this Court or a retired Chief Justice of a High Court to be the Presiding Arbitrator. That would enable the petitioners to avail services of an Arbitrator appointed by them. I appreciate the anxiety of the petitioners. In my view, however, when the Arbitration Clause is clear and the point is concluded by a decision of this Court, it would not be proper on my part to make any such observation. It is, however, open to the respondent to take an appropriate decision in the matter keeping in view the facts in their entirety. I may only state that this decision will not inhibit the respondent in taking any decision as it thinks fit. In view of the above legal position, I express no opinion on the contention of the parties as to whether the controversy raised is or is not of a technical nature. Since it is not necessary for me to enter into that question, I leave the matter there | 0 | 2,557 | 998 | ### 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:
settled in accordance with the Arbitration and Conciliation Act, 1996. The Arbitral Tribunal shall consist of 3 Arbitrators, one each to be appointed by the employer and the contractor. The third arbitrator shall be chosen by the two arbitrators so appointed by the parties and shall act as Presiding Arbitrator. In case of the failure of the two arbitrators appointed by the parties to reach upon a consensus within a period of 30 days from the appointment of the arbitrator appointed subsequently, the Presiding Arbitrator shall be appointed by the Council of Indian Road Congress. (emphasis supplied) 7. A bare reading of the above clause leaves no room for doubt that in case of failure of the two Arbitrators appointed by the parties to reach upon a consensus, the Presiding Arbitrator shall be appointed by the Council of IRC. 8. It may be stated at this stage that when the matter was placed before me on April 24, 2007, the parties invited my attention to the aforesaid clause and it was submitted that no consensus could be arrived at by the parties. Considering the fact situation and the Agreement, I thought it proper that the parties should undertake fresh exercise in the direction. I accordingly passed an order to make one more attempt. Unfortunately, however, the effort could not succeed and both the counsel stated that the matter will have to be decided on merits. Accordingly, the matter was heard. In my opinion, the learned counsel for the respondent is right that apart from clear language of Arbitration Clause, the point is also covered by YOU ONE Engineering. Almost in identical circumstances, this Court was called upon to consider the provisions of the Act and the right of the respondent to appoint Presiding Arbitrator under the Agreement. The Court held that it is the right of IRC to appoint Presiding Arbitrator in case the parties are not ad idem in appointment of Third/Presiding Arbitrator. 9. This Court stated: The arbitration agreement clearly envisages the appointment of the presiding arbitrator by IRC. There is no qualification that the arbitrator has to be a different person depending on the nature of the dispute. If the parties have entered into such an agreement with open eyes, it is not open to ignore it and invoke exercise of powers in Section 11(6). (emphasis supplied) 10. It is, no doubt, true that the High Court of Delhi has appointed Honble Mr. Justice Arun Kumar, retired Judge of this Court as Presiding Arbitrator in OMP No. 342 of 2004 vide its order dated May 22, 2006. The said order is on record of this case. Three paragraphs of the said order are important and they read as under: 3. Learned counsel for the parties jointly state that whole issue can be sorted out by having a panel of three arbitrators, with one arbitrator as nominated by each of the parties and the presiding arbitrator to be appointed by this Court with the joint consent of the learned counsel for the parties. It may be noticed that as on date the petitioner has nominated Mr.L.R.Gupta, Director General Works, CPWD (Retd.) while respondent has nominated Justice S.B.Wad (Retd.). Justice S.B.Wad was nominated in place of Justice A.K.Srivastava (Retd.), who expressed his inability to act as an arbitrator. 4. Learned counsel for the parties propose that Justice Arun Kumar (Retd. Judge of the Supreme Court), 10, Krishna Menon Marg, New Delhi - 110 001 (Phone : 2301-2175) be appointed as the presiding arbitrator and arbitral tribunal be constituted accordingly. 5. The constitution of the presiding arbitrator and arbitral tribunal as proposed by learned counsel for the parties is accepted by this Court and the said tribunal shall proceed to enter upon reference and determine the dispute between the parties. Ordered accordingly. The constitution of the tribunal be Justice Arun Kumar (Retd.) as the presiding arbitrator, Mr.L.R. Gupta and Justice S.B. Wad (Retd.) as the two other members of the arbitral tribunal. The fee shall be fixed by the tribunal itself. (emphasis supplied) 11. The learned counsel for the respondent was right when he submitted that the order was based on consent of the parties. As in the present case, there is no such consent, the Court has to consider the matter by interpreting an Arbitration Clause. Clause 3, as observed earlier, is explicitly clear and there is no ambiguity. Again, the controversy is decided by this Court in YOU ONE Engineering. In my view, therefore, the petitioners cannot compel the respondent to agree for a retired Judge of this Court or retired Chief Justice of a High Court, senior to Honble Mr. Justice Mohta as Presiding Arbitrator. 12. It was finally submitted that even if this Court is of the view that no such direction can be issued or order can be passed, it may be appreciated that the petitioners have chosen a retired Chief Justice of a High Court as their Arbitrator and appropriate observations may be made so that IRC may appoint retired Judge of this Court or a retired Chief Justice of a High Court to be the Presiding Arbitrator. That would enable the petitioners to avail services of an Arbitrator appointed by them. I appreciate the anxiety of the petitioners. In my view, however, when the Arbitration Clause is clear and the point is concluded by a decision of this Court, it would not be proper on my part to make any such observation. It is, however, open to the respondent to take an appropriate decision in the matter keeping in view the facts in their entirety. I may only state that this decision will not inhibit the respondent in taking any decision as it thinks fit. In view of the above legal position, I express no opinion on the contention of the parties as to whether the controversy raised is or is not of a technical nature. Since it is not necessary for me to enter into that question, I leave the matter there.
### Response:
0
### Explanation:
7. A bare reading of the above clause leaves no room for doubt that in case of failure of the two Arbitrators appointed by the parties to reach upon a consensus, the Presiding Arbitrator shall be appointed by the Council of IRC8. It may be stated at this stage that when the matter was placed before me on April 24, 2007, the parties invited my attention to the aforesaid clause and it was submitted that no consensus could be arrived at by the parties. Considering the fact situation and the Agreement, I thought it proper that the parties should undertake fresh exercise in the direction. I accordingly passed an order to make one more attempt. Unfortunately, however, the effort could not succeed and both the counsel stated that the matter will have to be decided on merits. Accordingly, the matter was heard. In my opinion, the learned counsel for the respondent is right that apart from clear language of Arbitration Clause, the point is also covered by YOU ONE Engineering. Almost in identical circumstances, this Court was called upon to consider the provisions of the Act and the right of the respondent to appoint Presiding Arbitrator under the Agreement. The Court held that it is the right of IRC to appoint Presiding Arbitrator in case the parties are not ad idem in appointment of Third/Presiding ArbitratorThe arbitration agreement clearly envisages the appointment of the presiding arbitrator by IRC. There is no qualification that the arbitrator has to be a different person depending on the nature of the dispute. If the parties have entered into such an agreement with open eyes, it is not open to ignore it and invoke exercise of powers in Section 11(6).10. It is, no doubt, true that the High Court of Delhi has appointed Honble Mr. Justice Arun Kumar, retired Judge of this Court as Presiding Arbitrator in OMP No. 342 of 2004 vide its order dated May 22, 2006. The said order is on record of this case. Three paragraphs of the said order are important and they read as under:3. Learned counsel for the parties jointly state that whole issue can be sorted out by having a panel of three arbitrators, with one arbitrator as nominated by each of the parties and the presiding arbitrator to be appointed by this Court with the joint consent of the learned counsel for the parties. It may be noticed that as on date the petitioner has nominated Mr.L.R.Gupta, Director General Works, CPWD (Retd.) while respondent has nominated Justice S.B.Wad (Retd.). Justice S.B.Wad was nominated in place of Justice A.K.Srivastava (Retd.), who expressed his inability to act as an arbitrator4. Learned counsel for the parties propose that Justice Arun Kumar (Retd. Judge of the Supreme Court), 10, Krishna Menon Marg, New Delhi - 110 001 (Phone : 2301-2175) be appointed as the presiding arbitrator and arbitral tribunal be constituted accordingly5. The constitution of the presiding arbitrator and arbitral tribunal as proposed by learned counsel for the parties is accepted by this Court and the said tribunal shall proceed to enter upon reference and determine the dispute between the parties. Ordered accordingly. The constitution of the tribunal be Justice Arun Kumar (Retd.) as the presiding arbitrator, Mr.L.R. Gupta and Justice S.B. Wad (Retd.) as the two other members of the arbitral tribunal. The fee shall be fixed by the tribunal itself. (emphasis supplied)11. The learned counsel for the respondent was right when he submitted that the order was based on consent of the parties. As in the present case, there is no such consent, the Court has to consider the matter by interpreting an Arbitration Clause. Clause 3, as observed earlier, is explicitly clear and there is no ambiguity. Again, the controversy is decided by this Court in YOU ONE Engineering. In my view, therefore, the petitioners cannot compel the respondent to agree for a retired Judge of this Court or retired Chief Justice of a High Court, senior to Honble Mr. Justice Mohta as Presiding Arbitrator12. It was finally submitted that even if this Court is of the view that no such direction can be issued or order can be passed, it may be appreciated that the petitioners have chosen a retired Chief Justice of a High Court as their Arbitrator and appropriate observations may be made so that IRC may appoint retired Judge of this Court or a retired Chief Justice of a High Court to be the Presiding Arbitrator. That would enable the petitioners to avail services of an Arbitrator appointed by them. I appreciate the anxiety of the petitioners. In my view, however, when the Arbitration Clause is clear and the point is concluded by a decision of this Court, it would not be proper on my part to make any such observation. It is, however, open to the respondent to take an appropriate decision in the matter keeping in view the facts in their entirety. I may only state that this decision will not inhibit the respondent in taking any decision as it thinks fit. In view of the above legal position, I express no opinion on the contention of the parties as to whether the controversy raised is or is not of a technical nature. Since it is not necessary for me to enter into that question, I leave the matter there
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Babu Rameshwar Prasad Singh and Others Vs. Sheo Shankar Prasad Singh and Others | GUPTA, J.1. This appeal by certificate granted by the Patna High Court under Article 133 (1)(a) of the Constitution arises out of a suit for partition. Here we are faced with a somewhat uncommon situation where a defendant is asserting a right in certain properties in which he had disowned any interest in his written statement, and the plaintiffs who in the plaint had conceded a share to the defendant in these properties now deny he had any.2. The suit was instituted by one Akleshwar Prasad Singh and his two sons against 15 defendants for partition of the properties described in the various schedules to the plaint. Plaintiff No. 1 Akleshwar Prasad Singh and the first three defendants were brothers. Admittedly in 1348 Fasli there was a partition of the ancestral properties of the four brothers. According to the plaintiffs the properties acquired by the brothers out of Khatari fund, however, remained joint and the refusal by the first defendant to have these properties partitioned gave rise to the instant suit. The plaintiffs claimed 1/4th share in these properties which, according to them, included the properties described in Schedule (1)(f), 1(g), 1(h), 1(k), 1(l), and 1(m) which are the only properties we are concerned with in the appeal before us. The defendants Nos. 2 and 3 supported the plaintiffs case. Defendant No. 1 Rameshwar Prasad Singh, in his written statement contended that there was a complete partition of the ancestral properties as well as the properties acquired from the Khatari fund in 1348 Fasli. According to the first defendant the properties mentioned in Schedule 1(c), 1(d) and 1(e) were acquired by his wife, daughter-in-law and sons out of their personal funds and the properties of Schedule 2 had been acquired by defendants Nos. 14 and 15. The first defendant further disclaimed any interest in the properties described in Schedule 1 (f), 1 (g), 1 (h), 1 (j), 1 (k), 1 (l) and 1 (m) which according to him, were all acquired by plaintiff No. 1 and defendants Nos. 2 and 3 out of their own resources after the partition of the joint properties in 1348 Fasli.3. The trial Court directed partition of the plaintiffs 1/4th share in the properties described in Schedule 1 (a), 1 (b) and 1 (i) as well as Schedule 2 with the exception of the properties mentioned therein which stood in the names of defendants Nos. 14 and 15. He also directed partition of 1/4th share of the plaintiffs in the properties of Schedule 1 (f), 1 (g), 1 (h), 1 (j), 1 (k), 1 (l) and 1 (m). He dismissed the suit in respect of the properties of the Schedule 1 (c), 1 (d), and 1 (e) and those included in Schedule 2 which were claimed by defendants Nos. 14 and 15.4. Against the decision of the trial Court the plaintiffs as well as defendants Nos. 2, 3 and 7 preferred an appeal to the High Court. Plaintiff No. 1, Akleshwar Prasad Singh, died during the pendency of the appeal before the High Court. The appeal in the High Court was confined to the respective claims of the parties in regard to the properties of Schedule 1 (f), 1 (g), 1 (h), 1 (j), 1 (k), 1 (l) and 1 (m). The High Court allowed the appeal and dismissed the suit for partition in respect of the properties described in the aforesaid schedules, which means that the first defendants case in the written statement in respect of these properties that he had no interest in them was accepted by the High Court. The High Court arrived at this conclusion on a consideration of several circumstances, namely, that there was no reliable evidence to show that these properties had ever been in the joint possession of all the brothers including defendant No. 1 and that if defendant No. 1 had contributed to the fund required for the acquisition of these properties, he would not have failed to get his name mentioned in the deals concerned. The High Court was of the view that just as defendant No. 1 has acquired properties mentioned in Schedule 1 (c), 1 (d) and 1 (e) in the names of his wife, daughter-in-law and sons after 1348 Fasli, similarly the properties mentioned in the Schedule 1 (f), 1 (g), 1 (h), 1 (j), 1 (k), 1 (l) and 1 (m) must have been acquired by plaintiff No. 1 and defendants Nos. 2 and 3 out of their own funds after 1348 Fasli. The High Court held that the plaintiffs had therefore no cause of action for partition of these properties against defendant No. 1 and dismissed the suit in respect of these properties.5. The appeal to this Court which has been preferred by the first defendant and his sons is also limited to the properties of Schedule 1 (f), 1 (g), 1 (h), 1 (j), 1 (k), 1 (l) and 1 (m). The only submission made on behalf of the appellant was that the High Court was in error in proceeding upon the admission of the first defendant made in his written statement that the properties mentioned in the said schedules belongs exclusively to plaintiff No. 1 and defendants Nos. 2 and 3. It was pointed out that this admission was only a part of the first defendants case and our attention was drawn to the claim made by the first defendant in his written statement that all the joint properties including those acquired out of Khatari fund had been partitioned in 1348 Fasli. It was submitted that it was in that context that the admission had been made and the High Court could not in law reject the defendants case of complete partition and at the same time rely on the admission. We do not think there is any substance in this contention because the High Court did not really base its conclusion on the defendants admission but on other circumstances to which we have referred above. | 0[ds]5. The appeal to this Court which has been preferred by the first defendant and his sons is also limited to the properties of Schedule 1 (f), 1 (g), 1 (h), 1 (j), 1 (k), 1 (l) and 1 (m).The only submission made on behalf of the appellant was that the High Court was in error in proceeding upon the admission of the first defendant made in his written statement that the properties mentioned in the said schedules belongs exclusively to plaintiff No. 1 and defendants Nos. 2 and 3. It was pointed out that this admission was only a part of the first defendants case and our attention was drawn to the claim made by the first defendant in his written statement that all the joint properties including those acquired out of Khatari fund had been partitioned in 1348 Fasli. It was submitted that it was in that context that the admission had been made and the High Court could not in law reject the defendants case of complete partition and at the same time rely on theWe do not think there is any substance in this contention because the High Court did not really base its conclusion on the defendants admission but on other circumstances to which we have referred above. | 0 | 1,217 | 243 | ### Instruction:
Ascertain if the court will uphold (1) or dismiss (0) the appeal in the case proceeding, and then clarify this prediction by discussing critical sentences from the text.
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GUPTA, J.1. This appeal by certificate granted by the Patna High Court under Article 133 (1)(a) of the Constitution arises out of a suit for partition. Here we are faced with a somewhat uncommon situation where a defendant is asserting a right in certain properties in which he had disowned any interest in his written statement, and the plaintiffs who in the plaint had conceded a share to the defendant in these properties now deny he had any.2. The suit was instituted by one Akleshwar Prasad Singh and his two sons against 15 defendants for partition of the properties described in the various schedules to the plaint. Plaintiff No. 1 Akleshwar Prasad Singh and the first three defendants were brothers. Admittedly in 1348 Fasli there was a partition of the ancestral properties of the four brothers. According to the plaintiffs the properties acquired by the brothers out of Khatari fund, however, remained joint and the refusal by the first defendant to have these properties partitioned gave rise to the instant suit. The plaintiffs claimed 1/4th share in these properties which, according to them, included the properties described in Schedule (1)(f), 1(g), 1(h), 1(k), 1(l), and 1(m) which are the only properties we are concerned with in the appeal before us. The defendants Nos. 2 and 3 supported the plaintiffs case. Defendant No. 1 Rameshwar Prasad Singh, in his written statement contended that there was a complete partition of the ancestral properties as well as the properties acquired from the Khatari fund in 1348 Fasli. According to the first defendant the properties mentioned in Schedule 1(c), 1(d) and 1(e) were acquired by his wife, daughter-in-law and sons out of their personal funds and the properties of Schedule 2 had been acquired by defendants Nos. 14 and 15. The first defendant further disclaimed any interest in the properties described in Schedule 1 (f), 1 (g), 1 (h), 1 (j), 1 (k), 1 (l) and 1 (m) which according to him, were all acquired by plaintiff No. 1 and defendants Nos. 2 and 3 out of their own resources after the partition of the joint properties in 1348 Fasli.3. The trial Court directed partition of the plaintiffs 1/4th share in the properties described in Schedule 1 (a), 1 (b) and 1 (i) as well as Schedule 2 with the exception of the properties mentioned therein which stood in the names of defendants Nos. 14 and 15. He also directed partition of 1/4th share of the plaintiffs in the properties of Schedule 1 (f), 1 (g), 1 (h), 1 (j), 1 (k), 1 (l) and 1 (m). He dismissed the suit in respect of the properties of the Schedule 1 (c), 1 (d), and 1 (e) and those included in Schedule 2 which were claimed by defendants Nos. 14 and 15.4. Against the decision of the trial Court the plaintiffs as well as defendants Nos. 2, 3 and 7 preferred an appeal to the High Court. Plaintiff No. 1, Akleshwar Prasad Singh, died during the pendency of the appeal before the High Court. The appeal in the High Court was confined to the respective claims of the parties in regard to the properties of Schedule 1 (f), 1 (g), 1 (h), 1 (j), 1 (k), 1 (l) and 1 (m). The High Court allowed the appeal and dismissed the suit for partition in respect of the properties described in the aforesaid schedules, which means that the first defendants case in the written statement in respect of these properties that he had no interest in them was accepted by the High Court. The High Court arrived at this conclusion on a consideration of several circumstances, namely, that there was no reliable evidence to show that these properties had ever been in the joint possession of all the brothers including defendant No. 1 and that if defendant No. 1 had contributed to the fund required for the acquisition of these properties, he would not have failed to get his name mentioned in the deals concerned. The High Court was of the view that just as defendant No. 1 has acquired properties mentioned in Schedule 1 (c), 1 (d) and 1 (e) in the names of his wife, daughter-in-law and sons after 1348 Fasli, similarly the properties mentioned in the Schedule 1 (f), 1 (g), 1 (h), 1 (j), 1 (k), 1 (l) and 1 (m) must have been acquired by plaintiff No. 1 and defendants Nos. 2 and 3 out of their own funds after 1348 Fasli. The High Court held that the plaintiffs had therefore no cause of action for partition of these properties against defendant No. 1 and dismissed the suit in respect of these properties.5. The appeal to this Court which has been preferred by the first defendant and his sons is also limited to the properties of Schedule 1 (f), 1 (g), 1 (h), 1 (j), 1 (k), 1 (l) and 1 (m). The only submission made on behalf of the appellant was that the High Court was in error in proceeding upon the admission of the first defendant made in his written statement that the properties mentioned in the said schedules belongs exclusively to plaintiff No. 1 and defendants Nos. 2 and 3. It was pointed out that this admission was only a part of the first defendants case and our attention was drawn to the claim made by the first defendant in his written statement that all the joint properties including those acquired out of Khatari fund had been partitioned in 1348 Fasli. It was submitted that it was in that context that the admission had been made and the High Court could not in law reject the defendants case of complete partition and at the same time rely on the admission. We do not think there is any substance in this contention because the High Court did not really base its conclusion on the defendants admission but on other circumstances to which we have referred above.
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0
### Explanation:
5. The appeal to this Court which has been preferred by the first defendant and his sons is also limited to the properties of Schedule 1 (f), 1 (g), 1 (h), 1 (j), 1 (k), 1 (l) and 1 (m).The only submission made on behalf of the appellant was that the High Court was in error in proceeding upon the admission of the first defendant made in his written statement that the properties mentioned in the said schedules belongs exclusively to plaintiff No. 1 and defendants Nos. 2 and 3. It was pointed out that this admission was only a part of the first defendants case and our attention was drawn to the claim made by the first defendant in his written statement that all the joint properties including those acquired out of Khatari fund had been partitioned in 1348 Fasli. It was submitted that it was in that context that the admission had been made and the High Court could not in law reject the defendants case of complete partition and at the same time rely on theWe do not think there is any substance in this contention because the High Court did not really base its conclusion on the defendants admission but on other circumstances to which we have referred above.
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Katheesa Umma & Others Vs. Kunhamu & Others | incorporated in their text books by the modern writers on Muhammadan Law. (See Mullas Principles of Muhammadan Law, 14th Edn., pp. 139, 142, 144 and 146, Tyabjis Muhammadan Law, 3rd Edn., pp. 430-435, ss, 397-400, Amir Alis Muhammadan Law, Vol. I, pp. 130-131). 13. The principles have further been applied in some decisions of the High Courts in India. In Nabi Sab v. Papiah (AIR 1915 Mad. p. 972) it was held that gift did not necessarily fail merely because possession was not handed over to the minors father or guardian and the donor could nominate a person to accept the gift on behalf of the minor. It was pointed out that the Muhammadan Law of gifts, though strict could not be taken to be made up of unmeaning technicalities. A similar view was expressed in Nawab Jan v Safiur Rahman (AIR 1918 Cal. p. 786). These cases were followed recently in Munni Bai and Another v Abdul Gani (AIR 1959 MP p. 225) where it was held that when a document embodying the intention of the donor was delivered to the minor possessing discretion and accepted by her it amounted to acceptance of gift. It was further pointed out that all that was needed was that the donor must evince an immediate and bona fide intention to make the gift and to complete it by some significant overt act. See also Mst. Fatma v Mst. Autun (AIR 1944 Sind p. 195), Mst. Aiizi and Another Sona Mir (AIR 1962 J & K p. 4) and Mammad and Others v Kunhali and Others (1962 KLJ 351 ). 14. In Md. Abdul Gyani v Mt. Faker Jahan (1922 (49) IA p. 195 at p. 209) it was held by the Judicial Committee as follows:"In considering what is the Muhammadan Law on the subject of gift, intervivos their Lordships have to bear in mind that when the old and admittedly authoritative texts of Muhammadan Law were promulgated there were not in the contemplation of any one, any Transfer of Property Acts, any Registration Acts, any Revenue Courts to record transfers of the possession of land, or any zamindari estates large or small, and that it could not have been intended to lay down for all time what should alone be the evidence that titles to lands had passed. The object of the Muhammadan Law as to gifts apparently was to prevent disputes as to whether the donor and the donee intended at the time that the title to the property should pass from the donor to the donee and that the handing over by the donor and the acceptance by the donee of the property should be good evidence that the property had been given by the donor and had been accepted by the donee as a gift." Later in Mohamad Sadiq Ali Khan v Fakhr Jahan Begum (1932 (59) IA 1) it was held by the Privy Council that at least between husband and wife Muhammadan Law did not require an actual vacation by the husband and an actual taking possession by the wife. In the opinion of the Judicial Committee the declaration made by the husband followed by the handing over of the deed was sufficient to establish the transfer of possession. 15. These cases show that the strict rule of Muhammadan Law about giving possession to one of the stated guardians of the minor is not a condition of its validity in certain cases. One such case is gift by the husband to his wife and another where there is gift to a minor who has no guardian of the property in existence. In such cases the gift through the mother is a valid gift. The Respondents relied upon two cases reported in Suna Mia v S. A. S. Pillai (1932 (11) Rang., p. 109) where gift to a minor through the mother was considered invalid. And Musa miye and Another v Kadar Bux (ILR 52 Bom. 316, P. C.) where a gift by a grand father to his minor grandsons when the father was alive, without delivery of possession to the father, was held to be invalid. Both these cases involve gifts in favour of minors whose fathers were alive and competent. They are distinguishable from those cases in which there is no guardian of the property to accept the gift and the minor is within the care either of the mother or of other near relative or even a stranger. In such cases the benefit to the minor and the completion of the gift for his benefit is the sole consideration. As we have shown above there is good authority for these propositions in the ancient and Modern books of Muhammadan Law and in decided cases of undoubted authority. 16. In our Judgment the gift in the present case was a valid gift. Mammotty was living at the time of the gift in the house of his mother inlaw and was probably a very sick person though not in Marzulmaut. His minor wife who had attained discretion was capable under Muhammadan Law to accept the gift, was living at her mothers house and in her care where the husband was also residing. The intention to make the gift was clear and manifest because it was made by a deed which was registered and handed over by Mammotty to his mother inlaw and accepted by her on behalf of the minor. There can be no question that there was a complete intention to divest ownership on the part of Mammotty and to transfer the property to the donee. If Mammotty had handed over the deed to his wife, the gift would have been complete under Muhatnmadan Law and it seems impossible to hold that by handing over the deed to his mother inlaw, in whose charge his wife was during his illness and afterwards Mammotty did not complete the gift. In our opinion both on texts and authorities such a gift must be accepted as valid and complete. | 1[ds]7. In the present case there is a declaration and a tender by the donor Mammotty and as the gift is by a registered deed no question in this behalf can arise. In so far as Mammotty was concerned there was delivery of possession and the deed also records this fact. Possession was not delivered to Seinaba but to her mother, the first appellant, and she accepted the gift on behalf of Seinaba. Mammotty could have made a declaration of gift and taken possession on behalf of his wife who had attained puberty and had lived with him, for after the celebration of marriage a husband can receive a gift in respect of minor wife even though her father be living:, Vol. III, p. 104 andi Vol. V, pp., original text quoted at p. 445 of Institutes of Mussalman Law by Nawab Abdur Rehman). But Mammotty did not complete his gift in this way. His gift included immovable properties and it was accepted by the mother who took over possession on behalf of her minor daughter. A gift to a minor is completed ordinarily by the acceptance of the guardian of the property of the minor. A mother can exercise guardianship of the person of a minor daughter (Hizanat) till the girl attains puberty after which the guardianship of the person is that of the father if the girl is unmarried and that of the husband if she is married and has gone to her husband. Even under the Guardian and Wards Act, the husband is the guardian of the person after marriage of a girl unless he is considered unfit. The mother was thus not the guardian of the person of Seinaba8. Seinabas mother was also not a guardian of the property of Seinaba. Muhammadan Law makes a distinction between guardian of the person, guardian of the property and guardian for the purpose of marriage) in the case of minor females. Guardians of the property are father and grandfather but they include also executors (Wasi). of these two and even executors of the executors and finally the Kazis executor. None of these were in existence except perhaps the Civil Court which has taken the place of the KaziThe parties are Hanafis. No direct instance from the authoritative books on Hanafi law can be cited but there is no text prohibiting the giving of possession to the mother. On the other hand there are other instances from which a deduction by analogy (Raifi 7 ciyas) can be made. The Hanafi laws as given in the Kafaya recognises the legality of Certain gifts which custom (urf) has accepted. This is because in deciding questions which are not covered by precedent, Hanafi jurisprudence attaches importance to decisions based on istehsan (liberal construction; lit. producing symmetry) and istislah (public policy). The Prophet himself approved of Muizz (a Governor of a province who was newly appointed) who said that in the absence of guidance from the Koran and Hadis he would deduce a rule by the exercise of reason. But to be able to say that a new rule exists and has always existed, there should be no rule against it and it must flow naturally from other established rules and must be based on justice, equity and good conscience and should not be haram (forbidden) or Makruh (reprobated). It is on these principles that the Mujtahidis and Muftis have allowed certain gifts to stand even though possession of the property was not handed over to one of the stated guardians of the property of the minor.15. These cases show that the strict rule of Muhammadan Law about giving possession to one of the stated guardians of the minor is not a condition of its validity in certain cases. One such case is gift by the husband to his wife and another where there is gift to a minor who has no guardian of the property in existence. In such cases the gift through the mother is a valid giftBoth these cases involve gifts in favour of minors whose fathers were alive and competent. They are distinguishable from those cases in which there is no guardian of the property to accept the gift and the minor is within the care either of the mother or of other near relative or even a stranger. In such cases the benefit to the minor and the completion of the gift for his benefit is the sole consideration. As we have shown above there is good authority for these propositions in the ancient and Modern books of Muhammadan Law and in decided cases of undoubted authority16. In our Judgment the gift in the present case was a valid gift. Mammotty was living at the time of the gift in the house of his mother inlaw and was probably a very sick person though not in Marzulmaut. His minor wife who had attained discretion was capable under Muhammadan Law to accept the gift, was living at her mothers house and in her care where the husband was also residing. The intention to make the gift was clear and manifest because it was made by a deed which was registered and handed over by Mammotty to his mother inlaw and accepted by her on behalf of the minor. There can be no question that there was a complete intention to divest ownership on the part of Mammotty and to transfer the property to the donee. If Mammotty had handed over the deed to his wife, the gift would have been complete under Muhatnmadan Law and it seems impossible to hold that by handing over the deed to his mother inlaw, in whose charge his wife was during his illness and afterwards Mammotty did not complete the gift. In our opinion both on texts and authorities such a gift must be accepted as valid and complete. | 1 | 3,819 | 1,055 | ### 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:
incorporated in their text books by the modern writers on Muhammadan Law. (See Mullas Principles of Muhammadan Law, 14th Edn., pp. 139, 142, 144 and 146, Tyabjis Muhammadan Law, 3rd Edn., pp. 430-435, ss, 397-400, Amir Alis Muhammadan Law, Vol. I, pp. 130-131). 13. The principles have further been applied in some decisions of the High Courts in India. In Nabi Sab v. Papiah (AIR 1915 Mad. p. 972) it was held that gift did not necessarily fail merely because possession was not handed over to the minors father or guardian and the donor could nominate a person to accept the gift on behalf of the minor. It was pointed out that the Muhammadan Law of gifts, though strict could not be taken to be made up of unmeaning technicalities. A similar view was expressed in Nawab Jan v Safiur Rahman (AIR 1918 Cal. p. 786). These cases were followed recently in Munni Bai and Another v Abdul Gani (AIR 1959 MP p. 225) where it was held that when a document embodying the intention of the donor was delivered to the minor possessing discretion and accepted by her it amounted to acceptance of gift. It was further pointed out that all that was needed was that the donor must evince an immediate and bona fide intention to make the gift and to complete it by some significant overt act. See also Mst. Fatma v Mst. Autun (AIR 1944 Sind p. 195), Mst. Aiizi and Another Sona Mir (AIR 1962 J & K p. 4) and Mammad and Others v Kunhali and Others (1962 KLJ 351 ). 14. In Md. Abdul Gyani v Mt. Faker Jahan (1922 (49) IA p. 195 at p. 209) it was held by the Judicial Committee as follows:"In considering what is the Muhammadan Law on the subject of gift, intervivos their Lordships have to bear in mind that when the old and admittedly authoritative texts of Muhammadan Law were promulgated there were not in the contemplation of any one, any Transfer of Property Acts, any Registration Acts, any Revenue Courts to record transfers of the possession of land, or any zamindari estates large or small, and that it could not have been intended to lay down for all time what should alone be the evidence that titles to lands had passed. The object of the Muhammadan Law as to gifts apparently was to prevent disputes as to whether the donor and the donee intended at the time that the title to the property should pass from the donor to the donee and that the handing over by the donor and the acceptance by the donee of the property should be good evidence that the property had been given by the donor and had been accepted by the donee as a gift." Later in Mohamad Sadiq Ali Khan v Fakhr Jahan Begum (1932 (59) IA 1) it was held by the Privy Council that at least between husband and wife Muhammadan Law did not require an actual vacation by the husband and an actual taking possession by the wife. In the opinion of the Judicial Committee the declaration made by the husband followed by the handing over of the deed was sufficient to establish the transfer of possession. 15. These cases show that the strict rule of Muhammadan Law about giving possession to one of the stated guardians of the minor is not a condition of its validity in certain cases. One such case is gift by the husband to his wife and another where there is gift to a minor who has no guardian of the property in existence. In such cases the gift through the mother is a valid gift. The Respondents relied upon two cases reported in Suna Mia v S. A. S. Pillai (1932 (11) Rang., p. 109) where gift to a minor through the mother was considered invalid. And Musa miye and Another v Kadar Bux (ILR 52 Bom. 316, P. C.) where a gift by a grand father to his minor grandsons when the father was alive, without delivery of possession to the father, was held to be invalid. Both these cases involve gifts in favour of minors whose fathers were alive and competent. They are distinguishable from those cases in which there is no guardian of the property to accept the gift and the minor is within the care either of the mother or of other near relative or even a stranger. In such cases the benefit to the minor and the completion of the gift for his benefit is the sole consideration. As we have shown above there is good authority for these propositions in the ancient and Modern books of Muhammadan Law and in decided cases of undoubted authority. 16. In our Judgment the gift in the present case was a valid gift. Mammotty was living at the time of the gift in the house of his mother inlaw and was probably a very sick person though not in Marzulmaut. His minor wife who had attained discretion was capable under Muhammadan Law to accept the gift, was living at her mothers house and in her care where the husband was also residing. The intention to make the gift was clear and manifest because it was made by a deed which was registered and handed over by Mammotty to his mother inlaw and accepted by her on behalf of the minor. There can be no question that there was a complete intention to divest ownership on the part of Mammotty and to transfer the property to the donee. If Mammotty had handed over the deed to his wife, the gift would have been complete under Muhatnmadan Law and it seems impossible to hold that by handing over the deed to his mother inlaw, in whose charge his wife was during his illness and afterwards Mammotty did not complete the gift. In our opinion both on texts and authorities such a gift must be accepted as valid and complete.
### Response:
1
### Explanation:
7. In the present case there is a declaration and a tender by the donor Mammotty and as the gift is by a registered deed no question in this behalf can arise. In so far as Mammotty was concerned there was delivery of possession and the deed also records this fact. Possession was not delivered to Seinaba but to her mother, the first appellant, and she accepted the gift on behalf of Seinaba. Mammotty could have made a declaration of gift and taken possession on behalf of his wife who had attained puberty and had lived with him, for after the celebration of marriage a husband can receive a gift in respect of minor wife even though her father be living:, Vol. III, p. 104 andi Vol. V, pp., original text quoted at p. 445 of Institutes of Mussalman Law by Nawab Abdur Rehman). But Mammotty did not complete his gift in this way. His gift included immovable properties and it was accepted by the mother who took over possession on behalf of her minor daughter. A gift to a minor is completed ordinarily by the acceptance of the guardian of the property of the minor. A mother can exercise guardianship of the person of a minor daughter (Hizanat) till the girl attains puberty after which the guardianship of the person is that of the father if the girl is unmarried and that of the husband if she is married and has gone to her husband. Even under the Guardian and Wards Act, the husband is the guardian of the person after marriage of a girl unless he is considered unfit. The mother was thus not the guardian of the person of Seinaba8. Seinabas mother was also not a guardian of the property of Seinaba. Muhammadan Law makes a distinction between guardian of the person, guardian of the property and guardian for the purpose of marriage) in the case of minor females. Guardians of the property are father and grandfather but they include also executors (Wasi). of these two and even executors of the executors and finally the Kazis executor. None of these were in existence except perhaps the Civil Court which has taken the place of the KaziThe parties are Hanafis. No direct instance from the authoritative books on Hanafi law can be cited but there is no text prohibiting the giving of possession to the mother. On the other hand there are other instances from which a deduction by analogy (Raifi 7 ciyas) can be made. The Hanafi laws as given in the Kafaya recognises the legality of Certain gifts which custom (urf) has accepted. This is because in deciding questions which are not covered by precedent, Hanafi jurisprudence attaches importance to decisions based on istehsan (liberal construction; lit. producing symmetry) and istislah (public policy). The Prophet himself approved of Muizz (a Governor of a province who was newly appointed) who said that in the absence of guidance from the Koran and Hadis he would deduce a rule by the exercise of reason. But to be able to say that a new rule exists and has always existed, there should be no rule against it and it must flow naturally from other established rules and must be based on justice, equity and good conscience and should not be haram (forbidden) or Makruh (reprobated). It is on these principles that the Mujtahidis and Muftis have allowed certain gifts to stand even though possession of the property was not handed over to one of the stated guardians of the property of the minor.15. These cases show that the strict rule of Muhammadan Law about giving possession to one of the stated guardians of the minor is not a condition of its validity in certain cases. One such case is gift by the husband to his wife and another where there is gift to a minor who has no guardian of the property in existence. In such cases the gift through the mother is a valid giftBoth these cases involve gifts in favour of minors whose fathers were alive and competent. They are distinguishable from those cases in which there is no guardian of the property to accept the gift and the minor is within the care either of the mother or of other near relative or even a stranger. In such cases the benefit to the minor and the completion of the gift for his benefit is the sole consideration. As we have shown above there is good authority for these propositions in the ancient and Modern books of Muhammadan Law and in decided cases of undoubted authority16. In our Judgment the gift in the present case was a valid gift. Mammotty was living at the time of the gift in the house of his mother inlaw and was probably a very sick person though not in Marzulmaut. His minor wife who had attained discretion was capable under Muhammadan Law to accept the gift, was living at her mothers house and in her care where the husband was also residing. The intention to make the gift was clear and manifest because it was made by a deed which was registered and handed over by Mammotty to his mother inlaw and accepted by her on behalf of the minor. There can be no question that there was a complete intention to divest ownership on the part of Mammotty and to transfer the property to the donee. If Mammotty had handed over the deed to his wife, the gift would have been complete under Muhatnmadan Law and it seems impossible to hold that by handing over the deed to his mother inlaw, in whose charge his wife was during his illness and afterwards Mammotty did not complete the gift. In our opinion both on texts and authorities such a gift must be accepted as valid and complete.
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Ratnagiri Gas & Power Pvt.Ltd Vs. Rds Projects Ltd | responsible for the execution of the total scope of the work in any one of the two projects. 43. RDS has before the High Court and even before us, claimed that the Breakwater at Mus in Car Nichobar was a single project and not two projects as contended by the appellant-RGPPL. It has further claimed that the entire project has been executed by it on behalf of EHL, no matter a part of the work like quarrying of stones/boulders and shipping the same from the quarry site to the place of construction was handled by EHL. These works were performed by the above two agencies for monetary consideration on behalf of RDS who was entitled to associate them with the execution of the project work in terms of the conditions of contract; under which EHL had engaged RDS. 44. The case of the appellant on the other hand is that the only purpose behind stipulating that the tenderer should have executed a breakwater project as a single tenderer with a minimum length of 400 meters was to ensure that only such tenderers are held eligible as have executed a single project of that length single handedly without associating any other agency with the execution of the work. It was important for the appellant to do so because the breakwater length in the present case is more than four times the length stipulated as a condition of eligibility. It is the further case of the appellant that apart from Recon International one Surya Rao was also associated with the execution of the project, which fact is according to the appellant evident from the government files produced by Mr. Gulati appearing for the Central Government. 45. On the question whether the Breakwater constructed at Mus in Car Nicobar comprised one or two projects, also there was some debate which was rendered academic, by Mr. Nariman, making a fair and unqualified concession that for purposes of determining the eligibility of RDS the breakwater at Mus Car Nicobar could be treated as a single project. With that concession, what remains to be determined is whether RDS had limited its claim to eligibility only on the award made in its favour in November, 2000. If so, whether it is debarred or stopped from claiming that it had executed the project from chainage 22 meters to 200 meters also. More importantly, whether RDS had actually executed the Breakwater Project at Mus Car Nicobar with a length of 400 meters. 46. We looked in vain for a finding on the above questions in the impugned judgment leave alone one that satisfactorily dealt with the material placed by the parties on record in support of their respective cases. What we found was a concession attributed to Ms. Indra Jai Singh, learned Additional Solicitor General to which the High Court referred in Para 30.2 of its order, and which by far is the only reason given by the High Court for holding that RDS had executed the Breakwater Project at Mus in Car Nicobar. The High Court observed: 30.2 We may note at this stage that we had had pointedly put to the ASG Ms. Indra Jai Singh during the course of hearing, as to whether there was any doubt or dispute that RDS had not executed the qualifying work at Mus Car Nicobar Island equivalent to the contracted length of 500 meters. Ms. Indra Jai Singh, on instructions, categorically informed us that this aspect of the matter was not in issue. She, however, submitted that what was in issue, was the fact, that since it had not emerged that RDS had completed the project in two (2) phases; according to EIL, it was not eligible. With EIL having taken this stand, which was not contradicted by GAIL at the hearing; it quite surprised us when Mr. Chandiok appearing on behalf of RGPPL took the stand that RDS had not even constructed the required minimum 400 meters length of qualifying work. 47. Ms. Indra Jai Singh appearing for the Central Government argued that the High Court had misconstrued her statement, in as much as no concession as attributed to her was made or could be made when the relevant record did not bear any evidence of RDS having been associated with the project in question. Mr. Nariman contended that the concession even if made did not bind the appellant RGPPL, who as a separate legal entity was entitled to argue, as it indeed argued, before the High Court that RDS had not been associated with or executed the entire project, at Mus Car Nicobar, hence was not eligible to compete. 48. There is considerable merit in the submission made by the learned counsel for the appellants and Ms. Jai Singh. A concession even if made by one of the parties could not prevent the other parties from arguing that it did not bind them or that the same was contrary to the facts. The High Court ought to have examined the issue on merits, rather than taking a short cut. The High Court has incidentally taken support from the certificate dated 5th April, 2008 and clarification issued on 5th June, 2010 to hold that the RDS had indeed executed the qualifying project at Car Nicobar. We had in the course of the hearing asked Mr. Gulati, learned counsel for the Central Government, to disclose to us the basis on which the certificate and the clarification had been issued by the officers concerned. We got no satisfactory answer to the query. We even asked the parties to produce the relevant record including the government files, so that we could ourselves answer the question regarding eligibility of RDS but in the absence of any conclusive evidence, and in the absence of a specific finding from the High Court, on the question, we remained handicapped. A remand to the High Court, therefore, became inevitable which part we must say in fairness to learned counsel for both sides, was conceded even by them. | 1[ds]If writ petition no. 534 of 2011 could not have re-agitated issues touching the validity of annulment of the tender process, there was no occasion for the High Court to go into the question whether or not the decision to refer to the bid and annul the process was vitiated by malice in law or fact. The findings recorded by the High Court on the question of mala fides are, therefore, liable to be set aside on that ground alonerecorded its finding on mala fides on the sole basis that EIL had reviewed its earlier opinion regarding eligibility of RDS. The High Court, in our opinion, was wrong in doing so. While the High Court could find fault with the interpretation which EIL placed on the provisions of clause 8.1.1.1 on the basis of the legal opinion tendered to it, it went too far in dubbing the entire process as mala fide. The High Court appears to have taken the view as though Mr. R.K. Bhandari, Mr. Ravi Saxena and Mr. M.B. Gohil were experts, even in the matter of interpretation of the terms and conditions of the tender document, who could sit in judgment over the legal opinion tendered to them. If on an interpretation of a clause in the tender notice by the legal department concerned the officers review their decision or reverse the recommendations made earlier, the same does not tantamount to malice in law so as to affect the purity of the entire process or render it suspect even assuming that the opinion is on a more thorough and seasoned consideration found to be wrong. In the absence of any other circumstances suggesting that the process was indeed vitiated by consideration of any inadmissible material or non-consideration of material that was admissible or misdirection on issues of vital importance, fresh recommendations made in tune with the legal opinion could not be held to have been vitiated by malice in law. The High Court, it appears, felt that since the officers referred to above were senior officers they ought to have known what was meant by terms like single project and single bidder appearing in clause 8.1.1.1. We need hardly point out that in cases where the decision making process is multi-layered, officers associated with the process are free and indeed expected to take views on various issues according to their individual perceptions. They may in doing so at time strike discordant notes, but that is but natural and indeed welcome for it is only by independent deliberation, that all possible facets of an issue are unfolded and addressed and a decision that is most appropriate under the circumstances shaped. If every step in the decision making process is viewed with suspicion the integrity of the entire process shall be jeopardized. Officers taking views in the decision making process will feel handicapped in expressing their opinions freely and frankly for fear of being seen to be doing so for mala fides reasons which would in turn affect public interest. Nothing in the instant case was done without a reasonable or probable cause which is the very essence of the doctrine of malice in law vitiating administrative actions. We have, therefore, no hesitation in holding that the findings recorded by the High Court to the effect that the process of annulment of the tender process or the rejection of the tender submitted by RDS was vitiated by mala fides is unsustainable and is hereby set asideClause 8.1.1.1 of the second tender notice shall not be enforced by RGPPL and that the corresponding clause as it appeared in the first tender notice shall govern matters stipulated therein. | 1 | 10,872 | 646 | ### Instruction:
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responsible for the execution of the total scope of the work in any one of the two projects. 43. RDS has before the High Court and even before us, claimed that the Breakwater at Mus in Car Nichobar was a single project and not two projects as contended by the appellant-RGPPL. It has further claimed that the entire project has been executed by it on behalf of EHL, no matter a part of the work like quarrying of stones/boulders and shipping the same from the quarry site to the place of construction was handled by EHL. These works were performed by the above two agencies for monetary consideration on behalf of RDS who was entitled to associate them with the execution of the project work in terms of the conditions of contract; under which EHL had engaged RDS. 44. The case of the appellant on the other hand is that the only purpose behind stipulating that the tenderer should have executed a breakwater project as a single tenderer with a minimum length of 400 meters was to ensure that only such tenderers are held eligible as have executed a single project of that length single handedly without associating any other agency with the execution of the work. It was important for the appellant to do so because the breakwater length in the present case is more than four times the length stipulated as a condition of eligibility. It is the further case of the appellant that apart from Recon International one Surya Rao was also associated with the execution of the project, which fact is according to the appellant evident from the government files produced by Mr. Gulati appearing for the Central Government. 45. On the question whether the Breakwater constructed at Mus in Car Nicobar comprised one or two projects, also there was some debate which was rendered academic, by Mr. Nariman, making a fair and unqualified concession that for purposes of determining the eligibility of RDS the breakwater at Mus Car Nicobar could be treated as a single project. With that concession, what remains to be determined is whether RDS had limited its claim to eligibility only on the award made in its favour in November, 2000. If so, whether it is debarred or stopped from claiming that it had executed the project from chainage 22 meters to 200 meters also. More importantly, whether RDS had actually executed the Breakwater Project at Mus Car Nicobar with a length of 400 meters. 46. We looked in vain for a finding on the above questions in the impugned judgment leave alone one that satisfactorily dealt with the material placed by the parties on record in support of their respective cases. What we found was a concession attributed to Ms. Indra Jai Singh, learned Additional Solicitor General to which the High Court referred in Para 30.2 of its order, and which by far is the only reason given by the High Court for holding that RDS had executed the Breakwater Project at Mus in Car Nicobar. The High Court observed: 30.2 We may note at this stage that we had had pointedly put to the ASG Ms. Indra Jai Singh during the course of hearing, as to whether there was any doubt or dispute that RDS had not executed the qualifying work at Mus Car Nicobar Island equivalent to the contracted length of 500 meters. Ms. Indra Jai Singh, on instructions, categorically informed us that this aspect of the matter was not in issue. She, however, submitted that what was in issue, was the fact, that since it had not emerged that RDS had completed the project in two (2) phases; according to EIL, it was not eligible. With EIL having taken this stand, which was not contradicted by GAIL at the hearing; it quite surprised us when Mr. Chandiok appearing on behalf of RGPPL took the stand that RDS had not even constructed the required minimum 400 meters length of qualifying work. 47. Ms. Indra Jai Singh appearing for the Central Government argued that the High Court had misconstrued her statement, in as much as no concession as attributed to her was made or could be made when the relevant record did not bear any evidence of RDS having been associated with the project in question. Mr. Nariman contended that the concession even if made did not bind the appellant RGPPL, who as a separate legal entity was entitled to argue, as it indeed argued, before the High Court that RDS had not been associated with or executed the entire project, at Mus Car Nicobar, hence was not eligible to compete. 48. There is considerable merit in the submission made by the learned counsel for the appellants and Ms. Jai Singh. A concession even if made by one of the parties could not prevent the other parties from arguing that it did not bind them or that the same was contrary to the facts. The High Court ought to have examined the issue on merits, rather than taking a short cut. The High Court has incidentally taken support from the certificate dated 5th April, 2008 and clarification issued on 5th June, 2010 to hold that the RDS had indeed executed the qualifying project at Car Nicobar. We had in the course of the hearing asked Mr. Gulati, learned counsel for the Central Government, to disclose to us the basis on which the certificate and the clarification had been issued by the officers concerned. We got no satisfactory answer to the query. We even asked the parties to produce the relevant record including the government files, so that we could ourselves answer the question regarding eligibility of RDS but in the absence of any conclusive evidence, and in the absence of a specific finding from the High Court, on the question, we remained handicapped. A remand to the High Court, therefore, became inevitable which part we must say in fairness to learned counsel for both sides, was conceded even by them.
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### Explanation:
If writ petition no. 534 of 2011 could not have re-agitated issues touching the validity of annulment of the tender process, there was no occasion for the High Court to go into the question whether or not the decision to refer to the bid and annul the process was vitiated by malice in law or fact. The findings recorded by the High Court on the question of mala fides are, therefore, liable to be set aside on that ground alonerecorded its finding on mala fides on the sole basis that EIL had reviewed its earlier opinion regarding eligibility of RDS. The High Court, in our opinion, was wrong in doing so. While the High Court could find fault with the interpretation which EIL placed on the provisions of clause 8.1.1.1 on the basis of the legal opinion tendered to it, it went too far in dubbing the entire process as mala fide. The High Court appears to have taken the view as though Mr. R.K. Bhandari, Mr. Ravi Saxena and Mr. M.B. Gohil were experts, even in the matter of interpretation of the terms and conditions of the tender document, who could sit in judgment over the legal opinion tendered to them. If on an interpretation of a clause in the tender notice by the legal department concerned the officers review their decision or reverse the recommendations made earlier, the same does not tantamount to malice in law so as to affect the purity of the entire process or render it suspect even assuming that the opinion is on a more thorough and seasoned consideration found to be wrong. In the absence of any other circumstances suggesting that the process was indeed vitiated by consideration of any inadmissible material or non-consideration of material that was admissible or misdirection on issues of vital importance, fresh recommendations made in tune with the legal opinion could not be held to have been vitiated by malice in law. The High Court, it appears, felt that since the officers referred to above were senior officers they ought to have known what was meant by terms like single project and single bidder appearing in clause 8.1.1.1. We need hardly point out that in cases where the decision making process is multi-layered, officers associated with the process are free and indeed expected to take views on various issues according to their individual perceptions. They may in doing so at time strike discordant notes, but that is but natural and indeed welcome for it is only by independent deliberation, that all possible facets of an issue are unfolded and addressed and a decision that is most appropriate under the circumstances shaped. If every step in the decision making process is viewed with suspicion the integrity of the entire process shall be jeopardized. Officers taking views in the decision making process will feel handicapped in expressing their opinions freely and frankly for fear of being seen to be doing so for mala fides reasons which would in turn affect public interest. Nothing in the instant case was done without a reasonable or probable cause which is the very essence of the doctrine of malice in law vitiating administrative actions. We have, therefore, no hesitation in holding that the findings recorded by the High Court to the effect that the process of annulment of the tender process or the rejection of the tender submitted by RDS was vitiated by mala fides is unsustainable and is hereby set asideClause 8.1.1.1 of the second tender notice shall not be enforced by RGPPL and that the corresponding clause as it appeared in the first tender notice shall govern matters stipulated therein.
|
Flora Elias Nahoum & Others Vs. Idrish Ali Laskar | with, he denied having sub-let the suit shop to anyone in his written statement. Then, contrary to what he alleged in the written statement, he said in his examination-in-chief that Joynal Mullick was his employee. Then, again contrary to this statement, he said, in next breath, that Joynal Mullick is his partner in tailoring business.37. So far as Joynal Mullick is concerned, he admitted that he has been sitting in the suit shop for the last 7/8 years but he has been sitting in a capacity as an “employee” of the respondent.38. In our opinion, the contradictory stand of the respondent and that too without any evidence clearly leads to an inference that the respondent was unable to prove, in categorical terms, as to which capacity, Joynal Mullick was sitting in the suit shop - whether as an "employee" or a "business partner" or in any “other capacity”.39. It seems that the respondent was not sure as to what stand he should take to meet the plea of sub-letting. He, therefore, went on changing his stand one after the other and could not prove either.40. In our view, since the respondent had admitted the presence of Joynal Mullick in the suit shop, the burden was on him to prove its nature and the capacity in which he used to sit in the suit shop.41. In other words, if Joynal Mullick was the respondent’s employee then, in our view, he should have proved it by filling a declaration form, which he had submitted under the Shops and Establishment Act to the authorities. But it was not done. Rather he admitted that he did not disclose the name of Joynal Mullick in the declaration form. That apart, the respondent could have proved this fact by filing payment voucher, or any other relevant evidence to show that Joynal Mullick was his employee and that he used to sit in the suit shop in that capacity only. It was, however, not done.42. Second, if Joynal Mullick was a partner of the respondent in the tailoring business then the respondent could have proved this fact by filing a copy of the partnership deed. However, he again failed to produce the copy of partnership deed. In this way, he failed to prove even this fact.43. Now so far as the appellants are concerned, they appear to have discharged their initial burden by pleading the necessary facts in Para 4 and then by proving it by evidence that firstly, they let out the suit shop to the respondent and secondly, the respondent has sub-let the suit shop to Joynal Mullick, who was in its exclusive possession without their consent.44. In a case of sub-letting, if the tenant is able to prove that he continues to retain the exclusive possession over the tenanted premises notwithstanding any third party’s induction in the tenanted premises, no case of sub-letting is made out against such tenant.45. In other words, the sin qua non for proving the case of the sub-letting is that the tenant has either whole or in part transferred or/and parted with the possession of the tenanted premises in favour of any third person without landlords consent.46. This Court in Bharat Sales Ltd. vs. Life Insurance Corporation of India (1998) 3 SCC 1 , while dealing with the case of sub-letting succinctly explained the concept of sub-letting and what are its attributes.47. Justice Sagir Ahmad, speaking for the Two Judge Bench, held as under:“4. Sub-tenancy or sub-letting comes into existence when the tenant gives up possession of the tenanted accommodation, wholly or in part, and puts another person in exclusive possession thereof. This arrangement comes about obviously under a mutual agreement or understanding between the tenant and the person to whom the possession is so delivered. In this process, the landlord is kept out of the scene. Rather, the scene is enacted behind the back of the landlord, concealing the overt acts and transferring possession clandestinely to a person who is an utter stranger to the landlord, in the sense that the landlord had not let out the premises to that person nor had he allowed or consented to his entering into possession over the demised property. It is the actual, physical and exclusive possession of that person, instead of the tenant, which ultimately reveals to the landlord that the tenant to whom the property was let out has put some other person into possession of that property. In such a situation, it would be difficult for the landlord to prove, by direct evidence, the contract or agreement or understanding between the tenant and the sub-tenant. It would also be difficult for the landlord to prove, by direct evidence, that the person to whom the property had been sub-let had paid monetary consideration to the tenant. Payment of rent, undoubtedly, is an essential element of lease or sub-lease. It may be paid in cash or in kind or may have been paid or promised to be paid. It may have been paid in lump sum in advance covering the period for which the premises is let out or sub-let or it may have been paid or promised to be paid periodically. Since payment of rent or monetary consideration may have been made secretly, the law does not require such payment to be proved by affirmative evidence and the court is permitted to draw its own inference upon the facts of the case proved at the trial, including the delivery of exclusive possession to infer that the premises were sub-let.”48. In our considered opinion, the aforesaid principle of law fully applies to the case at hand against the respondent due to his contradicting stand and by admitting Joynal Mullick’s presence in the suit shop but not being able to properly prove the nature and the capacity in which he was sitting in the suit shop.49. In view of the foregoing discussion, we have formed an opinion that the appellants were able to prove the case of sub-letting against the respondent. | 1[ds]15. Having heard the learned counsel for the parties and on perusal of the record of the case, we are inclined to allow the appeal and while setting aside of the impugned judgment, we restore that of the Trial Court and, in consequence, decree thesuit in part, as indicated below.16. There can be no dispute to the legal proposition that even if the landlord is able to make out only one ground out of several grounds of the eviction, he is entitled to seek the eviction of his tenant from the suit premises on the basis of that sole ground which he has made out under the Rent Act.17. In other words, it is not necessary for the landlord to make out all the grounds which he has taken in the plaint for claiming eviction of the tenant under the Rent Act. If one ground of eviction is held made out against the tenant, that ground is sufficient to evict the tenant from the suit premises.premises.34. In our considered opinion, keeping in view the pleadings and the nature of the evidence adduced by the parties, the ground ofTo begin with, he denied havingthe suit shop to anyone in his written statement. Then, contrary to what he alleged in the written statement, he said in histhat Joynal Mullick was his employee. Then, again contrary to this statement, he said, in next breath, that Joynal Mullick is his partner in tailoring business.37. So far as Joynal Mullick is concerned, he admitted that he has been sitting in the suit shop for the last 7/8 years but he has been sitting in a capacity as anof the respondent.38. In our opinion, the contradictory stand of the respondent and that too without any evidence clearly leads to an inference that the respondent was unable to prove, in categorical terms, as to which capacity, Joynal Mullick was sitting in the suit shopwhether as an "employee" or a "business partner" or in any. It seems that the respondent was not sure as to what stand he should take to meet the plea ofHe, therefore, went on changing his stand one after the other and could not prove either.40. In our view, since the respondent had admitted the presence of Joynal Mullick in the suit shop, the burden was on him to prove its nature and the capacity in which he used to sit in the suit shop.41. In other words, if Joynal Mullick was theemployee then, in our view, he should have proved it by filling a declaration form, which he had submitted under the Shops and Establishment Act to the authorities. But it was not done. Rather he admitted that he did not disclose the name of Joynal Mullick in the declaration form. That apart, the respondent could have proved this fact by filing payment voucher, or any other relevant evidence to show that Joynal Mullick was his employee and that he used to sit in the suit shop in that capacity only. It was, however, not done.42. Second, if Joynal Mullick was a partner of the respondent in the tailoring business then the respondent could have proved this fact by filing a copy of the partnership deed. However, he again failed to produce the copy of partnership deed. In this way, he failed to prove even this fact.43. Now so far as the appellants are concerned, they appear to have discharged their initial burden by pleading the necessary facts in Para 4 and then by proving it by evidence that firstly, they let out the suit shop to the respondent and secondly, the respondent hasthe suit shop to Joynal Mullick, who was in its exclusive possession without their consent.44. In a case ofif the tenant is able to prove that he continues to retain the exclusive possession over the tenanted premises notwithstanding any thirdinduction in the tenanted premises, no case ofis made out against such tenant.45. In other words, the sin qua non for proving the case of theis that the tenant has either whole or in part transferred or/and parted with the possession of the tenanted premises in favour of any third person without landlords consent.46. This Court in Bharat Sales Ltd. vs. Life Insurance Corporation of India (1998) 3 SCC 1 , while dealing with the case ofsuccinctly explained the concept ofand what are its attributes.47. Justice Sagir Ahmad, speaking for the Two Judge Bench, held asng comes into existence when the tenant gives up possession of the tenanted accommodation, wholly or in part, and puts another person in exclusive possession thereof. This arrangement comes about obviously under a mutual agreement or understanding between the tenant and the person to whom the possession is so delivered. In this process, the landlord is kept out of the scene. Rather, the scene is enacted behind the back of the landlord, concealing the overt acts and transferring possession clandestinely to a person who is an utter stranger to the landlord, in the sense that the landlord had not let out the premises to that person nor had he allowed or consented to his entering into possession over the demised property. It is the actual, physical and exclusive possession of that person, instead of the tenant, which ultimately reveals to the landlord that the tenant to whom the property was let out has put some other person into possession of that property. In such a situation, it would be difficult for the landlord to prove, by direct evidence, the contract or agreement or understanding between the tenant and theIt would also be difficult for the landlord to prove, by direct evidence, that the person to whom the property had beenhad paid monetary consideration to the tenant. Payment of rent, undoubtedly, is an essential element of lease orIt may be paid in cash or in kind or may have been paid or promised to be paid. It may have been paid in lump sum in advance covering the period for which the premises is let out orIn our considered opinion, the aforesaid principle of law fully applies to the case at hand against the respondent due to his contradicting stand and by admitting Joynalpresence in the suit shop but not being able to properly prove the nature and the capacity in which he was sitting in the suit shop.49. In view of the foregoing discussion, we have formed an opinion that the appellants were able to prove the case ofagainst the respondent. | 1 | 3,113 | 1,181 | ### Instruction:
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### Input:
with, he denied having sub-let the suit shop to anyone in his written statement. Then, contrary to what he alleged in the written statement, he said in his examination-in-chief that Joynal Mullick was his employee. Then, again contrary to this statement, he said, in next breath, that Joynal Mullick is his partner in tailoring business.37. So far as Joynal Mullick is concerned, he admitted that he has been sitting in the suit shop for the last 7/8 years but he has been sitting in a capacity as an “employee” of the respondent.38. In our opinion, the contradictory stand of the respondent and that too without any evidence clearly leads to an inference that the respondent was unable to prove, in categorical terms, as to which capacity, Joynal Mullick was sitting in the suit shop - whether as an "employee" or a "business partner" or in any “other capacity”.39. It seems that the respondent was not sure as to what stand he should take to meet the plea of sub-letting. He, therefore, went on changing his stand one after the other and could not prove either.40. In our view, since the respondent had admitted the presence of Joynal Mullick in the suit shop, the burden was on him to prove its nature and the capacity in which he used to sit in the suit shop.41. In other words, if Joynal Mullick was the respondent’s employee then, in our view, he should have proved it by filling a declaration form, which he had submitted under the Shops and Establishment Act to the authorities. But it was not done. Rather he admitted that he did not disclose the name of Joynal Mullick in the declaration form. That apart, the respondent could have proved this fact by filing payment voucher, or any other relevant evidence to show that Joynal Mullick was his employee and that he used to sit in the suit shop in that capacity only. It was, however, not done.42. Second, if Joynal Mullick was a partner of the respondent in the tailoring business then the respondent could have proved this fact by filing a copy of the partnership deed. However, he again failed to produce the copy of partnership deed. In this way, he failed to prove even this fact.43. Now so far as the appellants are concerned, they appear to have discharged their initial burden by pleading the necessary facts in Para 4 and then by proving it by evidence that firstly, they let out the suit shop to the respondent and secondly, the respondent has sub-let the suit shop to Joynal Mullick, who was in its exclusive possession without their consent.44. In a case of sub-letting, if the tenant is able to prove that he continues to retain the exclusive possession over the tenanted premises notwithstanding any third party’s induction in the tenanted premises, no case of sub-letting is made out against such tenant.45. In other words, the sin qua non for proving the case of the sub-letting is that the tenant has either whole or in part transferred or/and parted with the possession of the tenanted premises in favour of any third person without landlords consent.46. This Court in Bharat Sales Ltd. vs. Life Insurance Corporation of India (1998) 3 SCC 1 , while dealing with the case of sub-letting succinctly explained the concept of sub-letting and what are its attributes.47. Justice Sagir Ahmad, speaking for the Two Judge Bench, held as under:“4. Sub-tenancy or sub-letting comes into existence when the tenant gives up possession of the tenanted accommodation, wholly or in part, and puts another person in exclusive possession thereof. This arrangement comes about obviously under a mutual agreement or understanding between the tenant and the person to whom the possession is so delivered. In this process, the landlord is kept out of the scene. Rather, the scene is enacted behind the back of the landlord, concealing the overt acts and transferring possession clandestinely to a person who is an utter stranger to the landlord, in the sense that the landlord had not let out the premises to that person nor had he allowed or consented to his entering into possession over the demised property. It is the actual, physical and exclusive possession of that person, instead of the tenant, which ultimately reveals to the landlord that the tenant to whom the property was let out has put some other person into possession of that property. In such a situation, it would be difficult for the landlord to prove, by direct evidence, the contract or agreement or understanding between the tenant and the sub-tenant. It would also be difficult for the landlord to prove, by direct evidence, that the person to whom the property had been sub-let had paid monetary consideration to the tenant. Payment of rent, undoubtedly, is an essential element of lease or sub-lease. It may be paid in cash or in kind or may have been paid or promised to be paid. It may have been paid in lump sum in advance covering the period for which the premises is let out or sub-let or it may have been paid or promised to be paid periodically. Since payment of rent or monetary consideration may have been made secretly, the law does not require such payment to be proved by affirmative evidence and the court is permitted to draw its own inference upon the facts of the case proved at the trial, including the delivery of exclusive possession to infer that the premises were sub-let.”48. In our considered opinion, the aforesaid principle of law fully applies to the case at hand against the respondent due to his contradicting stand and by admitting Joynal Mullick’s presence in the suit shop but not being able to properly prove the nature and the capacity in which he was sitting in the suit shop.49. In view of the foregoing discussion, we have formed an opinion that the appellants were able to prove the case of sub-letting against the respondent.
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### Explanation:
grounds of the eviction, he is entitled to seek the eviction of his tenant from the suit premises on the basis of that sole ground which he has made out under the Rent Act.17. In other words, it is not necessary for the landlord to make out all the grounds which he has taken in the plaint for claiming eviction of the tenant under the Rent Act. If one ground of eviction is held made out against the tenant, that ground is sufficient to evict the tenant from the suit premises.premises.34. In our considered opinion, keeping in view the pleadings and the nature of the evidence adduced by the parties, the ground ofTo begin with, he denied havingthe suit shop to anyone in his written statement. Then, contrary to what he alleged in the written statement, he said in histhat Joynal Mullick was his employee. Then, again contrary to this statement, he said, in next breath, that Joynal Mullick is his partner in tailoring business.37. So far as Joynal Mullick is concerned, he admitted that he has been sitting in the suit shop for the last 7/8 years but he has been sitting in a capacity as anof the respondent.38. In our opinion, the contradictory stand of the respondent and that too without any evidence clearly leads to an inference that the respondent was unable to prove, in categorical terms, as to which capacity, Joynal Mullick was sitting in the suit shopwhether as an "employee" or a "business partner" or in any. It seems that the respondent was not sure as to what stand he should take to meet the plea ofHe, therefore, went on changing his stand one after the other and could not prove either.40. In our view, since the respondent had admitted the presence of Joynal Mullick in the suit shop, the burden was on him to prove its nature and the capacity in which he used to sit in the suit shop.41. In other words, if Joynal Mullick was theemployee then, in our view, he should have proved it by filling a declaration form, which he had submitted under the Shops and Establishment Act to the authorities. But it was not done. Rather he admitted that he did not disclose the name of Joynal Mullick in the declaration form. That apart, the respondent could have proved this fact by filing payment voucher, or any other relevant evidence to show that Joynal Mullick was his employee and that he used to sit in the suit shop in that capacity only. It was, however, not done.42. Second, if Joynal Mullick was a partner of the respondent in the tailoring business then the respondent could have proved this fact by filing a copy of the partnership deed. However, he again failed to produce the copy of partnership deed. In this way, he failed to prove even this fact.43. Now so far as the appellants are concerned, they appear to have discharged their initial burden by pleading the necessary facts in Para 4 and then by proving it by evidence that firstly, they let out the suit shop to the respondent and secondly, the respondent hasthe suit shop to Joynal Mullick, who was in its exclusive possession without their consent.44. In a case ofif the tenant is able to prove that he continues to retain the exclusive possession over the tenanted premises notwithstanding any thirdinduction in the tenanted premises, no case ofis made out against such tenant.45. In other words, the sin qua non for proving the case of theis that the tenant has either whole or in part transferred or/and parted with the possession of the tenanted premises in favour of any third person without landlords consent.46. This Court in Bharat Sales Ltd. vs. Life Insurance Corporation of India (1998) 3 SCC 1 , while dealing with the case ofsuccinctly explained the concept ofand what are its attributes.47. Justice Sagir Ahmad, speaking for the Two Judge Bench, held asng comes into existence when the tenant gives up possession of the tenanted accommodation, wholly or in part, and puts another person in exclusive possession thereof. This arrangement comes about obviously under a mutual agreement or understanding between the tenant and the person to whom the possession is so delivered. In this process, the landlord is kept out of the scene. Rather, the scene is enacted behind the back of the landlord, concealing the overt acts and transferring possession clandestinely to a person who is an utter stranger to the landlord, in the sense that the landlord had not let out the premises to that person nor had he allowed or consented to his entering into possession over the demised property. It is the actual, physical and exclusive possession of that person, instead of the tenant, which ultimately reveals to the landlord that the tenant to whom the property was let out has put some other person into possession of that property. In such a situation, it would be difficult for the landlord to prove, by direct evidence, the contract or agreement or understanding between the tenant and theIt would also be difficult for the landlord to prove, by direct evidence, that the person to whom the property had beenhad paid monetary consideration to the tenant. Payment of rent, undoubtedly, is an essential element of lease orIt may be paid in cash or in kind or may have been paid or promised to be paid. It may have been paid in lump sum in advance covering the period for which the premises is let out orIn our considered opinion, the aforesaid principle of law fully applies to the case at hand against the respondent due to his contradicting stand and by admitting Joynalpresence in the suit shop but not being able to properly prove the nature and the capacity in which he was sitting in the suit shop.49. In view of the foregoing discussion, we have formed an opinion that the appellants were able to prove the case ofagainst the respondent.
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Haji T.M. Hassan Rawther Vs. Kerala Financial Corporation | for the party challenging its validity to show that it is wanting in reasonableness or is not informed with public interest. This burden is a heavy one and it has to be discharged to the satisfaction of the Court by proper and adequate material. The Court cannot lightly assume that the action taken by the Government is unreasonable or without public interest because as we said above, there are a large number of policy considerations which must necessarily weigh with the Government in taking action and therefore, the Court would not strike down governmental action as invalid on this ground, unless it is clearly satisfied that the action is unreasonable or not in public interest. But where it is so satisfied it would be the plainest duty of the Court under the Constitution to invalidate the governmental action. This is one of the most important functions of the Court and also one of the most essential for preservation of the rule of law." 10. In Fertilizer Corporation case (AIR 1981 SC 344 at 350 this Court speaking through Chandrachud, C.J., observed: "We want to make it clear that we do not doubt the bona fides of the authorities , but as far as possible, sales of public property, when the intention is to get the best price, ought to take place publicly. The vendors are not necessarily bound to accept the highest or any other offer, but the public at least gets the satisfaction that the Government has put all its cards on the table. In the instant case, the officers who were concerned with the sale have inevitably, though unjustifiably attracted the criticism that during the course of negotiations the original bid was reduced without a justifying cause. We had willy-nilly to spend quite some valuable time in satisfying ourselves that the reduction in the price was a necessary and fair consequence of the reduction in the quantity of the goods later offered for sale on March 31, 1980. One cannot exclude the possibility that a better price might have been realised in a fresh public auction but such possibilities cannot vitiate the sale or justify the allegations of malafides." In Shri Sachidanand Pandey v. State of West Bengal, AIR 1987 SC 1109 at 1133, O. Chinnappa Reddy, J. after considering almost all the decisions of this Court on the subject summarised the propositions in the following terms: "On a consideration of the relevant cases cited at the bar the following propositions may be taken as well established: State owned or public owned property is not to be dealt with at the absolute discretion of the executive. Certain percepts and principes have to be observed. Public interest is the paramount consideration. One of the methods of securing the public interest when it is considered necessary to dispose of a property, is to sell the property by public auction or by inviting tenders. Though that is the ordinary rule, it is not an invariable rule. There may be situations where there are compelling reasons necessitating departure from the rule but then the reasons for the departure must be rational and should not be suggestive of discrimination. Appearance of public justice is as important as doing justice. Nothing should be done which gives an appearance of bias, jobbery or nepotism." 11. After applying these tests, the learned Judge finally upheld the action of West Bengal Government in not inviting tenders, or in not holding a public auction but negotiating straightway at arms length with Taj Group of Hotels for giving about four acres of land for establishing a five star hotel. 12. The public property owned by the State or by any instrumentality of the State should be generally sold by public auction or by inviting tenders. This Court has been insisting upon that rule, not only to get the highest price for the property but also to ensure fairness in the activities of the State and public authorities . They should undoubtedly act fairly. Their actions should be legitimate. Their dealings should be above board. Their transactions should be without aversion or affection. Nothing should be suggestive of discrimination. Nothing should be done by them which gives an impression of bias, favouritism or nepotism. Ordinarily these factors would be absent if the matter is brought to public auction or sale by tenders. That is why the Court repeatedly stated and reiterated that the State owned properties are required to be disposed of publicly. But that is not the only rule. As O.Chinnappa Reddy, J. Observed "that though that is the ordinary rule, it is not an invariable rule." There may be situations necessitating departure from the rule, but then such instances must be justified by compulsions and not by compromise. It must be justified by compelling reasons and not by just convenience.What is the position in the present case. Here is a case where the Corporation invited tenders for the sale of the property under notification dated January 18, 1983. The appellant submitted the highest tender in response to the said notification. He was given all concessions for payment of the tender amount. But he did not. He negotiated with the Managing Director of the Corporation for facilities for payment by installments. That was also granted to him. There again he failed. If the appellant could not act according to his tender, we fail to see why the property should not be offered to the person who was next in order. The Corporation, in our opinion, did not do anything unfair with P.M.Jacob. The Corporation got the tender amount raised from Rs.4, 16, 550 to Rs.4, 50, 000. It shows the fairness with which the Corpo ration dealt with the property. 13. On a consideration of all the facts and circumstances of the case, we are satisfied that the action of the Corporation in offering the property to P.M.Jacob and selling the same at his request to M/s. Gumraj Plantations was perfectly justified and cannot be found fault with 14. | 0[ds]The public property owned by the State or by any instrumentality of the State should be generally sold by public auction or by inviting tenders. This Court has been insisting upon that rule, not only to get the highest price for the property but also to ensure fairness in the activities of the State and public authorities . They should undoubtedly act fairly. Their actions should be legitimate. Their dealings should be above board. Their transactions should be without aversion or affection. Nothing should be suggestive of discrimination. Nothing should be done by them which gives an impression of bias, favouritism or nepotism. Ordinarily these factors would be absent if the matter is brought to public auction or sale by tenders. That is why the Court repeatedly stated and reiterated that the State owned properties are required to be disposed of publicly. But that is not the only rule. As O.Chinnappa Reddy, J. Observed "that though that is the ordinary rule, it is not an invariable rule." There may be situations necessitating departure from the rule, but then such instances must be justified by compulsions and not by compromise. It must be justified by compelling reasons and not by just convenience.What is the position in the present case. Here is a case where the Corporation invited tenders for the sale of the property under notification dated January 18, 1983. The appellant submitted the highest tender in response to the said notification. He was given all concessions for payment of the tender amount. But he did not. He negotiated with the Managing Director of the Corporation for facilities for payment by installments. That was also granted to him. There again he failed. If the appellant could not act according to his tender, we fail to see why the property should not be offered to the person who was next in order. The Corporation, in our opinion, did not do anything unfair with P.M.Jacob. The Corporation got the tender amount raised from Rs.4, 16, 550 to Rs.4, 50, 000. It shows the fairness with which the Corpo ration dealt with thea consideration of all the facts and circumstances of the case, we are satisfied that the action of the Corporation in offering the property to P.M.Jacob and selling the same at his request to M/s. Gumraj Plantations was perfectly justified and cannot be found fault with | 0 | 3,113 | 440 | ### 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:
for the party challenging its validity to show that it is wanting in reasonableness or is not informed with public interest. This burden is a heavy one and it has to be discharged to the satisfaction of the Court by proper and adequate material. The Court cannot lightly assume that the action taken by the Government is unreasonable or without public interest because as we said above, there are a large number of policy considerations which must necessarily weigh with the Government in taking action and therefore, the Court would not strike down governmental action as invalid on this ground, unless it is clearly satisfied that the action is unreasonable or not in public interest. But where it is so satisfied it would be the plainest duty of the Court under the Constitution to invalidate the governmental action. This is one of the most important functions of the Court and also one of the most essential for preservation of the rule of law." 10. In Fertilizer Corporation case (AIR 1981 SC 344 at 350 this Court speaking through Chandrachud, C.J., observed: "We want to make it clear that we do not doubt the bona fides of the authorities , but as far as possible, sales of public property, when the intention is to get the best price, ought to take place publicly. The vendors are not necessarily bound to accept the highest or any other offer, but the public at least gets the satisfaction that the Government has put all its cards on the table. In the instant case, the officers who were concerned with the sale have inevitably, though unjustifiably attracted the criticism that during the course of negotiations the original bid was reduced without a justifying cause. We had willy-nilly to spend quite some valuable time in satisfying ourselves that the reduction in the price was a necessary and fair consequence of the reduction in the quantity of the goods later offered for sale on March 31, 1980. One cannot exclude the possibility that a better price might have been realised in a fresh public auction but such possibilities cannot vitiate the sale or justify the allegations of malafides." In Shri Sachidanand Pandey v. State of West Bengal, AIR 1987 SC 1109 at 1133, O. Chinnappa Reddy, J. after considering almost all the decisions of this Court on the subject summarised the propositions in the following terms: "On a consideration of the relevant cases cited at the bar the following propositions may be taken as well established: State owned or public owned property is not to be dealt with at the absolute discretion of the executive. Certain percepts and principes have to be observed. Public interest is the paramount consideration. One of the methods of securing the public interest when it is considered necessary to dispose of a property, is to sell the property by public auction or by inviting tenders. Though that is the ordinary rule, it is not an invariable rule. There may be situations where there are compelling reasons necessitating departure from the rule but then the reasons for the departure must be rational and should not be suggestive of discrimination. Appearance of public justice is as important as doing justice. Nothing should be done which gives an appearance of bias, jobbery or nepotism." 11. After applying these tests, the learned Judge finally upheld the action of West Bengal Government in not inviting tenders, or in not holding a public auction but negotiating straightway at arms length with Taj Group of Hotels for giving about four acres of land for establishing a five star hotel. 12. The public property owned by the State or by any instrumentality of the State should be generally sold by public auction or by inviting tenders. This Court has been insisting upon that rule, not only to get the highest price for the property but also to ensure fairness in the activities of the State and public authorities . They should undoubtedly act fairly. Their actions should be legitimate. Their dealings should be above board. Their transactions should be without aversion or affection. Nothing should be suggestive of discrimination. Nothing should be done by them which gives an impression of bias, favouritism or nepotism. Ordinarily these factors would be absent if the matter is brought to public auction or sale by tenders. That is why the Court repeatedly stated and reiterated that the State owned properties are required to be disposed of publicly. But that is not the only rule. As O.Chinnappa Reddy, J. Observed "that though that is the ordinary rule, it is not an invariable rule." There may be situations necessitating departure from the rule, but then such instances must be justified by compulsions and not by compromise. It must be justified by compelling reasons and not by just convenience.What is the position in the present case. Here is a case where the Corporation invited tenders for the sale of the property under notification dated January 18, 1983. The appellant submitted the highest tender in response to the said notification. He was given all concessions for payment of the tender amount. But he did not. He negotiated with the Managing Director of the Corporation for facilities for payment by installments. That was also granted to him. There again he failed. If the appellant could not act according to his tender, we fail to see why the property should not be offered to the person who was next in order. The Corporation, in our opinion, did not do anything unfair with P.M.Jacob. The Corporation got the tender amount raised from Rs.4, 16, 550 to Rs.4, 50, 000. It shows the fairness with which the Corpo ration dealt with the property. 13. On a consideration of all the facts and circumstances of the case, we are satisfied that the action of the Corporation in offering the property to P.M.Jacob and selling the same at his request to M/s. Gumraj Plantations was perfectly justified and cannot be found fault with 14.
### Response:
0
### Explanation:
The public property owned by the State or by any instrumentality of the State should be generally sold by public auction or by inviting tenders. This Court has been insisting upon that rule, not only to get the highest price for the property but also to ensure fairness in the activities of the State and public authorities . They should undoubtedly act fairly. Their actions should be legitimate. Their dealings should be above board. Their transactions should be without aversion or affection. Nothing should be suggestive of discrimination. Nothing should be done by them which gives an impression of bias, favouritism or nepotism. Ordinarily these factors would be absent if the matter is brought to public auction or sale by tenders. That is why the Court repeatedly stated and reiterated that the State owned properties are required to be disposed of publicly. But that is not the only rule. As O.Chinnappa Reddy, J. Observed "that though that is the ordinary rule, it is not an invariable rule." There may be situations necessitating departure from the rule, but then such instances must be justified by compulsions and not by compromise. It must be justified by compelling reasons and not by just convenience.What is the position in the present case. Here is a case where the Corporation invited tenders for the sale of the property under notification dated January 18, 1983. The appellant submitted the highest tender in response to the said notification. He was given all concessions for payment of the tender amount. But he did not. He negotiated with the Managing Director of the Corporation for facilities for payment by installments. That was also granted to him. There again he failed. If the appellant could not act according to his tender, we fail to see why the property should not be offered to the person who was next in order. The Corporation, in our opinion, did not do anything unfair with P.M.Jacob. The Corporation got the tender amount raised from Rs.4, 16, 550 to Rs.4, 50, 000. It shows the fairness with which the Corpo ration dealt with thea consideration of all the facts and circumstances of the case, we are satisfied that the action of the Corporation in offering the property to P.M.Jacob and selling the same at his request to M/s. Gumraj Plantations was perfectly justified and cannot be found fault with
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5 M & T Consultants, Secunderabad Vs. S.Y. Nawab & Another | risk and executed the works to the satisfaction of the authorities and appreciation of public as well. The risk involved is not only in recouping the investments to be made for installations and constructions but to maintain them in good, proper and working conditions without also sacrificing the beauty of the installations throughout the duration of 15 years. Conditions imposed on the appellants involve great responsibilities and obligations and necessarily certain concessions had to be shown to keep the project working and maintain them in good shape. Not only the Municipal Corporation had no financial commitments in getting such works by any expenditure therefor, which were to be executed by the appellant only on self-financing basis generating the required funds for installation and continued maintenance and their upkeep from sponsors by collecting premiums for giving them the privilege to avail of the space permitted by the Corporation for advertisements but ultimately the whole works have to be left with the Corporation and it is not to be removed by the appellants. As rightly observed by the learned Single Judge the venture cannot be considered to be the grant of a largesse or lease or contract in the conventional sense. The provisions in the Municipal Corporation Act cannot be said to envisage situations of the nature, when enacted. This appears to be a project more akin to the one considered by this Court in G.B. Mahajans case (supra). The fact that no other private advertising agencies, including the writ petitioner could offer to undertake such a venture in the other available areas when their participation was sought for belies the tall claims of the writ petitioner now made, after finding the project to have become successful and apparently fruitful - more perhaps than it could have been thought of, initially by everyone. Perhaps irked by this only the interests of the writ petitioner seem to have gained momentum, to try in desperateness for the Shylocks pound of flesh, to ruin the very project, unmindful of any concern for the Corporation, public good and the appellant.17. A careful and dispassionate assessment and consideration of the materials placed on record does not leave any reasonable impression, on the peculiar facts and circumstances of this case, that anything obnoxious which require either public criticism or condemnation by courts of law had taken place. It is by now well settled that non-floating of tenders or absence of public auction or invitation alone is no sufficient reason to castigate the move or an action of a public authority as either arbitrary or unreasonable or amounted to malafide or improper exercise or improper abuse of power by the authority concerned. Courts have always learned in favour of sufficient latitude being left with the authorities to adopt its own techniques of management of projects with concomitant economic expediencies depending upon the exigencies of a situation guided by appropriate financial policy in the best interests of the authority motivated by public interest, as well in undertaking such ventures. Though now, an attempt is sought to be made by the writ petitioner and surprisingly even by the Corporation too, attempting a somersault and claiming non-compliance with certain statutory formalities, we find that such a move is not only a pure after thought, but really unwarranted and not based upon a firm or sufficient ground or basis. The very applicability of the regulations contained in Sections 126, 129A, 148, 420 or 421 of the Act to the case on hand would itself be seriously doubtful. On the face of it they involve transactions envisaged therein, when granted in favour of third parties, to be executed with the Corporation funds and involving financial commitments or parting with the property or rights and privileges of the Corporation for value/consideration, and not to a self-financing scheme to be implemented and maintained without any financial commitments or expenditure to the Corporation. Section 124 seems to enable the Commissioner to undertake such ventures even without going before the Committee, as is now sought to be claimed. The provisions relating to Section 420/421 would also have relevance only when any such installations are to be made for the benefit/utility of private person/licensee, who executes it and not to a peculiar case like the one wherein the installations are such which are to be normally made and maintained by the Corporation for public good, but instead being permitted to be made o nits behalf and at its behest by a private property for the use and benefit of public at large, which ultimately have to be left as the property of the Corporation only, and that too when executed on a self-financing basis. The Commissioner or other authorities of the Corporation, who seem to have undertaken this at a point of time when there is no concrete scheme/project or sufficient funds with the Corporation, appear to have embarked upon this venture in good faith, keeping in view not only the public good but also in an earnest endeavour to secure such a novel project executed without any financial commitments or expenditure whatsoever either for the installations or subsequent upkeep and maintenance for at least 15 years. Merely because as an ultimate outcome in the long range, the appellant is able to make some more profit than what was envisaged itself could not render the exercise undertaken or scheme executed vulnerable for being challenged to be either as one in improper abuse of powers or by means of any reprehensible/ condemnable conduct, calling for interference in the hands of Court of Law.18. The Division Bench, except cataloguing the catena of decisions, has not chosen to objectively consider the extent of their applicability, relevance or otherwise of the principle befitting the merits of the peculiar facts of the case. The case on hand does not constitute or at any rate can by no means said to be the outcome of any unreasonable or arbitrary exercise of power so as to warrant interference under Article 226 of the Constitution of India. | 1[ds]It should be noticed at this stage, exceptstatements like them which were seriously disputed by the Corporation, there is nothing on record/writing to prove any such fancy claims. In the last week prior to the filing of the Writ Petition in December 1994, it is claimed that he came to the know that the Corporation as granted permission to the appellant to erect the arches and display thereon at M.G. Road, Secunderabad, near Telegraph Office asserting at the same time vaguely that the grant was opposed to public duties cast on the Corporation, besides being opposed to the principles of law and Article 14 of the Constitution of India, the same being, according to the Writ Petitioner, arbitrary, unjust and opposed to the principles of natural justice, fair play and equal opportunity to all.The facts averred in the writ Petition and the stand pursued before this Court also would bring out the real object, i.e. vindication of his own personal interests and there is nothing in the matter involving any great public interest, which can justify and public outcry through a public interest litigation. The desperateness of the writ petitioner is betrayed by the liberally invented incorrect averments about his alleged approach to the authorities prior to the filing of writ petition, when the fact remains that notwithstanding public notice for selection of agents for similar work in other areas, he did not respond like others and merely approached the court feigning ignorance of all that happened. The manner in which the writ petitioner was attempting to make bald claims after certain orders were passed by the Division Bench pending final disposal of the appeal to explore possibilities of grant of work in his favour without disclosing for that purpose concrete plans or models to convince the authorities of the genuineness of his moves also demonstrate, mere by his attempts to ventilate personal vendetta ad exhibit revengeful attitude rather than any of his sincere endeavours to really seek relief even for him. The writ petition itself deserved summary dismissal and the Division bench committed a grave error in interfering in the matter. Theorder of the learned Single Judge ought not to have disturbed by the division Bench of the High Court.16. The materials on record substantiated the absolute need and necessity to undertake works of the nature executed by the appellant, in furtherance of great public interest and for larger public and common good. The admitted dire financial position of the Corporation and their inability to undertake such a project at the cost of the Corporation and the cost that the venture was long over due apparently made the Corporation authorities to avail of the project as unfolded and volunteered by the appellant, subject, of course, to further revisions, modifications and suggestions in the best interest of the Corporation. When it was undertaken as a pilot project on a trial basis there might not have been much certainty about the profitability of the scheme as a business venture for the private party concerned and the appellants were prepared to undertake the said risk and executed the works to the satisfaction of the authorities and appreciation of public as well. The risk involved is not only in recouping the investments to be made for installations and constructions but to maintain them in good, proper and working conditions without also sacrificing the beauty of the installations throughout the duration of 15 years. Conditions imposed on the appellants involve great responsibilities and obligations and necessarily certain concessions had to be shown to keep the project working and maintain them in good shape. Not only the Municipal Corporation had no financial commitments in getting such works by any expenditure therefor, which were to be executed by the appellant only onbasis generating the required funds for installation and continued maintenance and their upkeep from sponsors by collecting premiums for giving them the privilege to avail of the space permitted by the Corporation for advertisements but ultimately the whole works have to be left with the Corporation and it is not to be removed by the appellants. As rightly observed by the learned Single Judge the venture cannot be considered to be the grant of a largesse or lease or contract in the conventional sense. The provisions in the Municipal Corporation Act cannot be said to envisage situations of the nature, when enacted. This appears to be a project more akin to the one considered by this Court in G.B. Mahajans case (supra). The fact that no other private advertising agencies, including the writ petitioner could offer to undertake such a venture in the other available areas when their participation was sought for belies the tall claims of the writ petitioner now made, after finding the project to have become successful and apparently fruitfulmore perhaps than it could have been thought of, initially by everyone. Perhaps irked by this only the interests of the writ petitioner seem to have gained momentum, to try in desperateness for the Shylocks pound of flesh, to ruin the very project, unmindful of any concern for the Corporation, public good and the appellant.17. A careful and dispassionate assessment and consideration of the materials placed on record does not leave any reasonable impression, on the peculiar facts and circumstances of this case, that anything obnoxious which require either public criticism or condemnation by courts of law had taken place. It is by now well settled thatof tenders or absence of public auction or invitation alone is no sufficient reason to castigate the move or an action of a public authority as either arbitrary or unreasonable or amounted to malafide or improper exercise or improper abuse of power by the authority concerned. Courts have always learned in favour of sufficient latitude being left with the authorities to adopt its own techniques of management of projects with concomitant economic expediencies depending upon the exigencies of a situation guided by appropriate financial policy in the best interests of the authority motivated by public interest, as well in undertaking such ventures. Though now, an attempt is sought to be made by the writ petitioner and surprisingly even by the Corporation too, attempting a somersault and claimingwith certain statutory formalities, we find that such a move is not only a pure after thought, but really unwarranted and not based upon a firm or sufficient ground or basis. The very applicability of the regulations contained in Sections 126, 129A, 148, 420 or 421 of the Act to the case on hand would itself be seriously doubtful. On the face of it they involve transactions envisaged therein, when granted in favour of third parties, to be executed with the Corporation funds and involving financial commitments or parting with the property or rights and privileges of the Corporation for value/consideration, and not to ascheme to be implemented and maintained without any financial commitments or expenditure to the Corporation. Section 124 seems to enable the Commissioner to undertake such ventures even without going before the Committee, as is now sought to be claimed. The provisions relating to Section 420/421 would also have relevance only when any such installations are to be made for the benefit/utility of private person/licensee, who executes it and not to a peculiar case like the one wherein the installations are such which are to be normally made and maintained by the Corporation for public good, but instead being permitted to be made o nits behalf and at its behest by a private property for the use and benefit of public at large, which ultimately have to be left as the property of the Corporation only, and that too when executed on abasis. The Commissioner or other authorities of the Corporation, who seem to have undertaken this at a point of time when there is no concrete scheme/project or sufficient funds with the Corporation, appear to have embarked upon this venture in good faith, keeping in view not only the public good but also in an earnest endeavour to secure such a novel project executed without any financial commitments or expenditure whatsoever either for the installations or subsequent upkeep and maintenance for at least 15 years. Merely because as an ultimate outcome in the long range, the appellant is able to make some more profit than what was envisaged itself could not render the exercise undertaken or scheme executed vulnerable for being challenged to be either as one in improper abuse of powers or by means of any reprehensible/ condemnable conduct, calling for interference in the hands of Court of Law.18. The Division Bench, except cataloguing the catena of decisions, has not chosen to objectively consider the extent of their applicability, relevance or otherwise of the principle befitting the merits of the peculiar facts of the case. The case on hand does not constitute or at any rate can by no means said to be the outcome of any unreasonable or arbitrary exercise of power so as to warrant interference under Article 226 of the Constitution of India. | 1 | 6,676 | 1,597 | ### Instruction:
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risk and executed the works to the satisfaction of the authorities and appreciation of public as well. The risk involved is not only in recouping the investments to be made for installations and constructions but to maintain them in good, proper and working conditions without also sacrificing the beauty of the installations throughout the duration of 15 years. Conditions imposed on the appellants involve great responsibilities and obligations and necessarily certain concessions had to be shown to keep the project working and maintain them in good shape. Not only the Municipal Corporation had no financial commitments in getting such works by any expenditure therefor, which were to be executed by the appellant only on self-financing basis generating the required funds for installation and continued maintenance and their upkeep from sponsors by collecting premiums for giving them the privilege to avail of the space permitted by the Corporation for advertisements but ultimately the whole works have to be left with the Corporation and it is not to be removed by the appellants. As rightly observed by the learned Single Judge the venture cannot be considered to be the grant of a largesse or lease or contract in the conventional sense. The provisions in the Municipal Corporation Act cannot be said to envisage situations of the nature, when enacted. This appears to be a project more akin to the one considered by this Court in G.B. Mahajans case (supra). The fact that no other private advertising agencies, including the writ petitioner could offer to undertake such a venture in the other available areas when their participation was sought for belies the tall claims of the writ petitioner now made, after finding the project to have become successful and apparently fruitful - more perhaps than it could have been thought of, initially by everyone. Perhaps irked by this only the interests of the writ petitioner seem to have gained momentum, to try in desperateness for the Shylocks pound of flesh, to ruin the very project, unmindful of any concern for the Corporation, public good and the appellant.17. A careful and dispassionate assessment and consideration of the materials placed on record does not leave any reasonable impression, on the peculiar facts and circumstances of this case, that anything obnoxious which require either public criticism or condemnation by courts of law had taken place. It is by now well settled that non-floating of tenders or absence of public auction or invitation alone is no sufficient reason to castigate the move or an action of a public authority as either arbitrary or unreasonable or amounted to malafide or improper exercise or improper abuse of power by the authority concerned. Courts have always learned in favour of sufficient latitude being left with the authorities to adopt its own techniques of management of projects with concomitant economic expediencies depending upon the exigencies of a situation guided by appropriate financial policy in the best interests of the authority motivated by public interest, as well in undertaking such ventures. Though now, an attempt is sought to be made by the writ petitioner and surprisingly even by the Corporation too, attempting a somersault and claiming non-compliance with certain statutory formalities, we find that such a move is not only a pure after thought, but really unwarranted and not based upon a firm or sufficient ground or basis. The very applicability of the regulations contained in Sections 126, 129A, 148, 420 or 421 of the Act to the case on hand would itself be seriously doubtful. On the face of it they involve transactions envisaged therein, when granted in favour of third parties, to be executed with the Corporation funds and involving financial commitments or parting with the property or rights and privileges of the Corporation for value/consideration, and not to a self-financing scheme to be implemented and maintained without any financial commitments or expenditure to the Corporation. Section 124 seems to enable the Commissioner to undertake such ventures even without going before the Committee, as is now sought to be claimed. The provisions relating to Section 420/421 would also have relevance only when any such installations are to be made for the benefit/utility of private person/licensee, who executes it and not to a peculiar case like the one wherein the installations are such which are to be normally made and maintained by the Corporation for public good, but instead being permitted to be made o nits behalf and at its behest by a private property for the use and benefit of public at large, which ultimately have to be left as the property of the Corporation only, and that too when executed on a self-financing basis. The Commissioner or other authorities of the Corporation, who seem to have undertaken this at a point of time when there is no concrete scheme/project or sufficient funds with the Corporation, appear to have embarked upon this venture in good faith, keeping in view not only the public good but also in an earnest endeavour to secure such a novel project executed without any financial commitments or expenditure whatsoever either for the installations or subsequent upkeep and maintenance for at least 15 years. Merely because as an ultimate outcome in the long range, the appellant is able to make some more profit than what was envisaged itself could not render the exercise undertaken or scheme executed vulnerable for being challenged to be either as one in improper abuse of powers or by means of any reprehensible/ condemnable conduct, calling for interference in the hands of Court of Law.18. The Division Bench, except cataloguing the catena of decisions, has not chosen to objectively consider the extent of their applicability, relevance or otherwise of the principle befitting the merits of the peculiar facts of the case. The case on hand does not constitute or at any rate can by no means said to be the outcome of any unreasonable or arbitrary exercise of power so as to warrant interference under Article 226 of the Constitution of India.
### Response:
1
### Explanation:
private party concerned and the appellants were prepared to undertake the said risk and executed the works to the satisfaction of the authorities and appreciation of public as well. The risk involved is not only in recouping the investments to be made for installations and constructions but to maintain them in good, proper and working conditions without also sacrificing the beauty of the installations throughout the duration of 15 years. Conditions imposed on the appellants involve great responsibilities and obligations and necessarily certain concessions had to be shown to keep the project working and maintain them in good shape. Not only the Municipal Corporation had no financial commitments in getting such works by any expenditure therefor, which were to be executed by the appellant only onbasis generating the required funds for installation and continued maintenance and their upkeep from sponsors by collecting premiums for giving them the privilege to avail of the space permitted by the Corporation for advertisements but ultimately the whole works have to be left with the Corporation and it is not to be removed by the appellants. As rightly observed by the learned Single Judge the venture cannot be considered to be the grant of a largesse or lease or contract in the conventional sense. The provisions in the Municipal Corporation Act cannot be said to envisage situations of the nature, when enacted. This appears to be a project more akin to the one considered by this Court in G.B. Mahajans case (supra). The fact that no other private advertising agencies, including the writ petitioner could offer to undertake such a venture in the other available areas when their participation was sought for belies the tall claims of the writ petitioner now made, after finding the project to have become successful and apparently fruitfulmore perhaps than it could have been thought of, initially by everyone. Perhaps irked by this only the interests of the writ petitioner seem to have gained momentum, to try in desperateness for the Shylocks pound of flesh, to ruin the very project, unmindful of any concern for the Corporation, public good and the appellant.17. A careful and dispassionate assessment and consideration of the materials placed on record does not leave any reasonable impression, on the peculiar facts and circumstances of this case, that anything obnoxious which require either public criticism or condemnation by courts of law had taken place. It is by now well settled thatof tenders or absence of public auction or invitation alone is no sufficient reason to castigate the move or an action of a public authority as either arbitrary or unreasonable or amounted to malafide or improper exercise or improper abuse of power by the authority concerned. Courts have always learned in favour of sufficient latitude being left with the authorities to adopt its own techniques of management of projects with concomitant economic expediencies depending upon the exigencies of a situation guided by appropriate financial policy in the best interests of the authority motivated by public interest, as well in undertaking such ventures. Though now, an attempt is sought to be made by the writ petitioner and surprisingly even by the Corporation too, attempting a somersault and claimingwith certain statutory formalities, we find that such a move is not only a pure after thought, but really unwarranted and not based upon a firm or sufficient ground or basis. The very applicability of the regulations contained in Sections 126, 129A, 148, 420 or 421 of the Act to the case on hand would itself be seriously doubtful. On the face of it they involve transactions envisaged therein, when granted in favour of third parties, to be executed with the Corporation funds and involving financial commitments or parting with the property or rights and privileges of the Corporation for value/consideration, and not to ascheme to be implemented and maintained without any financial commitments or expenditure to the Corporation. Section 124 seems to enable the Commissioner to undertake such ventures even without going before the Committee, as is now sought to be claimed. The provisions relating to Section 420/421 would also have relevance only when any such installations are to be made for the benefit/utility of private person/licensee, who executes it and not to a peculiar case like the one wherein the installations are such which are to be normally made and maintained by the Corporation for public good, but instead being permitted to be made o nits behalf and at its behest by a private property for the use and benefit of public at large, which ultimately have to be left as the property of the Corporation only, and that too when executed on abasis. The Commissioner or other authorities of the Corporation, who seem to have undertaken this at a point of time when there is no concrete scheme/project or sufficient funds with the Corporation, appear to have embarked upon this venture in good faith, keeping in view not only the public good but also in an earnest endeavour to secure such a novel project executed without any financial commitments or expenditure whatsoever either for the installations or subsequent upkeep and maintenance for at least 15 years. Merely because as an ultimate outcome in the long range, the appellant is able to make some more profit than what was envisaged itself could not render the exercise undertaken or scheme executed vulnerable for being challenged to be either as one in improper abuse of powers or by means of any reprehensible/ condemnable conduct, calling for interference in the hands of Court of Law.18. The Division Bench, except cataloguing the catena of decisions, has not chosen to objectively consider the extent of their applicability, relevance or otherwise of the principle befitting the merits of the peculiar facts of the case. The case on hand does not constitute or at any rate can by no means said to be the outcome of any unreasonable or arbitrary exercise of power so as to warrant interference under Article 226 of the Constitution of India.
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Javed Niaz Beg and Another Vs. Union of India and Another | KRISHNA IYER, J. 1. Language is speech, sentiment, life, literature and other dear values rolled into one and that is why when State policy on language goes away explosive tensions erupt and courts cannot allow legalism to override realism when asked to quash some sensitive linguistic formula with emotive overtones. This prefatory caveat and its profound implications with emotive overtones. This prefatory caveat and its profound implications must be appreciated before we eat the forbidden fruit of policy-making by striking down the Central Governments amendatory notification bearing on language papers for Central Services Examination or the All India Services Examination. The realisation that language is at the root of culture, that communities sometimes sacrifice their very existence for survival of their mother tongue and that tolerance and mutual accommodation on the linguistic front are integral to national integration must persuade the court to keep its hands off the delicate strategic policy of the State relating to the peoples language. Indeed, the rich diversity of India and the indispensable unity of the nation make it a linguistic imperative that a spirit of generosity to territorial communities, especially minorities without political pull, is of the quintessence of our constitutional policy. Challenges to the language formula prescribed by the Government of India in the Rules for the Combined Competitive Examinations to the All India Services and the like have to be viewed against this backdrop. In short, the perspective which we propose to adopt has to be perceptive which we propose to adopt has to be perceptive of the linguistic values of India with its plurality of tongues, dialects and languages. Equality before the law is the kernel of our constitutional order. But equality is not a static, rigid, formal or pedantic concept. A sensitized social scientist will easily agree that equality is dynamic, flexible, creative and developmentally sensitive, especially in the Third World conditions like ours. Once this imaginative approach is adopted, the submission of counsel will lose all force. Indeed, it will be counter-productive of the equality on which it is formally founded, as we will presently indicate. 2. These writ petitions are by candidates of the Hindi belt of India, who challenge certain amendments to the rules for the competitive examinations to the All India Services and allied categories. We may extract the relevant part of the Notification dated March 17, 1979 : No. 13018/5/78-AIS(I) : The following amendments are hereby made in the Rules for the Combined Competitive Examination - Civil Services Examination, 1979 published in Part I Section I of the Gazette of India Extra ordinary dated January 15, 1979 vide this Departments Notification No. 13018/5/78-AIS(I) dated the January, 15, 1979 :- (3) Note (ii) under para 1 of Section II(B) Appendix I is renumbered as note (iii) and the following is inserted as note (ii) :- The paper I on Indian languages will not, however, be compulsory for candidates hailing from the North Eastern States/Union Territories of Arunachal Pradesh, Manipur, Meghalaya, Mizoram and Nagaland. 3. The gravamen of the charge against this notification is that candidates hailing from the North Eastern States/Union Territories of Arunachal Pradesh, Manipur, Meghalaya, Mizoram and Nagaland are not obligated to take Paper I on Indian languages. Why should this discrimination be shown in their favour, urges counsel for the petitioners. While favourable treatment for women and children, backward classes, scheduled castes and scheduled tribes is sanctified by the Constitution, the linguistic concession shown to the Indian brethren in the remote regions we have just referred to is castigated as unconstitutional, unequal and invidiously discriminatory. In the familiar jargon, counsel contends that inequality among equals is the intent and effect of the notification and the vice of discrimination much prove lethal to its validity. We are not impressed with this submission. 4. The integrity of India is a supreme value. The languages of India are dearest to the people who speak them. It is notorious that the North Eastern States/Union Territories of Arunachal Pradesh, Manipur, Meghalaya, Mizoram and Nagaland have handicaps in the matter of language. Thus Eighth Schedule to the Constitution has set out the prominent languages of India which are written and spoken by large populations between Kashmir and Kanyakumari. But this rich tapestry, for its very beauty, must afford equal opportunity for those linguistically less advanced groups who are outside the Eighth Schedule and may suffer serious disabilities if forced to take examinations in those languages. Logically, an option for them to take or not to take Paper I on Indian languages is a facility which puts them on par with the rest. Once we understand that equalisation is part of the dynamics of equality, this concession is not contravention of equality but conducive to equality. It helps a handicapped groups and does not hamper those who are ahead. 5. A realistic appraisal of the linguistic landscape of the North Eastern States of our motherland will leave no thinking Indian in doubt that the exemption granted will encourage disabled groups into integrating themselves with the nation. More and more of successful candidates from these border areas coming into the mainstream of our Central Public Services is a tribute to national integration and democratic foundation. On the other hand, procrustean equality by insistence of the linguistic have-nots being treated on a par with the linguistic haves is productive of inequality. Both equalisation as a measure of equality and national integration as a homogenisation of the people of the country, require the step that has been taken. We discern no discrimination. On the contrary, we find a sensitive appreciation of the situation prevailing in those States and operates for a better egalite among unequals. | 0[ds]4. The integrity of India is a supreme value. The languages of India are dearest to the people who speak them. It is notorious that the North Eastern States/Union Territories of Arunachal Pradesh, Manipur, Meghalaya, Mizoram and Nagaland have handicaps in the matter of language. Thus Eighth Schedule to the Constitution has set out the prominent languages of India which are written and spoken by large populations between Kashmir and Kanyakumari. But this rich tapestry, for its very beauty, must afford equal opportunity for those linguistically less advanced groups who are outside the Eighth Schedule and may suffer serious disabilities if forced to take examinations in those languages. Logically, an option for them to take or not to take Paper I on Indian languages is a facility which puts them on par with the rest. Once we understand that equalisation is part of the dynamics of equality, this concession is not contravention of equality but conducive to equality. It helps a handicapped groups and does not hamper those who are ahead5. A realistic appraisal of the linguistic landscape of the North Eastern States of our motherland will leave no thinking Indian in doubt that the exemption granted will encourage disabled groups into integrating themselves with the nation. More and more of successful candidates from these border areas coming into the mainstream of our Central Public Services is a tribute to national integration and democratic foundation. On the other hand, procrustean equality by insistence of the linguistic have-nots being treated on a par with the linguistic haves is productive of inequality. Both equalisation as a measure of equality and national integration as a homogenisation of the people of the country, require the step that has been taken. We discern no discrimination. On the contrary, we find a sensitive appreciation of the situation prevailing in those States and operates for a better egalite among unequals | 0 | 1,051 | 341 | ### Instruction:
Judge the probable resolution of the case (approval (1) or disapproval (0)), and elaborate on this forecast by extracting and interpreting significant sentences from the proceeding.
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KRISHNA IYER, J. 1. Language is speech, sentiment, life, literature and other dear values rolled into one and that is why when State policy on language goes away explosive tensions erupt and courts cannot allow legalism to override realism when asked to quash some sensitive linguistic formula with emotive overtones. This prefatory caveat and its profound implications with emotive overtones. This prefatory caveat and its profound implications must be appreciated before we eat the forbidden fruit of policy-making by striking down the Central Governments amendatory notification bearing on language papers for Central Services Examination or the All India Services Examination. The realisation that language is at the root of culture, that communities sometimes sacrifice their very existence for survival of their mother tongue and that tolerance and mutual accommodation on the linguistic front are integral to national integration must persuade the court to keep its hands off the delicate strategic policy of the State relating to the peoples language. Indeed, the rich diversity of India and the indispensable unity of the nation make it a linguistic imperative that a spirit of generosity to territorial communities, especially minorities without political pull, is of the quintessence of our constitutional policy. Challenges to the language formula prescribed by the Government of India in the Rules for the Combined Competitive Examinations to the All India Services and the like have to be viewed against this backdrop. In short, the perspective which we propose to adopt has to be perceptive which we propose to adopt has to be perceptive of the linguistic values of India with its plurality of tongues, dialects and languages. Equality before the law is the kernel of our constitutional order. But equality is not a static, rigid, formal or pedantic concept. A sensitized social scientist will easily agree that equality is dynamic, flexible, creative and developmentally sensitive, especially in the Third World conditions like ours. Once this imaginative approach is adopted, the submission of counsel will lose all force. Indeed, it will be counter-productive of the equality on which it is formally founded, as we will presently indicate. 2. These writ petitions are by candidates of the Hindi belt of India, who challenge certain amendments to the rules for the competitive examinations to the All India Services and allied categories. We may extract the relevant part of the Notification dated March 17, 1979 : No. 13018/5/78-AIS(I) : The following amendments are hereby made in the Rules for the Combined Competitive Examination - Civil Services Examination, 1979 published in Part I Section I of the Gazette of India Extra ordinary dated January 15, 1979 vide this Departments Notification No. 13018/5/78-AIS(I) dated the January, 15, 1979 :- (3) Note (ii) under para 1 of Section II(B) Appendix I is renumbered as note (iii) and the following is inserted as note (ii) :- The paper I on Indian languages will not, however, be compulsory for candidates hailing from the North Eastern States/Union Territories of Arunachal Pradesh, Manipur, Meghalaya, Mizoram and Nagaland. 3. The gravamen of the charge against this notification is that candidates hailing from the North Eastern States/Union Territories of Arunachal Pradesh, Manipur, Meghalaya, Mizoram and Nagaland are not obligated to take Paper I on Indian languages. Why should this discrimination be shown in their favour, urges counsel for the petitioners. While favourable treatment for women and children, backward classes, scheduled castes and scheduled tribes is sanctified by the Constitution, the linguistic concession shown to the Indian brethren in the remote regions we have just referred to is castigated as unconstitutional, unequal and invidiously discriminatory. In the familiar jargon, counsel contends that inequality among equals is the intent and effect of the notification and the vice of discrimination much prove lethal to its validity. We are not impressed with this submission. 4. The integrity of India is a supreme value. The languages of India are dearest to the people who speak them. It is notorious that the North Eastern States/Union Territories of Arunachal Pradesh, Manipur, Meghalaya, Mizoram and Nagaland have handicaps in the matter of language. Thus Eighth Schedule to the Constitution has set out the prominent languages of India which are written and spoken by large populations between Kashmir and Kanyakumari. But this rich tapestry, for its very beauty, must afford equal opportunity for those linguistically less advanced groups who are outside the Eighth Schedule and may suffer serious disabilities if forced to take examinations in those languages. Logically, an option for them to take or not to take Paper I on Indian languages is a facility which puts them on par with the rest. Once we understand that equalisation is part of the dynamics of equality, this concession is not contravention of equality but conducive to equality. It helps a handicapped groups and does not hamper those who are ahead. 5. A realistic appraisal of the linguistic landscape of the North Eastern States of our motherland will leave no thinking Indian in doubt that the exemption granted will encourage disabled groups into integrating themselves with the nation. More and more of successful candidates from these border areas coming into the mainstream of our Central Public Services is a tribute to national integration and democratic foundation. On the other hand, procrustean equality by insistence of the linguistic have-nots being treated on a par with the linguistic haves is productive of inequality. Both equalisation as a measure of equality and national integration as a homogenisation of the people of the country, require the step that has been taken. We discern no discrimination. On the contrary, we find a sensitive appreciation of the situation prevailing in those States and operates for a better egalite among unequals.
### Response:
0
### Explanation:
4. The integrity of India is a supreme value. The languages of India are dearest to the people who speak them. It is notorious that the North Eastern States/Union Territories of Arunachal Pradesh, Manipur, Meghalaya, Mizoram and Nagaland have handicaps in the matter of language. Thus Eighth Schedule to the Constitution has set out the prominent languages of India which are written and spoken by large populations between Kashmir and Kanyakumari. But this rich tapestry, for its very beauty, must afford equal opportunity for those linguistically less advanced groups who are outside the Eighth Schedule and may suffer serious disabilities if forced to take examinations in those languages. Logically, an option for them to take or not to take Paper I on Indian languages is a facility which puts them on par with the rest. Once we understand that equalisation is part of the dynamics of equality, this concession is not contravention of equality but conducive to equality. It helps a handicapped groups and does not hamper those who are ahead5. A realistic appraisal of the linguistic landscape of the North Eastern States of our motherland will leave no thinking Indian in doubt that the exemption granted will encourage disabled groups into integrating themselves with the nation. More and more of successful candidates from these border areas coming into the mainstream of our Central Public Services is a tribute to national integration and democratic foundation. On the other hand, procrustean equality by insistence of the linguistic have-nots being treated on a par with the linguistic haves is productive of inequality. Both equalisation as a measure of equality and national integration as a homogenisation of the people of the country, require the step that has been taken. We discern no discrimination. On the contrary, we find a sensitive appreciation of the situation prevailing in those States and operates for a better egalite among unequals
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Gopal Krishna Das Vs. Sailendra Nath Biswas & Anr | the decree-holder in whose favour the charge was created had reiterated again and again that she was willing to waive the charge. Hidayatullah J. who decided the case further observes in his judgment that on a comparison of the two sale proclamations he found that the existence of the charge was not mentioned in either. Naturally, the deficiency in price could not be attributed to the existence of the charge.16. In. Nelluri Brahmaiah v. Mohd. Sheik Mohiddin, (1964) 1 Andh LT 321 the auction purchaser disputed his liability for the deficiency on the ground that the judgment debtor had no saleable interest in the property. This contention was based on the circumstance that though the property was situated in Venkatapuram it was wrongly described as lying within the limits of Borrampalem. There was no dispute about the boundaries, about the survey number or the area and it was not suggested that there was any other property of the particular description in Borrampalem The High Court of Andhra Pradesh held that in these circumstances the property could be easily identified that the location of the property put to sale was known to everyone concerned and therefore it was difficult to posit that the judgment-debtor had no saleable interest in the property.17. The decisions in Baijnath Sahai v. Moheep Narain Singh, (1889) ILR 16 Cal. 535 and in Gangadas Dayabhai v. Bai Surai, (1912) ILR 36 Bom 329 are more to the point. These cases arose under Section 293 of the Code of 1882 corresponding to order XXI. Rule 71, of the Code of 1908. In the Calcutta case, at the first sale no encumbrance upon the properties sold was notified. In the re-sale two encumbrances were notified. The second sale was held because the auction purchaser had committed a default in paying the balance of the purchase price in the first sale. The price fetched on the second sale resulted in a deficiency for which the auction purchaser was sought to be made liable. Apart from the circumstance that the decree-holder was himself to blame for not mentioning the encumbrances in the first proclamation and was therefore attempting to obtain an advantage of his own wrong, the Calcutta High Court expressed the legal position correctly by saying that "the re-sale contemplated by Section 293 of the Code of Civil Procedure must be a sale of the same property that was first sold, and under the same description and any substantial difference of description at the sale and the re-sale in any of the matters required to be specified by Section 287 to enable intending purchasers to judge of the value of the property should disentitle the decree-holder to recover the deficiency of price under Section 293." In the Bombay Case the errors in the two proclamations were so confusing that the deficiency in the price could not, it was held, be attributed to the default of the purchaser. The description in the second proclamation being materially different from that in the first, the resale was not of the same property and the auction purchaser, though he had defaulted in paying the balance of the purchase-price was absolved from making good the deficiency.18. It was contended that Pashupati Nath Biswas, the auction purchaser, being in possession of a part of the property must be deemed to have been aware of the lease and the sub-lease and therefore he is estopped from relying upon the same as having led to the deficiency in price. No estoppel can arise against the auction purchaser on the question whether the deficiency in price can be recovered from him. The question which arises under Order XXI, Rule 71 is whether the deficiency can be attributed to the default of the auction purchaser or whether it can be reasonably attributed to any other supervening circumstance. This is not a case in which the auction purchaser can be said to be taking advantage of his own wrong. He cannot therefore be estopped from contending that the disclosure of the encumbrance is the operative cause of the fall in price.19. We may mention that the matter under consideration arose out of the Ordinary Original civil jurisdiction of the Calcutta High Court and therefore the Original Side Rules of the High Court would govern the matter. That will, however, not make any difference to our decision because Chapter XXV, Rule 7 of the Rules of 1914 provides by the Third clause for re-sale of the property in default of the payment of the price by the purchaser within the stipulated time. The Third clause of Rule 7 Provides: "Where the proceeds of the resale are less than the price bid by such defaulting purchaser, the difference shall be leviable from him under the rules contained in O.XXI of the Code for the execution of a decree for money." The Fifth clause of Rule 7 also provides that the sale is made under and subject to all other provisions contained in the Code of Civil Procedure relating to sales in execution of decrees. Order XXI, Rule 71 of the Code would therefore apply.20. It was finally contended on behalf of the appellant that the appeal flied by the auction purchaser from the judgment of the single judge to the Division Bench of the High Court was barred by limitation. We see no substance in this contention. The time requisite for obtaining certified copies undoubtedly means "the time properly required" and an appellant cannot in the computation of the period of limitation for filing the appeal ask for exclusion of time which was spent negligently. But the facts and dates mentioned to us by the appellants counsel show that the settlement of the draft decree was adjourned from time to time by an officer of the court on being properly satisfied that there was good reason for adjournment. The auction purchaser cannot be blamed for the time thus spent in settling the draft of the decree under appeal. The argument must therefore fail. | 0[ds]9. It is clear on a careful reading of Rule 71 that its application is limited to cases in which the deficiency of price has occurred by reason of the auction purchasers default. Property once put to sale in execution proceedings may have to be resold for reasons which may or may not be connected with the default of the auction purchaser. A re-sale consequent on the failure of the auction purchaser to deposit 25% of the purchase price immediately after he is declared to be the purchaser of the property or a re-sale consequent upon his failure to deposit the balance of the purchase price within 15 days of the sale are instances when the resale is occasioned by the default of the auction purchaser. On the other hand, re-sale consequent upon the setting aside of the sale on the ground of material irregularity in publishing or conducting the sale as provided in Order XXI, Rule 90, may not be attributable to the default of the purchaser. The provisions of Order XXl, Rule 71, come into play only if the property is required to be re-sold on account of the default of the auction purchaser. If the re-sale is not due to the auction purchasers default there can be no question of mulcting him with the deficiency in the price realised in there-sale may have to be held because the auction purchaser has committed default in paying the deposit of 25% under Order XXI, R. 84, or because of his default in paying the full price within 15 days of the sale as required by Rule 85. And yet the deficiency of price realised in the re-sale may not bedisclosure of that encumbrance in the sale proclamation accompanying the re-sale must, on normal commercial considerations, have a direct impact on the price of the property put to sale. In such a case the deficiency of price realised in the re-sale will be attributable not necessarily to the default of the auction purchaser but to circumstances extraneous to his default. Order XXI, Rule 71, concerns itself not with that class of cases but with those in which the deficiency of price realised in the resale is attributable to the default of the auction purchaser.It is unnecessary to enter into refinements arising out of the West Bengal Act but even the sub-tenants would appear to enjoy thereunder a certain amount of immunity from eviction.Order XXI, Rule 71 is intended to provide an expeditious remedy to the judgment-debtor or the decree-holder who has suffered a detriment due to the default of the auction purchaser. The officer or other person holding the sale has to certify to the Court the deficiency of price which on the re-sale has happened by reason of the purchasers default and all expenses attending the re-sale. Upon such certification the amount becomes recoverable from the defaulting purchaser at the instance of the decree-holder or the judgment- debtor, "under the provisions relating to the execution of a decree for the payment of money". The Code has not made the certificate conclusive of the facts stated therein and consequently it is permissible to the purchaser who is alleged to have defaulted to challenge the correctness of the certificate in all its particulars. But the object of certification, as evidenced even more clearly by the provision that the proceeding to recover the amount will be governed by provisions relating to the execution of a money-decree, is to eschew an elaborate inquiry into the competing causes culminating in the deficiency of price. This object can be achieved only if the property successively put to sale is in material respects identical, that is to say, if the right, title and interest of the judgement debtor is put to sale under substantially the same description. If that happens it is easy to predicate that the deficiency of price has resulted on account of the purchasers default. But if, as here, what was shown as unencumbered in the previous proclamation is expressly described in the later proclamation as being subject to an encumbrance which, on a reasonable assessment, is calculated to affect the market value of the property the proceeding ceases to be a simple enough matter like the execution of a money-decree and assumes the form of a contentious claim open to diverse defences as in a substantive suit. The speedy remedy intended to be provided by Order XXI, Rule 71 will lose its meaning and purpose if the executing court seized of the claim against the alleged defaulting purchaser has to embark upon a comparative evaluation of the causes that led to the deficiency in the price. Such meat is not for the executing court.14. Counsel for the appellant relied on certain decisions to fasten liability on the auction purchaser but those decisions will notWe are unable to appreciate the relevance of the maxim caveat emptor on a question like the one before us. The auction purchaser is not attempting to avoid the sale. Far from it, he adheres to his purchase but disputes his liability for the deficiency. There is no question of any failure on his part to take due care at the time of the first sale because that sale was held in 1954 whereas the encumbrance referred to in the second proclamation was stated to have been created in 1955.This is not a case in which the auction purchaser can be said to be taking advantage of his own wrong. He cannot therefore be estopped from contending that the disclosure of the encumbrance is the operative cause of the fall in price.19. We may mention that the matter under consideration arose out of the Ordinary Original civil jurisdiction of the Calcutta High Court and therefore the Original Side Rules of the High Court would govern the matter. That will, however, not make any difference to our decision because Chapter XXV, Rule 7 of the Rules of 1914 provides by the Third clause for re-sale of the property in default of the payment of the price by the purchaser within the stipulated time.We see no substance in this contention. The time requisite for obtaining certified copies undoubtedly means "the time properly required" and an appellant cannot in the computation of the period of limitation for filing the appeal ask for exclusion of time which was spent negligently. But the facts and dates mentioned to us by the appellants counsel show that the settlement of the draft decree was adjourned from time to time by an officer of the court on being properly satisfied that there was good reason for adjournment. The auction purchaser cannot be blamed for the time thus spent in settling the draft of the decree under appeal. The argument must therefore fail. | 0 | 4,392 | 1,195 | ### Instruction:
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the decree-holder in whose favour the charge was created had reiterated again and again that she was willing to waive the charge. Hidayatullah J. who decided the case further observes in his judgment that on a comparison of the two sale proclamations he found that the existence of the charge was not mentioned in either. Naturally, the deficiency in price could not be attributed to the existence of the charge.16. In. Nelluri Brahmaiah v. Mohd. Sheik Mohiddin, (1964) 1 Andh LT 321 the auction purchaser disputed his liability for the deficiency on the ground that the judgment debtor had no saleable interest in the property. This contention was based on the circumstance that though the property was situated in Venkatapuram it was wrongly described as lying within the limits of Borrampalem. There was no dispute about the boundaries, about the survey number or the area and it was not suggested that there was any other property of the particular description in Borrampalem The High Court of Andhra Pradesh held that in these circumstances the property could be easily identified that the location of the property put to sale was known to everyone concerned and therefore it was difficult to posit that the judgment-debtor had no saleable interest in the property.17. The decisions in Baijnath Sahai v. Moheep Narain Singh, (1889) ILR 16 Cal. 535 and in Gangadas Dayabhai v. Bai Surai, (1912) ILR 36 Bom 329 are more to the point. These cases arose under Section 293 of the Code of 1882 corresponding to order XXI. Rule 71, of the Code of 1908. In the Calcutta case, at the first sale no encumbrance upon the properties sold was notified. In the re-sale two encumbrances were notified. The second sale was held because the auction purchaser had committed a default in paying the balance of the purchase price in the first sale. The price fetched on the second sale resulted in a deficiency for which the auction purchaser was sought to be made liable. Apart from the circumstance that the decree-holder was himself to blame for not mentioning the encumbrances in the first proclamation and was therefore attempting to obtain an advantage of his own wrong, the Calcutta High Court expressed the legal position correctly by saying that "the re-sale contemplated by Section 293 of the Code of Civil Procedure must be a sale of the same property that was first sold, and under the same description and any substantial difference of description at the sale and the re-sale in any of the matters required to be specified by Section 287 to enable intending purchasers to judge of the value of the property should disentitle the decree-holder to recover the deficiency of price under Section 293." In the Bombay Case the errors in the two proclamations were so confusing that the deficiency in the price could not, it was held, be attributed to the default of the purchaser. The description in the second proclamation being materially different from that in the first, the resale was not of the same property and the auction purchaser, though he had defaulted in paying the balance of the purchase-price was absolved from making good the deficiency.18. It was contended that Pashupati Nath Biswas, the auction purchaser, being in possession of a part of the property must be deemed to have been aware of the lease and the sub-lease and therefore he is estopped from relying upon the same as having led to the deficiency in price. No estoppel can arise against the auction purchaser on the question whether the deficiency in price can be recovered from him. The question which arises under Order XXI, Rule 71 is whether the deficiency can be attributed to the default of the auction purchaser or whether it can be reasonably attributed to any other supervening circumstance. This is not a case in which the auction purchaser can be said to be taking advantage of his own wrong. He cannot therefore be estopped from contending that the disclosure of the encumbrance is the operative cause of the fall in price.19. We may mention that the matter under consideration arose out of the Ordinary Original civil jurisdiction of the Calcutta High Court and therefore the Original Side Rules of the High Court would govern the matter. That will, however, not make any difference to our decision because Chapter XXV, Rule 7 of the Rules of 1914 provides by the Third clause for re-sale of the property in default of the payment of the price by the purchaser within the stipulated time. The Third clause of Rule 7 Provides: "Where the proceeds of the resale are less than the price bid by such defaulting purchaser, the difference shall be leviable from him under the rules contained in O.XXI of the Code for the execution of a decree for money." The Fifth clause of Rule 7 also provides that the sale is made under and subject to all other provisions contained in the Code of Civil Procedure relating to sales in execution of decrees. Order XXI, Rule 71 of the Code would therefore apply.20. It was finally contended on behalf of the appellant that the appeal flied by the auction purchaser from the judgment of the single judge to the Division Bench of the High Court was barred by limitation. We see no substance in this contention. The time requisite for obtaining certified copies undoubtedly means "the time properly required" and an appellant cannot in the computation of the period of limitation for filing the appeal ask for exclusion of time which was spent negligently. But the facts and dates mentioned to us by the appellants counsel show that the settlement of the draft decree was adjourned from time to time by an officer of the court on being properly satisfied that there was good reason for adjournment. The auction purchaser cannot be blamed for the time thus spent in settling the draft of the decree under appeal. The argument must therefore fail.
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purchaser. On the other hand, re-sale consequent upon the setting aside of the sale on the ground of material irregularity in publishing or conducting the sale as provided in Order XXI, Rule 90, may not be attributable to the default of the purchaser. The provisions of Order XXl, Rule 71, come into play only if the property is required to be re-sold on account of the default of the auction purchaser. If the re-sale is not due to the auction purchasers default there can be no question of mulcting him with the deficiency in the price realised in there-sale may have to be held because the auction purchaser has committed default in paying the deposit of 25% under Order XXI, R. 84, or because of his default in paying the full price within 15 days of the sale as required by Rule 85. And yet the deficiency of price realised in the re-sale may not bedisclosure of that encumbrance in the sale proclamation accompanying the re-sale must, on normal commercial considerations, have a direct impact on the price of the property put to sale. In such a case the deficiency of price realised in the re-sale will be attributable not necessarily to the default of the auction purchaser but to circumstances extraneous to his default. Order XXI, Rule 71, concerns itself not with that class of cases but with those in which the deficiency of price realised in the resale is attributable to the default of the auction purchaser.It is unnecessary to enter into refinements arising out of the West Bengal Act but even the sub-tenants would appear to enjoy thereunder a certain amount of immunity from eviction.Order XXI, Rule 71 is intended to provide an expeditious remedy to the judgment-debtor or the decree-holder who has suffered a detriment due to the default of the auction purchaser. The officer or other person holding the sale has to certify to the Court the deficiency of price which on the re-sale has happened by reason of the purchasers default and all expenses attending the re-sale. Upon such certification the amount becomes recoverable from the defaulting purchaser at the instance of the decree-holder or the judgment- debtor, "under the provisions relating to the execution of a decree for the payment of money". The Code has not made the certificate conclusive of the facts stated therein and consequently it is permissible to the purchaser who is alleged to have defaulted to challenge the correctness of the certificate in all its particulars. But the object of certification, as evidenced even more clearly by the provision that the proceeding to recover the amount will be governed by provisions relating to the execution of a money-decree, is to eschew an elaborate inquiry into the competing causes culminating in the deficiency of price. This object can be achieved only if the property successively put to sale is in material respects identical, that is to say, if the right, title and interest of the judgement debtor is put to sale under substantially the same description. If that happens it is easy to predicate that the deficiency of price has resulted on account of the purchasers default. But if, as here, what was shown as unencumbered in the previous proclamation is expressly described in the later proclamation as being subject to an encumbrance which, on a reasonable assessment, is calculated to affect the market value of the property the proceeding ceases to be a simple enough matter like the execution of a money-decree and assumes the form of a contentious claim open to diverse defences as in a substantive suit. The speedy remedy intended to be provided by Order XXI, Rule 71 will lose its meaning and purpose if the executing court seized of the claim against the alleged defaulting purchaser has to embark upon a comparative evaluation of the causes that led to the deficiency in the price. Such meat is not for the executing court.14. Counsel for the appellant relied on certain decisions to fasten liability on the auction purchaser but those decisions will notWe are unable to appreciate the relevance of the maxim caveat emptor on a question like the one before us. The auction purchaser is not attempting to avoid the sale. Far from it, he adheres to his purchase but disputes his liability for the deficiency. There is no question of any failure on his part to take due care at the time of the first sale because that sale was held in 1954 whereas the encumbrance referred to in the second proclamation was stated to have been created in 1955.This is not a case in which the auction purchaser can be said to be taking advantage of his own wrong. He cannot therefore be estopped from contending that the disclosure of the encumbrance is the operative cause of the fall in price.19. We may mention that the matter under consideration arose out of the Ordinary Original civil jurisdiction of the Calcutta High Court and therefore the Original Side Rules of the High Court would govern the matter. That will, however, not make any difference to our decision because Chapter XXV, Rule 7 of the Rules of 1914 provides by the Third clause for re-sale of the property in default of the payment of the price by the purchaser within the stipulated time.We see no substance in this contention. The time requisite for obtaining certified copies undoubtedly means "the time properly required" and an appellant cannot in the computation of the period of limitation for filing the appeal ask for exclusion of time which was spent negligently. But the facts and dates mentioned to us by the appellants counsel show that the settlement of the draft decree was adjourned from time to time by an officer of the court on being properly satisfied that there was good reason for adjournment. The auction purchaser cannot be blamed for the time thus spent in settling the draft of the decree under appeal. The argument must therefore fail.
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M/s. Hindustan Aluminium Corporation Limited Vs. State of Bihar and Others | to execute a mining lease in favour of the respondent company in respect of the lands as applied by the respondent company and to take all necessary steps to put the respondent company in possession thereof. The High Court held that the deed of lease executed by the State of Bihar in favour of Hindalco was ineffective and inoperative in respect of that part of the area which was allowed in favour of the respondent company. Aggrieved, the Hindalco has preferred appeal before this Court 6. The High Court allowed the writ petition filed by the respondent company and direct the State Government to execute mining lease in favour of the respondent company in respect of the area of 362 acres and it further declared that the mining lease executed in favour of the appellant was ineffective and inoperative with regard to that part of the area which was included in the respondent companys area. The result of these directions was that the mining lease already granted in favour of the appellant stood modified. These directions were issued by the High Court on the finding that the appellant had not applied for a mining lease in respect of any area covered by the respondent companys application and further the respondent company was not a party to the negotiations and agreement between the State of Bihar and the appellant company, therefore, the State Government was bound to execute and carry out the Central Governments direction dated April 20, 1971, by executing a lease in favour of the respondent company in respect of the entire area, in respect of which respondent had made an application. The High Court further held that the State had no authority in law to grant lease in appellants favour in respect of the area for which respondent company had made application for grant of mining lease. These findings of the High Court were challenged before us by the learned counsel appearing for the appellant. He took us through the record and pointed out that High Court committed error in recording these findings 7. Before we consider the findings recorded by the High Court it is necessary to bear in mind that the appellant as well as the respondent company both had annexed maps showing the details of plots and the area in respect of which they had applied for mining lease but the same are not on record. In the absence of the maps it is difficult to uphold the findings recorded by the High Court that the area which was lease out to the appellant for mining purposes was the same as had been claimed by the respondent company. But, even assuming that the respondent company had also applied for the same area in respect of which a mining lease was granted to the appellant the order of the State Government could not be vitiated. If two parties apply for grant of mining lease in respect of the same area, it is open to the State Government to grant mining lease to the party for the whole area or in respect of lesser area. The State Government is not bound to grant mining lease in respect of the entire area claimed by a party. Moreover, the appellants application dated March 3, 1965 was prior in time and, therefore, the State Government was justified in granting mining lease in respect of the area claimed by the appellant even though a part of the same area may have been claimed by the respondent company. It is relevant to note that the respondent company was closed and there was a lock-out in the company from September 15, 1973 till the date of the decision of the High court. It is further noteworthy that the respondent company in spite of service of notice of this Court has not put in appearance either at the time of the interim order or at the time of final hearing of the appeal. On behalf of the State Government also it has been submitted before us that the respondent company has not carried out mining operation in the area and it does not appear to have interest in the matter. These facts clearly show that the respondent company is not taking interest in these proceedings as it is no longer interested in the litigation8. On a careful scrutiny of the records, we find that the Central Government had by its order dated April 20, 1971 merely directed the State Government to grant a mining lease to the respondent company. The order did not specify any particular plot or area for the purpose. The State Government had challenged the validity of the Central Governments order and during the pendency of the petition there was a compromise between the State Government and the respondent company as a result of which latter agreed to accept mining lease for a reduced area of 327 acres instead of 362 acres. Since, the respondent company entered into compromise with the State Government and agreed to a lesser area, the order of the Central Government dated April 20, 1971 stood modified to that extent. The High Court in our opinion rightly directed the State Government to execute the mining lease in favour of the respondent company with regard to the reduced area, but the High Court committed error in interfering with the mining lease granted to the appellant earlier in time. The Central Governments order could not and did not affect the validity of the mining lease granted in appellants favour. Section 11 of the Act confers a preferential right on the party making application prior in time. Since the appellants application for the grant of lease was earlier in time the State Government was justified in granting lease in appellants favour in respect of even that portion of area in respect of which the respondent company may have also applied. We are, therefore, of the opinion that the High Court was not justified in interfering with the appellants mining lease | 1[ds]The State Government is not bound to grant mining lease in respect of the entire area claimed by a party. Moreover, the appellants application dated March 3, 1965 was prior in time and, therefore, the State Government was justified in granting mining lease in respect of the area claimed by the appellant even though a part of the same area may have been claimed by the respondent company. It is relevant to note that the respondent company was closed and there was ain the company from September 15, 1973 till the date of the decision of the High court. It is further noteworthy that the respondent company in spite of service of notice of this Court has not put in appearance either at the time of the interim order or at the time of final hearing of the appeal. On behalf of the State Government also it has been submitted before us that the respondent company has not carried out mining operation in the area and it does not appear to have interest in the matter. These facts clearly show that the respondent company is not taking interest in these proceedings as it is no longer interested in the litigation8. On a careful scrutiny of the records, we find that the Central Government had by its order dated April 20, 1971 merely directed the State Government to grant a mining lease to the respondent company. The order did not specify any particular plot or area for the purpose. The State Government had challenged the validity of the Central Governments order and during the pendency of the petition there was a compromise between the State Government and the respondent company as a result of which latter agreed to accept mining lease for a reduced area of 327 acres instead of 362 acres. Since, the respondent company entered into compromise with the State Government and agreed to a lesser area, the order of the Central Government dated April 20, 1971 stood modified to that extent. The High Court in our opinion rightly directed the State Government to execute the mining lease in favour of the respondent company with regard to the reduced area, but the High Court committed error in interfering with the mining lease granted to the appellant earlier in time. The Central Governments order could not and did not affect the validity of the mining lease granted in appellants favour. Section 11 of the Act confers a preferential right on the party making application prior in time. Since the appellants application for the grant of lease was earlier in time the State Government was justified in granting lease in appellants favour in respect of even that portion of area in respect of which the respondent company may have also applied. We are, therefore, of the opinion that the High Court was not justified in interfering with the appellants mining lease | 1 | 2,393 | 511 | ### Instruction:
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to execute a mining lease in favour of the respondent company in respect of the lands as applied by the respondent company and to take all necessary steps to put the respondent company in possession thereof. The High Court held that the deed of lease executed by the State of Bihar in favour of Hindalco was ineffective and inoperative in respect of that part of the area which was allowed in favour of the respondent company. Aggrieved, the Hindalco has preferred appeal before this Court 6. The High Court allowed the writ petition filed by the respondent company and direct the State Government to execute mining lease in favour of the respondent company in respect of the area of 362 acres and it further declared that the mining lease executed in favour of the appellant was ineffective and inoperative with regard to that part of the area which was included in the respondent companys area. The result of these directions was that the mining lease already granted in favour of the appellant stood modified. These directions were issued by the High Court on the finding that the appellant had not applied for a mining lease in respect of any area covered by the respondent companys application and further the respondent company was not a party to the negotiations and agreement between the State of Bihar and the appellant company, therefore, the State Government was bound to execute and carry out the Central Governments direction dated April 20, 1971, by executing a lease in favour of the respondent company in respect of the entire area, in respect of which respondent had made an application. The High Court further held that the State had no authority in law to grant lease in appellants favour in respect of the area for which respondent company had made application for grant of mining lease. These findings of the High Court were challenged before us by the learned counsel appearing for the appellant. He took us through the record and pointed out that High Court committed error in recording these findings 7. Before we consider the findings recorded by the High Court it is necessary to bear in mind that the appellant as well as the respondent company both had annexed maps showing the details of plots and the area in respect of which they had applied for mining lease but the same are not on record. In the absence of the maps it is difficult to uphold the findings recorded by the High Court that the area which was lease out to the appellant for mining purposes was the same as had been claimed by the respondent company. But, even assuming that the respondent company had also applied for the same area in respect of which a mining lease was granted to the appellant the order of the State Government could not be vitiated. If two parties apply for grant of mining lease in respect of the same area, it is open to the State Government to grant mining lease to the party for the whole area or in respect of lesser area. The State Government is not bound to grant mining lease in respect of the entire area claimed by a party. Moreover, the appellants application dated March 3, 1965 was prior in time and, therefore, the State Government was justified in granting mining lease in respect of the area claimed by the appellant even though a part of the same area may have been claimed by the respondent company. It is relevant to note that the respondent company was closed and there was a lock-out in the company from September 15, 1973 till the date of the decision of the High court. It is further noteworthy that the respondent company in spite of service of notice of this Court has not put in appearance either at the time of the interim order or at the time of final hearing of the appeal. On behalf of the State Government also it has been submitted before us that the respondent company has not carried out mining operation in the area and it does not appear to have interest in the matter. These facts clearly show that the respondent company is not taking interest in these proceedings as it is no longer interested in the litigation8. On a careful scrutiny of the records, we find that the Central Government had by its order dated April 20, 1971 merely directed the State Government to grant a mining lease to the respondent company. The order did not specify any particular plot or area for the purpose. The State Government had challenged the validity of the Central Governments order and during the pendency of the petition there was a compromise between the State Government and the respondent company as a result of which latter agreed to accept mining lease for a reduced area of 327 acres instead of 362 acres. Since, the respondent company entered into compromise with the State Government and agreed to a lesser area, the order of the Central Government dated April 20, 1971 stood modified to that extent. The High Court in our opinion rightly directed the State Government to execute the mining lease in favour of the respondent company with regard to the reduced area, but the High Court committed error in interfering with the mining lease granted to the appellant earlier in time. The Central Governments order could not and did not affect the validity of the mining lease granted in appellants favour. Section 11 of the Act confers a preferential right on the party making application prior in time. Since the appellants application for the grant of lease was earlier in time the State Government was justified in granting lease in appellants favour in respect of even that portion of area in respect of which the respondent company may have also applied. We are, therefore, of the opinion that the High Court was not justified in interfering with the appellants mining lease
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The State Government is not bound to grant mining lease in respect of the entire area claimed by a party. Moreover, the appellants application dated March 3, 1965 was prior in time and, therefore, the State Government was justified in granting mining lease in respect of the area claimed by the appellant even though a part of the same area may have been claimed by the respondent company. It is relevant to note that the respondent company was closed and there was ain the company from September 15, 1973 till the date of the decision of the High court. It is further noteworthy that the respondent company in spite of service of notice of this Court has not put in appearance either at the time of the interim order or at the time of final hearing of the appeal. On behalf of the State Government also it has been submitted before us that the respondent company has not carried out mining operation in the area and it does not appear to have interest in the matter. These facts clearly show that the respondent company is not taking interest in these proceedings as it is no longer interested in the litigation8. On a careful scrutiny of the records, we find that the Central Government had by its order dated April 20, 1971 merely directed the State Government to grant a mining lease to the respondent company. The order did not specify any particular plot or area for the purpose. The State Government had challenged the validity of the Central Governments order and during the pendency of the petition there was a compromise between the State Government and the respondent company as a result of which latter agreed to accept mining lease for a reduced area of 327 acres instead of 362 acres. Since, the respondent company entered into compromise with the State Government and agreed to a lesser area, the order of the Central Government dated April 20, 1971 stood modified to that extent. The High Court in our opinion rightly directed the State Government to execute the mining lease in favour of the respondent company with regard to the reduced area, but the High Court committed error in interfering with the mining lease granted to the appellant earlier in time. The Central Governments order could not and did not affect the validity of the mining lease granted in appellants favour. Section 11 of the Act confers a preferential right on the party making application prior in time. Since the appellants application for the grant of lease was earlier in time the State Government was justified in granting lease in appellants favour in respect of even that portion of area in respect of which the respondent company may have also applied. We are, therefore, of the opinion that the High Court was not justified in interfering with the appellants mining lease
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K.S.E.B Vs. Hindustan Const. Co.Ltd. | the chairman of the previous meeting or indeed even present at the meeting of which the minutes are a record. His action in signing them is merely to record that they are a correct record of the business transacted. There may however be occasions where the Chairman although having no reason to question the accuracy of the record, refuses to sign the minutes. In such cases a record should be made in the minutes to the effect that the minutes of the previous meeting were correct. 31. If there is a considerable interval between meetings, the chairman can sign the minutes as soon as they have been prepared: this power is useful too when the minutes are needed to confirm to third parties that a particular decision has been made. 32. In Chetkar Jha v. Viswanath Prasad Verma and Ors. (1971 (1) SCR 586 ) it was noted inter alia as follows: "The question then is whether the minutes, as drafted and placed before the meeting on July 3, 1963, could be altered as was done on that day. The alteration clearly was not of a minor or a clerical error but constituted a substantial change. Minutes of a meeting are recorded to safeguard against future disputes as to what had taken place thereat. They are a record of the fact that a meeting was held and of the decision taken thereat. Usually they are written up after the termination of the meeting, often from rough notes taken by the person who is to draft them and then are placed before the next meeting for what is generally known as "confirmation", though they are placed for verification and not for confirmation. Indeed, there is no question of any confirmation at the next meeting of a decision already taken, for, a decision once taken does not require any confirmation. Accordingly, when minutes of a meeting are placed before the next meeting only thing that can be done is to see whether the decision taken at the earlier meeting has been properly recorded or not. The accuracy of the minutes and not the validity of the decision is, therefore, before the meeting. Once a decision is duly taken it can only be changed by a substantive resolution properly adopted for such a change. When, therefore, a decision is taken and is minuted and such minutes are signed by the Chairman they become prima facie evidence of what took place at the meeting. In the case of company meetings, every meeting of directors or managers in respect of whose proceedings minutes have been so made is deemed to have been properly held and convened and all proceedings had there to have been duly had and all appointments of directors, managers or liquidators are deemed to be valid unless the contrary is proved. (cf. Halsburys Laws of England, 3rd Edn. vol. 6, p. 318). This is the position when minutes have been signed by the Chairman. After such signature they cannot be altered. But before the minutes are signed they can be altered if found to be inaccurate or not in accord with what was actually decided. If that were not to be so, it would result in great hardship and inconvenience, for, however, inaccurate they are, they cannot be altered to bring them in conformity with the actual decision. [of. Talbot, W.F., Company Meetings, (1951 ed. P.82). This was precisely what was done at the meeting of July 3, 1963 and no objection to the course adopted then by the Chairman and the Syndicate could be validly taken particularly as none present then had raised any protest against the alteration. The decision relied on by Mr. Jha in In re Botherham Alum and Chemical Company (1884 (25) Ch.D.p.103) is altogether on a different question and cannot be of any assistance. Since the Vice-Chancellor was right in his understanding that what had been decided at the meeting of May 7, 1963 was not to accept the Commissions recommendation and since such refusal to accept meant under Section 26(4) that the matter should be sent back to the Commission for recommendation, his action in asking the Commission to reconsider clearly fell under Section 26(4) and could not be said to be unwarranted as the Chancellor ruled. Since that was actually the decision of the Syndicate, the Vice-Chancellor was bound to follow it up by writing to the Commission to reconsider its recommendation. It is somewhat difficult to appreciate the Chancellors observation that that action was unwarranted as it was without the Syndicates sanction. Once the Syndicate had taken the decision of not accepting the recommendation, it was obligatory under s. 26(4) to refer back the matter to the Commission. The action taken by the Vice-Chancellor was consequential and required no further sanction of the Syndicate. Equally unsustainable was the view of the Chancellor that the alteration in the minutes on July 3, 1963 constituted a revision or a recission of the earlier decision or that such revision or recission could not be made before the expiry of six months as provided by the rule passed by the Syndicate in 1952. In our view, the revised advertisement, the remission of the matter to the Commission, the recommendation of respondent 1 by the Commission and the proceedings of the Syndicates meeting of July 3, 1963 including the revision of the draft minutes were all in accordance with the provisions of the Act and the University Statutes and therefore the Chancellor had no jurisdiction under Section 9(4) of the Act to annul the decision of the Syndicate or the proceedings of the meeting of July 3, 1963". 33. Above being the position, the High Courts view that the decision taken on 30.4.1994 has to be given effect to cannot be faulted. As rightly submitted by learned counsel for the respondents non confirmation of minutes does not have any effect on the decision taken at the earlier meeting. The position has been illuminatingly stated in Chetkar Jhas case (supra). | 0[ds]23. If one reads the minutes of 30.4.1994 which were not confirmed at the meeting held on 30.5.1994 it is clear that it was merely noted that the Board decided to discuss the issue further. The High Court rightly took note of the fact that nothing happened for a long time. Counter affidavit was filed stating that the Board has not finally accepted the recommendations of the Ad hoc Committee for payment of Rs.808.26 lakhs as it was under no legal obligation to implement the order. The Committee was constituted by the appellant-Board. The varying stands, taken at different points of time show that the object was to avoid payment. The Ad hoc Committee which was appointed consisted of experts in the fields and also Additional Secretary and Under Secretary to the Government. Twenty one sittings were held, site visits were made and voluminous documents were considered. After a very detailed consideration of the whole matter, recommendations were made for making payment of Rs.808.26 lakhs as against claim of Rs.1688.08 lakhs by the respondents. The Board constituted another Sub-Committee consisting of two members, one of whom was the Convener and representative of the Board in the Ad hoc Committee. After considering the recommendations and the report the Board decided to make payment of Rs.250 lakhs as an interim payment. On 30.4.1994 unanimously a decision was taken to pay Rs.808.26 lakhs as noted by the Ad hoc Committee.In Chetkar Jha v. Viswanath Prasad Verma and Ors. (1971 (1) SCR 586 ) it was noted inter alia asquestion then is whether the minutes, as drafted and placed before the meeting on July 3, 1963, could be altered as was done on that day. The alteration clearly was not of a minor or a clerical error but constituted a substantial change. Minutes of a meeting are recorded to safeguard against future disputes as to what had taken place thereat. They are a record of the fact that a meeting was held and of the decision taken thereat. Usually they are written up after the termination of the meeting, often from rough notes taken by the person who is to draft them and then are placed before the next meeting for what is generally known as "confirmation", though they are placed for verification and not for confirmation. Indeed, there is no question of any confirmation at the next meeting of a decision already taken, for, a decision once taken does not require any confirmation. Accordingly, when minutes of a meeting are placed before the next meeting only thing that can be done is to see whether the decision taken at the earlier meeting has been properly recorded or not. The accuracy of the minutes and not the validity of the decision is, therefore, before the meeting. Once a decision is duly taken it can only be changed by a substantive resolution properly adopted for such a change. When, therefore, a decision is taken and is minuted and such minutes are signed by the Chairman they become prima facie evidence of what took place at the meeting. In the case of company meetings, every meeting of directors or managers in respect of whose proceedings minutes have been so made is deemed to have been properly held and convened and all proceedings had there to have been duly had and all appointments of directors, managers or liquidators are deemed to be valid unless the contrary is proved. (cf. Halsburys Laws of England, 3rd Edn. vol. 6, p. 318). This is the position when minutes have been signed by the Chairman. After such signature they cannot be altered. But before the minutes are signed they can be altered if found to be inaccurate or not in accord with what was actually decided. If that were not to be so, it would result in great hardship and inconvenience, for, however, inaccurate they are, they cannot be altered to bring them in conformity with the actual decision. [of. Talbot, W.F., Company Meetings, (1951 ed. P.82). This was precisely what was done at the meeting of July 3, 1963 and no objection to the course adopted then by the Chairman and the Syndicate could be validly taken particularly as none present then had raised any protest against the alteration. The decision relied on by Mr. Jha in In re Botherham Alum and Chemical Company (1884 (25) Ch.D.p.103) is altogether on a different question and cannot be of any assistance. Since the Vice-Chancellor was right in his understanding that what had been decided at the meeting of May 7, 1963 was not to accept the Commissions recommendation and since such refusal to accept meant under Section 26(4) that the matter should be sent back to the Commission for recommendation, his action in asking the Commission to reconsider clearly fell under Section 26(4) and could not be said to be unwarranted as the Chancellor ruled. Since that was actually the decision of the Syndicate, the Vice-Chancellor was bound to follow it up by writing to the Commission to reconsider its recommendation. It is somewhat difficult to appreciate the Chancellors observation that that action was unwarranted as it was without the Syndicates sanction. Once the Syndicate had taken the decision of not accepting the recommendation, it was obligatory under s. 26(4) to refer back the matter to the Commission. The action taken by the Vice-Chancellor was consequential and required no further sanction of the Syndicate. Equally unsustainable was the view of the Chancellor that the alteration in the minutes on July 3, 1963 constituted a revision or a recission of the earlier decision or that such revision or recission could not be made before the expiry of six months as provided by the rule passed by the Syndicate in 1952. In our view, the revised advertisement, the remission of the matter to the Commission, the recommendation of respondent 1 by the Commission and the proceedings of the Syndicates meeting of July 3, 1963 including the revision of the draft minutes were all in accordance with the provisions of the Act and the University Statutes and therefore the Chancellor had no jurisdiction under Section 9(4) of the Act to annul the decision of the Syndicate or the proceedings of the meeting of July 3, 1963".Above being the position, the High Courts view that the decision taken on 30.4.1994 has to be given effect to cannot be faulted. As rightly submitted by learned counsel for the respondents non confirmation of minutes does not have any effect on the decision taken at the earlier meeting. The position has been illuminatingly stated in Chetkar Jhas case (supra). | 0 | 4,512 | 1,224 | ### Instruction:
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the chairman of the previous meeting or indeed even present at the meeting of which the minutes are a record. His action in signing them is merely to record that they are a correct record of the business transacted. There may however be occasions where the Chairman although having no reason to question the accuracy of the record, refuses to sign the minutes. In such cases a record should be made in the minutes to the effect that the minutes of the previous meeting were correct. 31. If there is a considerable interval between meetings, the chairman can sign the minutes as soon as they have been prepared: this power is useful too when the minutes are needed to confirm to third parties that a particular decision has been made. 32. In Chetkar Jha v. Viswanath Prasad Verma and Ors. (1971 (1) SCR 586 ) it was noted inter alia as follows: "The question then is whether the minutes, as drafted and placed before the meeting on July 3, 1963, could be altered as was done on that day. The alteration clearly was not of a minor or a clerical error but constituted a substantial change. Minutes of a meeting are recorded to safeguard against future disputes as to what had taken place thereat. They are a record of the fact that a meeting was held and of the decision taken thereat. Usually they are written up after the termination of the meeting, often from rough notes taken by the person who is to draft them and then are placed before the next meeting for what is generally known as "confirmation", though they are placed for verification and not for confirmation. Indeed, there is no question of any confirmation at the next meeting of a decision already taken, for, a decision once taken does not require any confirmation. Accordingly, when minutes of a meeting are placed before the next meeting only thing that can be done is to see whether the decision taken at the earlier meeting has been properly recorded or not. The accuracy of the minutes and not the validity of the decision is, therefore, before the meeting. Once a decision is duly taken it can only be changed by a substantive resolution properly adopted for such a change. When, therefore, a decision is taken and is minuted and such minutes are signed by the Chairman they become prima facie evidence of what took place at the meeting. In the case of company meetings, every meeting of directors or managers in respect of whose proceedings minutes have been so made is deemed to have been properly held and convened and all proceedings had there to have been duly had and all appointments of directors, managers or liquidators are deemed to be valid unless the contrary is proved. (cf. Halsburys Laws of England, 3rd Edn. vol. 6, p. 318). This is the position when minutes have been signed by the Chairman. After such signature they cannot be altered. But before the minutes are signed they can be altered if found to be inaccurate or not in accord with what was actually decided. If that were not to be so, it would result in great hardship and inconvenience, for, however, inaccurate they are, they cannot be altered to bring them in conformity with the actual decision. [of. Talbot, W.F., Company Meetings, (1951 ed. P.82). This was precisely what was done at the meeting of July 3, 1963 and no objection to the course adopted then by the Chairman and the Syndicate could be validly taken particularly as none present then had raised any protest against the alteration. The decision relied on by Mr. Jha in In re Botherham Alum and Chemical Company (1884 (25) Ch.D.p.103) is altogether on a different question and cannot be of any assistance. Since the Vice-Chancellor was right in his understanding that what had been decided at the meeting of May 7, 1963 was not to accept the Commissions recommendation and since such refusal to accept meant under Section 26(4) that the matter should be sent back to the Commission for recommendation, his action in asking the Commission to reconsider clearly fell under Section 26(4) and could not be said to be unwarranted as the Chancellor ruled. Since that was actually the decision of the Syndicate, the Vice-Chancellor was bound to follow it up by writing to the Commission to reconsider its recommendation. It is somewhat difficult to appreciate the Chancellors observation that that action was unwarranted as it was without the Syndicates sanction. Once the Syndicate had taken the decision of not accepting the recommendation, it was obligatory under s. 26(4) to refer back the matter to the Commission. The action taken by the Vice-Chancellor was consequential and required no further sanction of the Syndicate. Equally unsustainable was the view of the Chancellor that the alteration in the minutes on July 3, 1963 constituted a revision or a recission of the earlier decision or that such revision or recission could not be made before the expiry of six months as provided by the rule passed by the Syndicate in 1952. In our view, the revised advertisement, the remission of the matter to the Commission, the recommendation of respondent 1 by the Commission and the proceedings of the Syndicates meeting of July 3, 1963 including the revision of the draft minutes were all in accordance with the provisions of the Act and the University Statutes and therefore the Chancellor had no jurisdiction under Section 9(4) of the Act to annul the decision of the Syndicate or the proceedings of the meeting of July 3, 1963". 33. Above being the position, the High Courts view that the decision taken on 30.4.1994 has to be given effect to cannot be faulted. As rightly submitted by learned counsel for the respondents non confirmation of minutes does not have any effect on the decision taken at the earlier meeting. The position has been illuminatingly stated in Chetkar Jhas case (supra).
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of time show that the object was to avoid payment. The Ad hoc Committee which was appointed consisted of experts in the fields and also Additional Secretary and Under Secretary to the Government. Twenty one sittings were held, site visits were made and voluminous documents were considered. After a very detailed consideration of the whole matter, recommendations were made for making payment of Rs.808.26 lakhs as against claim of Rs.1688.08 lakhs by the respondents. The Board constituted another Sub-Committee consisting of two members, one of whom was the Convener and representative of the Board in the Ad hoc Committee. After considering the recommendations and the report the Board decided to make payment of Rs.250 lakhs as an interim payment. On 30.4.1994 unanimously a decision was taken to pay Rs.808.26 lakhs as noted by the Ad hoc Committee.In Chetkar Jha v. Viswanath Prasad Verma and Ors. (1971 (1) SCR 586 ) it was noted inter alia asquestion then is whether the minutes, as drafted and placed before the meeting on July 3, 1963, could be altered as was done on that day. The alteration clearly was not of a minor or a clerical error but constituted a substantial change. Minutes of a meeting are recorded to safeguard against future disputes as to what had taken place thereat. They are a record of the fact that a meeting was held and of the decision taken thereat. Usually they are written up after the termination of the meeting, often from rough notes taken by the person who is to draft them and then are placed before the next meeting for what is generally known as "confirmation", though they are placed for verification and not for confirmation. Indeed, there is no question of any confirmation at the next meeting of a decision already taken, for, a decision once taken does not require any confirmation. Accordingly, when minutes of a meeting are placed before the next meeting only thing that can be done is to see whether the decision taken at the earlier meeting has been properly recorded or not. The accuracy of the minutes and not the validity of the decision is, therefore, before the meeting. Once a decision is duly taken it can only be changed by a substantive resolution properly adopted for such a change. When, therefore, a decision is taken and is minuted and such minutes are signed by the Chairman they become prima facie evidence of what took place at the meeting. In the case of company meetings, every meeting of directors or managers in respect of whose proceedings minutes have been so made is deemed to have been properly held and convened and all proceedings had there to have been duly had and all appointments of directors, managers or liquidators are deemed to be valid unless the contrary is proved. (cf. Halsburys Laws of England, 3rd Edn. vol. 6, p. 318). This is the position when minutes have been signed by the Chairman. After such signature they cannot be altered. But before the minutes are signed they can be altered if found to be inaccurate or not in accord with what was actually decided. If that were not to be so, it would result in great hardship and inconvenience, for, however, inaccurate they are, they cannot be altered to bring them in conformity with the actual decision. [of. Talbot, W.F., Company Meetings, (1951 ed. P.82). This was precisely what was done at the meeting of July 3, 1963 and no objection to the course adopted then by the Chairman and the Syndicate could be validly taken particularly as none present then had raised any protest against the alteration. The decision relied on by Mr. Jha in In re Botherham Alum and Chemical Company (1884 (25) Ch.D.p.103) is altogether on a different question and cannot be of any assistance. Since the Vice-Chancellor was right in his understanding that what had been decided at the meeting of May 7, 1963 was not to accept the Commissions recommendation and since such refusal to accept meant under Section 26(4) that the matter should be sent back to the Commission for recommendation, his action in asking the Commission to reconsider clearly fell under Section 26(4) and could not be said to be unwarranted as the Chancellor ruled. Since that was actually the decision of the Syndicate, the Vice-Chancellor was bound to follow it up by writing to the Commission to reconsider its recommendation. It is somewhat difficult to appreciate the Chancellors observation that that action was unwarranted as it was without the Syndicates sanction. Once the Syndicate had taken the decision of not accepting the recommendation, it was obligatory under s. 26(4) to refer back the matter to the Commission. The action taken by the Vice-Chancellor was consequential and required no further sanction of the Syndicate. Equally unsustainable was the view of the Chancellor that the alteration in the minutes on July 3, 1963 constituted a revision or a recission of the earlier decision or that such revision or recission could not be made before the expiry of six months as provided by the rule passed by the Syndicate in 1952. In our view, the revised advertisement, the remission of the matter to the Commission, the recommendation of respondent 1 by the Commission and the proceedings of the Syndicates meeting of July 3, 1963 including the revision of the draft minutes were all in accordance with the provisions of the Act and the University Statutes and therefore the Chancellor had no jurisdiction under Section 9(4) of the Act to annul the decision of the Syndicate or the proceedings of the meeting of July 3, 1963".Above being the position, the High Courts view that the decision taken on 30.4.1994 has to be given effect to cannot be faulted. As rightly submitted by learned counsel for the respondents non confirmation of minutes does not have any effect on the decision taken at the earlier meeting. The position has been illuminatingly stated in Chetkar Jhas case (supra).
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Bhau Ram Vs. B. Baijnath Singh & Others | portion of land recognised as such at the revenue survey in respect of which the area and land revenue payable are separately entered under an indicative number in the land records : s. 2(13). Sub-division of a survey-number means portion of a survey-number in respect of which the area and the land revenue payably are separately entered in the land records under an indicative number subordinate to that of the survey-number of which it is the portion : s. 2(12). Section 184 provides that when an occupant in a survey-number exchanges his interest in it for land elsewhere, then this exchange would not create any right of pre-emption in favour of the other persons interested in the survey-number, part of or interest in, which is exchanged. The substance of the matter therefore is that the Berar Code creates a right of pre-emption in the holder of interest in a survey-number only when anybody having an interests in any land in that survey-number sells it for a money consideration to a stranger provided that the interest sold is in unalienated land held for agriculture purpose.In the present case, the vendor owned sub-division No. 1 in survey-number 285 and the respondents jointly owned sub-division No. 2 in the same survey-number and in that right claimed to pre-empt the sale by the vendor. There is further no controversy that the lands were unalienated land held for agriculture purpose. 33. Mr. Sovani appearing for the respondents said that under the Berar Code of 1928 and under the previous land laws which it replaced, an occupant is one who obtains land from the Government on the terms mentioned in the Code and that it is only against such an occupant that a right of pre-emption is created by that Code. He therefore contended that the right to property being created on the term that it would be liable to pre-emption, it was not a case of restriction but one of the nature of the property itself and therefore no question of infringement of Art. 19(1)(f) arises by the exercise of that right. As in our opinion the respondents should succeed in this appeal for the reasons to be presently discussed, we think it unnecessary to pronounce on this contention of Mr. Sovani. We have besides no materials to show as to when the right of ownership in the property involved in this case was first created. It may have been created under a law other than the Code or its predecessors. In that case Mr. Sovanis argument would lose its principle force. Further we have not all the earlier land laws of Berar before us. It would not be right on the materials now before us to investigate and pronounce on the question raised by Mr. Sovani. 34. It is clear from what we have earlier stated that the lands included in one survey-number are contiguous. It is only when an interest in such lands is sold that under the Berar Code a right of pre-emption arises. It would follow inevitably that the result of the exercise of this right would be to effect a consolidation of holdings. Such a consolidation would undoubtedly be of a great benefit to the agriculturist and to the community as a whole. The evils of fragmentation of agricultural holdings in our country are too well known to need detailed discussion. Shortly put it would help an agriculturist greatly if he could extend his holdings thereby making agricultural operation economical and more productive with the resultant benefit to the country. A law which therefore tends towards consolidation has great advantages.Ramchandra Krishnaji Dhagale v. Janardhan Krishnappa Marwar (A.I.R. (1955) Nag. 225.) was a case concerning pre-emption under the Berar Code and was heard by a Full Bench of the Nagpur High Court. The Bench presided over by the present Chief Justice of this Court found no difficulty in upholding the validity of the provisions in that Code creating the right of pre-emption. With regard to the question of consolidation, Kaushalendra Rao J. observed at p. 232."It is not without significance that while in a part of the State the Central Provinces-special legislation had to be undertaken for checking the evil of fragmentation by enacting a measure like the Central Provinces Consolidation of the Holdings Act (Act VIII, 1928) no such necessity has so far been felt in Berar presumably because of the operation of the law of pre-emption." 35. This observation undoubtedly is of great authority coming from a Judge of eminence familiar with the conditions in Berar. It has not even been suggested that the observation was not justified. But it was said that the present tendency of legislation is fix a ceiling as to land that can be held by a person and that this shows that consolidation of holdings is no longer considered desirable. We are entirely unable to agree with this view. The idea behind fixing a ceiling for holding of land is to make an equitable distribution of the available land possible. But this is subject to the idea that each holding should be economical. In other words, the law as to ceiling does not discourage consolidation of holdings but is intended only to prevent undue grabbing of lands by persons with the necessary means to do the same. Section 184 by providing that no right of pre-emption would arise on the exchange of lands clearly indicates that the object of the Berar Code in providing for the right of pre-emption is to achieve consolidation of holding. We feel no doubt that the benefits to arise out of consolidation far outweigh the disadvantages caused by the restriction put by it on the right to property guaranteed by Art. 19(1)(f).We, therefore, come to the conclusion that the provisions in Chapter 14 of the Berar Land Revenue Code creating a right of pre-emption on the sale of land are valid and fully within the Constitution. This appeal therefore must also fail and we would dismiss it with costs. | 1[ds]Article 19(i)(f) gives a fundamental right to a citizen to acquire, hold and dispose of property and cl. (5) of that Article permits reasonable restrictions to be imposed by law on this right in the interests of the general public. There can be no doubt that a law of pre-emption does impose restriction on the fundamental right guaranteed under Art. 19(i)(f) and the question is whether the restriction imposed in the Rewa case is reasonable and in the interests of the general public. Section 10 of the Rewa Act applies to all kinds of property, whether urban or rural, and whether agricultural land or house property, and it is in that context that its reasonableness will have to be judged. There is nothing to show in this case that there was any pre-existing custom of a similar nature prevalent in any part of the area to which the Rewa Act applies, and even if any custom was prevalent in any area, there is nothing to show what precisely that custom was. In any case even if any custom was prevalent in this area before the Rewa Act came into force and it was held reasonable by courts, that would not in our opinion be a decisive factor in considering whether the restrictions imposed by the Rewa Act are reasonable or not. We have to judge the reasonableness of the law in the context of the fundamental rights which were for the first time conferred by the Constitution on the people of this country and which were not there when the courts might have considered the reasonableness of the custom, if any in the context of things then prevalent. Nor do we think that the fact that the right of pre-emption may not be actually exercised in the case of even a large number of sales can have any bearing on the question whether the law imposing the restriction is reasonable or not.Let us therefore see what the Rewa Act provides. Section 10, as we have pointed out, gives a right of pre-emption first to co-sharers and secondly to owners of adjoining property to which we shall refer hereafter as pre-emption by vicinage. We are not concerned in the present appeal with the case of co-sharers, with which we shall deal in a later part of the judgment. Ordinarily, if there was no law of pre-emption a vendor would be entitled to sell his property to anybody for any price that may be settled between him the purchaser. This right is clearly restricted by the law of pre-emption which may in many cases result in a depression of the price which the vendor may otherwise be able to get for his property. Further the Act provides that if the vendor and the vendee desire that there may be no suit for pre-emption the vendor can give notice to possible pre-emptors of the price at which the vendor is willing to sell such property. This notice is given through the court within the local limits of whose jurisdiction the property is situate. On such notices being given to possible pre-emptors, the pre-emptor will lose the right of pre-emption unless within one month from the date of service of the such notice, he or his agent pays or tenders the price to the vendor : see ss. 12 and 13. Further, s. 15 shows that even where such a notice has been given and the price has not been paid or tendered, a suit for pre-emption can be filed after the sale in spite of s. 13 on the ground that the price stated in the notice was not fixed in good faith. The court then decides whether the price stated in the notice is the proper price, and if it comes to the conclusion that it is not it has the power to fix such price as appears to it to be the fair market price of the property sold. Clearly, therefore, there is a restriction on the right of the vendor to sell the property at any price to which the purchaser has agreed and a suit for pre-emption can be filed even where a pre-emptor is not prepared to pay the agreed price and can have it reduced. The notice therefore provided in s. 12 and the failure of the pre-emptor to comply with it under s. 13 are really of not such value, for the pre-emptor can always get over the provisions of s. 13 by alleging that the price entered in the notice was not fixed in good faith. In effect, therefore, every sale will be open to pre-emption and the law of pre-emption thus provides a crop of litigation for the vendor and the vendee. This is the first result of the law of pre-emption. Further we see no reason to think that the law of pre-emption prevents the sale of property at an unconscionable price for if a vendor is demanding an unconscionable price he will not be able to find a vendee. In any case the price is always settled by agreement between the vendor and the vendee and there is no reason to hold that such an agreed price would be an unconscionable price. Nor do we think that the law of pre-emption in intended to provide for fixation of reasonable price by courts; therefore that can hardly be a reason to hold that it is a reasonable restriction in the interests of the general public on the right of the vendor under Art. 19(1)(f). We do not think that the restrictions placed by the law of pre-emption in a case based on vicinage have any effect on prices being reasonably fixed, and the main effect we can see is that the law may give rise to a crop of litigation. We cannot therefore see any advantage to the general public by such a law of pre-emption and in any case the disadvantage certainly overweighs the advantage that may result to a small section of the public.Now let us look at the matter from the point of view of the vendee. He comes to an agreement with the vendor to purchase the property at a certain agreed price. Let us also assume that the vendor has given notice under s. 12 and no action has been taken by the pre-emptor under s. 13. Thereafter the vendee purchases the property and would be entitled to hope that as the price was not paid or tendered under s. 13, he would be able to hold and enjoy the property without any further trouble. But as we have pointed out already even though ss. 12 and 13 are there it is always open to a pre-emptor to file a suit for pre-emption after having failed to take action under s. 13 by merely alleging that the price stated in the notice given to him was not fixed in good faith. So the vendee who may have purchased the property after action being taken under ss. 12 and 13 is forced into litigation on the ground that the price agreed is presumably too high. Thus there is clearly a restriction on his right to hold property, and even though the vendee may eventually succeed on the footing that the price agreed is not above the market value he is compelled to go through litigation in order to hold the property. Such a restriction would thus appear to be unreasonable for it allows the pre-emptor to go to court even after ss. 12 and 13 have been complied withThe reasonableness of a custom is, however, not a constant factor and what is reasonable at one stage of the progress of society may not be so at another stage. It is in this context that we have to judge the law of pre-emption as it was later put into the various statutes. Before the Constitution came into force, the statutes if they were passed by competent authority, could not be challenged; but we have now to judge the reason ableness of these statutes in the light of the fundamental rights guaranteed to the citizens of this country by the Constitution. In a society where certain classes were privileged and preferred to live in groups and there were discriminations, on grounds of religion, race and caste, there may have been some utility in allowing persons to prevent a stranger from acquiring property in an area which had been populated by a particular fraternity of class of people and in those times a right of pre-emption which would oust a stranger from the neighbourhood may have been tolerable or reasonable. But the Constitution now prohibits discrimination against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them under Art. 15 and guarantees a right to every citizen to acquire, hold and dispose of property, subject only to restrictions which may be reasonable and in the interests of the general public. Though therefore the ostensible reason for pre-emption may be vicinage, the real reason behind the law was to prevent a stranger from acquiring property in any area which had been populated by a particular fraternity or class of people. In effect, therefore, the law of pre-emption based on vicinage was really meant to prevent strangers i.e. people belonging to different religion, race or caste, from acquiring property. Such division of society now into groups and exclusion of strangers from any locality cannot be considered reasonable, and the main reason therefore which sustained the law of pre-emption based on vicinage in previous times can have no force now and the law must be held to impose an unreasonable restriction on the right to acquire, hold and dispose of property as now guaranteed under Art. 19(1)(f), for it is impossible to see such restrictions as reasonable and in the interests of the general public in the state of society in the present day.It is urged, however, that at any rate, in the case of agricultural properties, pre-emption by vicinage results in consolidation of agricultural lands, and that at any rate is an advantage. How far the argument of consolidation can be availed of now when we find that in most States laws are being passed which are putting ceilings on agricultural holdings is a matter which it is unnecessary to consider in the present case, for the Rewa Act applies not only to agricultural holdings but also to burn property including house property. There is no question of any advantage arising out of consolidation where one is dealing with urban property or house property. The matter of consolidation might have had some bearing if the Rewa Act was applicable to agricultural lands only. But as it applies to urban lands as well as house property where no question of consolidation of holdings arises, the impugned provision cannot be held to be a reasonable restriction in the interests of the general public on the ground that it leads to consolidation of agricultural holdings. There is no way of severing the application of the law so far as it relates to agricultural holdings from its application to urban or house property and therefore the entire provision as to vicinage must fall, even if something could be said in its favour with respect to agriculture holding on the ground of consolidation. We are therefore of opinion that the second clause of s. 10 imposes an unreasonable restriction on the right to acquire, hold or dispose of property guaranteed under Art. 19(1)(f) of the Constitution and must be struck down. So far as the proviso is concerned it applies both to the first and the second clause and it will survive for the purpose of the first clause only, which is not in dispute before us.In this view of the matter C.A. 270 of 1955 must succeedThis brings us to the consideration of the first ground which gives a right of pre-emption to a co-sharer in the property sold. The question as to the constitutionality of a law of pre-emption in favour of a co-sharer has been considered by a number of High Courts and the constitutionality has been uniformly upheld. We have no doubt that a law giving such a right imposes a reasonable restriction which is in the interest of the general public. If an outsider is introduced is a co-sharer in a property it will make common management extremely difficult and destroy the benefits of ownership in common. The result of the law of pre-emption in favour of a co-sharer is that if sales take place the property may eventually come into the hands of one co-sharer as full owner and that would naturally be a great advantage the advantage is all the greater in the case of a residential house and s. 16 is concerned with urban property; for the introduction of an outsider in a residential house would lead to all kinds of complications. The advantages arising from such a law of pre-emption are clear and in our opinion outweigh the disadvantages which the vendor may suffer on account of his inability to sell the property to whomsoever he pleases. The vendee also cannot be said to suffer much by such a law because he is merely deprived of the right of owning an undivided share of the property. On the whole it seems to us that a right of pre-emption based on co-sharership is a reasonable restriction on the right to acquire, hold and dispose of property and is in the interests of the general publicThe same reasoning in our opinion will apply to the third ground, "where the sale is of a property having a staircase common to other properties, in the owners of such properties". This ground stands on the same footing practically as the first ground relating to co-sharers, and for the same reason we hold that it is a reasonable restriction, and is in the interest of general public.Turning now to the fourth ground, "where the sale is of a property having a common entrance from the street with other properties, in the owners of such properties", this ground is in our opinion similar to the third ground, the only difference being that in one case there is a common staircase while in the other case there is a common private passage from the street. The idea behind this ground seems to be that the buildings are in a common compound and perhaps were originally put up by members of one family or one group with a common private passage from the public street. In such a case the owners of the buildings would stand more or less in the position of co-sharers, though actually there may be no co-sharership in the house sold. But as we have said this case would approximate to cases of a common staircase and co-sharer; therefore, for reasons given in the case of co-sharers we uphold the right of pre-emption covered by the fourth ground in s. 16. The case falling under the fourth ground must be distinguished from katras which are exempt from the provisions of the Act in s. 5With regard to exemptions contained in s. 5 with respect to shop, serai, katra, dharmsala, mosque or other similar building, these are obviously distinguishable, for they are generally places to which public resort. In particular stress was laid on the exemption of katra. A katra is not defined in the Act; but it appears that the primary meaning of the word "katra" is enclosure and the secondary meaning is market; see Karim Ahmad v. Rahmat Elahi. Generally, therefore, a katra would be a business locality though there might be purely residential katras. However, even purely residential katras would consist of a large number of houses to which a large number of people will resort. In the circumstances, the premises exempted under s. 5 are practically of one class, namely, those to which the public has to resort and it is this class which is distinct from the rest of residential property meant for private residence of individuals which has been exempted. In the circumstances we do not think that s. 16 can be said to violate Art. 14 of the Constitution in the light of s. 5 of the Punjab Act. In the result, the appeal fails and is hereby dismissed. The case will now go back for disposal according to law and we trust its decision will be expeditedTherefore, the law of pre-emption in s. 174 of the Code applies to those who are co-sharers or akin to co-sharers and results in consolidation of holdings generally upto about thirty acres, this being the general extent of a survey number. The right of pre-emption is further restricted under s. 184 which provides that no right of pre-emption would arise on an exchange of land with the occupant of another survey number. In effect therefore the Code creates a right of pre-emption in the holder of an interest in a survey number only when an occupant having an interest in that survey number sells it or there is forclosure or a usufructury mortgage, or a lease exceeding fifteen years is created in favour of a stranger subject to the land being unalienated land held for agricultural purposes. Considering therefore the nature of the right created under the Code, we have no hesitation in coming to the conclusion that this right is in reality in favour of a co-sharer strictly so-called or some one who is akin to a co-sharer, and the reasons which we have already indicated when dealing with the Punjab Act relating to co-sharers will apply with full force to the right created under the Code with this addition that this being agricultural land there will be further advantage inasmuch as the right of pre-emption would result in consolidation of holdings within a survey number which as we have said is generally of an extent of thirty acres. We are therefore of opinion that the view taken in Ramchandra v. Janardan (A.I.R. 1954 Nag. 225.) to the effect that the law of pre-emption provided in Chap. XIV of the Code does not infringe Art. 19(1)(f), is correct. This being the only point urged before us in the appeal, we are of opinion that the appeal must fail.We therefore allow C.A. 270 of 1955 with costs and dismiss the suit for pre-emption. No order as to costs in this appeal C.A. 595 of 1960 and C.A. 430 of 1958 are hereby dismissed with costs. | 1 | 14,293 | 3,330 | ### Instruction:
Predict whether the case will result in an affirmative (1) or negative (0) decision for the appeal, and then provide a thorough explanation using key sentences to support your prediction.
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portion of land recognised as such at the revenue survey in respect of which the area and land revenue payable are separately entered under an indicative number in the land records : s. 2(13). Sub-division of a survey-number means portion of a survey-number in respect of which the area and the land revenue payably are separately entered in the land records under an indicative number subordinate to that of the survey-number of which it is the portion : s. 2(12). Section 184 provides that when an occupant in a survey-number exchanges his interest in it for land elsewhere, then this exchange would not create any right of pre-emption in favour of the other persons interested in the survey-number, part of or interest in, which is exchanged. The substance of the matter therefore is that the Berar Code creates a right of pre-emption in the holder of interest in a survey-number only when anybody having an interests in any land in that survey-number sells it for a money consideration to a stranger provided that the interest sold is in unalienated land held for agriculture purpose.In the present case, the vendor owned sub-division No. 1 in survey-number 285 and the respondents jointly owned sub-division No. 2 in the same survey-number and in that right claimed to pre-empt the sale by the vendor. There is further no controversy that the lands were unalienated land held for agriculture purpose. 33. Mr. Sovani appearing for the respondents said that under the Berar Code of 1928 and under the previous land laws which it replaced, an occupant is one who obtains land from the Government on the terms mentioned in the Code and that it is only against such an occupant that a right of pre-emption is created by that Code. He therefore contended that the right to property being created on the term that it would be liable to pre-emption, it was not a case of restriction but one of the nature of the property itself and therefore no question of infringement of Art. 19(1)(f) arises by the exercise of that right. As in our opinion the respondents should succeed in this appeal for the reasons to be presently discussed, we think it unnecessary to pronounce on this contention of Mr. Sovani. We have besides no materials to show as to when the right of ownership in the property involved in this case was first created. It may have been created under a law other than the Code or its predecessors. In that case Mr. Sovanis argument would lose its principle force. Further we have not all the earlier land laws of Berar before us. It would not be right on the materials now before us to investigate and pronounce on the question raised by Mr. Sovani. 34. It is clear from what we have earlier stated that the lands included in one survey-number are contiguous. It is only when an interest in such lands is sold that under the Berar Code a right of pre-emption arises. It would follow inevitably that the result of the exercise of this right would be to effect a consolidation of holdings. Such a consolidation would undoubtedly be of a great benefit to the agriculturist and to the community as a whole. The evils of fragmentation of agricultural holdings in our country are too well known to need detailed discussion. Shortly put it would help an agriculturist greatly if he could extend his holdings thereby making agricultural operation economical and more productive with the resultant benefit to the country. A law which therefore tends towards consolidation has great advantages.Ramchandra Krishnaji Dhagale v. Janardhan Krishnappa Marwar (A.I.R. (1955) Nag. 225.) was a case concerning pre-emption under the Berar Code and was heard by a Full Bench of the Nagpur High Court. The Bench presided over by the present Chief Justice of this Court found no difficulty in upholding the validity of the provisions in that Code creating the right of pre-emption. With regard to the question of consolidation, Kaushalendra Rao J. observed at p. 232."It is not without significance that while in a part of the State the Central Provinces-special legislation had to be undertaken for checking the evil of fragmentation by enacting a measure like the Central Provinces Consolidation of the Holdings Act (Act VIII, 1928) no such necessity has so far been felt in Berar presumably because of the operation of the law of pre-emption." 35. This observation undoubtedly is of great authority coming from a Judge of eminence familiar with the conditions in Berar. It has not even been suggested that the observation was not justified. But it was said that the present tendency of legislation is fix a ceiling as to land that can be held by a person and that this shows that consolidation of holdings is no longer considered desirable. We are entirely unable to agree with this view. The idea behind fixing a ceiling for holding of land is to make an equitable distribution of the available land possible. But this is subject to the idea that each holding should be economical. In other words, the law as to ceiling does not discourage consolidation of holdings but is intended only to prevent undue grabbing of lands by persons with the necessary means to do the same. Section 184 by providing that no right of pre-emption would arise on the exchange of lands clearly indicates that the object of the Berar Code in providing for the right of pre-emption is to achieve consolidation of holding. We feel no doubt that the benefits to arise out of consolidation far outweigh the disadvantages caused by the restriction put by it on the right to property guaranteed by Art. 19(1)(f).We, therefore, come to the conclusion that the provisions in Chapter 14 of the Berar Land Revenue Code creating a right of pre-emption on the sale of land are valid and fully within the Constitution. This appeal therefore must also fail and we would dismiss it with costs.
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1
### Explanation:
a co-sharer is that if sales take place the property may eventually come into the hands of one co-sharer as full owner and that would naturally be a great advantage the advantage is all the greater in the case of a residential house and s. 16 is concerned with urban property; for the introduction of an outsider in a residential house would lead to all kinds of complications. The advantages arising from such a law of pre-emption are clear and in our opinion outweigh the disadvantages which the vendor may suffer on account of his inability to sell the property to whomsoever he pleases. The vendee also cannot be said to suffer much by such a law because he is merely deprived of the right of owning an undivided share of the property. On the whole it seems to us that a right of pre-emption based on co-sharership is a reasonable restriction on the right to acquire, hold and dispose of property and is in the interests of the general publicThe same reasoning in our opinion will apply to the third ground, "where the sale is of a property having a staircase common to other properties, in the owners of such properties". This ground stands on the same footing practically as the first ground relating to co-sharers, and for the same reason we hold that it is a reasonable restriction, and is in the interest of general public.Turning now to the fourth ground, "where the sale is of a property having a common entrance from the street with other properties, in the owners of such properties", this ground is in our opinion similar to the third ground, the only difference being that in one case there is a common staircase while in the other case there is a common private passage from the street. The idea behind this ground seems to be that the buildings are in a common compound and perhaps were originally put up by members of one family or one group with a common private passage from the public street. In such a case the owners of the buildings would stand more or less in the position of co-sharers, though actually there may be no co-sharership in the house sold. But as we have said this case would approximate to cases of a common staircase and co-sharer; therefore, for reasons given in the case of co-sharers we uphold the right of pre-emption covered by the fourth ground in s. 16. The case falling under the fourth ground must be distinguished from katras which are exempt from the provisions of the Act in s. 5With regard to exemptions contained in s. 5 with respect to shop, serai, katra, dharmsala, mosque or other similar building, these are obviously distinguishable, for they are generally places to which public resort. In particular stress was laid on the exemption of katra. A katra is not defined in the Act; but it appears that the primary meaning of the word "katra" is enclosure and the secondary meaning is market; see Karim Ahmad v. Rahmat Elahi. Generally, therefore, a katra would be a business locality though there might be purely residential katras. However, even purely residential katras would consist of a large number of houses to which a large number of people will resort. In the circumstances, the premises exempted under s. 5 are practically of one class, namely, those to which the public has to resort and it is this class which is distinct from the rest of residential property meant for private residence of individuals which has been exempted. In the circumstances we do not think that s. 16 can be said to violate Art. 14 of the Constitution in the light of s. 5 of the Punjab Act. In the result, the appeal fails and is hereby dismissed. The case will now go back for disposal according to law and we trust its decision will be expeditedTherefore, the law of pre-emption in s. 174 of the Code applies to those who are co-sharers or akin to co-sharers and results in consolidation of holdings generally upto about thirty acres, this being the general extent of a survey number. The right of pre-emption is further restricted under s. 184 which provides that no right of pre-emption would arise on an exchange of land with the occupant of another survey number. In effect therefore the Code creates a right of pre-emption in the holder of an interest in a survey number only when an occupant having an interest in that survey number sells it or there is forclosure or a usufructury mortgage, or a lease exceeding fifteen years is created in favour of a stranger subject to the land being unalienated land held for agricultural purposes. Considering therefore the nature of the right created under the Code, we have no hesitation in coming to the conclusion that this right is in reality in favour of a co-sharer strictly so-called or some one who is akin to a co-sharer, and the reasons which we have already indicated when dealing with the Punjab Act relating to co-sharers will apply with full force to the right created under the Code with this addition that this being agricultural land there will be further advantage inasmuch as the right of pre-emption would result in consolidation of holdings within a survey number which as we have said is generally of an extent of thirty acres. We are therefore of opinion that the view taken in Ramchandra v. Janardan (A.I.R. 1954 Nag. 225.) to the effect that the law of pre-emption provided in Chap. XIV of the Code does not infringe Art. 19(1)(f), is correct. This being the only point urged before us in the appeal, we are of opinion that the appeal must fail.We therefore allow C.A. 270 of 1955 with costs and dismiss the suit for pre-emption. No order as to costs in this appeal C.A. 595 of 1960 and C.A. 430 of 1958 are hereby dismissed with costs.
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Anurag Mehrotra & Others Vs. The State of Maharashtra Through The Secretary, Home Department & Others | Govardhan was bed-ridden. The medical papers show that for short time he was sick but he had recovered. Admittedly he is Director of the company and there are specific allegations against him that he made false representation and induced the first informant to purchase the vehicle.14. The record collected by police and the submissions made show that on the date when the vehicle was handed over to the first informant, it had running of more than 40,000 kilometers though it is the case of the first informant that there was running of more than 80,000 kilometers. The independent record shows that it had running of more than 40,000 kilometers when the vehicle was handed over. It was submitted that vehicle was handed over 2-3 months prior to registration. The running of 40,000 kilometers is of that date. That record is sufficient to show that it was a used vehicle and it was being used from the year 2012. More observations can be made with regard to the illegal manner in which it was used. Unfortunately other material is not collected by police to ascertain as to how for such long period the vehicle was used without getting proper registration. Ordinarily only for a short period such vehicles are used on temporary registration and they are required to be sold and after that the other vehicles are used for giving the Demo to the customers. In any case, it cannot be said in the present matter that new model of 2014 or 2015 model was sold by Salasar Dealer to the first informant. Considering the price which was taken from the first informant and the allegations and the other record, this Court holds that it is not possible to give relief in favour of the applicants from proceeding Nos.1004/2018 and 994/2018.15. Allegations made as against the applicant from Proceeding No.951/2018 are of different nature. It was submitted for the first informant that when the Minister of Public Enterprises, Government of India, had contacted the Company to inform the grievance of the first informant, who is a sitting Member of Parliament, the Company had informed that there was nothing wrong in the transaction and so it can be said that the applicant from the Proceeding No.951/2018 had also joined hands with the owners of Salasar Dealer. This submission is not at all acceptable. First the vehicle was purchased by Nagpur Dealer and then the vehicle was purchased by Salasar Dealer from Nagpur Dealer and the Company had no control over those transactions. Similarly the Company had no control over the representations made by Salasar Dealer with the first informant and it cannot be said that false representations were made by the Company that it was 2015 model. The offence of cheating is completed when on the basis of false representation, consideration passes. Before coming into picture of applicant from proceeding 951/2018, offence was complete and support or explanation given for Salasar by the manufacturer after the offence cannot be called as the act of abating the crime of cheating or any offence creating false record. This Court has no hesitation to hold that relief needs to be granted in favour of the applicant from Criminal Application No.951/2018. On the basis of the allegations made against this applicant and the aforesaid material, it is not possible to even frame charge against this applicant and nothing can be achieved by asking him to face trial for the aforesaid offences.16. Both the sides placed reliance on some reported cases in the present matter. Learned Senior Counsel for the first informant placed reliance on the cases reported as :(1) AIR 1957 Calcutta 520 (In re Central Calcutta Bank Ltd (in Liqn.) (2) (2010) 10 SCC 361 (V.P. Shrivastava v. Indian Explosives Ltd.) (3) (1999) 3 SCC 259 (Rajesh Bajaj v. State NCT of Delhi.) (4) (2009) 4 SCC 439 (Mahesh Chaudhary v. State of Rajasthan) (5) (2013) 11 SCC 559 (C.P. Subhash v. Inspector of Police, Chennai) (6) (2004) 12 SCC 336 (Damodar v. State of Rajasthan) (7) (2017) 15 SCC 560 (State v. Anup Kumar Srivastava) (8) (2014) 14 SCC 22 (Mosiruddin Munshi v. Mohd. Siraj) 17. The learned counsel Shri. K.C. Sant for the applicant from Criminal Application No.1004/2018 has placed reliance on the case reported as AIR 1992 SC 604 (State of Haryana v. Ch. Bhajan Lal).18. The Apex Court has discussed the law developed on the power of this Court under Article 226 of the Constitution of India and section 482 of the Code of Criminal Procedure with regard to the proceedings like the present one. In all these cases cited by both the sides, the Apex Court has laid down that when there are allegations which constitute cognizable offence, at initial stage it is never desirable to quash the F.I.R. For giving such relief, there should be the circumstances as mentioned in the case of Bhajanlal (cited supra). It is also made clear that the Court needs to keep in mind the statutory power given to police of investigation into cognizable offences and ordinarily the Court needs to avoid interference into the investigation at the initial stage. Submissions were made that not only in the present matter but in other matters it is noticed that Salasar Dealer was involved in creation of false record and complaints of cheating are filed against it by other persons. In such cases only after thorough investigation more material can be collected and more offences can be detected. Such offences involve fraud against Government also as it is noticed that taxes like VAT or taxes to the local body are not paid when such transactions are made by the Dealer. There is power with the investigating agency to make investigation on that line also. Thus this is not a fit case to grant relief in favour of the persons who were doing business of dealership like the applicants from Proceeding Nos.1004/2018 and 994/2018 but the relief can be granted in favour of applicant from Proceeding No.951/2018. | 1[ds]18. The Apex Court has discussed the law developed on the power of this Court under Article 226 of the Constitution of India and section 482 of the Code of Criminal Procedure with regard to the proceedings like the present one. In all these cases cited by both the sides, the Apex Court has laid down that when there are allegations which constitute cognizable offence, at initial stage it is never desirable to quash the F.I.R. For giving such relief, there should be the circumstances as mentioned in the case of Bhajanlal (cited supra). It is also made clear that the Court needs to keep in mind the statutory power given to police of investigation into cognizable offences and ordinarily the Court needs to avoid interference into the investigation at the initial stage. Submissions were made that not only in the present matter but in other matters it is noticed that Salasar Dealer was involved in creation of false record and complaints of cheating are filed against it by other persons. In such cases only after thorough investigation more material can be collected and more offences can be detected. Such offences involve fraud against Government also as it is noticed that taxes like VAT or taxes to the local body are not paid when such transactions are made by the Dealer. There is power with the investigating agency to make investigation on that line also. Thus this is not a fit case to grant relief in favour of the persons who were doing business of dealership like the applicants from Proceeding Nos.1004/2018 and 994/2018 but the relief can be granted in favour of applicant from Proceeding No.951/2018.Allegations made as against the applicant from Proceeding No.951/2018 are of different nature. It was submitted for the first informant that when the Minister of Public Enterprises, Government of India, had contacted the Company to inform the grievance of the first informant, who is a sitting Member of Parliament, the Company had informed that there was nothing wrong in the transaction and so it can be said that the applicant from the Proceeding No.951/2018 had also joined hands with the owners of Salasar Dealer. This submission is not at all acceptable. First the vehicle was purchased by Nagpur Dealer and then the vehicle was purchased by Salasar Dealer from Nagpur Dealer and the Company had no control over those transactions. Similarly the Company had no control over the representations made by Salasar Dealer with the first informant and it cannot be said that false representations were made by the Company that it was 2015 model. The offence of cheating is completed when on the basis of false representation, consideration passes. Before coming into picture of applicant from proceeding 951/2018, offence was complete and support or explanation given for Salasar by the manufacturer after the offence cannot be called as the act of abating the crime of cheating or any offence creating false record. This Court has no hesitation to hold that relief needs to be granted in favour of the applicant from Criminal Application No.951/2018. On the basis of the allegations made against this applicant and the aforesaid material, it is not possible to even frame charge against this applicant and nothing can be achieved by asking him to face trial for the aforesaid offences. | 1 | 3,801 | 587 | ### 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:
Govardhan was bed-ridden. The medical papers show that for short time he was sick but he had recovered. Admittedly he is Director of the company and there are specific allegations against him that he made false representation and induced the first informant to purchase the vehicle.14. The record collected by police and the submissions made show that on the date when the vehicle was handed over to the first informant, it had running of more than 40,000 kilometers though it is the case of the first informant that there was running of more than 80,000 kilometers. The independent record shows that it had running of more than 40,000 kilometers when the vehicle was handed over. It was submitted that vehicle was handed over 2-3 months prior to registration. The running of 40,000 kilometers is of that date. That record is sufficient to show that it was a used vehicle and it was being used from the year 2012. More observations can be made with regard to the illegal manner in which it was used. Unfortunately other material is not collected by police to ascertain as to how for such long period the vehicle was used without getting proper registration. Ordinarily only for a short period such vehicles are used on temporary registration and they are required to be sold and after that the other vehicles are used for giving the Demo to the customers. In any case, it cannot be said in the present matter that new model of 2014 or 2015 model was sold by Salasar Dealer to the first informant. Considering the price which was taken from the first informant and the allegations and the other record, this Court holds that it is not possible to give relief in favour of the applicants from proceeding Nos.1004/2018 and 994/2018.15. Allegations made as against the applicant from Proceeding No.951/2018 are of different nature. It was submitted for the first informant that when the Minister of Public Enterprises, Government of India, had contacted the Company to inform the grievance of the first informant, who is a sitting Member of Parliament, the Company had informed that there was nothing wrong in the transaction and so it can be said that the applicant from the Proceeding No.951/2018 had also joined hands with the owners of Salasar Dealer. This submission is not at all acceptable. First the vehicle was purchased by Nagpur Dealer and then the vehicle was purchased by Salasar Dealer from Nagpur Dealer and the Company had no control over those transactions. Similarly the Company had no control over the representations made by Salasar Dealer with the first informant and it cannot be said that false representations were made by the Company that it was 2015 model. The offence of cheating is completed when on the basis of false representation, consideration passes. Before coming into picture of applicant from proceeding 951/2018, offence was complete and support or explanation given for Salasar by the manufacturer after the offence cannot be called as the act of abating the crime of cheating or any offence creating false record. This Court has no hesitation to hold that relief needs to be granted in favour of the applicant from Criminal Application No.951/2018. On the basis of the allegations made against this applicant and the aforesaid material, it is not possible to even frame charge against this applicant and nothing can be achieved by asking him to face trial for the aforesaid offences.16. Both the sides placed reliance on some reported cases in the present matter. Learned Senior Counsel for the first informant placed reliance on the cases reported as :(1) AIR 1957 Calcutta 520 (In re Central Calcutta Bank Ltd (in Liqn.) (2) (2010) 10 SCC 361 (V.P. Shrivastava v. Indian Explosives Ltd.) (3) (1999) 3 SCC 259 (Rajesh Bajaj v. State NCT of Delhi.) (4) (2009) 4 SCC 439 (Mahesh Chaudhary v. State of Rajasthan) (5) (2013) 11 SCC 559 (C.P. Subhash v. Inspector of Police, Chennai) (6) (2004) 12 SCC 336 (Damodar v. State of Rajasthan) (7) (2017) 15 SCC 560 (State v. Anup Kumar Srivastava) (8) (2014) 14 SCC 22 (Mosiruddin Munshi v. Mohd. Siraj) 17. The learned counsel Shri. K.C. Sant for the applicant from Criminal Application No.1004/2018 has placed reliance on the case reported as AIR 1992 SC 604 (State of Haryana v. Ch. Bhajan Lal).18. The Apex Court has discussed the law developed on the power of this Court under Article 226 of the Constitution of India and section 482 of the Code of Criminal Procedure with regard to the proceedings like the present one. In all these cases cited by both the sides, the Apex Court has laid down that when there are allegations which constitute cognizable offence, at initial stage it is never desirable to quash the F.I.R. For giving such relief, there should be the circumstances as mentioned in the case of Bhajanlal (cited supra). It is also made clear that the Court needs to keep in mind the statutory power given to police of investigation into cognizable offences and ordinarily the Court needs to avoid interference into the investigation at the initial stage. Submissions were made that not only in the present matter but in other matters it is noticed that Salasar Dealer was involved in creation of false record and complaints of cheating are filed against it by other persons. In such cases only after thorough investigation more material can be collected and more offences can be detected. Such offences involve fraud against Government also as it is noticed that taxes like VAT or taxes to the local body are not paid when such transactions are made by the Dealer. There is power with the investigating agency to make investigation on that line also. Thus this is not a fit case to grant relief in favour of the persons who were doing business of dealership like the applicants from Proceeding Nos.1004/2018 and 994/2018 but the relief can be granted in favour of applicant from Proceeding No.951/2018.
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### Explanation:
18. The Apex Court has discussed the law developed on the power of this Court under Article 226 of the Constitution of India and section 482 of the Code of Criminal Procedure with regard to the proceedings like the present one. In all these cases cited by both the sides, the Apex Court has laid down that when there are allegations which constitute cognizable offence, at initial stage it is never desirable to quash the F.I.R. For giving such relief, there should be the circumstances as mentioned in the case of Bhajanlal (cited supra). It is also made clear that the Court needs to keep in mind the statutory power given to police of investigation into cognizable offences and ordinarily the Court needs to avoid interference into the investigation at the initial stage. Submissions were made that not only in the present matter but in other matters it is noticed that Salasar Dealer was involved in creation of false record and complaints of cheating are filed against it by other persons. In such cases only after thorough investigation more material can be collected and more offences can be detected. Such offences involve fraud against Government also as it is noticed that taxes like VAT or taxes to the local body are not paid when such transactions are made by the Dealer. There is power with the investigating agency to make investigation on that line also. Thus this is not a fit case to grant relief in favour of the persons who were doing business of dealership like the applicants from Proceeding Nos.1004/2018 and 994/2018 but the relief can be granted in favour of applicant from Proceeding No.951/2018.Allegations made as against the applicant from Proceeding No.951/2018 are of different nature. It was submitted for the first informant that when the Minister of Public Enterprises, Government of India, had contacted the Company to inform the grievance of the first informant, who is a sitting Member of Parliament, the Company had informed that there was nothing wrong in the transaction and so it can be said that the applicant from the Proceeding No.951/2018 had also joined hands with the owners of Salasar Dealer. This submission is not at all acceptable. First the vehicle was purchased by Nagpur Dealer and then the vehicle was purchased by Salasar Dealer from Nagpur Dealer and the Company had no control over those transactions. Similarly the Company had no control over the representations made by Salasar Dealer with the first informant and it cannot be said that false representations were made by the Company that it was 2015 model. The offence of cheating is completed when on the basis of false representation, consideration passes. Before coming into picture of applicant from proceeding 951/2018, offence was complete and support or explanation given for Salasar by the manufacturer after the offence cannot be called as the act of abating the crime of cheating or any offence creating false record. This Court has no hesitation to hold that relief needs to be granted in favour of the applicant from Criminal Application No.951/2018. On the basis of the allegations made against this applicant and the aforesaid material, it is not possible to even frame charge against this applicant and nothing can be achieved by asking him to face trial for the aforesaid offences.
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Anandi Mukta Sadguru Shree Muktajee Vandas Swami Suvarna Jayanti Mahotsaav Smarak Trust & Others Vs. V.R. Rudani & Others | can develop the public law as they think best. That they have done and are doing." (See - The Closing Chapter - by Rt. Hon Lord Denning p. 122). 17. There, however. the prerogative writ of mandamus is confined only to public authorities to compel performance of public duty. The public authority for them means every body which is created by statute - and whose powers and duties are defined by statute. So Government departments, local authorities, police authorities, and statutory undertakings and corporations, are all public authorities. But there is no such limitation for our High Courts to issue the writ in the nature of mandamus. Art.226 confers wide powers on the High Courts to issue writs in the nature of prerogative writs. This is a striking departure from the English law. Under Art.226, writs can be issued to any person or authority. It can be issued "for the enforcement of any of the fundamental rights and for any other purpose".18. Art.226 reads : "226. Power of High Courts to issue certain, writs (1) Notwithstanding anything in Art.32, every High Court shall have power, throughout the territories in relation to which it exercises jurisdiction, to issue to any person or authority including in appropriate cases, any Government, within those territories directions, orders or writs, including (writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari,) or any of them for the enforcement of any of the rights conferred by Part III and for any other purpose.xxxx xxxx xxxx" 19. The scope of this article has been explained by Subba Rao, J., in Dwarkanath. v. Income Tax Officer (1965) 3 SCR 536 at pp. (540-41) : (AIR 1966 SC 81 at pp. 84-85) : "This article is couched in comprehensive phraseology and it ex facie confers a wide power on the High Courts to reach injustice wherever it is found. The Constitution designedly used a wide language in describing the nature of the power, the purpose for which and the person or authority against whom it can be exercised. It can issue writs in the nature of prerogative writs as understood in England; but the use of the expression "nature", for the said expression does not equate the writs that can be issued in India with those in England, but only draws an analogy from them. That apart, High Courts can alsoissue directions, orders or writs other than the prerogative writs. It enables the High Courts to mould the reliefs to meet the peculiar and complicated requirements of this country. Any attempt to equate the scope of the power of the High Court under Art.226 of the Constitution with that of the English Courts to issue prerogative writs is to introduce the unnecessary procedural restrictions grown over the years in a comparatively small country like England with a unitary form of Government into a vast country like India functioning under a federal structure. Such a construction defeats the purpose of the article itself." 20. The term "authority" used in Art.226, in the context, must receive a liberal meaning unlike the term in Art.12. Art.12 is relevant only for the purpose of enforcement of fundamental rights under Art.32. Art.226 confers power on the High Courts to issue writs for enforcement of the fundamental rights as well as non fundamental rights. The words "Any person or authority" used in Art.226 are, therefore, not to be confined only to statutory authorities and instrumentalities of the State. They may cover any other person or body performing public duty. The form of the body concerned is not very much relevant. What is relevant is the nature of the duty imposed on the body. The duty must be judged in the light of positive obligation owed by the person or authority to the affected party. No matter by what means the duty is imposed. If a positive obligation exists mandamus cannot be denied.21. In Praga Tools Corporation v. Shri C. A. Imanual (1969) 3 SCR 773 : (AIR 1969 SC 1306 ), this Court said that a mandamus can issue against a person or body to carry out the duties placed on them by the Statutes even though they are not public officials or statutory body. It was observed (at p. 778) (of 1969-3 SCR) : (At pp. 1309-10 of AIR) : "It is, however, not necessary that the person or the authority on whom the statutory duty is imposed need be a public official or an official body. A mandamus can issue, for instance, to an official of a society to compel him to carry out the terms of the statute under or by which the society is constituted or governed and also to companies or corporations to carry out duties placed on them by the statutes authorising their undertakings. A mandamus would also lie against a company constituted by a statute for the purpose of fulfilling public responsibilities. (See Halsburys Laws of England (3rd Ed. Vol. II p. 52 and onwards)." 22. Here again we may point out that mandamus cannot be denied on the ground: that the duty to be enforced is not imposed by the statute. Commenting on the development of this law, professor De Smith states: "To be enforceable by mandamus a public duty does not necessarily have to be one imposed by statute. It may be sufficient for the duty to have been imposed by charter, common law, custom or even contract." (Judicial Review of Administrative Act 4th Ed. p. 540). We share. this view. The judicial control over the fast expanding maze of bodies: affecting the rights of the people should not be put into water tight compartment. It should remain flexible to meet the requirements of variable circumstances. Mandamus is a very wide remedy which must be easily available to reach injustice wherever it is found. Technicalities should not come in the way of granting that relief under Art.226. We, therefore, reject the contention urged for the appellants on the maintainability of the writ petition. | 0[ds]10. Having heard the counsel for both parties, we are left with an impression that the appellants are really trying to side track the issue and needlessly delaying the legitimate payments due to the respondents. The question whether the State is liable to recompense the appellants in respect of the amount payable to the respondents was not considered by the High Court and indeed could not have been examined since the State was not a party to the proceedings. However, by the persuasive powers of the counsel in this Court, the State has been impleaded as a party in these appeals. Perhaps, this court wanted to find out the reaction of the State on the appellants assertion for reimbursement. We heard counsel for the State. He disputes the appellants claim. In fact, he challenges the claim on a number of grounds. He says that the State is under no obligation to pay the appellants as against the sum due to the respondents. We do not think that we need rule today on this controversy. It is indeed wholly outside the scope of these appeals. We are only concerned with the liability of the management of the college towards the employees. Under the relationship of master and servant, the management is primarily responsible to pay salary and other benefits to the employees. The management cannot say that unless and until the State compensates, it will not make full payment to the staff. We cannot accept such afirst question presents no problem since we do not find any sustainable argument. The power of the. Syndicate to enact the Ordinance is not in doubt or dispute. What is, however, argued is that the Ordinance is not binding on the management since it was enacted before the college was affiliated to the University. This appears to be a desperate contention overlooking the antecedent event. The counsel overlooks the fact that the college had temporary affiliation even earlier to the Ordinance. That apart, the benefit under the Ordinance shall be given when the college is closed. The college in the instant case was closed admittedly after the Ordinance was enacted. The appellants cannot, therefore, be heard to contend that they are not liable to pay compensation under the Ordinance.12. The essence of the attack on the maintainability of the writ petition under Art.226 may now be examined. It is argued that the management of the college being a trust registered under the Public Trusts Act is not amenable to the writ jurisdiction of the High Court. The contention in other words, is that the trust is a private institution against which no writ of mandamus can be issued. In support of the contention, the counsel relied upon two decisions of this Court: (a) Executive Committee of Vaish Degree College, Shamli v. Lakshmi Narain (1976) 2 SCR 1006 : (AIR 1976 SC 888 ) and (b) Deepak Kumar Biswas v. Director of Public Instruction (1987) 2 SCC 252. In the first of the two cases, the respondent institution was a Degree College managed by a registered cooperative society. A suit was filed against the college by the dismissed principal for reinstatement. It was contended that the Executive Committee of the college which was registered under the Cooperative Societies Act and affiliated to the Agra University (and subsequently to Meerut University) was a statutory body. The importance of this contention lies in the fact that in such a case, reinstatement could be ordered if the dismissal is in violation of statutory obligation. But this Court refused to accept the contention. It was observed that the management of the college was not a statutory body since not created by or under a statute. It was emphasised that an institution which adopts certain statutory provisions will not become a statutory body and the dismissed employee cannot enforce a contract of personal service against a non statutory body.13. The decision in Vaish Degree College was followed in Deepak Kumar Biswas case. There again a dismissed lecturer of a private college was seeking reinstatement in service. The Court refused to grant the relief although it was found that the dismissal was wrongful. This court instead granted substantial monetary benefits to the lecturer. This appears to be the preponderant judicial opinion because of the common law principle that a service contract cannot be specifically enforced.14. But here the facts are quite different and, therefore, we need not go thus far. There is no plea for specific performance of contractual service. The respondents are not seeking a declaration that they be continued ill service. They are not asking for mandamus to put them back into the college. They are claiming only the terminal benefits and arrears of salary payable to them. The question is whether the trust can be compelled to pay by a writ of mandamus ?15. If the rights are purely of a private character no mandamus can issue. If the management of the college is purely a private body with no public duty mandamus will not lie. These are two exceptions to Mandamus. But once these are absent and when the party has no other equally convenient remedy, mandamus cannot be denied. It has to be appreciated that the appellants- trust was managing the affiliated college to which public money is paid as Government aid. Public money paid as Government aid plays a major role in the control, maintenance and working of educational institutions. The aided institutions like Government institutions discharge public function by way of imparting education to students. They are subject to the rules and regulations of the affiliating University. Their activities are closely supervised by the University authorities. Employment in such institutions, therefore, is not devoid of any public character. (See - The Evolving Indian Administrative Law by M. P. Jain (1983) p. 266). So are the service conditions of the academic staff. When the University takes a decision regarding their pay scales, it will be binding on the management. The service conditions of the academic staff are, therefore, not purely of a private character. It has super added protection by University decisions creating a legal right duty relationship between the staff and the management. When there is existence of this relationship, mandamus cannot be refused to the aggrieved party.16. The law relating to mandamus has made the most spectacular advance. It may be recalled that the remedy by prerogative writs in England started with very limited scope and suffered from many procedural disadvantages. To overcome the difficulties, Lord Gardiner (the Lord Chancellor) in pursuance of S.3(1)(e) of the Law Commission Act, 1965, requested the Law Commission "to review the existing remedies for the judicial control of administrative acts and commissions with a view to evolving a simpler and more effective procedure." The Law Commission made their report in March 1976 (Law Com No. 73). It was implemented by Rules of Court (Order 53) in 1977 and given statutory force in 1981 by S.31 of the Supreme Court Act 1981. It combined all the former remedies into one proceeding called Judicial review. Lord Denning explains the scope of this "judicial review"one stroke the courts could grant whatever relief was appropriate. Not only certiorari and mandamus, but also declaration and injunction. Even damages. The procedure was much more simple and expeditious. Just a summons instead of a writ. No formal pleadings. The evidence was given by affidavit. As a rule no cross examination, no discovery, and so forth. But there were important safeguards. In particular, in order to qualify, the applicant had to get the leave of a judge.The statute is phrased in flexible terms. It gives scope for development. It uses the words "having regard to". Those words are very indefinite. The result is that the courts are not bound hand and foot by the previous law. They are to have regard to it. So the previous law as to who are - and who are not - public authorities, is not absolutely binding. Nor is the previous law as to the matters in respect of which relief may be granted. This means that the judges can develop the public law as they think best. That they have done and are doing." (See - The Closing Chapter - by Rt. Hon Lord Denning p. 122).There, however. the prerogative writ of mandamus is confined only to public authorities to compel performance of public duty. The public authority for them means every body which is created by statute - and whose powers and duties are defined by statute. So Government departments, local authorities, police authorities, and statutory undertakings and corporations, are all public authorities. But there is no such limitation for our High Courts to issue the writ in the nature of mandamus. Art.226 confers wide powers on the High Courts to issue writs in the nature of prerogative writs. This is a striking departure from the English law. Under Art.226, writs can be issued to any person or authority. It can be issued "for the enforcement of any of the fundamental rights and for any other purpose".18. Art.226 readsPower of High Courts to issue certain, writs (1) Notwithstanding anything in Art.32, every High Court shall have power, throughout the territories in relation to which it exercises jurisdiction, to issue to any person or authority including in appropriate cases, any Government, within those territories directions, orders or writs, including (writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari,) or any of them for the enforcement of any of the rights conferred by Part III and for any other purpose.xxxx xxxxThe scope of this article has been explained by Subba Rao, J., in Dwarkanath. v. Income Tax Officer (1965) 3 SCR 536 at pp. (540-41) : (AIR 1966 SC 81 at pp. 84-85)article is couched in comprehensive phraseology and it ex facie confers a wide power on the High Courts to reach injustice wherever it is found. The Constitution designedly used a wide language in describing the nature of the power, the purpose for which and the person or authority against whom it can be exercised. It can issue writs in the nature of prerogative writs as understood in England; but the use of the expression "nature", for the said expression does not equate the writs that can be issued in India with those in England, but only draws an analogy from them. That apart, High Courts can alsoissue directions, orders or writs other than the prerogative writs. It enables the High Courts to mould the reliefs to meet the peculiar and complicated requirements of this country. Any attempt to equate the scope of the power of the High Court under Art.226 of the Constitution with that of the English Courts to issue prerogative writs is to introduce the unnecessary procedural restrictions grown over the years in a comparatively small country like England with a unitary form of Government into a vast country like India functioning under a federal structure. Such a construction defeats the purpose of the article itself.The term "authority" used in Art.226, in the context, must receive a liberal meaning unlike the term in Art.12. Art.12 is relevant only for the purpose of enforcement of fundamental rights under Art.32. Art.226 confers power on the High Courts to issue writs for enforcement of the fundamental rights as well as non fundamental rights. The words "Any person or authority" used in Art.226 are, therefore, not to be confined only to statutory authorities and instrumentalities of the State. They may cover any other person or body performing public duty. The form of the body concerned is not very much relevant. What is relevant is the nature of the duty imposed on the body. The duty must be judged in the light of positive obligation owed by the person or authority to the affected party. No matter by what means the duty is imposed. If a positive obligation exists mandamus cannot be denied.21. In Praga Tools Corporation v. Shri C. A. Imanual (1969) 3 SCR 773 : (AIR 1969 SC 1306 ), this Court said that a mandamus can issue against a person or body to carry out the duties placed on them by the Statutes even though they are not public officials or statutory body. It was observed (at p. 778) (of 1969-3 SCR) : (At pp. 1309-10 of AIR)is, however, not necessary that the person or the authority on whom the statutory duty is imposed need be a public official or an official body. A mandamus can issue, for instance, to an official of a society to compel him to carry out the terms of the statute under or by which the society is constituted or governed and also to companies or corporations to carry out duties placed on them by the statutes authorising their undertakings. A mandamus would also lie against a company constituted by a statute for the purpose of fulfilling public responsibilities. (See Halsburys Laws of England (3rd Ed. Vol. II p. 52 and onwards).Here again we may point out that mandamus cannot be denied on the ground: that the duty to be enforced is not imposed by the statute. Commenting on the development of this law, professor De Smith states: "To be enforceable by mandamus a public duty does not necessarily have to be one imposed by statute. It may be sufficient for the duty to have been imposed by charter, common law, custom or even contract." (Judicial Review of Administrative Act 4th Ed. p. 540). We share. this view. The judicial control over the fast expanding maze of bodies: affecting the rights of the people should not be put into water tight compartment. It should remain flexible to meet the requirements of variable circumstances. Mandamus is a very wide remedy which must be easily available to reach injustice wherever it is found. Technicalities should not come in the way of granting that relief under Art.226. We, therefore, reject the contention urged for the appellants on the maintainability of the writ petition. | 0 | 3,973 | 2,636 | ### Instruction:
Determine the likely decision of the case (acceptance (1) or rejection (0)) and follow up with an explanation highlighting key sentences that support this prediction.
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can develop the public law as they think best. That they have done and are doing." (See - The Closing Chapter - by Rt. Hon Lord Denning p. 122). 17. There, however. the prerogative writ of mandamus is confined only to public authorities to compel performance of public duty. The public authority for them means every body which is created by statute - and whose powers and duties are defined by statute. So Government departments, local authorities, police authorities, and statutory undertakings and corporations, are all public authorities. But there is no such limitation for our High Courts to issue the writ in the nature of mandamus. Art.226 confers wide powers on the High Courts to issue writs in the nature of prerogative writs. This is a striking departure from the English law. Under Art.226, writs can be issued to any person or authority. It can be issued "for the enforcement of any of the fundamental rights and for any other purpose".18. Art.226 reads : "226. Power of High Courts to issue certain, writs (1) Notwithstanding anything in Art.32, every High Court shall have power, throughout the territories in relation to which it exercises jurisdiction, to issue to any person or authority including in appropriate cases, any Government, within those territories directions, orders or writs, including (writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari,) or any of them for the enforcement of any of the rights conferred by Part III and for any other purpose.xxxx xxxx xxxx" 19. The scope of this article has been explained by Subba Rao, J., in Dwarkanath. v. Income Tax Officer (1965) 3 SCR 536 at pp. (540-41) : (AIR 1966 SC 81 at pp. 84-85) : "This article is couched in comprehensive phraseology and it ex facie confers a wide power on the High Courts to reach injustice wherever it is found. The Constitution designedly used a wide language in describing the nature of the power, the purpose for which and the person or authority against whom it can be exercised. It can issue writs in the nature of prerogative writs as understood in England; but the use of the expression "nature", for the said expression does not equate the writs that can be issued in India with those in England, but only draws an analogy from them. That apart, High Courts can alsoissue directions, orders or writs other than the prerogative writs. It enables the High Courts to mould the reliefs to meet the peculiar and complicated requirements of this country. Any attempt to equate the scope of the power of the High Court under Art.226 of the Constitution with that of the English Courts to issue prerogative writs is to introduce the unnecessary procedural restrictions grown over the years in a comparatively small country like England with a unitary form of Government into a vast country like India functioning under a federal structure. Such a construction defeats the purpose of the article itself." 20. The term "authority" used in Art.226, in the context, must receive a liberal meaning unlike the term in Art.12. Art.12 is relevant only for the purpose of enforcement of fundamental rights under Art.32. Art.226 confers power on the High Courts to issue writs for enforcement of the fundamental rights as well as non fundamental rights. The words "Any person or authority" used in Art.226 are, therefore, not to be confined only to statutory authorities and instrumentalities of the State. They may cover any other person or body performing public duty. The form of the body concerned is not very much relevant. What is relevant is the nature of the duty imposed on the body. The duty must be judged in the light of positive obligation owed by the person or authority to the affected party. No matter by what means the duty is imposed. If a positive obligation exists mandamus cannot be denied.21. In Praga Tools Corporation v. Shri C. A. Imanual (1969) 3 SCR 773 : (AIR 1969 SC 1306 ), this Court said that a mandamus can issue against a person or body to carry out the duties placed on them by the Statutes even though they are not public officials or statutory body. It was observed (at p. 778) (of 1969-3 SCR) : (At pp. 1309-10 of AIR) : "It is, however, not necessary that the person or the authority on whom the statutory duty is imposed need be a public official or an official body. A mandamus can issue, for instance, to an official of a society to compel him to carry out the terms of the statute under or by which the society is constituted or governed and also to companies or corporations to carry out duties placed on them by the statutes authorising their undertakings. A mandamus would also lie against a company constituted by a statute for the purpose of fulfilling public responsibilities. (See Halsburys Laws of England (3rd Ed. Vol. II p. 52 and onwards)." 22. Here again we may point out that mandamus cannot be denied on the ground: that the duty to be enforced is not imposed by the statute. Commenting on the development of this law, professor De Smith states: "To be enforceable by mandamus a public duty does not necessarily have to be one imposed by statute. It may be sufficient for the duty to have been imposed by charter, common law, custom or even contract." (Judicial Review of Administrative Act 4th Ed. p. 540). We share. this view. The judicial control over the fast expanding maze of bodies: affecting the rights of the people should not be put into water tight compartment. It should remain flexible to meet the requirements of variable circumstances. Mandamus is a very wide remedy which must be easily available to reach injustice wherever it is found. Technicalities should not come in the way of granting that relief under Art.226. We, therefore, reject the contention urged for the appellants on the maintainability of the writ petition.
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as to the matters in respect of which relief may be granted. This means that the judges can develop the public law as they think best. That they have done and are doing." (See - The Closing Chapter - by Rt. Hon Lord Denning p. 122).There, however. the prerogative writ of mandamus is confined only to public authorities to compel performance of public duty. The public authority for them means every body which is created by statute - and whose powers and duties are defined by statute. So Government departments, local authorities, police authorities, and statutory undertakings and corporations, are all public authorities. But there is no such limitation for our High Courts to issue the writ in the nature of mandamus. Art.226 confers wide powers on the High Courts to issue writs in the nature of prerogative writs. This is a striking departure from the English law. Under Art.226, writs can be issued to any person or authority. It can be issued "for the enforcement of any of the fundamental rights and for any other purpose".18. Art.226 readsPower of High Courts to issue certain, writs (1) Notwithstanding anything in Art.32, every High Court shall have power, throughout the territories in relation to which it exercises jurisdiction, to issue to any person or authority including in appropriate cases, any Government, within those territories directions, orders or writs, including (writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari,) or any of them for the enforcement of any of the rights conferred by Part III and for any other purpose.xxxx xxxxThe scope of this article has been explained by Subba Rao, J., in Dwarkanath. v. Income Tax Officer (1965) 3 SCR 536 at pp. (540-41) : (AIR 1966 SC 81 at pp. 84-85)article is couched in comprehensive phraseology and it ex facie confers a wide power on the High Courts to reach injustice wherever it is found. The Constitution designedly used a wide language in describing the nature of the power, the purpose for which and the person or authority against whom it can be exercised. It can issue writs in the nature of prerogative writs as understood in England; but the use of the expression "nature", for the said expression does not equate the writs that can be issued in India with those in England, but only draws an analogy from them. That apart, High Courts can alsoissue directions, orders or writs other than the prerogative writs. It enables the High Courts to mould the reliefs to meet the peculiar and complicated requirements of this country. Any attempt to equate the scope of the power of the High Court under Art.226 of the Constitution with that of the English Courts to issue prerogative writs is to introduce the unnecessary procedural restrictions grown over the years in a comparatively small country like England with a unitary form of Government into a vast country like India functioning under a federal structure. Such a construction defeats the purpose of the article itself.The term "authority" used in Art.226, in the context, must receive a liberal meaning unlike the term in Art.12. Art.12 is relevant only for the purpose of enforcement of fundamental rights under Art.32. Art.226 confers power on the High Courts to issue writs for enforcement of the fundamental rights as well as non fundamental rights. The words "Any person or authority" used in Art.226 are, therefore, not to be confined only to statutory authorities and instrumentalities of the State. They may cover any other person or body performing public duty. The form of the body concerned is not very much relevant. What is relevant is the nature of the duty imposed on the body. The duty must be judged in the light of positive obligation owed by the person or authority to the affected party. No matter by what means the duty is imposed. If a positive obligation exists mandamus cannot be denied.21. In Praga Tools Corporation v. Shri C. A. Imanual (1969) 3 SCR 773 : (AIR 1969 SC 1306 ), this Court said that a mandamus can issue against a person or body to carry out the duties placed on them by the Statutes even though they are not public officials or statutory body. It was observed (at p. 778) (of 1969-3 SCR) : (At pp. 1309-10 of AIR)is, however, not necessary that the person or the authority on whom the statutory duty is imposed need be a public official or an official body. A mandamus can issue, for instance, to an official of a society to compel him to carry out the terms of the statute under or by which the society is constituted or governed and also to companies or corporations to carry out duties placed on them by the statutes authorising their undertakings. A mandamus would also lie against a company constituted by a statute for the purpose of fulfilling public responsibilities. (See Halsburys Laws of England (3rd Ed. Vol. II p. 52 and onwards).Here again we may point out that mandamus cannot be denied on the ground: that the duty to be enforced is not imposed by the statute. Commenting on the development of this law, professor De Smith states: "To be enforceable by mandamus a public duty does not necessarily have to be one imposed by statute. It may be sufficient for the duty to have been imposed by charter, common law, custom or even contract." (Judicial Review of Administrative Act 4th Ed. p. 540). We share. this view. The judicial control over the fast expanding maze of bodies: affecting the rights of the people should not be put into water tight compartment. It should remain flexible to meet the requirements of variable circumstances. Mandamus is a very wide remedy which must be easily available to reach injustice wherever it is found. Technicalities should not come in the way of granting that relief under Art.226. We, therefore, reject the contention urged for the appellants on the maintainability of the writ petition.
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Netai Bag Vs. State Of W.B. | supply of sal trees at concessional rate has been taken by the Government. The rate of royalty has also been fixed on some accepted principle of pricing formula as will be indicated hereafter. Hence, distribution or allotment of sal seeds at the determined royalty to the respondents and other units covered by the agreements cannot be assailed. It is to be appreciated that in case, distribution by public auction or by open tender may not achieve the purpose of the policy of protection measure by way of supply of sal seeds at concessional rate of royalty to the industrial units covered by the agreements on being selected on valid and objective considerations." 22. It was further held that principle of reasonableness and non-arbitrariness in governmental action is the core of our entire Constitutional scheme and structure. On the facts of that case, the action of the State Government in granting a contract by way of negotiation was held not arbitrary or irrational. 23. In the backdrop of the legal position noticed herein, it has to be seen, in the instant case, as to whether the action of the respondent No. 1 was illegal, arbitrary or mala fide. To justify their action of entering into an agreement of lease by negotiation, even in the absence of pleadings on behalf of the appellants, the State has submitted that the entire transaction of granting the lease to the respondent No. 5 for an integrated food processing unit with an abattoir in a semi-rural area, which was a low lying land, despite their best efforts, the State Government were unable to set up any project. The lease was given to respondent No. 5 upon consideration of all the facts and circumstances with the object of setting up an industry in the State of West Bengal which was likely to generate employment to more than 300 persons and earn foreign exchange worth more than Rs. 50 crores. The negotiations were resorted to ensure the disposal of the slaughter house at Durgapur which was proved to have been running in losses. The respondent-State had failed to get any buyer for Durgapur Project despite Newspaper advertisements. 24. The Government had decided to make a package deal for the purposes of transferring the Durgapur Project and establishment of Mourigram Project. Earlier a memorandum of understanding had been arrived at between Government of India and Australia which ultimately did not mature in the shape of an abattoir. Due to financial constraints, continuous loss suffered at Durgapur and lack of technical expertise, the respondent-State could not venture to undertake the Mourigram Project for setting up of an abattoir. Having failed in all its efforts, the then Minister-in-charge of the Animal Husbandry and Veterinary Services Department of the Government of West Bengal is stated to have written to some Bombay based firms, reputed in the field, to salvage the two projects. Positive response is stated to have been received from some firms including Genagro Foods (India) Ltd. namely, respondent No. 5 and M/s. I. Ahmed and Company. The proposal of I. Ahmed and Company being very vague was not accepted. Respondent No. 5 had shown interest in taking over both Durgaplur and Mourigram sites under certain terms and conditions for the purpose of revitalising and making operational the existing abattoir at Durgapur and for setting up of Integrated Food Processing Unit along with abattoir at Mourigram. It is further stated in the counter-affidavit of the respondent-State, that :- "Since, no response was received from the advertisements and the personal requests made in the manner above by the Minister-in-charge of the Department from any concern except as aforesaid, the State took into account the credentials of the group of companies of which Genagro Foods (India) Ltd. was one, including the export award certificate awarded to M/s. Allanasons Limited for outstanding contribution for promotion of agricultural and processed food products during the year 1992-93 as proof of their excellence in their field and thereupon proceeded to finalise the lease terms and conditions under which inter alia the Mourigram land would be leased out to the respondent No. 5 for setting up of an integrated food processing unit along with an abattoir, products whereof could be exported as well as sold in the State of West Bengal. Respondent No. 5 alongwith its associated companies was the first company in India to export 1000 million rupees on agricultural and process food products (in 1992-93). The Agricultur and Processed Foods Export Development Authority (APEDA), Ministry of Commerce, Govt. of India, had acknowledged and certified the efforts of respondent No. 5 and its associated companies in the export of Meat and other agro products such as rice, tea, coffee, spices, onion, cashew, pulses extractions, marine products and processed food and vegetable." 25. In view of the peculiar facts and circumstances of the case we are not persuaded to hold that the action of the respondent-State in executing the lease deed with respondent No. 5 was unreasonable, illegal, arbitrary or actuated by extraneous considerations. In this regard it is worth noticing that none except the erstwhile owners and the propounders of vegetarianism have made any grievance to the effect that the market value of the property, as charged from respondent No. 5, was either allegedly for a song or at a throw away price.26. The inaction of the appellants in approaching the Court, almost after three years of the impugned lease deed is an additional circumstance to doubt their bona fides in challenging the impugned action. During the pendency of the litigation between the parties, a huge project has actually, by now, come into existence where the production has also commenced. Respondent No. 5 is claimed to have spent a sum of Rs. 73.01 crores as of 30.10.1999 on the project. Interference at this stage will not only adversely affected the business of respondent No. 5 but would also render a large number of people unemployed and deprive the State its cherished desire of developing the industrial growth. | 1[ds]25. In view of the peculiar facts and circumstances of the case we are not persuaded to hold that the action of the respondent-State in executing the lease deed with respondent No. 5 was unreasonable, illegal, arbitrary or actuated by extraneous considerations. In this regard it is worth noticing that none except the erstwhile owners and the propounders of vegetarianism have made any grievance to the effect that the market value of the property, as charged from respondent No. 5, was either allegedly for a song or at a throw away price.26. The inaction of the appellants in approaching the Court, almost after three years of the impugned lease deed is an additional circumstance to doubt their bona fides in challenging the impugned action. During the pendency of the litigation between the parties, a huge project has actually, by now, come into existence where the production has also commenced. Respondent No. 5 is claimed to have spent a sum of Rs. 73.01 crores as of 30.10.1999 on the project. Interference at this stage will not only adversely affected the business of respondent No. 5 but would also render a large number of people unemployed and deprive the State its cherished desire of developing the industrial growth. | 1 | 6,876 | 230 | ### 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:
supply of sal trees at concessional rate has been taken by the Government. The rate of royalty has also been fixed on some accepted principle of pricing formula as will be indicated hereafter. Hence, distribution or allotment of sal seeds at the determined royalty to the respondents and other units covered by the agreements cannot be assailed. It is to be appreciated that in case, distribution by public auction or by open tender may not achieve the purpose of the policy of protection measure by way of supply of sal seeds at concessional rate of royalty to the industrial units covered by the agreements on being selected on valid and objective considerations." 22. It was further held that principle of reasonableness and non-arbitrariness in governmental action is the core of our entire Constitutional scheme and structure. On the facts of that case, the action of the State Government in granting a contract by way of negotiation was held not arbitrary or irrational. 23. In the backdrop of the legal position noticed herein, it has to be seen, in the instant case, as to whether the action of the respondent No. 1 was illegal, arbitrary or mala fide. To justify their action of entering into an agreement of lease by negotiation, even in the absence of pleadings on behalf of the appellants, the State has submitted that the entire transaction of granting the lease to the respondent No. 5 for an integrated food processing unit with an abattoir in a semi-rural area, which was a low lying land, despite their best efforts, the State Government were unable to set up any project. The lease was given to respondent No. 5 upon consideration of all the facts and circumstances with the object of setting up an industry in the State of West Bengal which was likely to generate employment to more than 300 persons and earn foreign exchange worth more than Rs. 50 crores. The negotiations were resorted to ensure the disposal of the slaughter house at Durgapur which was proved to have been running in losses. The respondent-State had failed to get any buyer for Durgapur Project despite Newspaper advertisements. 24. The Government had decided to make a package deal for the purposes of transferring the Durgapur Project and establishment of Mourigram Project. Earlier a memorandum of understanding had been arrived at between Government of India and Australia which ultimately did not mature in the shape of an abattoir. Due to financial constraints, continuous loss suffered at Durgapur and lack of technical expertise, the respondent-State could not venture to undertake the Mourigram Project for setting up of an abattoir. Having failed in all its efforts, the then Minister-in-charge of the Animal Husbandry and Veterinary Services Department of the Government of West Bengal is stated to have written to some Bombay based firms, reputed in the field, to salvage the two projects. Positive response is stated to have been received from some firms including Genagro Foods (India) Ltd. namely, respondent No. 5 and M/s. I. Ahmed and Company. The proposal of I. Ahmed and Company being very vague was not accepted. Respondent No. 5 had shown interest in taking over both Durgaplur and Mourigram sites under certain terms and conditions for the purpose of revitalising and making operational the existing abattoir at Durgapur and for setting up of Integrated Food Processing Unit along with abattoir at Mourigram. It is further stated in the counter-affidavit of the respondent-State, that :- "Since, no response was received from the advertisements and the personal requests made in the manner above by the Minister-in-charge of the Department from any concern except as aforesaid, the State took into account the credentials of the group of companies of which Genagro Foods (India) Ltd. was one, including the export award certificate awarded to M/s. Allanasons Limited for outstanding contribution for promotion of agricultural and processed food products during the year 1992-93 as proof of their excellence in their field and thereupon proceeded to finalise the lease terms and conditions under which inter alia the Mourigram land would be leased out to the respondent No. 5 for setting up of an integrated food processing unit along with an abattoir, products whereof could be exported as well as sold in the State of West Bengal. Respondent No. 5 alongwith its associated companies was the first company in India to export 1000 million rupees on agricultural and process food products (in 1992-93). The Agricultur and Processed Foods Export Development Authority (APEDA), Ministry of Commerce, Govt. of India, had acknowledged and certified the efforts of respondent No. 5 and its associated companies in the export of Meat and other agro products such as rice, tea, coffee, spices, onion, cashew, pulses extractions, marine products and processed food and vegetable." 25. In view of the peculiar facts and circumstances of the case we are not persuaded to hold that the action of the respondent-State in executing the lease deed with respondent No. 5 was unreasonable, illegal, arbitrary or actuated by extraneous considerations. In this regard it is worth noticing that none except the erstwhile owners and the propounders of vegetarianism have made any grievance to the effect that the market value of the property, as charged from respondent No. 5, was either allegedly for a song or at a throw away price.26. The inaction of the appellants in approaching the Court, almost after three years of the impugned lease deed is an additional circumstance to doubt their bona fides in challenging the impugned action. During the pendency of the litigation between the parties, a huge project has actually, by now, come into existence where the production has also commenced. Respondent No. 5 is claimed to have spent a sum of Rs. 73.01 crores as of 30.10.1999 on the project. Interference at this stage will not only adversely affected the business of respondent No. 5 but would also render a large number of people unemployed and deprive the State its cherished desire of developing the industrial growth.
### Response:
1
### Explanation:
25. In view of the peculiar facts and circumstances of the case we are not persuaded to hold that the action of the respondent-State in executing the lease deed with respondent No. 5 was unreasonable, illegal, arbitrary or actuated by extraneous considerations. In this regard it is worth noticing that none except the erstwhile owners and the propounders of vegetarianism have made any grievance to the effect that the market value of the property, as charged from respondent No. 5, was either allegedly for a song or at a throw away price.26. The inaction of the appellants in approaching the Court, almost after three years of the impugned lease deed is an additional circumstance to doubt their bona fides in challenging the impugned action. During the pendency of the litigation between the parties, a huge project has actually, by now, come into existence where the production has also commenced. Respondent No. 5 is claimed to have spent a sum of Rs. 73.01 crores as of 30.10.1999 on the project. Interference at this stage will not only adversely affected the business of respondent No. 5 but would also render a large number of people unemployed and deprive the State its cherished desire of developing the industrial growth.
|
BHIVCHANDRA SHANKAR MORE Vs. BALU GANGARAM MORE | It caters to every conceivable situation. But at the same time, the law expects a litigant to be straight, honest and fair. The two remedies provided against ex-parte decree are in respect of two different situations and are expected to be resorted to only if the facts of the situation are available to a litigant. The remedies provided as simultaneous and cannot be converted into consecutive remedies. 14. The above observation of the High Court that the remedies provided as simultaneous and cannot be converted into consecu- tive remediescannot be applied in a rigid manner and as a strait- jacket formula. It has to be considered depending on the facts and circumstances of each case and whether the defendant in pursuing the remedy consecutively has adopted dilatory tactics. Only in cases where the defendant has adopted dilatory tactics or where there is lack of bonafide in pursuing the two remedies con- secutively, the court may decline to condone the delay in filing the first appeal. If the court refuses to condone the delay in the time spent in pursuing the remedy under Order IX Rule 13 CPC, the defendant would be deprived of the statutory right of appeal in challenging the decree on merits. 15. It is a fairly well settled law that sufficient cause should be given liberal construction so as to advance sustainable justice when there is no inaction, no negligence nor want of bonafide could be imputable to the appellant. After referring to various judgments, in B. Madhuri, this Court held as under:- 6. The expression sufficient cause used in Section 5 of the Limitation Act, 1963 and other statutes is elastic enough to enable the courts to apply the law in a meaningful manner which serves the ends of justice. No hard-and-fast rule has been or can be laid down for deciding the applications for condonation of delay but over the years courts have repeatedly observed that a liberal approach needs to be adopted in such matters so that substantive rights of the parties are not defeated only on the ground of delay. 16. Observing that the rules of limitation are not meant to destroy the rights of the parties, in N. Balakrishnan v. M. Krishnamurthy (1998) 7 SCC 123 , this Court held as under:- 11. Rules of limitation are not meant to destroy the rights of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. The law of limitation fixes a lifespan for such legal remedy for the redress of the legal injury so suffered. Time is precious and wasted time would never revisit. During the efflux of time, newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the courts. So a lifespan must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. The law of limitation is thus founded on public policy. It is enshrined in the maxim interest reipublicae up sit finis litium (it is for the general welfare that a period be put to litigation). Rules of limitation are not meant to destroy the rights of the parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time. As pointed out earlier, an appeal under Section 96 CPC is a statutory right. Generally, delays in preferring appeals are required to be condoned, in the interest of justice, where there is no gross negligence or deliberate inaction or lack of bonafide is imputable to the party seeking condonation of delay. 17. In the case in hand, respondents No.1 to 13 filed a suit for partition in the year 2007, which was decreed ex-parte on 04.07.2008. Appellant and respondents No.14 and 15 filed application under Order IX Rule 13 CPC and the same came to be dismissed on 06.08.2010. Being aggrieved by dismissal of application under Order IX Rule 13 CPC, the appellant and respondents No.14 and 15 preferred an appeal under Order XLIII Rule 1(d) CPC on 03.09.2010. Of course, the said appeal was pending for about three years and the same was withdrawn on 11.06.2013. Thereafter, on the next day i.e. on 12.06.2013, the appellant and respondents No.14 and 15 filed an appeal challenging the ex-parte decree and judgment dated 04.07.2008 passed in Regular Civil Suit No.35 of 2007. It cannot be said that the appellant and respondents No.14 and 15 were grossly negligent in pursuing the matter more so, when the decree was passed in the suit for partition. 18. It is pertinent to note that as per Section 97 CPC where any party aggrieved by a preliminary decree does not appeal from such decree, he shall be precluded from disputing its correctness in any appeal which may be preferred from the final decree. The object is that the questions decided by the court at the stage of passing preliminary decree cannot be challenged at the time of final decree. If no appeal had been preferred against the preliminary decree, the suit filed by the respondents-plaintiffs being a suit for partition, the appellant would be deprived of the opportunity in challenging the decree on merits. In the interest of justice, the appellant and respondents No.14 and 15 are to be given an opportunity to challenge the ex-parte decree dated 04.07.2008 on merits, notwithstanding the dismissal of their application filed under Order IX Rule 13 CPC. 19. In the facts and circumstances of the present case, the time spent in pursuing the application under Order IX Rule 13 CPC is to be taken as sufficient cause for condoning the delay in filing the first appeal. The impugned judgment of the High Court cannot be sustained and is liable to be set aside. | 1[ds]9. The facts are not in dispute. The suit for partition was filed by respondents No.1 to 13 in the year 2007. It was decreed ex- parte on 04.07.2008. The appellant and respondents No.14 and 15 filed application under Order IX Rule 13 CPC on 15.10.2008 and the said application was dismissed on merits by the order dated 06.08.2010. Challenging the said order, the appellant and respondents No.14 and 15 preferred an appeal on 03.09.2010. About three years after its filing i.e. on 11.06.2013, the said appeal was withdrawn and on the next day i.e. on 12.06.2013, the appellant and respondents No.14 and 15 filed appeal challenging the decree passed in Regular Civil Suit No.35 of 2007 along with an application to condone the delay of four years, ten months and eight days10. A conjoint reading of Order IX Rule 13 CPC and Section 96(2) CPC indicates that the defendant who suffered an ex-parte decree has two remedies:- (i) either to file an application under Order IX Rule 13 CPC to set aside the ex-parte decree to satisfy the court that summons were not duly served or those served, he was prevented by sufficient cause from appearing in the court when the suit was called for hearing; (ii) to file a regular appeal from the original decree to the first appellate court and challenge the ex-parte decree on merits11. It is to be pointed out that the scope of Order IX Rule 13 CPC and Section 96(2) CPC are entirely different. In an application filed under Order IX Rule 13 CPC, the Court has to see whether the summons were duly served or not or whether the defendant was prevented by any sufficient cause from appearing when the suit was called for hearing. If the Court is satisfied that the defendant was not duly served or that he was prevented for sufficient cause, the court may set aside the ex- parte decree and restore the suit to its original position. In terms of Section 96(2) CPC, the appeal lies from an original decree passed ex-parte. In the regular appeal filed under Section 96(2) CPC, the appellate court has wide jurisdiction to go into the merits of the decree. The scope of enquiry under two provisions is entirely different. Merely because the defendant pursued the remedy under Order IX Rule 13 CPC, it does not prohibit the defendant from filing the appeal if his application under Order IX Rule 13 CPC is dismissed12. The right of appeal under Section 96(2) CPC is a statutory right and the defendant cannot be deprived of the statutory right of appeal merely on the ground that the application filed by him under Order IX Rule 13 CPC has been dismissed.14. The above observation of the High Court that the remedies provided as simultaneous and cannot be converted into consecu- tivet be applied in a rigid manner and as a strait- jacket formula. It has to be considered depending on the facts and circumstances of each case and whether the defendant in pursuing the remedy consecutively has adopted dilatory tactics. Only in cases where the defendant has adopted dilatory tactics or where there is lack of bonafide in pursuing the two remedies con- secutively, the court may decline to condone the delay in filing the first appeal. If the court refuses to condone the delay in the time spent in pursuing the remedy under Order IX Rule 13 CPC, the defendant would be deprived of the statutory right of appeal in challenging the decree on merits15. It is a fairly well settled law that sufficient cause should be given liberal construction so as to advance sustainable justice when there is no inaction, no negligence nor want of bonafide could be imputable to the appellant.As pointed out earlier, an appeal under Section 96 CPC is a statutory right. Generally, delays in preferring appeals are required to be condoned, in the interest of justice, where there is no gross negligence or deliberate inaction or lack of bonafide is imputable to the party seeking condonation of delay17. In the case in hand, respondents No.1 to 13 filed a suit for partition in the year 2007, which was decreed ex-parte on 04.07.2008. Appellant and respondents No.14 and 15 filed application under Order IX Rule 13 CPC and the same came to be dismissed on 06.08.2010. Being aggrieved by dismissal of application under Order IX Rule 13 CPC, the appellant and respondents No.14 and 15 preferred an appeal under Order XLIII Rule 1(d) CPC on 03.09.2010. Of course, the said appeal was pending for about three years and the same was withdrawn on 11.06.2013. Thereafter, on the next day i.e. on 12.06.2013, the appellant and respondents No.14 and 15 filed an appeal challenging the ex-parte decree and judgment dated 04.07.2008 passed in Regular Civil Suit No.35 of 2007. It cannot be said that the appellant and respondents No.14 and 15 were grossly negligent in pursuing the matter more so, when the decree was passed in the suit for partition18. It is pertinent to note that as per Section 97 CPC where any party aggrieved by a preliminary decree does not appeal from such decree, he shall be precluded from disputing its correctness in any appeal which may be preferred from the final decree. The object is that the questions decided by the court at the stage of passing preliminary decree cannot be challenged at the time of final decree. If no appeal had been preferred against the preliminary decree, the suit filed by the respondents-plaintiffs being a suit for partition, the appellant would be deprived of the opportunity in challenging the decree on merits. In the interest of justice, the appellant and respondents No.14 and 15 are to be given an opportunity to challenge the ex-parte decree dated 04.07.2008 on merits, notwithstanding the dismissal of their application filed under Order IX Rule 13 CPC19. In the facts and circumstances of the present case, the time spent in pursuing the application under Order IX Rule 13 CPC is to be taken as sufficient cause for condoning the delay in filing the first appeal. The impugned judgment of the High Court cannot be sustained and is liable to be set aside. | 1 | 3,370 | 1,139 | ### Instruction:
Evaluate the case proceeding to forecast the court's decision (1 for yes, 0 for no), and elucidate the reasoning behind this prediction with important textual evidence from the case.
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It caters to every conceivable situation. But at the same time, the law expects a litigant to be straight, honest and fair. The two remedies provided against ex-parte decree are in respect of two different situations and are expected to be resorted to only if the facts of the situation are available to a litigant. The remedies provided as simultaneous and cannot be converted into consecutive remedies. 14. The above observation of the High Court that the remedies provided as simultaneous and cannot be converted into consecu- tive remediescannot be applied in a rigid manner and as a strait- jacket formula. It has to be considered depending on the facts and circumstances of each case and whether the defendant in pursuing the remedy consecutively has adopted dilatory tactics. Only in cases where the defendant has adopted dilatory tactics or where there is lack of bonafide in pursuing the two remedies con- secutively, the court may decline to condone the delay in filing the first appeal. If the court refuses to condone the delay in the time spent in pursuing the remedy under Order IX Rule 13 CPC, the defendant would be deprived of the statutory right of appeal in challenging the decree on merits. 15. It is a fairly well settled law that sufficient cause should be given liberal construction so as to advance sustainable justice when there is no inaction, no negligence nor want of bonafide could be imputable to the appellant. After referring to various judgments, in B. Madhuri, this Court held as under:- 6. The expression sufficient cause used in Section 5 of the Limitation Act, 1963 and other statutes is elastic enough to enable the courts to apply the law in a meaningful manner which serves the ends of justice. No hard-and-fast rule has been or can be laid down for deciding the applications for condonation of delay but over the years courts have repeatedly observed that a liberal approach needs to be adopted in such matters so that substantive rights of the parties are not defeated only on the ground of delay. 16. Observing that the rules of limitation are not meant to destroy the rights of the parties, in N. Balakrishnan v. M. Krishnamurthy (1998) 7 SCC 123 , this Court held as under:- 11. Rules of limitation are not meant to destroy the rights of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. The law of limitation fixes a lifespan for such legal remedy for the redress of the legal injury so suffered. Time is precious and wasted time would never revisit. During the efflux of time, newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the courts. So a lifespan must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. The law of limitation is thus founded on public policy. It is enshrined in the maxim interest reipublicae up sit finis litium (it is for the general welfare that a period be put to litigation). Rules of limitation are not meant to destroy the rights of the parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time. As pointed out earlier, an appeal under Section 96 CPC is a statutory right. Generally, delays in preferring appeals are required to be condoned, in the interest of justice, where there is no gross negligence or deliberate inaction or lack of bonafide is imputable to the party seeking condonation of delay. 17. In the case in hand, respondents No.1 to 13 filed a suit for partition in the year 2007, which was decreed ex-parte on 04.07.2008. Appellant and respondents No.14 and 15 filed application under Order IX Rule 13 CPC and the same came to be dismissed on 06.08.2010. Being aggrieved by dismissal of application under Order IX Rule 13 CPC, the appellant and respondents No.14 and 15 preferred an appeal under Order XLIII Rule 1(d) CPC on 03.09.2010. Of course, the said appeal was pending for about three years and the same was withdrawn on 11.06.2013. Thereafter, on the next day i.e. on 12.06.2013, the appellant and respondents No.14 and 15 filed an appeal challenging the ex-parte decree and judgment dated 04.07.2008 passed in Regular Civil Suit No.35 of 2007. It cannot be said that the appellant and respondents No.14 and 15 were grossly negligent in pursuing the matter more so, when the decree was passed in the suit for partition. 18. It is pertinent to note that as per Section 97 CPC where any party aggrieved by a preliminary decree does not appeal from such decree, he shall be precluded from disputing its correctness in any appeal which may be preferred from the final decree. The object is that the questions decided by the court at the stage of passing preliminary decree cannot be challenged at the time of final decree. If no appeal had been preferred against the preliminary decree, the suit filed by the respondents-plaintiffs being a suit for partition, the appellant would be deprived of the opportunity in challenging the decree on merits. In the interest of justice, the appellant and respondents No.14 and 15 are to be given an opportunity to challenge the ex-parte decree dated 04.07.2008 on merits, notwithstanding the dismissal of their application filed under Order IX Rule 13 CPC. 19. In the facts and circumstances of the present case, the time spent in pursuing the application under Order IX Rule 13 CPC is to be taken as sufficient cause for condoning the delay in filing the first appeal. The impugned judgment of the High Court cannot be sustained and is liable to be set aside.
### Response:
1
### Explanation:
under Order IX Rule 13 CPC on 15.10.2008 and the said application was dismissed on merits by the order dated 06.08.2010. Challenging the said order, the appellant and respondents No.14 and 15 preferred an appeal on 03.09.2010. About three years after its filing i.e. on 11.06.2013, the said appeal was withdrawn and on the next day i.e. on 12.06.2013, the appellant and respondents No.14 and 15 filed appeal challenging the decree passed in Regular Civil Suit No.35 of 2007 along with an application to condone the delay of four years, ten months and eight days10. A conjoint reading of Order IX Rule 13 CPC and Section 96(2) CPC indicates that the defendant who suffered an ex-parte decree has two remedies:- (i) either to file an application under Order IX Rule 13 CPC to set aside the ex-parte decree to satisfy the court that summons were not duly served or those served, he was prevented by sufficient cause from appearing in the court when the suit was called for hearing; (ii) to file a regular appeal from the original decree to the first appellate court and challenge the ex-parte decree on merits11. It is to be pointed out that the scope of Order IX Rule 13 CPC and Section 96(2) CPC are entirely different. In an application filed under Order IX Rule 13 CPC, the Court has to see whether the summons were duly served or not or whether the defendant was prevented by any sufficient cause from appearing when the suit was called for hearing. If the Court is satisfied that the defendant was not duly served or that he was prevented for sufficient cause, the court may set aside the ex- parte decree and restore the suit to its original position. In terms of Section 96(2) CPC, the appeal lies from an original decree passed ex-parte. In the regular appeal filed under Section 96(2) CPC, the appellate court has wide jurisdiction to go into the merits of the decree. The scope of enquiry under two provisions is entirely different. Merely because the defendant pursued the remedy under Order IX Rule 13 CPC, it does not prohibit the defendant from filing the appeal if his application under Order IX Rule 13 CPC is dismissed12. The right of appeal under Section 96(2) CPC is a statutory right and the defendant cannot be deprived of the statutory right of appeal merely on the ground that the application filed by him under Order IX Rule 13 CPC has been dismissed.14. The above observation of the High Court that the remedies provided as simultaneous and cannot be converted into consecu- tivet be applied in a rigid manner and as a strait- jacket formula. It has to be considered depending on the facts and circumstances of each case and whether the defendant in pursuing the remedy consecutively has adopted dilatory tactics. Only in cases where the defendant has adopted dilatory tactics or where there is lack of bonafide in pursuing the two remedies con- secutively, the court may decline to condone the delay in filing the first appeal. If the court refuses to condone the delay in the time spent in pursuing the remedy under Order IX Rule 13 CPC, the defendant would be deprived of the statutory right of appeal in challenging the decree on merits15. It is a fairly well settled law that sufficient cause should be given liberal construction so as to advance sustainable justice when there is no inaction, no negligence nor want of bonafide could be imputable to the appellant.As pointed out earlier, an appeal under Section 96 CPC is a statutory right. Generally, delays in preferring appeals are required to be condoned, in the interest of justice, where there is no gross negligence or deliberate inaction or lack of bonafide is imputable to the party seeking condonation of delay17. In the case in hand, respondents No.1 to 13 filed a suit for partition in the year 2007, which was decreed ex-parte on 04.07.2008. Appellant and respondents No.14 and 15 filed application under Order IX Rule 13 CPC and the same came to be dismissed on 06.08.2010. Being aggrieved by dismissal of application under Order IX Rule 13 CPC, the appellant and respondents No.14 and 15 preferred an appeal under Order XLIII Rule 1(d) CPC on 03.09.2010. Of course, the said appeal was pending for about three years and the same was withdrawn on 11.06.2013. Thereafter, on the next day i.e. on 12.06.2013, the appellant and respondents No.14 and 15 filed an appeal challenging the ex-parte decree and judgment dated 04.07.2008 passed in Regular Civil Suit No.35 of 2007. It cannot be said that the appellant and respondents No.14 and 15 were grossly negligent in pursuing the matter more so, when the decree was passed in the suit for partition18. It is pertinent to note that as per Section 97 CPC where any party aggrieved by a preliminary decree does not appeal from such decree, he shall be precluded from disputing its correctness in any appeal which may be preferred from the final decree. The object is that the questions decided by the court at the stage of passing preliminary decree cannot be challenged at the time of final decree. If no appeal had been preferred against the preliminary decree, the suit filed by the respondents-plaintiffs being a suit for partition, the appellant would be deprived of the opportunity in challenging the decree on merits. In the interest of justice, the appellant and respondents No.14 and 15 are to be given an opportunity to challenge the ex-parte decree dated 04.07.2008 on merits, notwithstanding the dismissal of their application filed under Order IX Rule 13 CPC19. In the facts and circumstances of the present case, the time spent in pursuing the application under Order IX Rule 13 CPC is to be taken as sufficient cause for condoning the delay in filing the first appeal. The impugned judgment of the High Court cannot be sustained and is liable to be set aside.
|
CCE, ALLAHABAD Vs. SURCOAT PAINTS (P) LTD | the Respondent was held eligible to avail of the benefit of the small scale exemption notification. Brief facts of the case are as under: The Respondent M/s Surcoat Paints Pvt. Ltd. is engaged in the manufacture of paints and varnishes falling under Chapter 32 of the schedule to the Central Excise Tariff Act, 1985. The Respondent was incorporated as a private limited company on 13th October, 1986 under the Companies Act. Respondent is a registered small scale industry holding permanent registration certificate issued by the General Manager, District Industries, Centre of Director of Industries, U.P. Respondent has been availing exemption of S.S.I. as envisaged under Notification No. 175/86 dated, 1st March, 1986 as amended and Notification No. 1/93-CE dated, 28th February, 1993 as amended. 2. There is another Company by the name of M/s Singhal Paints Pvt. Ltd. which is engaged in manufacturing paints and varnishes. M/s Singhal Paints Pvt. Ltd. was also a registered small scale industry. 3. The Commissioner, Central Excise, Allahabad, issued a Show Cause Notice dated, 28th February, 1995 to the Respondent denying it the benefit of Notification No. 175/86 on the ground that in terms of Notification No. SO-232(E) dated, 2nd April, 1991 issued u/s 11B of the Industries (Development and Regulation) Act, 1951, (for short IDR Act), the Respondent company would come under the category of being subsidiary to any other undertaking and shall cease to be a small scale industry. M/s Surcoat Paints (Pvt.) Ltd. and M/s Singhal Paints (Pvt.) Ltd. are being controlled by the same management and are to be considered as owned by the same owner. M/s Surcoat Paints (Pvt.) Ltd. thus ceases to become a small scale undertaking and thus ineligible to avail benefit under Notification No. 175/86-CE dated, 1st March, 1986. Since, M/s Surcoat Paints come under the category of being owned or controlled by M/s Singhal Paints (Pvt.) Ltd., it was not eligible for availing of the benefit of Notification No. 175-86 CE and 1/93/CE. 4. It was alleged in the Show Cause Notice that there was short payment of duty to the tune of Rs. 40,33,903.73 on the goods cleared by the manufacturer during the period 1st February, 1990 to 25th January, 1995 as it had wrongly availed the benefit under Notification No. 175/86 CE and 1/93 CE by willfully, suppressing the facts to avail small scale industry exemption violating the provisions of Rule 173-B, 173-F and 173-G read with Rule 173-Q of the Central Excise Rules, 1944. As per Show Cause Notice the SSI benefit is not available to the Respondents on the ground that SSI registration certificate was not correctly given to the Respondent. According to the Revenue, the Respondents were not entitled to the exemption granted to the small scale industry unit under Notification No. 175/86 CE and 1/93 CE as the aggregate value of excisable goods effected by Surcoat and Singhal taken together exceeded Rs. 150 lacs/200 lacs and hence the Show Cause Notice was issued to the Respondent. 5. Respondents filed their detailed reply to the Show Cause Notice controverting all the allegations contained therein. The Commissioner, Central Excise, Allahabad, adjudicated the case and confirmed the demand of Rs. 40,33,903,73 and imposed a penalty of Rs. 2,00,000 vide Order in Original No. MP(5/95)0 of 1995 dated, 3rd January, 1996. 6. Neither notice was issued to M/s Singhal Paints nor any demand was raised from M/s Singhal Paints. 7. The Assessee being aggrieved by the said Order, filed an appeal before the Tribunal. 8. The Tribunal has reversed the Order passed by the Commissioner of Central Excise, Allahabad, primarily relying upon the earlier decision of the Tribunal in CCE v. Agra Leather Goods Pvt. Ltd. 2000 (39) RLT 674 (T). Admittedly, against the aforesaid Order no appeal was filed by the Revenue. In Agra Leather Goods case (supra), the Tribunal held as under: The main condition required for availing the benefit of exemption Notification No. 175/86-CE dated, 1st March, 1986 is that the unit must hold SSI registration certificate either from the State Directorate of Industries or the Development Commissioner of the Industries. The Respondents admittedly possessed SSI registration certificate No. 20/01/08849/PMT/SSI/01 dated, 21st July, 1964 issued by the Directorate of Industries, Government of Uttar Pradesh during the period in question. True that the norm for determination of SSI status of the unit is normally the extent of investment on plant and machinery, the limit of which was earlier Rs. 35 lacs prior to 1st April, 1991 and thereafter, it was raised to Rs. 60 lacs. But this is required to be gone into by the Competent Authority before issuing the SSI certificate to a particular unit. In this case, there is nothing on record to suggest that the Directorate of Industries, Government of Uttar Pradesh even raised any objection about the non-compliance of this norm by the Respondents before issuing the SSI certificate. Rather it can be safely inferred that this norm was complied with, by the Respondents and they are accordingly issued the SSI certificate, especially when there is no material on record to raise any inference that they suppressed their correct investment on the plant and machinery while applying for the certificate. Having been issued SSI certificate by the Competent Authority the Respondents were legally entitled to claim the benefit of Notification No. 175/86-CE and 1/93-CE. If the Revenue department suspected the genuineness of their SSI certificate they could ask for the cancellation of the same from the authority who issued the same or take any proper action against the Respondents are permissible under the law. Till the SSI Registration was not cancelled by the Competent Authority, the Respondents could not be legally denied the benefit of the exemption notification referred to above. 9. Since, the Revenue has accepted the decision given by the Tribunal in Agra Leather Goods case (supra), the Revenue is precluded from challenging the similar Order passed in respect of another Unit. Since, the Order passed in Agra Leather Goods Case (supra) has attained finality, | 0[ds]Admittedly, against the aforesaid Order no appeal was filed by the Revenue. In Agra Leather Goods case (supra), the Tribunal held as under:The main condition required for availing the benefit of exemption Notification No. 175/86-CE dated, 1st March, 1986 is that the unit must hold SSI registration certificate either from the State Directorate of Industries or the Development Commissioner of the Industries. The Respondents admittedly possessed SSI registration certificate No. 20/01/08849/PMT/SSI/01 dated, 21st July, 1964 issued by the Directorate of Industries, Government of Uttar Pradesh during the period in question. True that the norm for determination of SSI status of the unit is normally the extent of investment on plant and machinery, the limit of which was earlier Rs. 35 lacs prior to 1st April, 1991 and thereafter, it was raised to Rs. 60 lacs. But this is required to be gone into by the Competent Authority before issuing the SSI certificate to a particular unit. In this case, there is nothing on record to suggest that the Directorate of Industries, Government of Uttar Pradesh even raised any objection about the non-compliance of this norm by the Respondents before issuing the SSI certificate. Rather it can be safely inferred that this norm was complied with, by the Respondents and they are accordingly issued the SSI certificate, especially when there is no material on record to raise any inference that they suppressed their correct investment on the plant and machinery while applying for the certificate. Having been issued SSI certificate by the Competent Authority the Respondents were legally entitled to claim the benefit of Notification No. 175/86-CE and 1/93-CE. If the Revenue department suspected the genuineness of their SSI certificate they could ask for the cancellation of the same from the authority who issued the same or take any proper action against the Respondents are permissible under the law. Till the SSI Registration was not cancelled by the Competent Authority, the Respondents could not be legally denied the benefit of the exemption notification referred to above.9. Since, the Revenue has accepted the decision given by the Tribunal in Agra Leather Goods case (supra), the Revenue is precluded from challenging the similar Order passed in respect of another Unit. Since, the Order passed in Agra Leather Goods Case (supra) has attained finality, | 0 | 1,217 | 427 | ### Instruction:
Predict the outcome of the case proceeding (1 for acceptance, 0 for rejection) and subsequently provide an explanation based on significant sentences in the proceeding.
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the Respondent was held eligible to avail of the benefit of the small scale exemption notification. Brief facts of the case are as under: The Respondent M/s Surcoat Paints Pvt. Ltd. is engaged in the manufacture of paints and varnishes falling under Chapter 32 of the schedule to the Central Excise Tariff Act, 1985. The Respondent was incorporated as a private limited company on 13th October, 1986 under the Companies Act. Respondent is a registered small scale industry holding permanent registration certificate issued by the General Manager, District Industries, Centre of Director of Industries, U.P. Respondent has been availing exemption of S.S.I. as envisaged under Notification No. 175/86 dated, 1st March, 1986 as amended and Notification No. 1/93-CE dated, 28th February, 1993 as amended. 2. There is another Company by the name of M/s Singhal Paints Pvt. Ltd. which is engaged in manufacturing paints and varnishes. M/s Singhal Paints Pvt. Ltd. was also a registered small scale industry. 3. The Commissioner, Central Excise, Allahabad, issued a Show Cause Notice dated, 28th February, 1995 to the Respondent denying it the benefit of Notification No. 175/86 on the ground that in terms of Notification No. SO-232(E) dated, 2nd April, 1991 issued u/s 11B of the Industries (Development and Regulation) Act, 1951, (for short IDR Act), the Respondent company would come under the category of being subsidiary to any other undertaking and shall cease to be a small scale industry. M/s Surcoat Paints (Pvt.) Ltd. and M/s Singhal Paints (Pvt.) Ltd. are being controlled by the same management and are to be considered as owned by the same owner. M/s Surcoat Paints (Pvt.) Ltd. thus ceases to become a small scale undertaking and thus ineligible to avail benefit under Notification No. 175/86-CE dated, 1st March, 1986. Since, M/s Surcoat Paints come under the category of being owned or controlled by M/s Singhal Paints (Pvt.) Ltd., it was not eligible for availing of the benefit of Notification No. 175-86 CE and 1/93/CE. 4. It was alleged in the Show Cause Notice that there was short payment of duty to the tune of Rs. 40,33,903.73 on the goods cleared by the manufacturer during the period 1st February, 1990 to 25th January, 1995 as it had wrongly availed the benefit under Notification No. 175/86 CE and 1/93 CE by willfully, suppressing the facts to avail small scale industry exemption violating the provisions of Rule 173-B, 173-F and 173-G read with Rule 173-Q of the Central Excise Rules, 1944. As per Show Cause Notice the SSI benefit is not available to the Respondents on the ground that SSI registration certificate was not correctly given to the Respondent. According to the Revenue, the Respondents were not entitled to the exemption granted to the small scale industry unit under Notification No. 175/86 CE and 1/93 CE as the aggregate value of excisable goods effected by Surcoat and Singhal taken together exceeded Rs. 150 lacs/200 lacs and hence the Show Cause Notice was issued to the Respondent. 5. Respondents filed their detailed reply to the Show Cause Notice controverting all the allegations contained therein. The Commissioner, Central Excise, Allahabad, adjudicated the case and confirmed the demand of Rs. 40,33,903,73 and imposed a penalty of Rs. 2,00,000 vide Order in Original No. MP(5/95)0 of 1995 dated, 3rd January, 1996. 6. Neither notice was issued to M/s Singhal Paints nor any demand was raised from M/s Singhal Paints. 7. The Assessee being aggrieved by the said Order, filed an appeal before the Tribunal. 8. The Tribunal has reversed the Order passed by the Commissioner of Central Excise, Allahabad, primarily relying upon the earlier decision of the Tribunal in CCE v. Agra Leather Goods Pvt. Ltd. 2000 (39) RLT 674 (T). Admittedly, against the aforesaid Order no appeal was filed by the Revenue. In Agra Leather Goods case (supra), the Tribunal held as under: The main condition required for availing the benefit of exemption Notification No. 175/86-CE dated, 1st March, 1986 is that the unit must hold SSI registration certificate either from the State Directorate of Industries or the Development Commissioner of the Industries. The Respondents admittedly possessed SSI registration certificate No. 20/01/08849/PMT/SSI/01 dated, 21st July, 1964 issued by the Directorate of Industries, Government of Uttar Pradesh during the period in question. True that the norm for determination of SSI status of the unit is normally the extent of investment on plant and machinery, the limit of which was earlier Rs. 35 lacs prior to 1st April, 1991 and thereafter, it was raised to Rs. 60 lacs. But this is required to be gone into by the Competent Authority before issuing the SSI certificate to a particular unit. In this case, there is nothing on record to suggest that the Directorate of Industries, Government of Uttar Pradesh even raised any objection about the non-compliance of this norm by the Respondents before issuing the SSI certificate. Rather it can be safely inferred that this norm was complied with, by the Respondents and they are accordingly issued the SSI certificate, especially when there is no material on record to raise any inference that they suppressed their correct investment on the plant and machinery while applying for the certificate. Having been issued SSI certificate by the Competent Authority the Respondents were legally entitled to claim the benefit of Notification No. 175/86-CE and 1/93-CE. If the Revenue department suspected the genuineness of their SSI certificate they could ask for the cancellation of the same from the authority who issued the same or take any proper action against the Respondents are permissible under the law. Till the SSI Registration was not cancelled by the Competent Authority, the Respondents could not be legally denied the benefit of the exemption notification referred to above. 9. Since, the Revenue has accepted the decision given by the Tribunal in Agra Leather Goods case (supra), the Revenue is precluded from challenging the similar Order passed in respect of another Unit. Since, the Order passed in Agra Leather Goods Case (supra) has attained finality,
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0
### Explanation:
Admittedly, against the aforesaid Order no appeal was filed by the Revenue. In Agra Leather Goods case (supra), the Tribunal held as under:The main condition required for availing the benefit of exemption Notification No. 175/86-CE dated, 1st March, 1986 is that the unit must hold SSI registration certificate either from the State Directorate of Industries or the Development Commissioner of the Industries. The Respondents admittedly possessed SSI registration certificate No. 20/01/08849/PMT/SSI/01 dated, 21st July, 1964 issued by the Directorate of Industries, Government of Uttar Pradesh during the period in question. True that the norm for determination of SSI status of the unit is normally the extent of investment on plant and machinery, the limit of which was earlier Rs. 35 lacs prior to 1st April, 1991 and thereafter, it was raised to Rs. 60 lacs. But this is required to be gone into by the Competent Authority before issuing the SSI certificate to a particular unit. In this case, there is nothing on record to suggest that the Directorate of Industries, Government of Uttar Pradesh even raised any objection about the non-compliance of this norm by the Respondents before issuing the SSI certificate. Rather it can be safely inferred that this norm was complied with, by the Respondents and they are accordingly issued the SSI certificate, especially when there is no material on record to raise any inference that they suppressed their correct investment on the plant and machinery while applying for the certificate. Having been issued SSI certificate by the Competent Authority the Respondents were legally entitled to claim the benefit of Notification No. 175/86-CE and 1/93-CE. If the Revenue department suspected the genuineness of their SSI certificate they could ask for the cancellation of the same from the authority who issued the same or take any proper action against the Respondents are permissible under the law. Till the SSI Registration was not cancelled by the Competent Authority, the Respondents could not be legally denied the benefit of the exemption notification referred to above.9. Since, the Revenue has accepted the decision given by the Tribunal in Agra Leather Goods case (supra), the Revenue is precluded from challenging the similar Order passed in respect of another Unit. Since, the Order passed in Agra Leather Goods Case (supra) has attained finality,
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THE CHENNAI METROPOLITAN DEVELOPMENT AUTHORITY REP. BY ITS MEMBER SECRETARY Vs. D. RAJAN DEV | an applicant accrues when the permission has been granted. Further, as a corollary, it can be said that the rates prevailing at the time of granting of permission are the rates which an applicant has to pay. The respondent/applicant cannot claim the benefit of the earlier guideline value existing prior to the date when approval was granted by the government. In our considered view, the respondent will have to pay FSI Premium charges based on the guideline value as existing on the date of grant of approval. 22. Learned Senior counsel for the appellant has placed reliance upon Chennai Municipal Development Authority v. Prestige Estates Projects Limited 2019 (10) Scale 78 . In Prestige Estates, despite the payment having been made by the builder on 28.03.2012, the Supreme Court held that the developer is liable to pay Premium FSI charges based on the revised guideline value which are applicable post 01.04.2012. In Prestige Estates, after referring to Usman Gani and other judgments, the Supreme Court held that the demand on account of Premium FSI charges arises only upon the grant of approval by the Government to avail Premium FSI. The ratio of the decision in Prestige Estates is squarely applicable to the present case. In the present case, since the sanction for revised plan was granted by the Government on 29.05.2012, the first respondent in the present case is liable to pay the Premium FSI charges based on the revised guideline value which came into force w.e.f. 01.04.2012. 23. Learned Senior counsel for the first respondent inter-alia contended that there was inordinate delay on the part of appellant- CMDA in processing the application and the first respondent cannot be burdened with extra charges on account of delay caused by the appellant. Learned Senior counsel further submitted that the application of the first respondent dated 04.05.2011 for revised proposal was returned after nine months on 10.02.2012 and the respondent cannot be blamed for the delay caused by the appellant in processing the application of the first respondent. This contention does not merit acceptance. The appellant-CMDA is a body entrusted with the task of examination and approval of multitude of building applications throughout the planning area. That apart, the appellant-CMDA is a single window system and it has to verify various documents with the connected Departments at various levels. The application was processed at various levels and it was sent to the departments like police, Fire, etc. for clearance. Considering the fact that different departments and agencies are involved with the process of approval, we feel that, there was no undue delay on the part of the appellant-CMDA or the State Government. As rightly pointed out by the learned Single Judge, the first respondent submitted the application after rectification of defects only on 24.02.2012 and within a period of one month, the application was placed before the meeting. Therefore, it cannot be said that there was undue delay on the part of the appellant-CMDA or Government to consider the first respondent?s application for approval of the revised plan. 24. In the impugned judgment, the Division Bench has relied upon Union of India and Others v. Dev Raj Gupta and Others (1991) 1 SCC 63 and Mahajan Industries Limited. The ratio of those decisions is not applicable to the case in hand as those decisions relate to application for conversion of the land and not building permission application. That apart, in those cases, there was a delay of more than three years in deciding the application. In the present case, as discussed above, there was no delay on the part of the appellant-CMDA or the Government to consider the first respondent?s application for approval. 25. As submitted by the learned Senior counsel for the appellant- CMDA, the conduct of the first respondent is also to be taken note of. After the levy of Premium FSI charges calling upon the first respondent to pay a sum of Rs.7,61,40,000/-, the first respondent submitted a representation on 19.07.2012 requesting to revise the Premium FSI charges by considering the guideline value prevailing as on the date of the application i.e. 04.05.2011. The said representation was rejected by the appellant-CMDA by its letter dated 31.08.2012 and the first respondent was directed to make payment of Premium FSI Charges. The first respondent was also informed that if the payment was not made within sixty days, the application will be returned. The first respondent?s further representation dated 14.12.2012 also came to be rejected. Thereafter, by letters dated 23.05.2013 and 14.06.2013, the first respondent had prayed for thirty days? time for remitting the Premium FSI charges as demanded by the appellant-CMDA. By communication dated 19.06.2013, the first respondent was granted time upto 15.07.2013 to pay Premium FSI charges. After so getting extension of time, the first respondent filed writ petition before the High Court challenging the order of CMDA dated 31.08.2012 and prayed for quashing the demand. It is to be pointed out that the learned Single Judge also commented on the conduct of first respondent in obtaining extension of time to remit the Premium FSI charges and thereafter, filing the writ petition before the High Court challenging the demand. 26. The Division Bench did not keep in view the well settled principle that no right accrued to the applicant-builder by mere filing of application for approval and the right accrues only after approval is granted by the Government/concerned authorities. The impugned judgment is contrary to the well settled principle that the applicant does not acquire any right under law till his application is considered and sanctioned. Regulation 36 clearly provides that the Premium FSI shall be allowed in specific areas only with the approval of the Government. Unless and until the Government grants approval, no right accrued to the first respondent. When the Government sanctioned the approval on 29.05.2012, the Division Bench erred in directing the appellant to calculate the FSI charges as per the guideline value as on 04.05.2011. The impugned judgment is therefore liable to be set aside. | 1[ds]By reading of the above, it is seen that it is only forwarding of the proposal to the Government with recommendation for approval of the revised plan which is as per the procedure involved. Such forwarding of the proposal to the Government with recommendation for approval, does not create any right in favour of the respondent. In terms of Regulation 36, Premium FSI shall be allowed in specific areas as notified subject to guidelines with the approval of the Government and on collection of charges at the rates as may be prescribed by the authority. Thus, for the award of Premium FSI, inter-alia the conditions?collection of charges at the rates as may be prescribed by the authority?and ?approval of the Government?, are mandatory. The collection of FSI Premium charges is subject to the guidelines. The revised guideline came into force w.e.f. 01.04.2012. Be it noted that the first respondent?s application was considered and finally approval was granted by the Government on 29.05.2012 only after revised guideline came into force. At the time of granting approval by the Government on 29.05.2012, when the revised guideline was in force, the High Court ought not to have held that the guideline value as on 04.05.2011, that is, the date of application of the first respondent, should be considered for the purpose of calculating Premium FSI charges. The right would accrue to the first respondent only after the Government grants approval to the revised plan sanctioning the Premium FSI. Thus, the date on which the approval was granted by the Government i.e. 29.05.2012 ought to have been taken into consideration for calculating the Premium FSI charges17. It is well settled that no right accrues to an applicant until the application for approval is considered and sanctioned. The first respondent has given the proposal for revised building plan under Regulation 36 with a view to avail the benefit of Premium FSI. As pointed out earlier, the process of grant of Premium FSI is completed only after the grant of approval by the Government. Regulation 36 clearly provides that the Premium FSI shall be allowed in specific areas with the approval of the Government and the approval of the Government therefore is mandatory. Only when the Government grants approval, the right would accrue to the builder and not before that. Therefore, the date of approval is the crucial dateWe find merit in the submission of the appellant that the decision in Mahajan Industries is not applicable to the facts of the present case. Though the application was filed on 04.05.2011 and resubmitted after rectification of defects on 24.02.2012, the Government approved the revised proposal only on 29.05.2012. In the meanwhile, the revised guideline value was introduced for implementation w.e.f. 01.04.2012. As rightly held by the learned Single Judge that the first respondent/builder does not acquire any legal right until the plan is sanctioned21. Mere pendency of the application for planning permission does not create a vested right in an applicant. Right accrues only when the permission/sanction is granted by the Government/concerned authorities. This is because planning permission is accorded on the basis of scrutiny of application form and the concerned documents. There is always possibility of an application not meeting the requisite criteria for carrying out the proposed development and being rejected. Until and unless an application complete in all respect is approved, it remains a mere application and no right can be claimed on the basis of such an application. A proposal cannot be equated with an approval, otherwise the later will lose all significance. The obvious logical conclusion is that the right to an applicant accrues when the permission has been granted. Further, as a corollary, it can be said that the rates prevailing at the time of granting of permission are the rates which an applicant has to pay. The respondent/applicant cannot claim the benefit of the earlier guideline value existing prior to the date when approval was granted by the government. In our considered view, the respondent will have to pay FSI Premium charges based on the guideline value as existing on the date of grant of approvalIn Prestige Estates, despite the payment having been made by the builder on 28.03.2012, the Supreme Court held that the developer is liable to pay Premium FSI charges based on the revised guideline value which are applicable post 01.04.2012. In Prestige Estates, after referring to Usman Gani and other judgments, the Supreme Court held that the demand on account of Premium FSI charges arises only upon the grant of approval by the Government to avail Premium FSI. The ratio of the decision in Prestige Estates is squarely applicable to the present case. In the present case, since the sanction for revised plan was granted by the Government on 29.05.2012, the first respondent in the present case is liable to pay the Premium FSI charges based on the revised guideline value which came into force w.e.f. 01.04.201223. Learned Senior counsel for the first respondent inter-alia contended that there was inordinate delay on the part of appellant- CMDA in processing the application and the first respondent cannot be burdened with extra charges on account of delay caused by the appellant. Learned Senior counsel further submitted that the application of the first respondent dated 04.05.2011 for revised proposal was returned after nine months on 10.02.2012 and the respondent cannot be blamed for the delay caused by the appellant in processing the application of the first respondent. This contention does not merit acceptance. The appellant-CMDA is a body entrusted with the task of examination and approval of multitude of building applications throughout the planning area. That apart, the appellant-CMDA is a single window system and it has to verify various documents with the connected Departments at various levels. The application was processed at various levels and it was sent to the departments like police, Fire, etc. for clearance. Considering the fact that different departments and agencies are involved with the process of approval, we feel that, there was no undue delay on the part of the appellant-CMDA or the State Government. As rightly pointed out by the learned Single Judge, the first respondent submitted the application after rectification of defects only on 24.02.2012 and within a period of one month, the application was placed before the meeting. Therefore, it cannot be said that there was undue delay on the part of the appellant-CMDA or Government to consider the first respondent?s application for approval of the revised plan24. In the impugned judgment, the Division Bench has relied upon Union of India and Others v. Dev Raj Gupta and Others (1991) 1 SCC 63 and Mahajan Industries Limited. The ratio of those decisions is not applicable to the case in hand as those decisions relate to application for conversion of the land and not building permission application. That apart, in those cases, there was a delay of more than three years in deciding the application. In the present case, as discussed above, there was no delay on the part of the appellant-CMDA or the Government to consider the first respondent?s application for approval25. As submitted by the learned Senior counsel for the appellant- CMDA, the conduct of the first respondent is also to be taken note of. After the levy of Premium FSI charges calling upon the first respondent to pay a sum of Rs.7,61,40,000/-, the first respondent submitted a representation on 19.07.2012 requesting to revise the Premium FSI charges by considering the guideline value prevailing as on the date of the application i.e. 04.05.2011. The said representation was rejected by the appellant-CMDA by its letter dated 31.08.2012 and the first respondent was directed to make payment of Premium FSI Charges. The first respondent was also informed that if the payment was not made within sixty days, the application will be returned. The first respondent?s further representation dated 14.12.2012 also came to be rejected. Thereafter, by letters dated 23.05.2013 and 14.06.2013, the first respondent had prayed for thirty days? time for remitting the Premium FSI charges as demanded by the appellant-CMDA. By communication dated 19.06.2013, the first respondent was granted time upto 15.07.2013 to pay Premium FSI charges. After so getting extension of time, the first respondent filed writ petition before the High Court challenging the order of CMDA dated 31.08.2012 and prayed for quashing the demand. It is to be pointed out that the learned Single Judge also commented on the conduct of first respondent in obtaining extension of time to remit the Premium FSI charges and thereafter, filing the writ petition before the High Court challenging the demand26. The Division Bench did not keep in view the well settled principle that no right accrued to the applicant-builder by mere filing of application for approval and the right accrues only after approval is granted by the Government/concerned authorities. The impugned judgment is contrary to the well settled principle that the applicant does not acquire any right under law till his application is considered and sanctioned. Regulation 36 clearly provides that the Premium FSI shall be allowed in specific areas only with the approval of the Government. Unless and until the Government grants approval, no right accrued to the first respondent. When the Government sanctioned the approval on 29.05.2012, the Division Bench erred in directing the appellant to calculate the FSI charges as per the guideline value as on 04.05.2011. The impugned judgment is therefore liable to be set aside. | 1 | 4,896 | 1,712 | ### 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:
an applicant accrues when the permission has been granted. Further, as a corollary, it can be said that the rates prevailing at the time of granting of permission are the rates which an applicant has to pay. The respondent/applicant cannot claim the benefit of the earlier guideline value existing prior to the date when approval was granted by the government. In our considered view, the respondent will have to pay FSI Premium charges based on the guideline value as existing on the date of grant of approval. 22. Learned Senior counsel for the appellant has placed reliance upon Chennai Municipal Development Authority v. Prestige Estates Projects Limited 2019 (10) Scale 78 . In Prestige Estates, despite the payment having been made by the builder on 28.03.2012, the Supreme Court held that the developer is liable to pay Premium FSI charges based on the revised guideline value which are applicable post 01.04.2012. In Prestige Estates, after referring to Usman Gani and other judgments, the Supreme Court held that the demand on account of Premium FSI charges arises only upon the grant of approval by the Government to avail Premium FSI. The ratio of the decision in Prestige Estates is squarely applicable to the present case. In the present case, since the sanction for revised plan was granted by the Government on 29.05.2012, the first respondent in the present case is liable to pay the Premium FSI charges based on the revised guideline value which came into force w.e.f. 01.04.2012. 23. Learned Senior counsel for the first respondent inter-alia contended that there was inordinate delay on the part of appellant- CMDA in processing the application and the first respondent cannot be burdened with extra charges on account of delay caused by the appellant. Learned Senior counsel further submitted that the application of the first respondent dated 04.05.2011 for revised proposal was returned after nine months on 10.02.2012 and the respondent cannot be blamed for the delay caused by the appellant in processing the application of the first respondent. This contention does not merit acceptance. The appellant-CMDA is a body entrusted with the task of examination and approval of multitude of building applications throughout the planning area. That apart, the appellant-CMDA is a single window system and it has to verify various documents with the connected Departments at various levels. The application was processed at various levels and it was sent to the departments like police, Fire, etc. for clearance. Considering the fact that different departments and agencies are involved with the process of approval, we feel that, there was no undue delay on the part of the appellant-CMDA or the State Government. As rightly pointed out by the learned Single Judge, the first respondent submitted the application after rectification of defects only on 24.02.2012 and within a period of one month, the application was placed before the meeting. Therefore, it cannot be said that there was undue delay on the part of the appellant-CMDA or Government to consider the first respondent?s application for approval of the revised plan. 24. In the impugned judgment, the Division Bench has relied upon Union of India and Others v. Dev Raj Gupta and Others (1991) 1 SCC 63 and Mahajan Industries Limited. The ratio of those decisions is not applicable to the case in hand as those decisions relate to application for conversion of the land and not building permission application. That apart, in those cases, there was a delay of more than three years in deciding the application. In the present case, as discussed above, there was no delay on the part of the appellant-CMDA or the Government to consider the first respondent?s application for approval. 25. As submitted by the learned Senior counsel for the appellant- CMDA, the conduct of the first respondent is also to be taken note of. After the levy of Premium FSI charges calling upon the first respondent to pay a sum of Rs.7,61,40,000/-, the first respondent submitted a representation on 19.07.2012 requesting to revise the Premium FSI charges by considering the guideline value prevailing as on the date of the application i.e. 04.05.2011. The said representation was rejected by the appellant-CMDA by its letter dated 31.08.2012 and the first respondent was directed to make payment of Premium FSI Charges. The first respondent was also informed that if the payment was not made within sixty days, the application will be returned. The first respondent?s further representation dated 14.12.2012 also came to be rejected. Thereafter, by letters dated 23.05.2013 and 14.06.2013, the first respondent had prayed for thirty days? time for remitting the Premium FSI charges as demanded by the appellant-CMDA. By communication dated 19.06.2013, the first respondent was granted time upto 15.07.2013 to pay Premium FSI charges. After so getting extension of time, the first respondent filed writ petition before the High Court challenging the order of CMDA dated 31.08.2012 and prayed for quashing the demand. It is to be pointed out that the learned Single Judge also commented on the conduct of first respondent in obtaining extension of time to remit the Premium FSI charges and thereafter, filing the writ petition before the High Court challenging the demand. 26. The Division Bench did not keep in view the well settled principle that no right accrued to the applicant-builder by mere filing of application for approval and the right accrues only after approval is granted by the Government/concerned authorities. The impugned judgment is contrary to the well settled principle that the applicant does not acquire any right under law till his application is considered and sanctioned. Regulation 36 clearly provides that the Premium FSI shall be allowed in specific areas only with the approval of the Government. Unless and until the Government grants approval, no right accrued to the first respondent. When the Government sanctioned the approval on 29.05.2012, the Division Bench erred in directing the appellant to calculate the FSI charges as per the guideline value as on 04.05.2011. The impugned judgment is therefore liable to be set aside.
### Response:
1
### Explanation:
an application. A proposal cannot be equated with an approval, otherwise the later will lose all significance. The obvious logical conclusion is that the right to an applicant accrues when the permission has been granted. Further, as a corollary, it can be said that the rates prevailing at the time of granting of permission are the rates which an applicant has to pay. The respondent/applicant cannot claim the benefit of the earlier guideline value existing prior to the date when approval was granted by the government. In our considered view, the respondent will have to pay FSI Premium charges based on the guideline value as existing on the date of grant of approvalIn Prestige Estates, despite the payment having been made by the builder on 28.03.2012, the Supreme Court held that the developer is liable to pay Premium FSI charges based on the revised guideline value which are applicable post 01.04.2012. In Prestige Estates, after referring to Usman Gani and other judgments, the Supreme Court held that the demand on account of Premium FSI charges arises only upon the grant of approval by the Government to avail Premium FSI. The ratio of the decision in Prestige Estates is squarely applicable to the present case. In the present case, since the sanction for revised plan was granted by the Government on 29.05.2012, the first respondent in the present case is liable to pay the Premium FSI charges based on the revised guideline value which came into force w.e.f. 01.04.201223. Learned Senior counsel for the first respondent inter-alia contended that there was inordinate delay on the part of appellant- CMDA in processing the application and the first respondent cannot be burdened with extra charges on account of delay caused by the appellant. Learned Senior counsel further submitted that the application of the first respondent dated 04.05.2011 for revised proposal was returned after nine months on 10.02.2012 and the respondent cannot be blamed for the delay caused by the appellant in processing the application of the first respondent. This contention does not merit acceptance. The appellant-CMDA is a body entrusted with the task of examination and approval of multitude of building applications throughout the planning area. That apart, the appellant-CMDA is a single window system and it has to verify various documents with the connected Departments at various levels. The application was processed at various levels and it was sent to the departments like police, Fire, etc. for clearance. Considering the fact that different departments and agencies are involved with the process of approval, we feel that, there was no undue delay on the part of the appellant-CMDA or the State Government. As rightly pointed out by the learned Single Judge, the first respondent submitted the application after rectification of defects only on 24.02.2012 and within a period of one month, the application was placed before the meeting. Therefore, it cannot be said that there was undue delay on the part of the appellant-CMDA or Government to consider the first respondent?s application for approval of the revised plan24. In the impugned judgment, the Division Bench has relied upon Union of India and Others v. Dev Raj Gupta and Others (1991) 1 SCC 63 and Mahajan Industries Limited. The ratio of those decisions is not applicable to the case in hand as those decisions relate to application for conversion of the land and not building permission application. That apart, in those cases, there was a delay of more than three years in deciding the application. In the present case, as discussed above, there was no delay on the part of the appellant-CMDA or the Government to consider the first respondent?s application for approval25. As submitted by the learned Senior counsel for the appellant- CMDA, the conduct of the first respondent is also to be taken note of. After the levy of Premium FSI charges calling upon the first respondent to pay a sum of Rs.7,61,40,000/-, the first respondent submitted a representation on 19.07.2012 requesting to revise the Premium FSI charges by considering the guideline value prevailing as on the date of the application i.e. 04.05.2011. The said representation was rejected by the appellant-CMDA by its letter dated 31.08.2012 and the first respondent was directed to make payment of Premium FSI Charges. The first respondent was also informed that if the payment was not made within sixty days, the application will be returned. The first respondent?s further representation dated 14.12.2012 also came to be rejected. Thereafter, by letters dated 23.05.2013 and 14.06.2013, the first respondent had prayed for thirty days? time for remitting the Premium FSI charges as demanded by the appellant-CMDA. By communication dated 19.06.2013, the first respondent was granted time upto 15.07.2013 to pay Premium FSI charges. After so getting extension of time, the first respondent filed writ petition before the High Court challenging the order of CMDA dated 31.08.2012 and prayed for quashing the demand. It is to be pointed out that the learned Single Judge also commented on the conduct of first respondent in obtaining extension of time to remit the Premium FSI charges and thereafter, filing the writ petition before the High Court challenging the demand26. The Division Bench did not keep in view the well settled principle that no right accrued to the applicant-builder by mere filing of application for approval and the right accrues only after approval is granted by the Government/concerned authorities. The impugned judgment is contrary to the well settled principle that the applicant does not acquire any right under law till his application is considered and sanctioned. Regulation 36 clearly provides that the Premium FSI shall be allowed in specific areas only with the approval of the Government. Unless and until the Government grants approval, no right accrued to the first respondent. When the Government sanctioned the approval on 29.05.2012, the Division Bench erred in directing the appellant to calculate the FSI charges as per the guideline value as on 04.05.2011. The impugned judgment is therefore liable to be set aside.
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The State of Orissa and Ors Vs. Mahimananda Mishra and Ors | this Court. 8. It is brought to the notice of the Court by the learned Advocate for the State that though the impugned judgment of the High Court of Orissa granting the order of bail in favour of the Respondent was passed as far back as 16.05.2017, the Respondent was actually released from custody with effect from May 2018, inasmuch as he was in custody in two other cases till then. 9. The High Court proceeded to grant bail to the Respondent on the ground that there is no prima facie material against the Respondent to establish his involvement in the conspiracy to murder the deceased, that the undated letter of the deceased addressed to the police showing apprehension to his life cannot be treated as a dying declaration; the material on record does not indicate any motive on the part of the Respondent to conspire towards the commission of murder in question, and that the confessions of the co-accused cannot be made used of against the Respondent at this stage, inasmuch as they are admissible only to the extent that they lead to recoveries Under Section 27 of the Indian Evidence Act. 10. Since the investigation is yet to complete and trial is yet to begin, it would not be proper for us to dwell upon the subject matter in detail at this stage, lest it may prejudice the case of either of the parties during trial. However, prima facie, it is brought on record by the State that there was severe animosity between the deceased and the Respondent, as is evidenced by the fact that at one point an intervention by the district administration was necessitated to keep the peace. The statement of the family members of the deceased discloses that the Respondent had given death threats to the deceased. A letter of the deceased was seized from the house of the deceased during the course of investigation which discloses that the deceased was under the apprehension of his death by the Respondent due to business rivalry. The Respondent fled to Thailand to avoid arrest and was arrested only on deportation pursuant to the issuance of a Look Out Circular, which probabilises the apprehension of the police regarding future attempts of the Accused to escape. A recovery of weapon has been made pursuant to the statement made by the co-accused. The Respondent has serious criminal antecedents, having five criminal cases registered against him, out of which two cases involve charges Under Section 307, Indian Penal Code and three under the Explosive Substances Act. However, during the course of arguments, it was brought to the notice of the Court that in one matter, the Respondent has been acquitted. Since the Respondent is a powerful and influential person in his locality, the investigating officer apprehends that he may influence the witnesses by intimidating them and if the Respondent continues to remain at large, his presence may influence the trial by creating fear in the minds of the witnesses. 11. It is common knowledge that generally direct evidence may not be available to prove conspiracy, inasmuch as the act of conspiracy takes place secretly. Only the conspirators would be knowing about the conspiracy. However, the Court, while evaluating the material, may rely upon other material which suggests conspiracy. Such material will be on record during the course of trial. However, at this stage, prima facie, the Court needs to take into consideration the overall material while considering the prayer for bail. 12. Though this Court may not ordinarily interfere with the orders of the High Court granting or rejecting bail to the Accused, it is open for this Court to set aside the order of the High Court, where it is apparent that the High Court has not exercised its discretion judiciously and in accordance with the basic principles governing the grant of bail. (See the judgment of this Court in the case of Neeru Yadav v. State of Uttar Pradesh, (2014) 16 SCC 508 and Prasanta Kumar Sarkar v. Ashis Chatterjee, (2010) 14 SCC 496 ). It is by now well settled that at the time of considering an application for bail, the Court must take into account certain factors such as the existence of a prima facie case against the Accused, the gravity of the allegations, position and status of the Accused, the likelihood of the Accused fleeing from justice and repeating the offence, the possibility of tampering with the witnesses and obstructing the Courts as well as the criminal antecedents of the Accused. It is also well settled that the Court must not go into deep into merits of the matter while considering an application for bail. All that needs to be established from the record is the existence of a prima facie case against the Accused. (See the judgment of this Court in the case of Anil Kumar Yadav v. State (NCT) of Delhi, (2018) 12 SCC 129.) 13. Keeping in mind the aforementioned principles, we are of the view that the High Court was not justified in going into the evidence on record in such a depth which amounts to ascertaining the probability of the conviction of the Accused. On the other hand, the High Court has failed to appreciate several crucial factors that indicate that it was highly inappropriate to grant bail in favour of the Respondent. 14. Since the Respondent is an influential person in his locality, in terms of both money and muscle power, there is a reasonable apprehension that he might tamper with or otherwise adversely influence the investigation, which is still going on qua some of the co-accused in the case, or that he might intimidate witnesses before or during the trial. The High Court in observing that there was no possibility of the Respondents absconding in light of his being a local businessman, not only completely overlooked his past attempt to evade the process of law, but also overlooked the implications of the clout enjoyed by him in the community. | 1[ds]10. Since the investigation is yet to complete and trial is yet to begin, it would not be proper for us to dwell upon the subject matter in detail at this stage, lest it may prejudice the case of either of the parties during trial. However, prima facie, it is brought on record by the State that there was severe animosity between the deceased and the Respondent, as is evidenced by the fact that at one point an intervention by the district administration was necessitated to keep the peace. The statement of the family members of the deceased discloses that the Respondent had given death threats to the deceased. A letter of the deceased was seized from the house of the deceased during the course of investigation which discloses that the deceased was under the apprehension of his death by the Respondent due to business rivalry. The Respondent fled to Thailand to avoid arrest and was arrested only on deportation pursuant to the issuance of a Look Out Circular, which probabilises the apprehension of the police regarding future attempts of the Accused to escape. A recovery of weapon has been made pursuant to the statement made by the co-accused. The Respondent has serious criminal antecedents, having five criminal cases registered against him, out of which two cases involve charges Under Section 307, Indian Penal Code and three under the Explosive Substances Act. However, during the course of arguments, it was brought to the notice of the Court that in one matter, the Respondent has been acquitted. Since the Respondent is a powerful and influential person in his locality, the investigating officer apprehends that he may influence the witnesses by intimidating them and if the Respondent continues to remain at large, his presence may influence the trial by creating fear in the minds of the witnesses12. Though this Court may not ordinarily interfere with the orders of the High Court granting or rejecting bail to the Accused, it is open for this Court to set aside the order of the High Court, where it is apparent that the High Court has not exercised its discretion judiciously and in accordance with the basic principles governing the grant of bail. (See the judgment of this Court in the case of Neeru Yadav v. State of Uttar Pradesh, (2014) 16 SCC 508 and Prasanta Kumar Sarkar v. Ashis Chatterjee, (2010) 14 SCC 496 ). It is by now well settled that at the time of considering an application for bail, the Court must take into account certain factors such as the existence of a prima facie case against the Accused, the gravity of the allegations, position and status of the Accused, the likelihood of the Accused fleeing from justice and repeating the offence, the possibility of tampering with the witnesses and obstructing the Courts as well as the criminal antecedents of the Accused. It is also well settled that the Court must not go into deep into merits of the matter while considering an application for bail. All that needs to be established from the record is the existence of a prima facie case against the Accused. (See the judgment of this Court in the case of Anil Kumar Yadav v. State (NCT) of Delhi, (2018) 12 SCC 129.) 13. Keeping in mind the aforementioned principles, we are of the view that the High Court was not justified in going into the evidence on record in such a depth which amounts to ascertaining the probability of the conviction of the Accused. On the other hand, the High Court has failed to appreciate several crucial factors that indicate that it was highly inappropriate to grant bail in favour of the Respondent14. Since the Respondent is an influential person in his locality, in terms of both money and muscle power, there is a reasonable apprehension that he might tamper with or otherwise adversely influence the investigation, which is still going on qua some of the co-accused in the case, or that he might intimidate witnesses before or during the trial. The High Court in observing that there was no possibility of the Respondents absconding in light of his being a local businessman, not only completely overlooked his past attempt to evade the process of law, but also overlooked the implications of the clout enjoyed by him in the community. | 1 | 1,907 | 791 | ### Instruction:
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this Court. 8. It is brought to the notice of the Court by the learned Advocate for the State that though the impugned judgment of the High Court of Orissa granting the order of bail in favour of the Respondent was passed as far back as 16.05.2017, the Respondent was actually released from custody with effect from May 2018, inasmuch as he was in custody in two other cases till then. 9. The High Court proceeded to grant bail to the Respondent on the ground that there is no prima facie material against the Respondent to establish his involvement in the conspiracy to murder the deceased, that the undated letter of the deceased addressed to the police showing apprehension to his life cannot be treated as a dying declaration; the material on record does not indicate any motive on the part of the Respondent to conspire towards the commission of murder in question, and that the confessions of the co-accused cannot be made used of against the Respondent at this stage, inasmuch as they are admissible only to the extent that they lead to recoveries Under Section 27 of the Indian Evidence Act. 10. Since the investigation is yet to complete and trial is yet to begin, it would not be proper for us to dwell upon the subject matter in detail at this stage, lest it may prejudice the case of either of the parties during trial. However, prima facie, it is brought on record by the State that there was severe animosity between the deceased and the Respondent, as is evidenced by the fact that at one point an intervention by the district administration was necessitated to keep the peace. The statement of the family members of the deceased discloses that the Respondent had given death threats to the deceased. A letter of the deceased was seized from the house of the deceased during the course of investigation which discloses that the deceased was under the apprehension of his death by the Respondent due to business rivalry. The Respondent fled to Thailand to avoid arrest and was arrested only on deportation pursuant to the issuance of a Look Out Circular, which probabilises the apprehension of the police regarding future attempts of the Accused to escape. A recovery of weapon has been made pursuant to the statement made by the co-accused. The Respondent has serious criminal antecedents, having five criminal cases registered against him, out of which two cases involve charges Under Section 307, Indian Penal Code and three under the Explosive Substances Act. However, during the course of arguments, it was brought to the notice of the Court that in one matter, the Respondent has been acquitted. Since the Respondent is a powerful and influential person in his locality, the investigating officer apprehends that he may influence the witnesses by intimidating them and if the Respondent continues to remain at large, his presence may influence the trial by creating fear in the minds of the witnesses. 11. It is common knowledge that generally direct evidence may not be available to prove conspiracy, inasmuch as the act of conspiracy takes place secretly. Only the conspirators would be knowing about the conspiracy. However, the Court, while evaluating the material, may rely upon other material which suggests conspiracy. Such material will be on record during the course of trial. However, at this stage, prima facie, the Court needs to take into consideration the overall material while considering the prayer for bail. 12. Though this Court may not ordinarily interfere with the orders of the High Court granting or rejecting bail to the Accused, it is open for this Court to set aside the order of the High Court, where it is apparent that the High Court has not exercised its discretion judiciously and in accordance with the basic principles governing the grant of bail. (See the judgment of this Court in the case of Neeru Yadav v. State of Uttar Pradesh, (2014) 16 SCC 508 and Prasanta Kumar Sarkar v. Ashis Chatterjee, (2010) 14 SCC 496 ). It is by now well settled that at the time of considering an application for bail, the Court must take into account certain factors such as the existence of a prima facie case against the Accused, the gravity of the allegations, position and status of the Accused, the likelihood of the Accused fleeing from justice and repeating the offence, the possibility of tampering with the witnesses and obstructing the Courts as well as the criminal antecedents of the Accused. It is also well settled that the Court must not go into deep into merits of the matter while considering an application for bail. All that needs to be established from the record is the existence of a prima facie case against the Accused. (See the judgment of this Court in the case of Anil Kumar Yadav v. State (NCT) of Delhi, (2018) 12 SCC 129.) 13. Keeping in mind the aforementioned principles, we are of the view that the High Court was not justified in going into the evidence on record in such a depth which amounts to ascertaining the probability of the conviction of the Accused. On the other hand, the High Court has failed to appreciate several crucial factors that indicate that it was highly inappropriate to grant bail in favour of the Respondent. 14. Since the Respondent is an influential person in his locality, in terms of both money and muscle power, there is a reasonable apprehension that he might tamper with or otherwise adversely influence the investigation, which is still going on qua some of the co-accused in the case, or that he might intimidate witnesses before or during the trial. The High Court in observing that there was no possibility of the Respondents absconding in light of his being a local businessman, not only completely overlooked his past attempt to evade the process of law, but also overlooked the implications of the clout enjoyed by him in the community.
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10. Since the investigation is yet to complete and trial is yet to begin, it would not be proper for us to dwell upon the subject matter in detail at this stage, lest it may prejudice the case of either of the parties during trial. However, prima facie, it is brought on record by the State that there was severe animosity between the deceased and the Respondent, as is evidenced by the fact that at one point an intervention by the district administration was necessitated to keep the peace. The statement of the family members of the deceased discloses that the Respondent had given death threats to the deceased. A letter of the deceased was seized from the house of the deceased during the course of investigation which discloses that the deceased was under the apprehension of his death by the Respondent due to business rivalry. The Respondent fled to Thailand to avoid arrest and was arrested only on deportation pursuant to the issuance of a Look Out Circular, which probabilises the apprehension of the police regarding future attempts of the Accused to escape. A recovery of weapon has been made pursuant to the statement made by the co-accused. The Respondent has serious criminal antecedents, having five criminal cases registered against him, out of which two cases involve charges Under Section 307, Indian Penal Code and three under the Explosive Substances Act. However, during the course of arguments, it was brought to the notice of the Court that in one matter, the Respondent has been acquitted. Since the Respondent is a powerful and influential person in his locality, the investigating officer apprehends that he may influence the witnesses by intimidating them and if the Respondent continues to remain at large, his presence may influence the trial by creating fear in the minds of the witnesses12. Though this Court may not ordinarily interfere with the orders of the High Court granting or rejecting bail to the Accused, it is open for this Court to set aside the order of the High Court, where it is apparent that the High Court has not exercised its discretion judiciously and in accordance with the basic principles governing the grant of bail. (See the judgment of this Court in the case of Neeru Yadav v. State of Uttar Pradesh, (2014) 16 SCC 508 and Prasanta Kumar Sarkar v. Ashis Chatterjee, (2010) 14 SCC 496 ). It is by now well settled that at the time of considering an application for bail, the Court must take into account certain factors such as the existence of a prima facie case against the Accused, the gravity of the allegations, position and status of the Accused, the likelihood of the Accused fleeing from justice and repeating the offence, the possibility of tampering with the witnesses and obstructing the Courts as well as the criminal antecedents of the Accused. It is also well settled that the Court must not go into deep into merits of the matter while considering an application for bail. All that needs to be established from the record is the existence of a prima facie case against the Accused. (See the judgment of this Court in the case of Anil Kumar Yadav v. State (NCT) of Delhi, (2018) 12 SCC 129.) 13. Keeping in mind the aforementioned principles, we are of the view that the High Court was not justified in going into the evidence on record in such a depth which amounts to ascertaining the probability of the conviction of the Accused. On the other hand, the High Court has failed to appreciate several crucial factors that indicate that it was highly inappropriate to grant bail in favour of the Respondent14. Since the Respondent is an influential person in his locality, in terms of both money and muscle power, there is a reasonable apprehension that he might tamper with or otherwise adversely influence the investigation, which is still going on qua some of the co-accused in the case, or that he might intimidate witnesses before or during the trial. The High Court in observing that there was no possibility of the Respondents absconding in light of his being a local businessman, not only completely overlooked his past attempt to evade the process of law, but also overlooked the implications of the clout enjoyed by him in the community.
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Lalsing Sutarya Pawara Vs. The State of Maharashtra | 6 to 7 persons were asking the accused to tell whereabouts of Yadibai and he was not disclosing about the same. Therefore, they called P.W.7 Yusuf uncle of P.W.6 to the field by giving message through mobile phone. According to P.W.6, his uncle P.W.7 arrived in the field by Maruti van. Therefore, it has come in the evidence of P.W.6 that his brother told him that 6 to 7 persons were quarreling with the accused. It appears that the brother of this witness has not been examined by the prosecution. Therefore, what is stated by P.W.6 in his evidence that he came to know from his brother that 6 to 7 persons were quarreling with the accused has remained intact. The P.W.5 Ravindra in his evidence has claimed that P.W.7 Yusuf did not come to the field on the call of P.W.6. According to this witness, in presence of P.W.5 and prosecution witnesses i.e. P.W.2, P.W.6, P.W.7 and others present along with P.W.5 in the agricultural land of respondent No.7, accused appellant on telephone informed to his landlord that he has killed Yadibai by inflicting blow with wooden log on stomach and head and threw her body in Hatkoi Nallah. This version of P.W.5 that accused informed P.W.7 on telephone and P.W.7 had not come to the agricultural field has been contradicted by other witnesses. The other prosecution witnesses have claimed that P.W.7 had come to the agricultural field on a call of P.W.6 and in his presence, the appellant had given extra judicial confession that he had killed Yadibai and threw her body at Hatkoi Nallah. Therefore, there are contradictions in the evidence of prosecution witnesses. The fact remains that 6 to 7 persons were quarreling with the accused. After perusal of the evidence of the prosecution witnesses and other evidence brought on record in the nature of medical evidence and the chemical analyzers report, it appears to us that the alleged extra judicial confession by accused before the P.Ws.2, 5, 6, 7 and other persons was a result of coercion or it was obtained by exerting pressure on the accused / appellant and, therefore, not reliable.26. If the prosecution story is taken as it is, that the deceased Yadibai was last seen in the company of the accused / appellant on 17th June, 2007, the medical evidence brought on record by the prosecution shows that the body was completely decomposed and scalp was missing. The medical officer has not opined about the probable period of death of the deceased.If the evidence of the Investigating Officer is taken into account, it clearly emerges that 6 to 7 persons including the complainant and other witnesses along with the accused went to Thalner Police Station and told the police personnel that the appellant / accused had confessed about the crime. On perusal of the evidence of the prosecution witnesses, it appears that two police constables, the appellant / accused and other 6 to 7 persons went to Hatkoi Nallah and they found the dead body as confessed by the appellant. It has come in the evidence of the Investigating Officer that after returning back from the Hatkoi Nallah i.e. after the dead body was found, complaint was lodged by P.W.2 Ramdas and the same was taken down by the I.O. Therefore, even as per the prosecution story, the first extra judicial confession statement was made before P.W.2 Ramdas and others and thereafter, these 6 to 7 persons went to the police station and other two police constables from the said police station accompanied them, they went to the Nallah, dead body was recovered, thereafter, the complainant came to the police station and complaint was lodged.The evidence of the Investigating Officer further discloses that the memorandum statement of the appellant / accused was recorded and in pursuant to his statement, one wooden log was recovered and also his clothes kept in iron box were handed over by the accused to the I.O. The evidence of I.O. that the clothes were kept in iron box and the appellant had taken out those clothes and handed over to the I.O., is falsified by P.W.3 i.e. panch witness to the said panchanama, who has not stated in the evidence that clothes were kept in iron box. The prosecution further claims that the wooden log was recovered at the instance of the appellant and he had confessed that by said wooden log he had assaulted Yadibai deceased on head. According to the prosecution, due to assault by the appellant / accused, Yadibai died. The evidence of Medical Officer shows that the injuries are ante mortem. During the course of examination in chief of the Medical Officer before the Court, wooden log was shown to him. The Medical Officer P.W.1 in his evidence stated, Injuries mentioned in Column No. 17 of P.M. Notes cannot be possible by the seized wooden log now shown to me. (Emphasis supplied).27. Therefore, the entire prosecution story which is really based upon extra judicial confession of the accused cannot be relied upon. As discussed herein above, the extra judicial confession of the appellant / accused before P.Ws.2, 5, 6, 7 and other two three persons was a result of coercion and pressure and insistence by 6 to 7 persons to confess the guilt. Such extra judicial confession, which is obtained by coercion and quarrel, cannot form the basis of the conviction. The statement of P.W.1 Medical Officer before the Court that the injuries sustained by the deceased Yadibai were not possible by said wooden log recovered from the accused further falsifies the prosecution case. Therefore taking into consideration the entire evidence on record, it appears that the same suffers from infirmities and no reliance can be placed on such evidence. We also find contradiction in the statement of the witnesses. Therefore, taking overall view of the matter, in the facts and circumstances of this case, we are of the opinion that the benefit of doubt should go to the appellant / accused. | 1[ds]11. On careful perusal of the first charge, it is clear that the entire story of the prosecution has been tested by the trial Judge on the basis that Yadibai was wife of the appellant. (Emphasis supplied). However, it is not the case of the complainant or any other prosecution witness that Yadibai was wife of the appellant / accused. P.W. 2 Ramdas, who is complainant and brother of the deceased Yadibai, has stated in his evidence that the appellant / accused and Yadibai had left house of her husband and thereafter whereabouts were not known to the complainant and others who tried to search them. However, they were not found and ultimately, search of Yadibai and accused / appellant was stopped. On careful scrutiny of the entire evidence, it is seen that it has not come on record that deceased Yadibai was wife of the accused. Therefore, the relationship of the appellant / accused with deceased Yadibai as mentioned in first charge by the trial Court itself was without any basis. The evidence of P.W.2 Ramdas, complainant was recorded on 20th February, 2008. In his evidence, he has stated that Yadibai was his real sister. All his sisters including Yadibai are married and they are residing at their husbands houses. It is further stated that Yadibais married with Madhu Pawara took place prior to 17 years. She is having one son and one daughter. They are also residing at Wadi, which is place of residence of this witness. This witness has stated that he knows accused. He is brother of his maternal aunts husband. Istrya Sutarya Pawara is husband of his maternal aunt. He was also residing at Wadi. Lalsing was residing at the house of Istrya. However, Lalsing was not doing any work and therefore, Istrya ousted him. Therefore, Lalsing was residing with Yadibai. He resided there for 7 to 8 months and thereafter, Lalsing took away Yadibai. He took search but, they were not found. Six months prior to incident, husband of his sister Yadibai died. Dharsing son of Madhu went to Indore for residence. It has come in the evidence of this witness that on 20th June, 2007, at evening time, Ravindra came to him. Ravindra told him that Sanju stated him that he had seen Yadibai and Lalsing at Thalner S.T. Stand prior to 3 days. Ravindra has also stated to him that Sanju had stated to him that thereafter he had gone to the field of his work and there he saw Lalsing alone. On the next day they had gone to the field where Lalsing was doing labour work. Bhima Ganshya Pawara, Sumarsing Istrya Pawara, had gone ahead by a cycle. This witness and others had gone by walking. They made inquiry with Lalsing about Yadibai. Lalsing stated to them that he along with Yadibai had gone to market, thereafter Yadibai alone went to unknown place and he does not know the whereabouts of Yadibai. Son of the landowner assured them to call his father as Lalsing was not disclosing the address of Yadibai. After arrival of landowner, Lalsing disclosed that he had killed Yadibai and threw her dead body at the corner of nalah. Thereafter they went to police station, Thalner and lodged report there. Initially, they along with police had gone to the spot of incident. They found the dead body of deceased and the witness identified the same and lodged the complaint to the police station. In hisit is stated by this witness that Yadibai was residing with the accused however, he has not met Yadibai thereafter. It is specifically admitted by this witness that in their community women as well as gents consume liquor. (Emphasis supplied). It has been further stated that though it was stated to the police that Lalsing had disclosed to them that prior to 2 to 3 days he along with Yadibai had gone to the market and that the witness does not know why it is not mentioned by the police in the complaint. Police did not read over the contents of the complaint to him.12. On careful perusal of the evidence of this witness, certain things are necessary to be taken note of. This witness has never met Yadibai, after she started residing with the appellant. In his community, women as well as gents used to consume liquor. On 20th June, 2007, one Ravindra P.W.5 came to the complainant and on next day the complainant along with other persons went to Lalsing. Lalsing did not disclose whereabouts of Yadibai and, therefore,son of the landowner where deceased Yadibai and appellant were staying, assured the complainant that he will call his father and after arrival of landlord, Lalsing disclosed that he had killed Yadibai and thrown her dead body in Nallah and thereafter, this witness along with other persons went to the Police Station to lodge report and pursuant to confession, the dead body was found and was identified by the complainant.On careful perusal of the evidence of this witness, it is not in dispute that this witness along with other persons including some prosecution witnesses went to Lalsing to ask the whereabouts of Yadibai. It also emerges from the evidence of this witness that disclosure statement made by the accused is before the complainant, landlord and other persons and at the relevant time, the appellant / accused was not in the custody of the police. According to the complainant, after disclosure by the appellant about the whereabouts of Yadibai, they went to the Police Station to lodge report and thereafter, the dead body was recovered. This witness has admitted in histhat in his community, gents and women consume liquor.After taking into account the entire evidence brought on record by the prosecution, it emerges that the prosecution theory entirely depends upon three broad circumstances. It is not in dispute that whole prosecution story is based upon circumstantial evidence. There is no eye witness to the incident.Therefore, keeping in mind the aforesaid principles laid down by the Apex Court while dealing with the circumstantial evidence, we proceed to examine the case in hand. The prosecution has claimed that P.W.4 Sanju had seen the deceased Yadibai in the company of the accused Lalsing on 17th June, 2007 at S.T. Stand, Thalner. It is an admitted position that at the relevant time i.e. on the date of the incident, this witness was of 11 years age and when he deposed before the Court, his age was 12 years. On careful scrutiny of the evidence brought on record, we find that there is no corroboration to the evidence of this witness. Though the learned A.P.P. has tried to submit that the statement of P.W.4 Sanju that he had last seen the deceased Yadibai in the company of accused is corroborated by the evidence of P.Ws.2 and 5, in our opinion, these witnesses have deposed before the Court only on the basis of the narration of P.W.4 Sanju i.e. hearsay evidence. There is no any other witness who has stated that he had also seen the deceased Yadibai in the company of the accused Lalsing. The Honourable Supreme Court, time and again, has laid down that the evidence of the child witness should be carefully evaluated and should find corroboration before being relied upon. The Supreme Court has taken this view in case of State of U.P. Vs. Ashok Dixit and another, reported in (2000)3 SCC 70 . Yet in another reported judgment in the case of State of State of Rajasthan Vs. Om Prakash, reported in (2002) 5 SCC 745 , the Apex Court held that the testimony of the child witness needs to be carefully evaluated and must find adequate corroboration before it is relied upon. In case of Acharaparambath Pradeepan and another Vs State of Kerala, reported in (2006) 13 SCC 643 , the Apex Court held that the evidence of child witness needs corroboration. The corroboration is more a rule of practical wisdom than of law. Therefore, what follows from the authoritative pronouncements of the Honourable Supreme Court, while evaluating the evidence of child witness,great care has to be taken and corroboration to his evidence is rule of prudence than of law. On careful scrutiny of the evidence brought on record by the prosecution, in the instant case, it appears to us that there is no corroboration to the evidence of P.W.4 Sanju. Even if it is considered that the evidence of P.W.4 Sanju is reliable, still question remains about the time gap between last seen together and the registration of offence. It is an admitted position that the P.W.4 Sanju had seen the deceased Yadibai in the company of accused on 17th June, 2007 at S.T. Stand, Thalner and offence was registered on 21st June, 2007. Therefore, there is considerable time gap of four days in registering the F.I.R. On careful scrutiny of the prosecution evidence, it appears to us that the prosecution has not brought on record anything to show that during the interregnum period i.e. from 17th June, 2007 to 21st June, 2007 there was no other possibility by which Yadibai died. In other words, the prosecution has not placed anying on record to rule out the possibility of death of Yadibai by some other reason from 17th to 21st June, 2007 i.e. from the date on which P.W.4 Sanju saw the deceased last in the company of the accused till offence wascareful scrutiny of the evidence brought on record by the prosecution, we do not find that such evidence is brought on record by the prosecution to rule out the possibility of any other person meeting or approaching the deceased at the place of the incident or before commission of the crime, in the intervening period. The prosecution has also not demonstrated that the accused was in exclusive possession of the place where the incident occurred or where he was last seen together with the deceased and there was no possibility of any intrusion to that place by any third party. Therefore, in our opinion, it will be unsafe to rely on the evidence brought on record by the prosecution on the point of deceased being last seen in the company of the accused.23. The accused Lalsing in his statement recorded under Section 313 of Cr.P.C., has stated that Yadibai used to consume liquor and used to stay out of house for 8 to 10 days. P.W.6 Khatik, whose evidence is at Exh.29, in hishas stated that Yadibai used to stay outside house for 4 to 8 days. P.W.2 Ramdas complainant in his deposition before the Court has specifically stated that in their community, women folk are in habit of consuming liquor. Therefore, the statement of the accused in reply to question No.37 of his statement u/s 313 of Cr.P.C., finds corroboration from the evidence of P.W.2 Ramdas complainant on the point of consumption of liquor and further on the point of habit of Yadibai to stay outside the house for days together from the evidence of P.W.6. Even, according to the prosecution story, Yadibai was married with one Madhu Pawara 17 years prior to recording of the evidence of P.W.2 Ramdas before the Court. The appellant /accused was not husband of the deceased Yadibai. Therefore, the accused had no control over the activities of the deceased. It is also relevant to mention at this juncture that the medical officer in his evidence has stated that the body of the deceased was totally decomposed and scalp was missing. The doctor, in his evidence, has no where indicated that the death of the deceased had taken place prior to any particular days. In view of the discussion herein above, it cannot be said that the whereabout of the deceased Yadibai before her death was within the special knowledge of the appellant / accused.24. The second circumstance which is relied upon by the prosecution is the extra judicial confession given by the appellant / accused before P.W.2 Ramdas, P.W.5 Ravindra, P.W.6 Khatik, P.W.7 Yusuf and other persons. The main piece of evidence on which the prosecution has relied is the alleged extra judicial confession of the appellant / accused before these witnesses. At this juncture, it would be worthwhile to refer few judgments of the Apex Court on this point. In the case of State of Rajasthan vs. Kashi Ram, reported in (2006) 12 SCC 254 , wherein the Apex Court held that the extra judicial confessions is weak piece of evidence and must be proved like any other fact. Yet, in another judgment in case of Baldev Singh Vs. State of Punjab, reported in (2009) 6 SCC 564 , the Apex Court held that there should be corroboration to the evidence of extra judicial confession. In case of State of Andhra Pradesh Vs. Swarnalatha and others, reported in (2009) 8 SCC 383 , the Apex Court held that extra judicial confession, as is well known, is a weak piece of evidence. Yet, in another judgment in case of State of Andhra Pradesh Vs. E. Satyanarayana, reported in (2009) 14 SCC 400 , placing reliance on its earlier judgment in the case of Rao Shiv Bahadur Singh v. State of Vindhya Pradesh (AIR 1954 SC 322 ) and Maghar Singh v. State of Punjab (AIR 1975 SC 1320 ), the Apex Court held that if the Court believes the witness before whom confession is made and is satisfied that the confession was true and voluntarily made, then the conviction can be founded on such evidence alone. The Apex Court in the case of Madan Gopal Kakkad v. Naval Dubey ((1992) 3 scc 204 ) held that extra judicial confession which is not obtained by coercion, promise of favour or false hope and is plenary in character and voluntary in nature can be made the basis for conviction even without corroboration.25. In the light of the afore mentioned authoritative pronouncements of the Honourable Apex Court, we proceed to examine the fact that extra judicial confession allegedly given by the accused before the complainant and other prosecution witnesses was voluntary or as a result of coercion. It has come in the evidence of P.W.5 Ravindra that the appellant / accused was reluctant to tell whereabouts of Yadibai (deceased). P.W.5 Ravindra went to P.W.2 Ramdas and told him about the fact that P.W.4 Sanju told him that the Yadibai deceased was last seen in the company of the appellant / accused on 17th June, 2007 at S.T. Bus stand, Thalner. Thereafter, P.Ws.2, 5 and other persons from Pawara community, who were 5 to 6 in number, went to the accused / appellant. According to these witnesses, initially the accused / appellant was reluctant to tell the whereabouts of Yadibai, therefore, they called the son of the land owner. It has also come in the evidence of prosecution witnesses i.e. in the evidence of P.W.6 Khatik that he sent his brother to his agricultural field and he informed P.W.6 that 6 to 7 persons were quarreling with accused (emphasis supplied). Therefore, P.W.6 went to his field. He saw that 6 to 7 persons were asking the accused to tell whereabouts of Yadibai and he was not disclosing about the same. Therefore, they called P.W.7 Yusuf uncle of P.W.6 to the field by giving message through mobile phone. According to P.W.6, his uncle P.W.7 arrived in the field by Maruti van. Therefore, it has come in the evidence of P.W.6 that his brother told him that 6 to 7 persons were quarreling with the accused. It appears that the brother of this witness has not been examined by the prosecution. Therefore, what is stated by P.W.6 in his evidence that he came to know from his brother that 6 to 7 persons were quarreling with the accused has remained intact. The P.W.5 Ravindra in his evidence has claimed that P.W.7 Yusuf did not come to the field on the call of P.W.6. According to this witness, in presence of P.W.5 and prosecution witnesses i.e. P.W.2, P.W.6, P.W.7 and others present along with P.W.5 in the agricultural land of respondent No.7, accused appellant on telephone informed to his landlord that he has killed Yadibai by inflicting blow with wooden log on stomach and head and threw her body in Hatkoi Nallah. This version of P.W.5 that accused informed P.W.7 on telephone and P.W.7 had not come to the agricultural field has been contradicted by other witnesses. The other prosecution witnesses have claimed that P.W.7 had come to the agricultural field on a call of P.W.6 and in his presence, the appellant had given extra judicial confession that he had killed Yadibai and threw her body at Hatkoi Nallah. Therefore, there are contradictions in the evidence of prosecution witnesses. The fact remains that 6 to 7 persons were quarreling with the accused. After perusal of the evidence of the prosecution witnesses and other evidence brought on record in the nature of medical evidence and the chemical analyzers report, it appears to us that the alleged extra judicial confession by accused before the P.Ws.2, 5, 6, 7 and other persons was a result of coercion or it was obtained by exerting pressure on the accused / appellant and, therefore, not reliable.26. If the prosecution story is taken as it is, that the deceased Yadibai was last seen in the company of the accused / appellant on 17th June, 2007, the medical evidence brought on record by the prosecution shows that the body was completely decomposed and scalp was missing. The medical officer has not opined about the probable period of death of the deceased.If the evidence of the Investigating Officer is taken into account, it clearly emerges that 6 to 7 persons including the complainant and other witnesses along with the accused went to Thalner Police Station and told the police personnel that the appellant / accused had confessed about the crime. On perusal of the evidence of the prosecution witnesses, it appears that two police constables, the appellant / accused and other 6 to 7 persons went to Hatkoi Nallah and they found the dead body as confessed by the appellant. It has come in the evidence of the Investigating Officer that after returning back from the Hatkoi Nallah i.e. after the dead body was found, complaint was lodged by P.W.2 Ramdas and the same was taken down by the I.O. Therefore, even as per the prosecution story, the first extra judicial confession statement was made before P.W.2 Ramdas and others and thereafter, these 6 to 7 persons went to the police station and other two police constables from the said police station accompanied them, they went to the Nallah, dead body was recovered, thereafter, the complainant came to the police station and complaint was lodged.The evidence of the Investigating Officer further discloses that the memorandum statement of the appellant / accused was recorded and in pursuant to his statement, one wooden log was recovered and also his clothes kept in iron box were handed over by the accused to the I.O. The evidence of I.O. that the clothes were kept in iron box and the appellant had taken out those clothes and handed over to the I.O., is falsified by P.W.3 i.e. panch witness to the said panchanama, who has not stated in the evidence that clothes were kept in iron box. The prosecution further claims that the wooden log was recovered at the instance of the appellant and he had confessed that by said wooden log he had assaulted Yadibai deceased on head. According to the prosecution, due to assault by the appellant / accused, Yadibai died. The evidence of Medical Officer shows that the injuries are ante mortem. During the course of examination in chief of the Medical Officer before the Court, wooden log was shown to him. The Medical Officer P.W.1 in his evidence stated, Injuries mentioned in Column No. 17 of P.M. Notes cannot be possible by the seized wooden log now shown to me. (Emphasis supplied).27. Therefore, the entire prosecution story which is really based upon extra judicial confession of the accused cannot be relied upon. As discussed herein above, the extra judicial confession of the appellant / accused before P.Ws.2, 5, 6, 7 and other twothree persons was a result of coercion and pressure and insistence by 6 to 7 persons to confess the guilt. Such extra judicial confession, which is obtained by coercion and quarrel, cannot form the basis of the conviction. The statement of P.W.1 Medical Officer before the Court that the injuries sustained by the deceased Yadibai were not possible by said wooden log recovered from the accused further falsifies the prosecution case. Therefore taking into consideration the entire evidence on record, it appears that the same suffers from infirmities and no reliance can be placed on such evidence. We also find contradiction in the statement of the witnesses. Therefore, taking overall view of the matter, in the facts and circumstances of this case, we are of the opinion that the benefit of doubt should go to the appellant / accused. | 1 | 9,696 | 3,862 | ### 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:
6 to 7 persons were asking the accused to tell whereabouts of Yadibai and he was not disclosing about the same. Therefore, they called P.W.7 Yusuf uncle of P.W.6 to the field by giving message through mobile phone. According to P.W.6, his uncle P.W.7 arrived in the field by Maruti van. Therefore, it has come in the evidence of P.W.6 that his brother told him that 6 to 7 persons were quarreling with the accused. It appears that the brother of this witness has not been examined by the prosecution. Therefore, what is stated by P.W.6 in his evidence that he came to know from his brother that 6 to 7 persons were quarreling with the accused has remained intact. The P.W.5 Ravindra in his evidence has claimed that P.W.7 Yusuf did not come to the field on the call of P.W.6. According to this witness, in presence of P.W.5 and prosecution witnesses i.e. P.W.2, P.W.6, P.W.7 and others present along with P.W.5 in the agricultural land of respondent No.7, accused appellant on telephone informed to his landlord that he has killed Yadibai by inflicting blow with wooden log on stomach and head and threw her body in Hatkoi Nallah. This version of P.W.5 that accused informed P.W.7 on telephone and P.W.7 had not come to the agricultural field has been contradicted by other witnesses. The other prosecution witnesses have claimed that P.W.7 had come to the agricultural field on a call of P.W.6 and in his presence, the appellant had given extra judicial confession that he had killed Yadibai and threw her body at Hatkoi Nallah. Therefore, there are contradictions in the evidence of prosecution witnesses. The fact remains that 6 to 7 persons were quarreling with the accused. After perusal of the evidence of the prosecution witnesses and other evidence brought on record in the nature of medical evidence and the chemical analyzers report, it appears to us that the alleged extra judicial confession by accused before the P.Ws.2, 5, 6, 7 and other persons was a result of coercion or it was obtained by exerting pressure on the accused / appellant and, therefore, not reliable.26. If the prosecution story is taken as it is, that the deceased Yadibai was last seen in the company of the accused / appellant on 17th June, 2007, the medical evidence brought on record by the prosecution shows that the body was completely decomposed and scalp was missing. The medical officer has not opined about the probable period of death of the deceased.If the evidence of the Investigating Officer is taken into account, it clearly emerges that 6 to 7 persons including the complainant and other witnesses along with the accused went to Thalner Police Station and told the police personnel that the appellant / accused had confessed about the crime. On perusal of the evidence of the prosecution witnesses, it appears that two police constables, the appellant / accused and other 6 to 7 persons went to Hatkoi Nallah and they found the dead body as confessed by the appellant. It has come in the evidence of the Investigating Officer that after returning back from the Hatkoi Nallah i.e. after the dead body was found, complaint was lodged by P.W.2 Ramdas and the same was taken down by the I.O. Therefore, even as per the prosecution story, the first extra judicial confession statement was made before P.W.2 Ramdas and others and thereafter, these 6 to 7 persons went to the police station and other two police constables from the said police station accompanied them, they went to the Nallah, dead body was recovered, thereafter, the complainant came to the police station and complaint was lodged.The evidence of the Investigating Officer further discloses that the memorandum statement of the appellant / accused was recorded and in pursuant to his statement, one wooden log was recovered and also his clothes kept in iron box were handed over by the accused to the I.O. The evidence of I.O. that the clothes were kept in iron box and the appellant had taken out those clothes and handed over to the I.O., is falsified by P.W.3 i.e. panch witness to the said panchanama, who has not stated in the evidence that clothes were kept in iron box. The prosecution further claims that the wooden log was recovered at the instance of the appellant and he had confessed that by said wooden log he had assaulted Yadibai deceased on head. According to the prosecution, due to assault by the appellant / accused, Yadibai died. The evidence of Medical Officer shows that the injuries are ante mortem. During the course of examination in chief of the Medical Officer before the Court, wooden log was shown to him. The Medical Officer P.W.1 in his evidence stated, Injuries mentioned in Column No. 17 of P.M. Notes cannot be possible by the seized wooden log now shown to me. (Emphasis supplied).27. Therefore, the entire prosecution story which is really based upon extra judicial confession of the accused cannot be relied upon. As discussed herein above, the extra judicial confession of the appellant / accused before P.Ws.2, 5, 6, 7 and other two three persons was a result of coercion and pressure and insistence by 6 to 7 persons to confess the guilt. Such extra judicial confession, which is obtained by coercion and quarrel, cannot form the basis of the conviction. The statement of P.W.1 Medical Officer before the Court that the injuries sustained by the deceased Yadibai were not possible by said wooden log recovered from the accused further falsifies the prosecution case. Therefore taking into consideration the entire evidence on record, it appears that the same suffers from infirmities and no reliance can be placed on such evidence. We also find contradiction in the statement of the witnesses. Therefore, taking overall view of the matter, in the facts and circumstances of this case, we are of the opinion that the benefit of doubt should go to the appellant / accused.
### Response:
1
### Explanation:
that 6 to 7 persons were asking the accused to tell whereabouts of Yadibai and he was not disclosing about the same. Therefore, they called P.W.7 Yusuf uncle of P.W.6 to the field by giving message through mobile phone. According to P.W.6, his uncle P.W.7 arrived in the field by Maruti van. Therefore, it has come in the evidence of P.W.6 that his brother told him that 6 to 7 persons were quarreling with the accused. It appears that the brother of this witness has not been examined by the prosecution. Therefore, what is stated by P.W.6 in his evidence that he came to know from his brother that 6 to 7 persons were quarreling with the accused has remained intact. The P.W.5 Ravindra in his evidence has claimed that P.W.7 Yusuf did not come to the field on the call of P.W.6. According to this witness, in presence of P.W.5 and prosecution witnesses i.e. P.W.2, P.W.6, P.W.7 and others present along with P.W.5 in the agricultural land of respondent No.7, accused appellant on telephone informed to his landlord that he has killed Yadibai by inflicting blow with wooden log on stomach and head and threw her body in Hatkoi Nallah. This version of P.W.5 that accused informed P.W.7 on telephone and P.W.7 had not come to the agricultural field has been contradicted by other witnesses. The other prosecution witnesses have claimed that P.W.7 had come to the agricultural field on a call of P.W.6 and in his presence, the appellant had given extra judicial confession that he had killed Yadibai and threw her body at Hatkoi Nallah. Therefore, there are contradictions in the evidence of prosecution witnesses. The fact remains that 6 to 7 persons were quarreling with the accused. After perusal of the evidence of the prosecution witnesses and other evidence brought on record in the nature of medical evidence and the chemical analyzers report, it appears to us that the alleged extra judicial confession by accused before the P.Ws.2, 5, 6, 7 and other persons was a result of coercion or it was obtained by exerting pressure on the accused / appellant and, therefore, not reliable.26. If the prosecution story is taken as it is, that the deceased Yadibai was last seen in the company of the accused / appellant on 17th June, 2007, the medical evidence brought on record by the prosecution shows that the body was completely decomposed and scalp was missing. The medical officer has not opined about the probable period of death of the deceased.If the evidence of the Investigating Officer is taken into account, it clearly emerges that 6 to 7 persons including the complainant and other witnesses along with the accused went to Thalner Police Station and told the police personnel that the appellant / accused had confessed about the crime. On perusal of the evidence of the prosecution witnesses, it appears that two police constables, the appellant / accused and other 6 to 7 persons went to Hatkoi Nallah and they found the dead body as confessed by the appellant. It has come in the evidence of the Investigating Officer that after returning back from the Hatkoi Nallah i.e. after the dead body was found, complaint was lodged by P.W.2 Ramdas and the same was taken down by the I.O. Therefore, even as per the prosecution story, the first extra judicial confession statement was made before P.W.2 Ramdas and others and thereafter, these 6 to 7 persons went to the police station and other two police constables from the said police station accompanied them, they went to the Nallah, dead body was recovered, thereafter, the complainant came to the police station and complaint was lodged.The evidence of the Investigating Officer further discloses that the memorandum statement of the appellant / accused was recorded and in pursuant to his statement, one wooden log was recovered and also his clothes kept in iron box were handed over by the accused to the I.O. The evidence of I.O. that the clothes were kept in iron box and the appellant had taken out those clothes and handed over to the I.O., is falsified by P.W.3 i.e. panch witness to the said panchanama, who has not stated in the evidence that clothes were kept in iron box. The prosecution further claims that the wooden log was recovered at the instance of the appellant and he had confessed that by said wooden log he had assaulted Yadibai deceased on head. According to the prosecution, due to assault by the appellant / accused, Yadibai died. The evidence of Medical Officer shows that the injuries are ante mortem. During the course of examination in chief of the Medical Officer before the Court, wooden log was shown to him. The Medical Officer P.W.1 in his evidence stated, Injuries mentioned in Column No. 17 of P.M. Notes cannot be possible by the seized wooden log now shown to me. (Emphasis supplied).27. Therefore, the entire prosecution story which is really based upon extra judicial confession of the accused cannot be relied upon. As discussed herein above, the extra judicial confession of the appellant / accused before P.Ws.2, 5, 6, 7 and other twothree persons was a result of coercion and pressure and insistence by 6 to 7 persons to confess the guilt. Such extra judicial confession, which is obtained by coercion and quarrel, cannot form the basis of the conviction. The statement of P.W.1 Medical Officer before the Court that the injuries sustained by the deceased Yadibai were not possible by said wooden log recovered from the accused further falsifies the prosecution case. Therefore taking into consideration the entire evidence on record, it appears that the same suffers from infirmities and no reliance can be placed on such evidence. We also find contradiction in the statement of the witnesses. Therefore, taking overall view of the matter, in the facts and circumstances of this case, we are of the opinion that the benefit of doubt should go to the appellant / accused.
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Madan Gopal Vs. State Of Punjab | act in exercise of this authority : the appellant was served with a chargesheet setting out his misdemeanour, an enquiry was held in respect of the alleged misdemeanour and his employment was terminated because in the view of the settlement Office - with which view the Deputy Commissioner agreed - the misdemeanour was proved. Such a termination amounted to accosting a "stigma affecting his future career." In State of Bihar v. Gopi Kishore Prasad [1960 - I L.L.J. 577] the learned Chief Justice in dealing with cases of termination of service or discharge of public servant on probation set out five propositions of which the third is enunciated thus :"But, if instead of terminating such a persons service without any enquiry, the employer chooses to hold an enquiry into his alleged misconduct, or inefficiency, or for some similar reason, the termination of service is by way of punishment, because it puts a stigma on his competence and thus affects his future career. In such a case, he is entitled to the protection of Art. 311(2) of the Constitution."It is true that in that case the Court was dealing with the case of a public servant on probation whereas the appellant was a temporary employee, but, in principle, it will make no difference whether the appellant was a probationer or a temporary employee. The appellant had been served with a chargesheet that he had received illegal gratification from one person and had demanded illegal gratification from another. The appellant was given an opportunity to make his defence and it appears that witnesses in support of the charge and in defence were examined before the Settlement Officer. The Settlement Officer reported that on the evidence he was satisfied that the appellant had received Rs. 150 as illegal gratification and that the appellant did not "enjoy good reputation and was a person of doubtful integrity." It is now well-settled that the protection of Art. 311(2) of the Constitution applies as much to a temporary public servant as to permanent public servants. By virtue of Art. 311 of the Constitution the appellant was not liable to be dismissed or removed from the service until he had been given reasonable opportunity against the action proposed to be taken in regard to him. The appellant was given no such opportunity and Art. 311 of the Constitution was therefore not complied with.4. Counsel appearing for the State of Punjab contended that the order, dated 17 March, 1955, was not the order pursuant to which employment of the appellant was terminated, the effective order being one passed by the Settlement Officer on 30 March, 1955. No such order is however found on the record, and it appears that in the written statement filed by the State in the High Court it was expressly admitted that the employment of the appellant was terminated on 17 March, 1955. Counsel also contended that enquiry was made by the Settlement Officer for the purpose of ascertaining whether the appellant who was a temporary employee should be continued in service or should be discharged under the terms of his employment, and to a termination made pursuant to such an enquiry the protection of Art. 311(2) of the Constitution was attracted, and in support of his submission counsel relied upon a judgment of this Court in State of Orissa and another v. Ram Narayan Das [1961 - I L.L.J. 552]. In Ram Narayan Das case enquiry was made pursuant to rules governing the conduct of public servants for ascertaining whether the probation of the public servant concerned should be continued and a notice to show cause in that behalf was served upon him. On the report of the enquiry officer that the work and conduct of the public servant was unsatisfactory, an order of termination of employment was passed without affording him an opportunity of showing cause against the action proposed to be taken in regard to him. This Court pointed out that the public servant had no right to the post he occupied and under the terms of his appointment he was liable to be discharged at any time during the period of probation. It was observed that mere termination of employment does not carry with it "any evil consequences" such as forfeiture of his pay or allowances, loss of seniority, stoppage or postponement of future chances of promotion, etc., and, therefore, there was no stigma affecting the future career of the public servant by the order terminating his employment for unsatisfactory work and conduct :"The enquiry against the respondent was for ascertaining whether he was fit to be confirmed. An order discharging public servant, even if a probationer, in an enquiry on charges of misconduct, negligence, inefficiency or other disqualification, may appropriately be regarded as one by way of punishment, but an order discharging a probationer following upon an enquiry to ascertain whether he should be confirmed, is not of that nature ... The third proposition in the latter (Gopi Kishore Prasad case) refers to an enquiry into allegations of misconduct or inefficiency with a view, if they were found established, to imposing punishment and not to an enquiry whether a probationer should be confirmed. Therefore, the fact of the holding of an enquiry is not decisive of the question. What is decisive is whether the order is by way of punishment, in the light of the tests laid down in Parshottam Lal Dhingra case [1958 - I L.L.J. 544].5. In this case the enquiry made by the Settlement Officer was made with the object of ascertaining whether disciplinary action should be taken against the appellant for his alleged misdemenour. It was clearly an enquiry for the purpose of taking punitive action including dismissal or removal from service if the appellant was found to have committed the misdemeanour charged against him. Such an enquiry and order consequent upon the report made in the enquiry will not fall within the principle of Ram Narayan Das case [1961 - I L.L.J. 552] (vide supra).6. | 1[ds]In this case the enquiry made by the Settlement Officer was made with the object of ascertaining whether disciplinary action should be taken against the appellant for his alleged misdemenour. It was clearly an enquiry for the purpose of taking punitive action including dismissal or removal from service if the appellant was found to have committed the misdemeanour charged against him. Such an enquiry and order consequent upon the report made in the enquiry will not fall within the principle of Ram Narayan Das case [1961 - I L.L.J. 552] (vide supra). | 1 | 1,651 | 104 | ### 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:
act in exercise of this authority : the appellant was served with a chargesheet setting out his misdemeanour, an enquiry was held in respect of the alleged misdemeanour and his employment was terminated because in the view of the settlement Office - with which view the Deputy Commissioner agreed - the misdemeanour was proved. Such a termination amounted to accosting a "stigma affecting his future career." In State of Bihar v. Gopi Kishore Prasad [1960 - I L.L.J. 577] the learned Chief Justice in dealing with cases of termination of service or discharge of public servant on probation set out five propositions of which the third is enunciated thus :"But, if instead of terminating such a persons service without any enquiry, the employer chooses to hold an enquiry into his alleged misconduct, or inefficiency, or for some similar reason, the termination of service is by way of punishment, because it puts a stigma on his competence and thus affects his future career. In such a case, he is entitled to the protection of Art. 311(2) of the Constitution."It is true that in that case the Court was dealing with the case of a public servant on probation whereas the appellant was a temporary employee, but, in principle, it will make no difference whether the appellant was a probationer or a temporary employee. The appellant had been served with a chargesheet that he had received illegal gratification from one person and had demanded illegal gratification from another. The appellant was given an opportunity to make his defence and it appears that witnesses in support of the charge and in defence were examined before the Settlement Officer. The Settlement Officer reported that on the evidence he was satisfied that the appellant had received Rs. 150 as illegal gratification and that the appellant did not "enjoy good reputation and was a person of doubtful integrity." It is now well-settled that the protection of Art. 311(2) of the Constitution applies as much to a temporary public servant as to permanent public servants. By virtue of Art. 311 of the Constitution the appellant was not liable to be dismissed or removed from the service until he had been given reasonable opportunity against the action proposed to be taken in regard to him. The appellant was given no such opportunity and Art. 311 of the Constitution was therefore not complied with.4. Counsel appearing for the State of Punjab contended that the order, dated 17 March, 1955, was not the order pursuant to which employment of the appellant was terminated, the effective order being one passed by the Settlement Officer on 30 March, 1955. No such order is however found on the record, and it appears that in the written statement filed by the State in the High Court it was expressly admitted that the employment of the appellant was terminated on 17 March, 1955. Counsel also contended that enquiry was made by the Settlement Officer for the purpose of ascertaining whether the appellant who was a temporary employee should be continued in service or should be discharged under the terms of his employment, and to a termination made pursuant to such an enquiry the protection of Art. 311(2) of the Constitution was attracted, and in support of his submission counsel relied upon a judgment of this Court in State of Orissa and another v. Ram Narayan Das [1961 - I L.L.J. 552]. In Ram Narayan Das case enquiry was made pursuant to rules governing the conduct of public servants for ascertaining whether the probation of the public servant concerned should be continued and a notice to show cause in that behalf was served upon him. On the report of the enquiry officer that the work and conduct of the public servant was unsatisfactory, an order of termination of employment was passed without affording him an opportunity of showing cause against the action proposed to be taken in regard to him. This Court pointed out that the public servant had no right to the post he occupied and under the terms of his appointment he was liable to be discharged at any time during the period of probation. It was observed that mere termination of employment does not carry with it "any evil consequences" such as forfeiture of his pay or allowances, loss of seniority, stoppage or postponement of future chances of promotion, etc., and, therefore, there was no stigma affecting the future career of the public servant by the order terminating his employment for unsatisfactory work and conduct :"The enquiry against the respondent was for ascertaining whether he was fit to be confirmed. An order discharging public servant, even if a probationer, in an enquiry on charges of misconduct, negligence, inefficiency or other disqualification, may appropriately be regarded as one by way of punishment, but an order discharging a probationer following upon an enquiry to ascertain whether he should be confirmed, is not of that nature ... The third proposition in the latter (Gopi Kishore Prasad case) refers to an enquiry into allegations of misconduct or inefficiency with a view, if they were found established, to imposing punishment and not to an enquiry whether a probationer should be confirmed. Therefore, the fact of the holding of an enquiry is not decisive of the question. What is decisive is whether the order is by way of punishment, in the light of the tests laid down in Parshottam Lal Dhingra case [1958 - I L.L.J. 544].5. In this case the enquiry made by the Settlement Officer was made with the object of ascertaining whether disciplinary action should be taken against the appellant for his alleged misdemenour. It was clearly an enquiry for the purpose of taking punitive action including dismissal or removal from service if the appellant was found to have committed the misdemeanour charged against him. Such an enquiry and order consequent upon the report made in the enquiry will not fall within the principle of Ram Narayan Das case [1961 - I L.L.J. 552] (vide supra).6.
### Response:
1
### Explanation:
In this case the enquiry made by the Settlement Officer was made with the object of ascertaining whether disciplinary action should be taken against the appellant for his alleged misdemenour. It was clearly an enquiry for the purpose of taking punitive action including dismissal or removal from service if the appellant was found to have committed the misdemeanour charged against him. Such an enquiry and order consequent upon the report made in the enquiry will not fall within the principle of Ram Narayan Das case [1961 - I L.L.J. 552] (vide supra).
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State of Madhya Pradesh Vs. Shanker Lal and Others | UNTWALIA, J.1. These three appeals by special leave are from the common judgment of the Madhya Pradesh High Court allowing the Writ Petitions filed by the six respondents and quashing the orders of their transfer made by the State Government in exercise of their power under s. 94(7) of the Madhya Pradesh Municipalities Act, 1961, hereinafter called the Act. The respondents were employees of the Municipal Council, Sagar. They were employed as lecturers and teachers in the various Municipal Higher Secondary Schools run and managed by the said Municipal Council. Three orders were issued by the State Government on various dates in June, 1968 transferring certain lecturers and teachers serving under a particular Municipal Council to the schools run and managed by another Municipal Council. The six respondents were transferred by the said orders to various places. They challenged the order of transfer in the High Court on the ground that the State Government had no power to transfer them under s. 94(7) of the Act. The High Court has accepted their contention and hence these appeals.2. We shall quote the relevant provisions of s. 94 of the Act as they stood at the relevant time from the judgment of the High Court. There have been some amendments in the year 1973 with which we are not concerned. They read as follows:-"94. Appointment of staff:-(1) Every Council having an annual income of five lakhs of rupees or more shall, subject to rules framed under section 95, appoint a Revenue Officer and an Accounts Officer and ma y appoint such other officers and servants as may be necessary and proper for the efficient discharge of its duties.(2) Every Council not falling under sub-section (1) shall, subject to rules framed under section 95, appoint a Sanitary Inspector, an Overseer, a Revenue Inspector, and an Accountant and may appoint such other officers and servants as may be necessary and proper for the efficient discharge of its duties:............................................(7) The State Government may transfer any officer or servant of a council mentioned in sub sections (1) &(2) and in receipt of total emoluments exceeding one hundred rupees to any other Council."3. The High Court has taken the view that the words "any officer or servant of a Council mentioned in sub-sections (1) and (2)" occurring in sub-s. (7) mean "any officer or servant as enumerated or specified in sub-ss. (1) and (2): that is to say, the officers who can be transferred under sub-s. (7) are only Revenue Officer, Accounts Officer, Sanitary Inspector and an Overseer, a Revenue Inspector or an Accountant. No other officer or servant can be transferred. We do not think that the High Court is right in putting this restricted interpretation to sub-s. (7) of s. 94. Other officers and servants who can be appointed by the Municipal Councils either under sub-s. (1) or under sub-s. (2) are also the officers and servants mentioned in these sub-sections for the purposes of sub-s. (7). Theor etically, therefore, the power does exist in the State Government to transfer them. We must, however, hasten to add that in case of employees getting small emoluments the power seems to be meant to be sparingly exercised under some compelling exigencies of a particular situation and not as a matter of routine. If it were to be liberally exercised, it will create tremendous problems and difficulties in the way of Municipal employees getting small salaries. There may be hardly an employee serving under any Municipal Council who cannot be theoretically and literally covered by sub-ss. (1) and (2) and subjected to the exercise of power of transfer under sub-s. (7).4. The High Court in support of its view has referred to sub-s. ( 4) of s. 94 wherein only the officers enumerated in sub-ss. (1) and (2) are specified. Obviously the said sub- section does not cover the cases of other officers and servants as mentioned in sub-ss. (1) and (2). The language of sub-sec. (7) is in contrast to that of sub-s. (4) and, instead of lending support to the view of the High Court, goes against it.It was argued for the respondents that they are employees of the Schools run and managed by the Municipal Councils but no t of the Councils themselves. We do not think that this argument has got any substance. Education department is one of the departments of a Municipal Council. Duties of the Council are enumerated in sub-s. (1) of s. 123, clause (v) which provides for "establishing and maintaining primary schools". Under s. 124 "a Council may, at its discretion, provide, either wholly or partly out of the Municipal property and fund, for all or any of the following matters, namely (c) furthering educational objects." Thus establishment and running of Higher Secondary Schools by Municipal Councils are envisaged under the Act and the lecturers and teachers appointed in the various schools are undoubtedly the officers and servants of the Municipal Councils.5. For the reasons stated above we hold that the State Government had the power to transfer the respondents. But it is not clear why the power was exercised in the case of the respondents. In any event, learned counsel for the appellant assured us that the State is more anxious for the correct interpretation of the law engrafted in section 94(7) of the Act than to enforce the order of transfer against the respondents. | 0[ds]The High Court has taken the view that the words "any officer or servant of a Council mentioned in sub-sections (1) and (2)" occurring in sub-s. (7) mean "any officer or servant as enumerated or specified in sub-ss. (1) and (2): that is to say, the officers who can be transferred under sub-s. (7) are only Revenue Officer, Accounts Officer, Sanitary Inspector and an Overseer, a Revenue Inspector or an Accountant. No other officer or servant can be transferred. We do not think that the High Court is right in putting this restricted interpretation to sub-s. (7) of s. 94. Other officers and servants who can be appointed by the Municipal Councils either under sub-s. (1) or under sub-s. (2) are also the officers and servants mentioned in these sub-sections for the purposes of sub-s. (7). Theor etically, therefore, the power does exist in the State Government to transfer them. We must, however, hasten to add that in case of employees getting small emoluments the power seems to be meant to be sparingly exercised under some compelling exigencies of a particular situation and not as a matter of routine. If it were to be liberally exercised, it will create tremendous problems and difficulties in the way of Municipal employees getting small salaries. There may be hardly an employee serving under any Municipal Council who cannot be theoretically and literally covered by sub-ss. (1) and (2) and subjected to the exercise of power of transfer under sub-s.High Court in support of its view has referred to sub-s. ( 4) of s. 94 wherein only the officers enumerated in sub-ss. (1) and (2) are specified. Obviously the said sub- section does not cover the cases of other officers and servants as mentioned in sub-ss. (1) and (2). The language of sub-sec. (7) is in contrast to that of sub-s. (4) and, instead of lending support to the view of the High Court, goes againstdepartment is one of the departments of a Municipal Council. Duties of the Council are enumerated in sub-s. (1) of s. 123, clause (v) which provides for "establishing and maintaining primary schools". Under s. 124 "a Council may, at its discretion, provide, either wholly or partly out of the Municipal property and fund, for all or any of the following matters, namely (c) furthering educational objects." Thus establishment and running of Higher Secondary Schools by Municipal Councils are envisaged under the Act and the lecturers and teachers appointed in the various schools are undoubtedly the officers and servants of the Municipalthe reasons stated above we hold that the State Government had the power to transfer the respondents. But it is not clear why the power was exercised in the case of the respondents. In any event, learned counsel for the appellant assured us that the State is more anxious for the correct interpretation of the law engrafted in section 94(7) of the Act than to enforce the order of transfer against the respondents. | 0 | 1,053 | 591 | ### Instruction:
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UNTWALIA, J.1. These three appeals by special leave are from the common judgment of the Madhya Pradesh High Court allowing the Writ Petitions filed by the six respondents and quashing the orders of their transfer made by the State Government in exercise of their power under s. 94(7) of the Madhya Pradesh Municipalities Act, 1961, hereinafter called the Act. The respondents were employees of the Municipal Council, Sagar. They were employed as lecturers and teachers in the various Municipal Higher Secondary Schools run and managed by the said Municipal Council. Three orders were issued by the State Government on various dates in June, 1968 transferring certain lecturers and teachers serving under a particular Municipal Council to the schools run and managed by another Municipal Council. The six respondents were transferred by the said orders to various places. They challenged the order of transfer in the High Court on the ground that the State Government had no power to transfer them under s. 94(7) of the Act. The High Court has accepted their contention and hence these appeals.2. We shall quote the relevant provisions of s. 94 of the Act as they stood at the relevant time from the judgment of the High Court. There have been some amendments in the year 1973 with which we are not concerned. They read as follows:-"94. Appointment of staff:-(1) Every Council having an annual income of five lakhs of rupees or more shall, subject to rules framed under section 95, appoint a Revenue Officer and an Accounts Officer and ma y appoint such other officers and servants as may be necessary and proper for the efficient discharge of its duties.(2) Every Council not falling under sub-section (1) shall, subject to rules framed under section 95, appoint a Sanitary Inspector, an Overseer, a Revenue Inspector, and an Accountant and may appoint such other officers and servants as may be necessary and proper for the efficient discharge of its duties:............................................(7) The State Government may transfer any officer or servant of a council mentioned in sub sections (1) &(2) and in receipt of total emoluments exceeding one hundred rupees to any other Council."3. The High Court has taken the view that the words "any officer or servant of a Council mentioned in sub-sections (1) and (2)" occurring in sub-s. (7) mean "any officer or servant as enumerated or specified in sub-ss. (1) and (2): that is to say, the officers who can be transferred under sub-s. (7) are only Revenue Officer, Accounts Officer, Sanitary Inspector and an Overseer, a Revenue Inspector or an Accountant. No other officer or servant can be transferred. We do not think that the High Court is right in putting this restricted interpretation to sub-s. (7) of s. 94. Other officers and servants who can be appointed by the Municipal Councils either under sub-s. (1) or under sub-s. (2) are also the officers and servants mentioned in these sub-sections for the purposes of sub-s. (7). Theor etically, therefore, the power does exist in the State Government to transfer them. We must, however, hasten to add that in case of employees getting small emoluments the power seems to be meant to be sparingly exercised under some compelling exigencies of a particular situation and not as a matter of routine. If it were to be liberally exercised, it will create tremendous problems and difficulties in the way of Municipal employees getting small salaries. There may be hardly an employee serving under any Municipal Council who cannot be theoretically and literally covered by sub-ss. (1) and (2) and subjected to the exercise of power of transfer under sub-s. (7).4. The High Court in support of its view has referred to sub-s. ( 4) of s. 94 wherein only the officers enumerated in sub-ss. (1) and (2) are specified. Obviously the said sub- section does not cover the cases of other officers and servants as mentioned in sub-ss. (1) and (2). The language of sub-sec. (7) is in contrast to that of sub-s. (4) and, instead of lending support to the view of the High Court, goes against it.It was argued for the respondents that they are employees of the Schools run and managed by the Municipal Councils but no t of the Councils themselves. We do not think that this argument has got any substance. Education department is one of the departments of a Municipal Council. Duties of the Council are enumerated in sub-s. (1) of s. 123, clause (v) which provides for "establishing and maintaining primary schools". Under s. 124 "a Council may, at its discretion, provide, either wholly or partly out of the Municipal property and fund, for all or any of the following matters, namely (c) furthering educational objects." Thus establishment and running of Higher Secondary Schools by Municipal Councils are envisaged under the Act and the lecturers and teachers appointed in the various schools are undoubtedly the officers and servants of the Municipal Councils.5. For the reasons stated above we hold that the State Government had the power to transfer the respondents. But it is not clear why the power was exercised in the case of the respondents. In any event, learned counsel for the appellant assured us that the State is more anxious for the correct interpretation of the law engrafted in section 94(7) of the Act than to enforce the order of transfer against the respondents.
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The High Court has taken the view that the words "any officer or servant of a Council mentioned in sub-sections (1) and (2)" occurring in sub-s. (7) mean "any officer or servant as enumerated or specified in sub-ss. (1) and (2): that is to say, the officers who can be transferred under sub-s. (7) are only Revenue Officer, Accounts Officer, Sanitary Inspector and an Overseer, a Revenue Inspector or an Accountant. No other officer or servant can be transferred. We do not think that the High Court is right in putting this restricted interpretation to sub-s. (7) of s. 94. Other officers and servants who can be appointed by the Municipal Councils either under sub-s. (1) or under sub-s. (2) are also the officers and servants mentioned in these sub-sections for the purposes of sub-s. (7). Theor etically, therefore, the power does exist in the State Government to transfer them. We must, however, hasten to add that in case of employees getting small emoluments the power seems to be meant to be sparingly exercised under some compelling exigencies of a particular situation and not as a matter of routine. If it were to be liberally exercised, it will create tremendous problems and difficulties in the way of Municipal employees getting small salaries. There may be hardly an employee serving under any Municipal Council who cannot be theoretically and literally covered by sub-ss. (1) and (2) and subjected to the exercise of power of transfer under sub-s.High Court in support of its view has referred to sub-s. ( 4) of s. 94 wherein only the officers enumerated in sub-ss. (1) and (2) are specified. Obviously the said sub- section does not cover the cases of other officers and servants as mentioned in sub-ss. (1) and (2). The language of sub-sec. (7) is in contrast to that of sub-s. (4) and, instead of lending support to the view of the High Court, goes againstdepartment is one of the departments of a Municipal Council. Duties of the Council are enumerated in sub-s. (1) of s. 123, clause (v) which provides for "establishing and maintaining primary schools". Under s. 124 "a Council may, at its discretion, provide, either wholly or partly out of the Municipal property and fund, for all or any of the following matters, namely (c) furthering educational objects." Thus establishment and running of Higher Secondary Schools by Municipal Councils are envisaged under the Act and the lecturers and teachers appointed in the various schools are undoubtedly the officers and servants of the Municipalthe reasons stated above we hold that the State Government had the power to transfer the respondents. But it is not clear why the power was exercised in the case of the respondents. In any event, learned counsel for the appellant assured us that the State is more anxious for the correct interpretation of the law engrafted in section 94(7) of the Act than to enforce the order of transfer against the respondents.
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DIGI CABLE NETWORK (INDIA) PVT. LTD Vs. UNION OF INDIA | a narrow compass as would be clear from the facts stated hereinbelow. 4. By letter dated 12.06.2012 (Annexure P-2) the appellant was granted permission by the Government of India under Rule 11C of the Cable Television Network (Amendment) Rules, 2012 (hereinafter referred to as ?the Rules?) for operating as Multi System Operator (MSO) in the Digital Addressable System (DAS) notified areas vide notification dated 11.11.2011. 5. This permission was, however, cancelled by the Government of India vide order dated 03.09.2014 on the ground that the Ministry of Home Affairs has denied issuance of ?security clearance? to the appellant. In other words, since the Ministry of Home Affairs did not grant security clearance to the appellant, the permission initially granted to the appellant vide letter dated 12.06.2012 was cancelled. 6. Challenging the order of cancellation of grant of permission, the appellant filed writ petition before the High Court of Bombay at Mumbai. By impugned order, the High Court dismissed the writ petition and upheld the order of cancellation as being just, legal and proper which has given rise to filing of the present appeal by way of special leave in this Court by the unsuccessful writ petitioner. 7. So, the short question involved in this appeal is whether the High Court was justified in dismissing the appellants writ petition and, in consequence, was justified in upholding the order dated 03.09.2014 cancelling the permission which was granted to the appellant vide letter dated 12.06.2012. 8. Heard Mr. Jay Savla, learned counsel for the appellant and Ms. Pinky Anand, learned ASG for the respondents. 9. It may be mentioned here that Ms. Pinky Anand, learned Additional Solicitor General appearing for the Union of India-respondent filed the copy of the reasons in a sealed cover which was made basis to deny security clearance to the appellant and which led to cancellation/withdrawal of permission granted to the appellant. The document filed is taken on record for perusal. 10. Having heard the learned counsel for the parties and on perusal of the record of the case, we find no merit in this appeal. 11. In our considered opinion, the impugned order of cancellation was passed in conformity with the requirements of Rule 11C of the Rules and hence it was rightly upheld by the High Court in impugned order. 12. Rule 11C was inserted in the Rules with effect from 28.04.2012. Rule 11C(1) reads as under:?11C. (1) Registration as multi-system operator-(1) On being satisfied that the applicant fulfils the eligibility criteria specified under rule 11B and the requirements of rule 11A, the registering authority shall, subject to the terms and conditions specified in rule 11D and the security clearance from the Central Government, issue certificate of registration.?13. It is clear from mere reading of the Rule 11C(1) that grant of permission is subject to issue of security clearance from the Central Government to the applicant (appellant in this case). 14. In this case, admittedly the appellant failed to obtain the security clearance as provided under Rule 11C of the Rules. It was a mandatory requirement as provided under Rule 11C of the Rules. Since the grant of permission was subject to obtaining of the security clearance from the concerned Ministry, the competent authority was justified in cancelling the conditional permission for want of security clearance. 15. Learned counsel for the appellant, however, argued that the appellant was not afforded any opportunity of hearing before cancelling the permission and, therefore, the impugned cancellation order is rendered bad in law having been passed without following the principle of natural justice and fair play. We find no merit in this submission. 16. In somewhat similar circumstances, this Court while repelling this submission laid down the following principles of law in the case of Ex- Armymen?s Protection Services Private Limited vs. Union of India And Others (2014) 5 SCC 409 in para 16 and 17 which read as under:16. What is in the interest of national security is not a question of law. It is a matter of policy. It is not for the court to decide whether something is in the interest of the State or not. It should be left to the executive. To quote Lord Hoffman in Secy. of State for Home Deptt. v. Rehman: (AC p. 192C)?… [in the matter] of national security is not a question of law. It is a matter of judgment and policy. Under the Constitution of the United Kingdom and most other countries, decisions as to whether something is or is not in the interests of national security are not a matter for judicial decision. They are entrusted to the executive.?17. Thus, in a situation of national security, a party cannot insist for the strict observance of the principles of natural justice. In such cases, it is the duty of the court to read into and provide for statutory exclusion, if not expressly provided in the rules governing the field. Depending on the facts of the particular case, it will however be open to the court to satisfy itself whether there were justifiable facts, and in that regard, the court is entitled to call for the files and see whether it is a case where the interest of national security is involved. Once the State is of the stand that the issue involves national security, the court shall not disclose the reasons to the affected party.?17. Having perused the note filed by the Union of India, which resulted in cancellation of permission, we are of the considered opinion that in the facts of this case, the appellant was not entitled to claim any prior notice before passing of the cancellation order in question. 18. In other words, we are of the view that the principles of natural justice were not violated in this case in the light of the law laid down by this Court in the case of Ex-Armymen?s Protection Services Private Limited (supra) inasmuch as the appellant was not entitled to claim any prior notice before cancellation of permission. | 0[ds]11. In our considered opinion, the impugned order of cancellation was passed in conformity with the requirements of Rule 11C of the Rules and hence it was rightly upheld by the High Court in impugned order.It is clear from mere reading of the Rule 11C(1) that grant of permission is subject to issue of security clearance from the Central Government to the applicant (appellant in this case).In this case, admittedly the appellant failed to obtain the security clearance as provided under Rule 11C of the Rules. It was a mandatory requirement as provided under Rule 11C of the Rules. Since the grant of permission was subject to obtaining of the security clearance from the concerned Ministry, the competent authority was justified in cancelling the conditional permission for want of security clearance.Learned counsel for the appellant, however, argued that the appellant was not afforded any opportunity of hearing before cancelling the permission and, therefore, the impugned cancellation order is rendered bad in law having been passed without following the principle of natural justice and fair play.We find no merit in this submission.Having perused the note filed by the Union of India, which resulted in cancellation of permission, we are of the considered opinion that in the facts of this case, the appellant was not entitled to claim any prior notice before passing of the cancellation order in question.In other words, we are of the view that the principles of natural justice were not violated in this case in the light of the law laid down by this Court in the case of Ex-Armymen?s Protection Services Private Limited (supra) inasmuch as the appellant was not entitled to claim any prior notice before cancellation of permission. | 0 | 1,230 | 312 | ### Instruction:
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a narrow compass as would be clear from the facts stated hereinbelow. 4. By letter dated 12.06.2012 (Annexure P-2) the appellant was granted permission by the Government of India under Rule 11C of the Cable Television Network (Amendment) Rules, 2012 (hereinafter referred to as ?the Rules?) for operating as Multi System Operator (MSO) in the Digital Addressable System (DAS) notified areas vide notification dated 11.11.2011. 5. This permission was, however, cancelled by the Government of India vide order dated 03.09.2014 on the ground that the Ministry of Home Affairs has denied issuance of ?security clearance? to the appellant. In other words, since the Ministry of Home Affairs did not grant security clearance to the appellant, the permission initially granted to the appellant vide letter dated 12.06.2012 was cancelled. 6. Challenging the order of cancellation of grant of permission, the appellant filed writ petition before the High Court of Bombay at Mumbai. By impugned order, the High Court dismissed the writ petition and upheld the order of cancellation as being just, legal and proper which has given rise to filing of the present appeal by way of special leave in this Court by the unsuccessful writ petitioner. 7. So, the short question involved in this appeal is whether the High Court was justified in dismissing the appellants writ petition and, in consequence, was justified in upholding the order dated 03.09.2014 cancelling the permission which was granted to the appellant vide letter dated 12.06.2012. 8. Heard Mr. Jay Savla, learned counsel for the appellant and Ms. Pinky Anand, learned ASG for the respondents. 9. It may be mentioned here that Ms. Pinky Anand, learned Additional Solicitor General appearing for the Union of India-respondent filed the copy of the reasons in a sealed cover which was made basis to deny security clearance to the appellant and which led to cancellation/withdrawal of permission granted to the appellant. The document filed is taken on record for perusal. 10. Having heard the learned counsel for the parties and on perusal of the record of the case, we find no merit in this appeal. 11. In our considered opinion, the impugned order of cancellation was passed in conformity with the requirements of Rule 11C of the Rules and hence it was rightly upheld by the High Court in impugned order. 12. Rule 11C was inserted in the Rules with effect from 28.04.2012. Rule 11C(1) reads as under:?11C. (1) Registration as multi-system operator-(1) On being satisfied that the applicant fulfils the eligibility criteria specified under rule 11B and the requirements of rule 11A, the registering authority shall, subject to the terms and conditions specified in rule 11D and the security clearance from the Central Government, issue certificate of registration.?13. It is clear from mere reading of the Rule 11C(1) that grant of permission is subject to issue of security clearance from the Central Government to the applicant (appellant in this case). 14. In this case, admittedly the appellant failed to obtain the security clearance as provided under Rule 11C of the Rules. It was a mandatory requirement as provided under Rule 11C of the Rules. Since the grant of permission was subject to obtaining of the security clearance from the concerned Ministry, the competent authority was justified in cancelling the conditional permission for want of security clearance. 15. Learned counsel for the appellant, however, argued that the appellant was not afforded any opportunity of hearing before cancelling the permission and, therefore, the impugned cancellation order is rendered bad in law having been passed without following the principle of natural justice and fair play. We find no merit in this submission. 16. In somewhat similar circumstances, this Court while repelling this submission laid down the following principles of law in the case of Ex- Armymen?s Protection Services Private Limited vs. Union of India And Others (2014) 5 SCC 409 in para 16 and 17 which read as under:16. What is in the interest of national security is not a question of law. It is a matter of policy. It is not for the court to decide whether something is in the interest of the State or not. It should be left to the executive. To quote Lord Hoffman in Secy. of State for Home Deptt. v. Rehman: (AC p. 192C)?… [in the matter] of national security is not a question of law. It is a matter of judgment and policy. Under the Constitution of the United Kingdom and most other countries, decisions as to whether something is or is not in the interests of national security are not a matter for judicial decision. They are entrusted to the executive.?17. Thus, in a situation of national security, a party cannot insist for the strict observance of the principles of natural justice. In such cases, it is the duty of the court to read into and provide for statutory exclusion, if not expressly provided in the rules governing the field. Depending on the facts of the particular case, it will however be open to the court to satisfy itself whether there were justifiable facts, and in that regard, the court is entitled to call for the files and see whether it is a case where the interest of national security is involved. Once the State is of the stand that the issue involves national security, the court shall not disclose the reasons to the affected party.?17. Having perused the note filed by the Union of India, which resulted in cancellation of permission, we are of the considered opinion that in the facts of this case, the appellant was not entitled to claim any prior notice before passing of the cancellation order in question. 18. In other words, we are of the view that the principles of natural justice were not violated in this case in the light of the law laid down by this Court in the case of Ex-Armymen?s Protection Services Private Limited (supra) inasmuch as the appellant was not entitled to claim any prior notice before cancellation of permission.
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### Explanation:
11. In our considered opinion, the impugned order of cancellation was passed in conformity with the requirements of Rule 11C of the Rules and hence it was rightly upheld by the High Court in impugned order.It is clear from mere reading of the Rule 11C(1) that grant of permission is subject to issue of security clearance from the Central Government to the applicant (appellant in this case).In this case, admittedly the appellant failed to obtain the security clearance as provided under Rule 11C of the Rules. It was a mandatory requirement as provided under Rule 11C of the Rules. Since the grant of permission was subject to obtaining of the security clearance from the concerned Ministry, the competent authority was justified in cancelling the conditional permission for want of security clearance.Learned counsel for the appellant, however, argued that the appellant was not afforded any opportunity of hearing before cancelling the permission and, therefore, the impugned cancellation order is rendered bad in law having been passed without following the principle of natural justice and fair play.We find no merit in this submission.Having perused the note filed by the Union of India, which resulted in cancellation of permission, we are of the considered opinion that in the facts of this case, the appellant was not entitled to claim any prior notice before passing of the cancellation order in question.In other words, we are of the view that the principles of natural justice were not violated in this case in the light of the law laid down by this Court in the case of Ex-Armymen?s Protection Services Private Limited (supra) inasmuch as the appellant was not entitled to claim any prior notice before cancellation of permission.
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Hare Krishna Vs. State of Bihar | It is not disputed that he is the brother-in-law of Hare Krishna Singh, as he has been described in the FIR. It is the categorical evidence of PWs 1, 2, 3 and 8 that Paras Singh of Dhobaha had fired at the deceased Jitendra Choudhary. He has been identified by PW 1 in the TI Parade. In the circumstances, we do not find any reason to interfere with the order of conviction and sentence passed by the courts below. 25. So far as Paras Singh of Birampur, the nephew of Jagdish Singh and the sole appellant in Criminal Appeal No. 616 of 1982, is concerned, his case stands on a different footing. Indeed, Mr. Rajender Singh, the learned counsel appearing on behalf of the appellant, has challenged the very presence of the appellant, Paras Singh of Birampur, at the time of occurrence. 26. In the FIR, his name has not been mentioned. It has only been stated "Jagdish Singhs nephew who is in military job of Birampur". Jagdish Singh may have more than one nephew. The IO (PW 9) in his evidence has stated that before the arrest of Paras Singh of Birampur, he did not know his name and he cannot say how many nephews Jagdish Singh has. The only distinctive particular for identification, as given in the FIR, is that the nephew is in military service. The prosecution has not adduced any evidence to show that the appellant is in military service, and that no other nephew of Jagdish Singh is in such service. Thus, the prosecution has not been able to identify the appellant Paras Singh of Birampur with the description of Jagdish Singhs nephew as given in the FIR. The most significant fact is that PW 3 failed to identify the appellant in the TI Parade. PW 8 did not attend the TI Parade. His case is that he was not called to attend the TI Parade. On the other hand, it is the defence case that PW 8 was called but he did not attend the TI Parade. Whatever might have been the reason, the fact remains that no attempt was made by the prosecution to have Paras Singh of Birampur identified by PW 8. In such circumstances, the High Court was not justified and committed an error of law in relying upon the statement of PWs 3 and 8 made before the police mentioning the name of Paras Singh of Birampur. It is true that PWs 3 and 8 identified Paras Singh of Birampur in court, but such identification is useless, particularly in the face of the fact that PW 3 had failed to identify him in the TI Parade. In the circumstances, the prosecution has failed to prove the complicity of Paras Singh of Birampur in the crime. Indeed, the prosecution has failed to prove that Paras Singh of Birampur was present at the time of occurrence. His conviction and sentence cannot, therefore, be sustained. 27. Now we may consider the cases of the remaining two accused, namely, Sheo Narain Sharma, the remaining appellant in Criminal Appeal No. 690 of 1982, and Ram Kumar Upadhaya, the sole appellant in Criminal Appeal No. 615 of 1982. These two appellants have been convicted as a consequence of their sharing the common intention to murder the deceased Jitendra Choudhary. Both of them have been named in the FIR. It is submitted by the learned counsel appearing on behalf of these two appellants that no specific overt act has been attributed to either of them. It may be that they were found in the company of Hare Krishna Singh and Paras Singh of Dhobaha but, the learned counsel submits, that fact will not be sufficient to impute common intention to them. 28. So far as the appellant Ram Kumar Upadhaya is concerned, there is evidence that he went with Hare Krishna Singh, but there is no evidence that he had also left the place of occurrence with him. It is the evidence of all the eyewitnesses, namely, PWs 1, 2, 3 and 8 that Hare Krishna Singh had fired a shot at the deceased Jitendra Choudhary, hitting him in the face and he rolled and fell down from the rickshaw in front of the gate. Thereafter, Paras Singh of Dhobaha also fired at the deceased. After specifically mentioning the names of Hare Krishna Singh and Paras Singh of Dhobaha as persons who had fired at the deceased, PW 3 stated that thereafter two/three firings took place and all the accused went to the shop of Sita Ram in front of the gate on the road from where they also fired upon Jitendra Choudhary. PW 8 in his evidence has also made a general statement that all the accused started firing upon Jitendra Choudhary. It is not readily understandable why the witnesses did not specifically mention the names of Sheo Narain Sharma and Ram Kumar Upadhaya, if they had also fired at the deceased. Except mentioning that these two appellants were present, no overt act was attributed to either of them. 29. The question is whether the crime was committed by Hare Krishna Singh and Paras Singh of Dhobaha in furtherance of the common intention of these two appellants also. Common intention under S.34 IPC is not by itself an offence. But, it creates a joint and constructive liability for the crime committed in furtherance of such common intention. As no overt act whatsoever has been attributed to the appellants, Ram Kumar Upadhaya and Sheo Narain Sharma, it is difficult to hold, in the facts the circumstances of the case, that they had shared the common intention with Here Krishna Singh and Paras Singh of Dhobaha. When these two appellants were very much known to the eyewitnesses, non-mention of their names in the evidence as to their participation in firing upon the deceased, throws a great doubt as to their sharing of the common intention. The convictions and sentences of these two appellants also cannot, therefore, be sustained. | 0[ds]23. It may be that two empties were found by the side of the dead body of the deceased, but the High Court has rightly observed that the presence of the empties does not necessarily mean that the deceased had fired. The High Court points out that three live cartridges were also recovered from the pocket of the deceased at the time of inquest and observes that keeping of empty cartridges by the side of the body of the deceased cannot be ruled out. We do not find any infirmity in the view expressed by the High Court. It is not at all amenable to reason that the deceased had started from his house along with his two sisters with a view to fighting with the accused. In the circumstances, we are of the view that the appellant Hare Krishna Singh had been rightly convicted and sentenced as above.24. Now we may deal with the case of Paras Singh of Dhobaha one of the appellants in Criminal Appeal No. 690 of 1982. He was found with the accused persons including Hare Krishna Singh. It is not disputed that he is theof Hare Krishna Singh, as he has been described in the FIR. It is the categorical evidence of PWs 1, 2, 3 and 8 that Paras Singh of Dhobaha had fired at the deceased Jitendra Choudhary. He has been identified by PW 1 in the TI Parade. In the circumstances, we do not find any reason to interfere with the order of conviction and sentence passed by the courts below.The question is whether the crime was committed by Hare Krishna Singh and Paras Singh of Dhobaha in furtherance of the common intention of these two appellants also. Common intention under S.34 IPC is not by itself an offence. But, it creates a joint and constructive liability for the crime committed in furtherance of such common intention. As no overt act whatsoever has been attributed to the appellants, Ram Kumar Upadhaya and Sheo Narain Sharma, it is difficult to hold, in the facts the circumstances of the case, that they had shared the common intention with Here Krishna Singh and Paras Singh of Dhobaha. When these two appellants were very much known to the eyewitnesses,of their names in the evidence as to their participation in firing upon the deceased, throws a great doubt as to their sharing of the common intention. The convictions and sentences of these two appellants also cannot, therefore, be sustained. | 0 | 5,886 | 453 | ### Instruction:
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It is not disputed that he is the brother-in-law of Hare Krishna Singh, as he has been described in the FIR. It is the categorical evidence of PWs 1, 2, 3 and 8 that Paras Singh of Dhobaha had fired at the deceased Jitendra Choudhary. He has been identified by PW 1 in the TI Parade. In the circumstances, we do not find any reason to interfere with the order of conviction and sentence passed by the courts below. 25. So far as Paras Singh of Birampur, the nephew of Jagdish Singh and the sole appellant in Criminal Appeal No. 616 of 1982, is concerned, his case stands on a different footing. Indeed, Mr. Rajender Singh, the learned counsel appearing on behalf of the appellant, has challenged the very presence of the appellant, Paras Singh of Birampur, at the time of occurrence. 26. In the FIR, his name has not been mentioned. It has only been stated "Jagdish Singhs nephew who is in military job of Birampur". Jagdish Singh may have more than one nephew. The IO (PW 9) in his evidence has stated that before the arrest of Paras Singh of Birampur, he did not know his name and he cannot say how many nephews Jagdish Singh has. The only distinctive particular for identification, as given in the FIR, is that the nephew is in military service. The prosecution has not adduced any evidence to show that the appellant is in military service, and that no other nephew of Jagdish Singh is in such service. Thus, the prosecution has not been able to identify the appellant Paras Singh of Birampur with the description of Jagdish Singhs nephew as given in the FIR. The most significant fact is that PW 3 failed to identify the appellant in the TI Parade. PW 8 did not attend the TI Parade. His case is that he was not called to attend the TI Parade. On the other hand, it is the defence case that PW 8 was called but he did not attend the TI Parade. Whatever might have been the reason, the fact remains that no attempt was made by the prosecution to have Paras Singh of Birampur identified by PW 8. In such circumstances, the High Court was not justified and committed an error of law in relying upon the statement of PWs 3 and 8 made before the police mentioning the name of Paras Singh of Birampur. It is true that PWs 3 and 8 identified Paras Singh of Birampur in court, but such identification is useless, particularly in the face of the fact that PW 3 had failed to identify him in the TI Parade. In the circumstances, the prosecution has failed to prove the complicity of Paras Singh of Birampur in the crime. Indeed, the prosecution has failed to prove that Paras Singh of Birampur was present at the time of occurrence. His conviction and sentence cannot, therefore, be sustained. 27. Now we may consider the cases of the remaining two accused, namely, Sheo Narain Sharma, the remaining appellant in Criminal Appeal No. 690 of 1982, and Ram Kumar Upadhaya, the sole appellant in Criminal Appeal No. 615 of 1982. These two appellants have been convicted as a consequence of their sharing the common intention to murder the deceased Jitendra Choudhary. Both of them have been named in the FIR. It is submitted by the learned counsel appearing on behalf of these two appellants that no specific overt act has been attributed to either of them. It may be that they were found in the company of Hare Krishna Singh and Paras Singh of Dhobaha but, the learned counsel submits, that fact will not be sufficient to impute common intention to them. 28. So far as the appellant Ram Kumar Upadhaya is concerned, there is evidence that he went with Hare Krishna Singh, but there is no evidence that he had also left the place of occurrence with him. It is the evidence of all the eyewitnesses, namely, PWs 1, 2, 3 and 8 that Hare Krishna Singh had fired a shot at the deceased Jitendra Choudhary, hitting him in the face and he rolled and fell down from the rickshaw in front of the gate. Thereafter, Paras Singh of Dhobaha also fired at the deceased. After specifically mentioning the names of Hare Krishna Singh and Paras Singh of Dhobaha as persons who had fired at the deceased, PW 3 stated that thereafter two/three firings took place and all the accused went to the shop of Sita Ram in front of the gate on the road from where they also fired upon Jitendra Choudhary. PW 8 in his evidence has also made a general statement that all the accused started firing upon Jitendra Choudhary. It is not readily understandable why the witnesses did not specifically mention the names of Sheo Narain Sharma and Ram Kumar Upadhaya, if they had also fired at the deceased. Except mentioning that these two appellants were present, no overt act was attributed to either of them. 29. The question is whether the crime was committed by Hare Krishna Singh and Paras Singh of Dhobaha in furtherance of the common intention of these two appellants also. Common intention under S.34 IPC is not by itself an offence. But, it creates a joint and constructive liability for the crime committed in furtherance of such common intention. As no overt act whatsoever has been attributed to the appellants, Ram Kumar Upadhaya and Sheo Narain Sharma, it is difficult to hold, in the facts the circumstances of the case, that they had shared the common intention with Here Krishna Singh and Paras Singh of Dhobaha. When these two appellants were very much known to the eyewitnesses, non-mention of their names in the evidence as to their participation in firing upon the deceased, throws a great doubt as to their sharing of the common intention. The convictions and sentences of these two appellants also cannot, therefore, be sustained.
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23. It may be that two empties were found by the side of the dead body of the deceased, but the High Court has rightly observed that the presence of the empties does not necessarily mean that the deceased had fired. The High Court points out that three live cartridges were also recovered from the pocket of the deceased at the time of inquest and observes that keeping of empty cartridges by the side of the body of the deceased cannot be ruled out. We do not find any infirmity in the view expressed by the High Court. It is not at all amenable to reason that the deceased had started from his house along with his two sisters with a view to fighting with the accused. In the circumstances, we are of the view that the appellant Hare Krishna Singh had been rightly convicted and sentenced as above.24. Now we may deal with the case of Paras Singh of Dhobaha one of the appellants in Criminal Appeal No. 690 of 1982. He was found with the accused persons including Hare Krishna Singh. It is not disputed that he is theof Hare Krishna Singh, as he has been described in the FIR. It is the categorical evidence of PWs 1, 2, 3 and 8 that Paras Singh of Dhobaha had fired at the deceased Jitendra Choudhary. He has been identified by PW 1 in the TI Parade. In the circumstances, we do not find any reason to interfere with the order of conviction and sentence passed by the courts below.The question is whether the crime was committed by Hare Krishna Singh and Paras Singh of Dhobaha in furtherance of the common intention of these two appellants also. Common intention under S.34 IPC is not by itself an offence. But, it creates a joint and constructive liability for the crime committed in furtherance of such common intention. As no overt act whatsoever has been attributed to the appellants, Ram Kumar Upadhaya and Sheo Narain Sharma, it is difficult to hold, in the facts the circumstances of the case, that they had shared the common intention with Here Krishna Singh and Paras Singh of Dhobaha. When these two appellants were very much known to the eyewitnesses,of their names in the evidence as to their participation in firing upon the deceased, throws a great doubt as to their sharing of the common intention. The convictions and sentences of these two appellants also cannot, therefore, be sustained.
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Fgp Ltd Vs. Saleh Hooseini Doctor | 54. Section 2(11) of the Code of Civil Procedure provides as under: "legal representative" means a person who in law represents the estate of a deceased person, and includes any person who intermeddles with the estate of the deceased and where a party sues or is sued in a representative character the person on whom the estate devolves on the death of the party so suing or sued". 55. Therefore, it is Section 211 and not Section 213 that deals with the vesting of property. This vesting does not take place as a result of probate. On the executors accepting his office, the property vests on him and executor derives his title from the Will and becomes the representative of the deceased even without obtaining probate. The grant of probate does not give title to the executor. It just makes his title certain. Under Section 213, the grant of probate is not a condition precedent to the filing of a suit in order to claim a right as an executor under the will.56. This vesting of right is enough for the executor or administrator to represent the estate in a legal proceeding. It has been held in Kulwanta Bewa Vs. Karam Chand Soni - reported in AIR 1938 Calcutta 714 that the whole scheme of the Act is to provide for the representation of the deceaseds estate for the purpose of administration. That vesting is not only for the beneficial interest in the property but is also for the purposes of representation. Similarly, it has been held in Meyappa Chetty Vs. Supramanian Chetty - (1916) 43 IA 113, that an executor derives his title from the Will and not from the probate and the right of action in respect of personal property of the testator vests in the executor on the death of the testator.57. But Section 213 operates in a different field. Section 213 enjoins that rights under the Will by executor or a legatee cannot be established unless probate or letters of administration are obtained.58. Therefore, Section 211 and Section 213 of the said Act have different areas of operation. Even if Will is not probated that does not prevent the vesting of the property of the deceased on the executor/administrator and consequently any right of action to represent the estate of the executor can be initiated even before the grant of the probate.59. Similar opinion has been expressed by this Court in Commissioner, Jalandhar Division and Ors. Vs. Mohan Krishan Abrol and Anr. - (2004) 7 SCC 505 (See para 10 at page 513). So the suit filed by the respondents as executors is also maintainable.60. Thus on the facts of the case this Court does not find any justification for its interference with the decision of the High Court rendered in its revisional jurisdiction. In coming to this conclusion, this court has considered the facts of this case and also the fact that appellant is paying a meager sum of Rs. 900/- and odd per month for occupying the said flat in a prime area in Mumbai. Appellant is not in occupation of the said flat and since 2000 has admittedly allowed a total outsider, one Mr. Abhik Mitra, the Managing Director of a Company known as Sa Re Ga Ma Pa Ind. Ltd., to occupy the said flat. The flat is lying vacant since May, 2005.61. As against all these facts when we find that the Suit is for reasonable requirement and was filed by the grandchildren of the testatrix, this Court, in our judgment, should not exercise its discretionary jurisdiction by interfering with the eviction proceeding which culminated in the revisional order of the High Court.62. Reference in this connection be made to a decision of this Court in Balvantrai Chimanlal Trivedi, Manager, Raipur Mafg. Co. Ltd. Ahmedabad Vs. M.N. Nagrashna and Ors. - AIR 1960 SC 407 . In para 5 at page 408 of the said report, a three-Judge Bench of this Court posed a question whether this Court should interfere under Article 136 of the Constitution and when in the facts of the case there is no failure of justice. The question has been answered by this Court as follows: "5. The question then arises whether we should interfere in our jurisdiction under Article 136 of the Constitution, when we are satisfied that there was no failure of justice. In similar circumstances, this Court refused to interfere and did not go into the question of jurisdiction on the ground that this Court could refuse interference unless it was satisfied that the justice of the case required it; see: A.M. Allison Vs. B.L. Sen (1957) SCR 359: ((S) AIR 1957 SC 227 ). On a parity of reasoning we are of the opinion that as we are not satisfied that the justice of the case requires interference in the circumstances, we should refuse to interfere with the order of the High Court dismissing the writ petition of the appellant." 63. An attempt was made to review the said judgment. The review petition was decided by a Constitution Bench of this Court.Justice Wanchoo speaking for unanimous Constitution Bench has very succinctly, if we may say so, outlined the parameters of this Courts jurisdiction under Article 136 of the Constitution and those observations, which we should always remember while exercising jurisdiction under Article 136, are as follows: "...It is necessary to remember that wide as are our powers under Article 136, their exercise is discretionary; and if it is conceded, as it was in the course of the arguments, that this, Court could have dismissed the appellants application for special leave summarily on the ground that the order under appeal had done substantial justice, it is difficult to appreciate the argument that because leave has been granted this Court must always and in every case deal with the merits even though it is satisfied that ends of justice do not justify its interference in a given case..." (See AIR 1960 SC 1292 at 1294) | 0[ds]30. Applying the aforesaid tests, as we must, to the present situation we find that no case for part performance of the contract has been made out. Here in the plaint filed in the specific performance suit, the case of the appellant is that it was put in possession of the suit premises pursuant to the tenancy agreement dated 16.07.1981 and not on the basis of any other agreement. If we look at the tenancy agreement, we will not find that the appellant was put in possession under the same. In the said suit no evidence appears to have been led by the appellant to show how it came to the possession of the suit premises. This aspect of the case is quite vague.31. Apart from that according to the appellant it allegedly paid Rs.5 lacs as sale consideration for the suit premises. As already pointed out in para 2 of the plaint in the specific performance suit, it has been clearly averred that the said amount of Rs.5 lacs was kept in deposit with the original owner of the premises by way of security deposit in terms of tenancy agreement dated 16.07.1981.32. In any event, the appellant is required to show that it either performed or is willing to perform its part of the contract. But admitted facts of the case are to the contrary. After the execution of the alleged agreement for sale dated 20.07.1981, the appellant was totally silent and it is only after more than 10 years thereafter i.e. on 19.08.1991, for the first time, it asked the owner to complete the sale and that too after the ejectment suit was filed in February 1991 by the owner. Thus, in the facts and circumstances of this case, the doctrine of part performance under Sectioncannot be invoked. Therefore, there is no merit in the argument advanced on behalf of by the appellant on that score.33. Argument advanced on behalf of the appellant on the competence of the respondents to file the suit out of which the present proceeding arises is also misconceived.34. If we look at the recitals in paragraphs 2 and 3 of the Will of the original owner, it would appear that the testatrix appointed her husband Hooseini Salehbhoy Doctor to be the executor of the Will and failing him appointed her sons Saleh Doctor and Parvez Doctor and daughter Niloofer Sawhney to be the executors/executrix of the Will jointly as well as severally for all purposes.It is clear that whenever Hooseini Salehbhoy Doctor (husband) is unable to act as executor for whatever reason, the respondents are substituted as executors under the Will.From a conjoint reading of these two Sections, it is clear that the said Act recognizes the contingency that where the executor appointed by a Will is unable to act, any other legatee having a beneficial interest may be admitted to prove the Will and letter of administration can be granted to him.39. Apart from that, in this case, the respondent No.2Niloofar, one of the plaintiffs is aof the suit premises. In paragraph 9 of the Will there is a specific reference to the suit premises and also to the pending litigation in Small Causes Court at Bombay as well as in the High Court. In paragraph 9 there is a specific recital that the suit premises is bequeathed to Parvez H. Doctor. However, Pervez died on 28.11.1998 and, thus, predeceased the testatrix who died on 30.1.1999. In such a situation, the provisions of Section 105 of the Indian Succession Act, 1925 is attracted.It is clear from the aforesaid Section that the suit premises thus become residuary estate of the testatrix which was to be distributed in accordance with Clause 11 of the will.Therefore, respondent no.2Niloofer along with others is the residuary legatee and is one of the owners of the suit premises. Acan always maintain a suit for eviction.44. It has been urged by the learned counsel for the appellant that in the Suit which has been filed by the respondents they have not asserted that they are filing it asIt is not possible to accept the aforesaid contention in the facts of this case. This Court is of the opinion that if the status of the respondents asof the property transpires clearly from the admitted facts of the case, they cannot be denuded of the said status at the instance of some objections by the tenants. Normally, a tenants right to question the title of a landlord is very limited in view of rule of law which is codified in Section 116 of the Indian Evidence Act.46. Apart from that it has been held in some decisions of this Court that aof a property is an owner of the property, till the property is partitioned.Since in the instant case, no partition has taken place, the plaintiffs status asTherefore, the Suit is maintainable.Therefore, it is Section 211 and not Section 213 that deals with the vesting of property. This vesting does not take place as a result of probate. On the executors accepting his office, the property vests on him and executor derives his title from the Will and becomes the representative of the deceased even without obtaining probate. The grant of probate does not give title to the executor. It just makes his title certain. Under Section 213, the grant of probate is not a condition precedent to the filing of a suit in order to claim a right as an executor under the will.56. This vesting of right is enough for the executor or administrator to represent the estate in a legal proceeding. It has been held in Kulwanta Bewa Vs. Karam Chand Sonireported in AIR 1938 Calcutta 714 that the whole scheme of the Act is to provide for the representation of the deceaseds estate for the purpose of administration. That vesting is not only for the beneficial interest in the property but is also for the purposes of representation. Similarly, it has been held in Meyappa Chetty Vs. Supramanian Chetty(1916) 43 IA 113, that an executor derives his title from the Will and not from the probate and the right of action in respect of personal property of the testator vests in the executor on the death of the testator.57. But Section 213 operates in a different field. Section 213 enjoins that rights under the Will by executor or a legatee cannot be established unless probate or letters of administration are obtained.58. Therefore, Section 211 and Section 213 of the said Act have different areas of operation. Even if Will is not probated that does not prevent the vesting of the property of the deceased on the executor/administrator and consequently any right of action to represent the estate of the executor can be initiated even before the grant of the probate.59. Similar opinion has been expressed by this Court in Commissioner, Jalandhar Division and Ors. Vs. Mohan Krishan Abrol and Anr.(2004) 7 SCC 505 (See para 10 at page 513). So the suit filed by the respondents as executors is also maintainable.60. Thus on the facts of the case this Court does not find any justification for its interference with the decision of the High Court rendered in its revisional jurisdiction. In coming to this conclusion, this court has considered the facts of this case and also the fact that appellant is paying a meager sum of Rs. 900/and odd per month for occupying the said flat in a prime area in Mumbai. Appellant is not in occupation of the said flat and since 2000 has admittedly allowed a total outsider, one Mr. Abhik Mitra, the Managing Director of a Company known as Sa Re Ga Ma Pa Ind. Ltd., to occupy the said flat. The flat is lying vacant since May, 2005.61. As against all these facts when we find that the Suit is for reasonable requirement and was filed by the grandchildren of the testatrix, this Court, in our judgment, should not exercise its discretionary jurisdiction by interfering with the eviction proceeding which culminated in the revisional order of the High Court.62. Reference in this connection be made to a decision of this Court in Balvantrai Chimanlal Trivedi, Manager, Raipur Mafg. Co. Ltd. Ahmedabad Vs. M.N. Nagrashna and Ors.AIR 1960 SC 407 . In para 5 at page 408 of the said report, aBench of this Court posed a question whether this Court should interfere under Article 136 of the Constitution and when in the facts of the case there is no failure of justice.Reference in this connection be made to a decision of this Court in Balvantrai Chimanlal Trivedi, Manager, Raipur Mafg. Co. Ltd. Ahmedabad Vs. M.N. Nagrashna and Ors.AIR 1960 SC 407 . In para 5 at page 408 of the said report, aBench of this Court posed a question whether this Court should interfere under Article 136 of the Constitution and when in the facts of the case there is no failure ofquestion has been answered by this Court asThe question then arises whether we should interfere in our jurisdiction under Article 136 of the Constitution, when we are satisfied that there was no failure of justice. In similar circumstances, this Court refused to interfere and did not go into the question of jurisdiction on the ground that this Court could refuse interference unless it was satisfied that the justice of the case required it; see: A.M. Allison Vs. B.L. Sen (1957) SCR 359: ((S) AIR 1957 SC 227 ). On a parity of reasoning we are of the opinion that as we are not satisfied that the justice of the case requires interference in the circumstances, we should refuse to interfere with the order of the High Court dismissing the writ petition of the appellant.An attempt was made to review the said judgment. The review petition was decided by a Constitution Bench of this Court.Justice Wanchoo speaking for unanimous Constitution Bench has very succinctly, if we may say so, outlined the parameters of this Courts jurisdiction under Article 136 of the Constitution and those observations, which we should always remember while exercising jurisdiction under Article 136, are asis necessary to remember that wide as are our powers under Article 136, their exercise is discretionary; and if it is conceded, as it was in the course of the arguments, that this, Court could have dismissed the appellants application for special leave summarily on the ground that the order under appeal had done substantial justice, it is difficult to appreciate the argument that because leave has been granted this Court must always and in every case deal with the merits even though it is satisfied that ends of justice do not justify its interference in a given case..." (See AIR 1960 SC 1292 at 1294) | 0 | 6,491 | 1,942 | ### Instruction:
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54. Section 2(11) of the Code of Civil Procedure provides as under: "legal representative" means a person who in law represents the estate of a deceased person, and includes any person who intermeddles with the estate of the deceased and where a party sues or is sued in a representative character the person on whom the estate devolves on the death of the party so suing or sued". 55. Therefore, it is Section 211 and not Section 213 that deals with the vesting of property. This vesting does not take place as a result of probate. On the executors accepting his office, the property vests on him and executor derives his title from the Will and becomes the representative of the deceased even without obtaining probate. The grant of probate does not give title to the executor. It just makes his title certain. Under Section 213, the grant of probate is not a condition precedent to the filing of a suit in order to claim a right as an executor under the will.56. This vesting of right is enough for the executor or administrator to represent the estate in a legal proceeding. It has been held in Kulwanta Bewa Vs. Karam Chand Soni - reported in AIR 1938 Calcutta 714 that the whole scheme of the Act is to provide for the representation of the deceaseds estate for the purpose of administration. That vesting is not only for the beneficial interest in the property but is also for the purposes of representation. Similarly, it has been held in Meyappa Chetty Vs. Supramanian Chetty - (1916) 43 IA 113, that an executor derives his title from the Will and not from the probate and the right of action in respect of personal property of the testator vests in the executor on the death of the testator.57. But Section 213 operates in a different field. Section 213 enjoins that rights under the Will by executor or a legatee cannot be established unless probate or letters of administration are obtained.58. Therefore, Section 211 and Section 213 of the said Act have different areas of operation. Even if Will is not probated that does not prevent the vesting of the property of the deceased on the executor/administrator and consequently any right of action to represent the estate of the executor can be initiated even before the grant of the probate.59. Similar opinion has been expressed by this Court in Commissioner, Jalandhar Division and Ors. Vs. Mohan Krishan Abrol and Anr. - (2004) 7 SCC 505 (See para 10 at page 513). So the suit filed by the respondents as executors is also maintainable.60. Thus on the facts of the case this Court does not find any justification for its interference with the decision of the High Court rendered in its revisional jurisdiction. In coming to this conclusion, this court has considered the facts of this case and also the fact that appellant is paying a meager sum of Rs. 900/- and odd per month for occupying the said flat in a prime area in Mumbai. Appellant is not in occupation of the said flat and since 2000 has admittedly allowed a total outsider, one Mr. Abhik Mitra, the Managing Director of a Company known as Sa Re Ga Ma Pa Ind. Ltd., to occupy the said flat. The flat is lying vacant since May, 2005.61. As against all these facts when we find that the Suit is for reasonable requirement and was filed by the grandchildren of the testatrix, this Court, in our judgment, should not exercise its discretionary jurisdiction by interfering with the eviction proceeding which culminated in the revisional order of the High Court.62. Reference in this connection be made to a decision of this Court in Balvantrai Chimanlal Trivedi, Manager, Raipur Mafg. Co. Ltd. Ahmedabad Vs. M.N. Nagrashna and Ors. - AIR 1960 SC 407 . In para 5 at page 408 of the said report, a three-Judge Bench of this Court posed a question whether this Court should interfere under Article 136 of the Constitution and when in the facts of the case there is no failure of justice. The question has been answered by this Court as follows: "5. The question then arises whether we should interfere in our jurisdiction under Article 136 of the Constitution, when we are satisfied that there was no failure of justice. In similar circumstances, this Court refused to interfere and did not go into the question of jurisdiction on the ground that this Court could refuse interference unless it was satisfied that the justice of the case required it; see: A.M. Allison Vs. B.L. Sen (1957) SCR 359: ((S) AIR 1957 SC 227 ). On a parity of reasoning we are of the opinion that as we are not satisfied that the justice of the case requires interference in the circumstances, we should refuse to interfere with the order of the High Court dismissing the writ petition of the appellant." 63. An attempt was made to review the said judgment. The review petition was decided by a Constitution Bench of this Court.Justice Wanchoo speaking for unanimous Constitution Bench has very succinctly, if we may say so, outlined the parameters of this Courts jurisdiction under Article 136 of the Constitution and those observations, which we should always remember while exercising jurisdiction under Article 136, are as follows: "...It is necessary to remember that wide as are our powers under Article 136, their exercise is discretionary; and if it is conceded, as it was in the course of the arguments, that this, Court could have dismissed the appellants application for special leave summarily on the ground that the order under appeal had done substantial justice, it is difficult to appreciate the argument that because leave has been granted this Court must always and in every case deal with the merits even though it is satisfied that ends of justice do not justify its interference in a given case..." (See AIR 1960 SC 1292 at 1294)
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### Explanation:
property is partitioned.Since in the instant case, no partition has taken place, the plaintiffs status asTherefore, the Suit is maintainable.Therefore, it is Section 211 and not Section 213 that deals with the vesting of property. This vesting does not take place as a result of probate. On the executors accepting his office, the property vests on him and executor derives his title from the Will and becomes the representative of the deceased even without obtaining probate. The grant of probate does not give title to the executor. It just makes his title certain. Under Section 213, the grant of probate is not a condition precedent to the filing of a suit in order to claim a right as an executor under the will.56. This vesting of right is enough for the executor or administrator to represent the estate in a legal proceeding. It has been held in Kulwanta Bewa Vs. Karam Chand Sonireported in AIR 1938 Calcutta 714 that the whole scheme of the Act is to provide for the representation of the deceaseds estate for the purpose of administration. That vesting is not only for the beneficial interest in the property but is also for the purposes of representation. Similarly, it has been held in Meyappa Chetty Vs. Supramanian Chetty(1916) 43 IA 113, that an executor derives his title from the Will and not from the probate and the right of action in respect of personal property of the testator vests in the executor on the death of the testator.57. But Section 213 operates in a different field. Section 213 enjoins that rights under the Will by executor or a legatee cannot be established unless probate or letters of administration are obtained.58. Therefore, Section 211 and Section 213 of the said Act have different areas of operation. Even if Will is not probated that does not prevent the vesting of the property of the deceased on the executor/administrator and consequently any right of action to represent the estate of the executor can be initiated even before the grant of the probate.59. Similar opinion has been expressed by this Court in Commissioner, Jalandhar Division and Ors. Vs. Mohan Krishan Abrol and Anr.(2004) 7 SCC 505 (See para 10 at page 513). So the suit filed by the respondents as executors is also maintainable.60. Thus on the facts of the case this Court does not find any justification for its interference with the decision of the High Court rendered in its revisional jurisdiction. In coming to this conclusion, this court has considered the facts of this case and also the fact that appellant is paying a meager sum of Rs. 900/and odd per month for occupying the said flat in a prime area in Mumbai. Appellant is not in occupation of the said flat and since 2000 has admittedly allowed a total outsider, one Mr. Abhik Mitra, the Managing Director of a Company known as Sa Re Ga Ma Pa Ind. Ltd., to occupy the said flat. The flat is lying vacant since May, 2005.61. As against all these facts when we find that the Suit is for reasonable requirement and was filed by the grandchildren of the testatrix, this Court, in our judgment, should not exercise its discretionary jurisdiction by interfering with the eviction proceeding which culminated in the revisional order of the High Court.62. Reference in this connection be made to a decision of this Court in Balvantrai Chimanlal Trivedi, Manager, Raipur Mafg. Co. Ltd. Ahmedabad Vs. M.N. Nagrashna and Ors.AIR 1960 SC 407 . In para 5 at page 408 of the said report, aBench of this Court posed a question whether this Court should interfere under Article 136 of the Constitution and when in the facts of the case there is no failure of justice.Reference in this connection be made to a decision of this Court in Balvantrai Chimanlal Trivedi, Manager, Raipur Mafg. Co. Ltd. Ahmedabad Vs. M.N. Nagrashna and Ors.AIR 1960 SC 407 . In para 5 at page 408 of the said report, aBench of this Court posed a question whether this Court should interfere under Article 136 of the Constitution and when in the facts of the case there is no failure ofquestion has been answered by this Court asThe question then arises whether we should interfere in our jurisdiction under Article 136 of the Constitution, when we are satisfied that there was no failure of justice. In similar circumstances, this Court refused to interfere and did not go into the question of jurisdiction on the ground that this Court could refuse interference unless it was satisfied that the justice of the case required it; see: A.M. Allison Vs. B.L. Sen (1957) SCR 359: ((S) AIR 1957 SC 227 ). On a parity of reasoning we are of the opinion that as we are not satisfied that the justice of the case requires interference in the circumstances, we should refuse to interfere with the order of the High Court dismissing the writ petition of the appellant.An attempt was made to review the said judgment. The review petition was decided by a Constitution Bench of this Court.Justice Wanchoo speaking for unanimous Constitution Bench has very succinctly, if we may say so, outlined the parameters of this Courts jurisdiction under Article 136 of the Constitution and those observations, which we should always remember while exercising jurisdiction under Article 136, are asis necessary to remember that wide as are our powers under Article 136, their exercise is discretionary; and if it is conceded, as it was in the course of the arguments, that this, Court could have dismissed the appellants application for special leave summarily on the ground that the order under appeal had done substantial justice, it is difficult to appreciate the argument that because leave has been granted this Court must always and in every case deal with the merits even though it is satisfied that ends of justice do not justify its interference in a given case..." (See AIR 1960 SC 1292 at 1294)
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Atma Linga Reddy & Others Vs. Union Of India & Others | mentioned in paragraph 2.1 of the said order was not in control of the Rajolibanda Diversion Canal. It seems that this may be through oversight or due to absence of specific information being made available to this Tribunal. It may be a case that this part of the river being in the mid stream may not be within the control of the Tungabhadra Board, though, however, the release of water for the Diversion Canal is regulated by the said Board, but then it would make no difference because of the reasoning given in paragraph 7.1 of the said order. The Hydel Power Scheme, as it appears at the moment, for diversion of water to the Hydel Power Canal at Rajolibanda, proposes to utilize electronic sensors, which would not operate until the level of water is 15 cm above he anicut. The depth of the sill level of Rajolibanda Diversion Canal being 1082 ft. compared to the crest level of the anicut at 1090 ft. is sufficient at the moment to divert sufficient water in Rajolibanda Diversion Canal for the purpose and object it was conceived and constructed to enable AP to receive major part of the water through Rajolibanda Diversion Canal. Even if the sill level of the Hydel Power Canal is at 1083 ft., it will not operate until the water level is 15 cm above 1090 ft. If it is so from the argument made by Mr. Holla, it does not seem that there will be any effect on the diversion of water in Rajolibanda Diversion Canal. If the water level is 15 cm above he anicut, then there will be sufficient water to cater both to Rajolibanda Diversion Canal and the Hydel Power Canal. If it is up to 15 cm; no water will flow to the Hydel Power Canal but if it is above 15 cm, then water would have gone directly to the mainstream and it would be so going both over the anicut and through the Hydel Power Canal since this diversion joins Krishna ultimately downstream the anicut. 10.1. It is apprehended by Andhra Pradesh that the electronic sensors may not operate properly. Mr. Holla stated that it would take another two years to make the Hydel Power Canal functional. Therefore, at the moment there could be no such apprehension. It is in the womb of the future. Mr. Gupta contended that in such a case either this Tribunal should appoint an `Authority to inspect the installation of the electronic sensors, and its functioning and functionality after it is installed or there may be an option given to AP to depute its officers to inspect either alone or jointly with the officers of Karnataka, both at installation and at the functioning and functionality after installation of the sensors. We think that, this could be considered after the sensors are installed and become functional, provided any difficulty is actually felt in its operation. 10.2. The scheme as proposed does not seem to be contrary to the Bachawat Award; inasmuch as no water is utilized for operating a hydel project and it was rightly found by this Tribunal that at this prima facie stage there seems to be nothing before this Tribunal to conclude that the proposed diversion would enable Karnataka to utilize the Tungabhadra waters inconsistent with the Bachawat Award. However, we have also observed that in case power could be generated without affecting the existing irrigation system, then we found no reason to interfere at this stage, on the basis of the information and the materials placed before this Tribunal by the respective parties. As such, we do not think that there is any necessity of Clarification-III as contended by Mr. Gupta. That apart, the right of Karnataka and that of AP are well protected in the said order in paragraph 9 as pointed out earlier". 51. From the above observations also, it is clear that the Tribunal is mindful of the controversy and the issues raised relating to Power Project. The matter is very much before the Tribunal. It has also considered various applications and passed orders from time to time. And for that reason also, the present petition is liable to be dismissed.52. Before parting with the matter, however, we are constrained to make one observation at this stage. The State of Andhra Pradesh has filed its counter affidavit in this matter on January 31, 2006. Before that date, the Tribunal had already been constituted under the Chairmanship of Honble Mr. Justice Brijesh Kumar, retired Judge of this Court. The said fact has been duly mentioned in the affidavit-in-reply. Interim Application No. 8 of 2006 (for interim relief) and Interim Application No.28 of 2006 (for clarification) were of course subsequent development to the filing of the affidavit. But both the applications had been disposed of on November 15, 2006 and on April 27, 2007 respectively. The present writ-petition was heard by us in April, 2008 i.e. after substantial period of disposal of both the applications. We have heard learned counsel for the State of Andhra Pradesh. No reference whatsoever was made on behalf of the State either to the Interim Applications or to the orders passed thereon. The contesting respondents referred to those applications and the orders of the Tribunal. Respondent No. 3 is `State and a public authority. This Court, therefore, obviously expects from such authority to place all the facts before this Court so as to enable the Court to consider them and to take an appropriate decision in accordance with law. In our considered opinion, the third respondent - State of Andhra Pradesh, in fairness, ought to have placed all facts subsequent to filing of the counter affidavit when the matter was heard by this Court. The State, however, failed to do so. But since on other grounds also, we are of the view that the present petition under Article 32 of the Constitution is not maintainable and is liable to be dismissed, no further action is called for. | 0[ds]33. Bare reading of the above provisions leaves no room for doubt that they are very wide. Section 3 deals with situations not only where a water dispute has actually arisen between one State and another State, but also where such dispute is "likely to arise". Moreover, it applies not only to those cases in which interest of the State has been prejudicially affected, but also embraces within its sweep interest of any of the inhabitants thereof which has been affected or likely to be affected. To us, therefore, it is abundantly clear that such a dispute is covered by Article 262 of the Constitution and should be dealt with in accordance with the provisions of Act XXXIII of 1956 and it cannot be challenged in any Court including this Court.In view of the above legal position, the submission of the petitioners that the bar envisaged by Section 11 of the Act would not cover cases of private individuals or petitioners approaching this Court as pro bono publico, and its application is limited to States has no force and we express our inability to agree with the learned counsel.38. Ultimately, what is contemplated by the Act is to look into, to protect and to safeguard interests of the State as also of its subjects and citizens. Precisely for that reason, Section 3 has been worded widely. It provides for constitution of Tribunal for adjudication by the Central Government on a dispute raised or complaint made by any State that interest of the State or any of the inhabitants thereof has been prejudicially affected or likely to be affected. In our considered opinion, therefore, the present petition under Article 32 is not maintainable.Reference was also made to A.P. Pollution Control Board II v. Prof. M.V. Nayudu (Retd.), (2001) 2 SCC 62. In that case also, the Court referred to Resolution of UNO, observations of this Court in Narmada Bachao Andolan and emphasized the right to access to drinking water as basic and fundamental to life and a duty of the State under Article 21 to provide clean drinking water to its citizens. The Court also insisted on the need of healthy environment and sustainable development as a part of fundamental right to life embodied in Article 21 of the Constitution.Before parting with the matter, however, we are constrained to make one observation at this stage. The State of Andhra Pradesh has filed its counter affidavit in this matter on January 31, 2006. Before that date, the Tribunal had already been constituted under the Chairmanship of Honble Mr. Justice Brijesh Kumar, retired Judge of this Court. The said fact has been duly mentioned in theInterim Application No. 8 of 2006 (for interim relief) and Interim Application No.28 of 2006 (for clarification) were of course subsequent development to the filing of the affidavit. But both the applications had been disposed of on November 15, 2006 and on April 27, 2007 respectively. The presentwas heard by us in April, 2008 i.e. after substantial period of disposal of both the applications. We have heard learned counsel for the State of Andhra Pradesh. No reference whatsoever was made on behalf of the State either to the Interim Applications or to the orders passed thereon. The contesting respondents referred to those applications and the orders of the Tribunal. Respondent No. 3 is `State and a public authority. This Court, therefore, obviously expects from such authority to place all the facts before this Court so as to enable the Court to consider them and to take an appropriate decision in accordance with law. In our considered opinion, the third respondentState of Andhra Pradesh, in fairness, ought to have placed all facts subsequent to filing of the counter affidavit when the matter was heard by this Court. The State, however, failed to do so. But since on other grounds also, we are of the view that the present petition under Article 32 of the Constitution is not maintainable and is liable to be dismissed, no further action is called for.In exercise of power under Article 262 of the Constitution, Parliament enacted a law known as theRiver Water Disputes Act, 1956 (ACT XXXIII of 1956) with a view "to provide for the adjudication of disputes relating to Waters ofrivers and river valleys".In our considered opinion, however, preliminary objections raised on behalf of the contesting respondents are well founded and are required to be upheld. We have already extracted the relevant provisions of the Constitution as also of Act XXXIII of 1956. The Founding Fathers of the Constitution were aware and conscious of sensitive nature ofdisputes relating to waters. They, therefore, provided machinery for adjudication of such disputes relating to waters ofrivers or river valleys. By enacting Article 262, they empowered Parliament to enact a law providing for adjudication of any dispute or complaint with respect to the use, distribution or control of waters of anyriver or river valley. They, however, did not stop there. They went ahead and empowered Parliament to exclude the jurisdiction of all Courts including the final Court of the country in such disputes. The intention of Framers of the Constitution, in our opinion, was clear, obvious and apparent. It was thought proper and appropriate to deal with and decide such sensitive issues once and for all by a law made by Parliament.In view of the above legal position, the submission of the petitioners that the bar envisaged by Section 11 of the Act would not cover cases of private individuals or petitioners approaching this Court as pro bono publico, and its application is limited to States has no force and we express our inability to agree with the learned counsel.38. Ultimately, what is contemplated by the Act is to look into, to protect and to safeguard interests of the State as also of its subjects and citizens. Precisely for that reason, Section 3 has been worded widely. It provides for constitution of Tribunal for adjudication by the Central Government on a dispute raised or complaint made by any State that interest of the State or any of the inhabitants thereof has been prejudicially affected or likely to be affected. In our considered opinion, therefore, the present petition under Article 32 is not maintainable.From the relevant provisions of the Constitution, Act XXXIII of 1956 and the decisions referred to hereinabove, there is no doubt in our mind that the present writ petition under Article 32 of the Constitution is not maintainable.45. But this is not the only ground on which the petition is liable to be dismissed. There is yet another equally sustainable andreason for not entertaining thegrievance of the petitioners raised in this petition.From the above observations also, it is clear that the Tribunal is mindful of the controversy and the issues raised relating to Power Project. The matter is very much before the Tribunal. It has also considered various applications and passed orders from time to time. And for that reason also, the present petition is liable to be dismissed.52.Before parting with the matter, however, we are constrained to make one observation at this stage. The State of Andhra Pradesh has filed its counter affidavit in this matter on January 31, 2006. Before that date, the Tribunal had already been constituted under the Chairmanship of Honble Mr. Justice Brijesh Kumar, retired Judge of this Court. The said fact has been duly mentioned in theInterim Application No. 8 of 2006 (for interim relief) and Interim Application No.28 of 2006 (for clarification) were of course subsequent development to the filing of the affidavit. But both the applications had been disposed of on November 15, 2006 and on April 27, 2007 respectively. The presentwas heard by us in April, 2008 i.e. after substantial period of disposal of both the applications. We have heard learned counsel for the State of Andhra Pradesh. No reference whatsoever was made on behalf of the State either to the Interim Applications or to the orders passed thereon. The contesting respondents referred to those applications and the orders of the Tribunal. Respondent No. 3 is `State and a public authority. This Court, therefore, obviously expects from such authority to place all the facts before this Court so as to enable the Court to consider them and to take an appropriate decision in accordance with law. In our considered opinion, the third respondentState of Andhra Pradesh, in fairness, ought to have placed all facts subsequent to filing of the counter affidavit when the matter was heard by this Court. The State, however, failed to do so. But since on other grounds also, we are of the view that the present petition under Article 32 of the Constitution is not maintainable and is liable to be dismissed, no further action is called for. | 0 | 7,429 | 1,619 | ### Instruction:
First, predict whether the appeal in case proceeding will be accepted (1) or not (0), and then explain the decision by identifying crucial sentences from the document.
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mentioned in paragraph 2.1 of the said order was not in control of the Rajolibanda Diversion Canal. It seems that this may be through oversight or due to absence of specific information being made available to this Tribunal. It may be a case that this part of the river being in the mid stream may not be within the control of the Tungabhadra Board, though, however, the release of water for the Diversion Canal is regulated by the said Board, but then it would make no difference because of the reasoning given in paragraph 7.1 of the said order. The Hydel Power Scheme, as it appears at the moment, for diversion of water to the Hydel Power Canal at Rajolibanda, proposes to utilize electronic sensors, which would not operate until the level of water is 15 cm above he anicut. The depth of the sill level of Rajolibanda Diversion Canal being 1082 ft. compared to the crest level of the anicut at 1090 ft. is sufficient at the moment to divert sufficient water in Rajolibanda Diversion Canal for the purpose and object it was conceived and constructed to enable AP to receive major part of the water through Rajolibanda Diversion Canal. Even if the sill level of the Hydel Power Canal is at 1083 ft., it will not operate until the water level is 15 cm above 1090 ft. If it is so from the argument made by Mr. Holla, it does not seem that there will be any effect on the diversion of water in Rajolibanda Diversion Canal. If the water level is 15 cm above he anicut, then there will be sufficient water to cater both to Rajolibanda Diversion Canal and the Hydel Power Canal. If it is up to 15 cm; no water will flow to the Hydel Power Canal but if it is above 15 cm, then water would have gone directly to the mainstream and it would be so going both over the anicut and through the Hydel Power Canal since this diversion joins Krishna ultimately downstream the anicut. 10.1. It is apprehended by Andhra Pradesh that the electronic sensors may not operate properly. Mr. Holla stated that it would take another two years to make the Hydel Power Canal functional. Therefore, at the moment there could be no such apprehension. It is in the womb of the future. Mr. Gupta contended that in such a case either this Tribunal should appoint an `Authority to inspect the installation of the electronic sensors, and its functioning and functionality after it is installed or there may be an option given to AP to depute its officers to inspect either alone or jointly with the officers of Karnataka, both at installation and at the functioning and functionality after installation of the sensors. We think that, this could be considered after the sensors are installed and become functional, provided any difficulty is actually felt in its operation. 10.2. The scheme as proposed does not seem to be contrary to the Bachawat Award; inasmuch as no water is utilized for operating a hydel project and it was rightly found by this Tribunal that at this prima facie stage there seems to be nothing before this Tribunal to conclude that the proposed diversion would enable Karnataka to utilize the Tungabhadra waters inconsistent with the Bachawat Award. However, we have also observed that in case power could be generated without affecting the existing irrigation system, then we found no reason to interfere at this stage, on the basis of the information and the materials placed before this Tribunal by the respective parties. As such, we do not think that there is any necessity of Clarification-III as contended by Mr. Gupta. That apart, the right of Karnataka and that of AP are well protected in the said order in paragraph 9 as pointed out earlier". 51. From the above observations also, it is clear that the Tribunal is mindful of the controversy and the issues raised relating to Power Project. The matter is very much before the Tribunal. It has also considered various applications and passed orders from time to time. And for that reason also, the present petition is liable to be dismissed.52. Before parting with the matter, however, we are constrained to make one observation at this stage. The State of Andhra Pradesh has filed its counter affidavit in this matter on January 31, 2006. Before that date, the Tribunal had already been constituted under the Chairmanship of Honble Mr. Justice Brijesh Kumar, retired Judge of this Court. The said fact has been duly mentioned in the affidavit-in-reply. Interim Application No. 8 of 2006 (for interim relief) and Interim Application No.28 of 2006 (for clarification) were of course subsequent development to the filing of the affidavit. But both the applications had been disposed of on November 15, 2006 and on April 27, 2007 respectively. The present writ-petition was heard by us in April, 2008 i.e. after substantial period of disposal of both the applications. We have heard learned counsel for the State of Andhra Pradesh. No reference whatsoever was made on behalf of the State either to the Interim Applications or to the orders passed thereon. The contesting respondents referred to those applications and the orders of the Tribunal. Respondent No. 3 is `State and a public authority. This Court, therefore, obviously expects from such authority to place all the facts before this Court so as to enable the Court to consider them and to take an appropriate decision in accordance with law. In our considered opinion, the third respondent - State of Andhra Pradesh, in fairness, ought to have placed all facts subsequent to filing of the counter affidavit when the matter was heard by this Court. The State, however, failed to do so. But since on other grounds also, we are of the view that the present petition under Article 32 of the Constitution is not maintainable and is liable to be dismissed, no further action is called for.
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(for clarification) were of course subsequent development to the filing of the affidavit. But both the applications had been disposed of on November 15, 2006 and on April 27, 2007 respectively. The presentwas heard by us in April, 2008 i.e. after substantial period of disposal of both the applications. We have heard learned counsel for the State of Andhra Pradesh. No reference whatsoever was made on behalf of the State either to the Interim Applications or to the orders passed thereon. The contesting respondents referred to those applications and the orders of the Tribunal. Respondent No. 3 is `State and a public authority. This Court, therefore, obviously expects from such authority to place all the facts before this Court so as to enable the Court to consider them and to take an appropriate decision in accordance with law. In our considered opinion, the third respondentState of Andhra Pradesh, in fairness, ought to have placed all facts subsequent to filing of the counter affidavit when the matter was heard by this Court. The State, however, failed to do so. But since on other grounds also, we are of the view that the present petition under Article 32 of the Constitution is not maintainable and is liable to be dismissed, no further action is called for.In exercise of power under Article 262 of the Constitution, Parliament enacted a law known as theRiver Water Disputes Act, 1956 (ACT XXXIII of 1956) with a view "to provide for the adjudication of disputes relating to Waters ofrivers and river valleys".In our considered opinion, however, preliminary objections raised on behalf of the contesting respondents are well founded and are required to be upheld. We have already extracted the relevant provisions of the Constitution as also of Act XXXIII of 1956. The Founding Fathers of the Constitution were aware and conscious of sensitive nature ofdisputes relating to waters. They, therefore, provided machinery for adjudication of such disputes relating to waters ofrivers or river valleys. By enacting Article 262, they empowered Parliament to enact a law providing for adjudication of any dispute or complaint with respect to the use, distribution or control of waters of anyriver or river valley. They, however, did not stop there. They went ahead and empowered Parliament to exclude the jurisdiction of all Courts including the final Court of the country in such disputes. The intention of Framers of the Constitution, in our opinion, was clear, obvious and apparent. It was thought proper and appropriate to deal with and decide such sensitive issues once and for all by a law made by Parliament.In view of the above legal position, the submission of the petitioners that the bar envisaged by Section 11 of the Act would not cover cases of private individuals or petitioners approaching this Court as pro bono publico, and its application is limited to States has no force and we express our inability to agree with the learned counsel.38. Ultimately, what is contemplated by the Act is to look into, to protect and to safeguard interests of the State as also of its subjects and citizens. Precisely for that reason, Section 3 has been worded widely. It provides for constitution of Tribunal for adjudication by the Central Government on a dispute raised or complaint made by any State that interest of the State or any of the inhabitants thereof has been prejudicially affected or likely to be affected. In our considered opinion, therefore, the present petition under Article 32 is not maintainable.From the relevant provisions of the Constitution, Act XXXIII of 1956 and the decisions referred to hereinabove, there is no doubt in our mind that the present writ petition under Article 32 of the Constitution is not maintainable.45. But this is not the only ground on which the petition is liable to be dismissed. There is yet another equally sustainable andreason for not entertaining thegrievance of the petitioners raised in this petition.From the above observations also, it is clear that the Tribunal is mindful of the controversy and the issues raised relating to Power Project. The matter is very much before the Tribunal. It has also considered various applications and passed orders from time to time. And for that reason also, the present petition is liable to be dismissed.52.Before parting with the matter, however, we are constrained to make one observation at this stage. The State of Andhra Pradesh has filed its counter affidavit in this matter on January 31, 2006. Before that date, the Tribunal had already been constituted under the Chairmanship of Honble Mr. Justice Brijesh Kumar, retired Judge of this Court. The said fact has been duly mentioned in theInterim Application No. 8 of 2006 (for interim relief) and Interim Application No.28 of 2006 (for clarification) were of course subsequent development to the filing of the affidavit. But both the applications had been disposed of on November 15, 2006 and on April 27, 2007 respectively. The presentwas heard by us in April, 2008 i.e. after substantial period of disposal of both the applications. We have heard learned counsel for the State of Andhra Pradesh. No reference whatsoever was made on behalf of the State either to the Interim Applications or to the orders passed thereon. The contesting respondents referred to those applications and the orders of the Tribunal. Respondent No. 3 is `State and a public authority. This Court, therefore, obviously expects from such authority to place all the facts before this Court so as to enable the Court to consider them and to take an appropriate decision in accordance with law. In our considered opinion, the third respondentState of Andhra Pradesh, in fairness, ought to have placed all facts subsequent to filing of the counter affidavit when the matter was heard by this Court. The State, however, failed to do so. But since on other grounds also, we are of the view that the present petition under Article 32 of the Constitution is not maintainable and is liable to be dismissed, no further action is called for.
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Shri Gajanan Weaving Mills Vs. Their Workmen | Sarkar, J.1. This is an appeal against a decision of the industrial court, Bombay, dated 18 March 1960. The facts are not in controversy. In an industrial dispute, the Labour Appellate Tribunal, Bombay, had passed an award on 9 July 1956 concerning dearness allowance, the operative portion of which is in these turms :"We are impressed by the facts and reasoning of the Sen award and we are of the view that the rate of dearness allowance given by him to well founded and be applied."2. Now the Sen award which had sometime earlier been made concerning certain mills at Sangli where the appellant mills are situate, provided as follows :"The minimum wage having been fixed at Rs. 24 per month of 26 working days, it seems to me that the scales of pay may reasonably be fixed at Sholapur rates minus 8.5 per cent ... and that in the case of dearness allowance also there should be similar deduction. I direct accordingly."3. By an award made on 1 May 1958, which was after the date of the Sen award, the rate of dearness allowance to the workmen of the Jam Mill of Sholapur was subjected to a maximum of Rs. 1.50 nP. This effected a reduction in that rate. Thereafter, by an agreement between the workmen and the employers, the rate of dearness allowance in other mills in Sholapur was similarly adjusted and reduced. The appellant mills thereupon also adjusted the dearness allowance payable by it under the award of 9 July 1956 in terms of the said award of 1 May 1958. The respondent workmen then raised a dispute contending that the appellant mills had no right to vary the award of 9 July 1956 and to reduce the dearness allowance payable to them under it as they had done. The appellant mills contended that the proper construction of the award of 9 July 1956 was that the dearness allowance had been linked with the rate prevailing at Sholapur and was therefore liable to be varied as the Sholapur rate varied and it was consequently entitled to reduce it as and when the Sholapur rate was reduced. The labour court and the industrial court held against the appellant mills. Hence this appeal.The only question is of the construction of the award of the Appellate Tribunal, dated 9 July 1956. That award directs payment of dearness allowance at the rate fixed in the Sen award. The Sen award fixed it at the Sholapur rate minus 8.5 per cent. The contention of the appellant mills is that this meant that the dearness allowance should be paid to the respondents at such rates as prevailed at Sholapur for the time being subject to the deduction of 8.5 per cent. We are entirely unable to agree that this was meant.4. When the Sen award referred to the Sholapur rate, it meant the rate prevailing at the time at Sholapur, for the subsequent award of 1 May 1958 and the agreements made in regard to the Sholapur mills earlier mentioned were not oven in contemplation then. The reason why the Sen award fixed the dearness allowance for the Sangli mills by reference to the Sholapur rate was that a cost of living index for Sholapur area was available which there was not for Sangli. In fixing the dearness allowance rate for Sangli, that cost of living index at Sholapur was taken into account because that was the nearest place to Sangli having such an index. That is the only reason why the sen award referred to the Sholapur rate.5. It would be reading too much in the Sen award to may that it intended that if for any reason the rate at Sholapur area was reduced, similar reduction would have to be made in the rate at Sangli mills. It is important to note that what was fixed was the Sholapur rate, that is, the rate then prevalent in Sholapur less a certain fixed deduction. As we have earlier stated, the rate at Sholapur was reduced by an award, and it is not disputed that that award reduced the rate not because there was a fall in the cost of living index but because the business of the mill concerned had suffered a set-back. But that was not the position at Sangli. It was not as if the conditions of business in both the places bad necessarily to be the same, so that if business in one place suffered from a depression, the business at the other place must also meet a similar fate. Therefore, there was no reason for Sen award to have directed that if the Sholapur rate was increased or reduced, similar change would be made in the Sangli rate. We think that the appellants contention is wholly untenable.The dispute in the present case concerns the months May to August 1958. A similar dispute had earlier arisen concerning April 1958. That dispute was decided against the appellant mills by the Industrial courts as also the High Court of Bombay. It was said on behalf of the respondents that the present proceeding is therefore barred by res judicata. In the view that we have taken of the merits of the question, we do not think it necessary to pronounce on this contention. | 0[ds]4. When the Sen award referred to the Sholapur rate, it meant the rate prevailing at the time at Sholapur, for the subsequent award of 1 May 1958 and the agreements made in regard to the Sholapur mills earlier mentioned were not oven in contemplation then. The reason why the Sen award fixed the dearness allowance for the Sangli mills by reference to the Sholapur rate was that a cost of living index for Sholapur area was available which there was not for Sangli. In fixing the dearness allowance rate for Sangli, that cost of living index at Sholapur was taken into account because that was the nearest place to Sangli having such an index. That is the only reason why the sen award referred to the Sholapur rate.5. It would be reading too much in the Sen award to may that it intended that if for any reason the rate at Sholapur area was reduced, similar reduction would have to be made in the rate at Sangli mills. It is important to note that what was fixed was the Sholapur rate, that is, the rate then prevalent in Sholapur less a certain fixed deduction. As we have earlier stated, the rate at Sholapur was reduced by an award, and it is not disputed that that award reduced the rate not because there was a fall in the cost of living index but because the business of the mill concerned had suffered aBut that was not the position at Sangli. It was not as if the conditions of business in both the places bad necessarily to be the same, so that if business in one place suffered from a depression, the business at the other place must also meet a similar fate. Therefore, there was no reason for Sen award to have directed that if the Sholapur rate was increased or reduced, similar change would be made in the Sangli rate. We think that the appellants contention is whollydispute in the present case concerns the months May to August 1958. A similar dispute had earlier arisen concerning April 1958. That dispute was decided against the appellant mills by the Industrial courts as also the High Court of Bombay. It was said on behalf of the respondents that the present proceeding is therefore barred by res judicata. In the view that we have taken of the merits of the question, we do not think it necessary to pronounce on this contention. | 0 | 951 | 442 | ### 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:
Sarkar, J.1. This is an appeal against a decision of the industrial court, Bombay, dated 18 March 1960. The facts are not in controversy. In an industrial dispute, the Labour Appellate Tribunal, Bombay, had passed an award on 9 July 1956 concerning dearness allowance, the operative portion of which is in these turms :"We are impressed by the facts and reasoning of the Sen award and we are of the view that the rate of dearness allowance given by him to well founded and be applied."2. Now the Sen award which had sometime earlier been made concerning certain mills at Sangli where the appellant mills are situate, provided as follows :"The minimum wage having been fixed at Rs. 24 per month of 26 working days, it seems to me that the scales of pay may reasonably be fixed at Sholapur rates minus 8.5 per cent ... and that in the case of dearness allowance also there should be similar deduction. I direct accordingly."3. By an award made on 1 May 1958, which was after the date of the Sen award, the rate of dearness allowance to the workmen of the Jam Mill of Sholapur was subjected to a maximum of Rs. 1.50 nP. This effected a reduction in that rate. Thereafter, by an agreement between the workmen and the employers, the rate of dearness allowance in other mills in Sholapur was similarly adjusted and reduced. The appellant mills thereupon also adjusted the dearness allowance payable by it under the award of 9 July 1956 in terms of the said award of 1 May 1958. The respondent workmen then raised a dispute contending that the appellant mills had no right to vary the award of 9 July 1956 and to reduce the dearness allowance payable to them under it as they had done. The appellant mills contended that the proper construction of the award of 9 July 1956 was that the dearness allowance had been linked with the rate prevailing at Sholapur and was therefore liable to be varied as the Sholapur rate varied and it was consequently entitled to reduce it as and when the Sholapur rate was reduced. The labour court and the industrial court held against the appellant mills. Hence this appeal.The only question is of the construction of the award of the Appellate Tribunal, dated 9 July 1956. That award directs payment of dearness allowance at the rate fixed in the Sen award. The Sen award fixed it at the Sholapur rate minus 8.5 per cent. The contention of the appellant mills is that this meant that the dearness allowance should be paid to the respondents at such rates as prevailed at Sholapur for the time being subject to the deduction of 8.5 per cent. We are entirely unable to agree that this was meant.4. When the Sen award referred to the Sholapur rate, it meant the rate prevailing at the time at Sholapur, for the subsequent award of 1 May 1958 and the agreements made in regard to the Sholapur mills earlier mentioned were not oven in contemplation then. The reason why the Sen award fixed the dearness allowance for the Sangli mills by reference to the Sholapur rate was that a cost of living index for Sholapur area was available which there was not for Sangli. In fixing the dearness allowance rate for Sangli, that cost of living index at Sholapur was taken into account because that was the nearest place to Sangli having such an index. That is the only reason why the sen award referred to the Sholapur rate.5. It would be reading too much in the Sen award to may that it intended that if for any reason the rate at Sholapur area was reduced, similar reduction would have to be made in the rate at Sangli mills. It is important to note that what was fixed was the Sholapur rate, that is, the rate then prevalent in Sholapur less a certain fixed deduction. As we have earlier stated, the rate at Sholapur was reduced by an award, and it is not disputed that that award reduced the rate not because there was a fall in the cost of living index but because the business of the mill concerned had suffered a set-back. But that was not the position at Sangli. It was not as if the conditions of business in both the places bad necessarily to be the same, so that if business in one place suffered from a depression, the business at the other place must also meet a similar fate. Therefore, there was no reason for Sen award to have directed that if the Sholapur rate was increased or reduced, similar change would be made in the Sangli rate. We think that the appellants contention is wholly untenable.The dispute in the present case concerns the months May to August 1958. A similar dispute had earlier arisen concerning April 1958. That dispute was decided against the appellant mills by the Industrial courts as also the High Court of Bombay. It was said on behalf of the respondents that the present proceeding is therefore barred by res judicata. In the view that we have taken of the merits of the question, we do not think it necessary to pronounce on this contention.
### Response:
0
### Explanation:
4. When the Sen award referred to the Sholapur rate, it meant the rate prevailing at the time at Sholapur, for the subsequent award of 1 May 1958 and the agreements made in regard to the Sholapur mills earlier mentioned were not oven in contemplation then. The reason why the Sen award fixed the dearness allowance for the Sangli mills by reference to the Sholapur rate was that a cost of living index for Sholapur area was available which there was not for Sangli. In fixing the dearness allowance rate for Sangli, that cost of living index at Sholapur was taken into account because that was the nearest place to Sangli having such an index. That is the only reason why the sen award referred to the Sholapur rate.5. It would be reading too much in the Sen award to may that it intended that if for any reason the rate at Sholapur area was reduced, similar reduction would have to be made in the rate at Sangli mills. It is important to note that what was fixed was the Sholapur rate, that is, the rate then prevalent in Sholapur less a certain fixed deduction. As we have earlier stated, the rate at Sholapur was reduced by an award, and it is not disputed that that award reduced the rate not because there was a fall in the cost of living index but because the business of the mill concerned had suffered aBut that was not the position at Sangli. It was not as if the conditions of business in both the places bad necessarily to be the same, so that if business in one place suffered from a depression, the business at the other place must also meet a similar fate. Therefore, there was no reason for Sen award to have directed that if the Sholapur rate was increased or reduced, similar change would be made in the Sangli rate. We think that the appellants contention is whollydispute in the present case concerns the months May to August 1958. A similar dispute had earlier arisen concerning April 1958. That dispute was decided against the appellant mills by the Industrial courts as also the High Court of Bombay. It was said on behalf of the respondents that the present proceeding is therefore barred by res judicata. In the view that we have taken of the merits of the question, we do not think it necessary to pronounce on this contention.
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Punjab National Bank Vs. State of Uttar Pradesh & Others | The appellant had, after respondent No. 4s management was taken over by the U.P. State Textile Corporation Limited (respondent No. 3) under the Industries (Development and Regulation) Act, advanced some money to the said respondent No. 4. In respect of the advance so made, respondents Nos. 1, 2 and 3 executed deeds of guarantee undertaking to pay the amount due to the bank as guarantors in the event of the principal borrower being unable to pay the same. Subsequently, respondent No. 3 which had taken over the management of respondent No. 4 became sick and proceedings were initiated under the Sick Textile Undertakings (Nationalisation) Act, 1974 (for short the Act). The appellant filed suit for recovery against the guarantors and the principal-debtor of the amount claimed by it. The following preliminary issue was, on the pleadings of the parties, framed : Whether the claim of the plaintiff is not maintainable in view of the provisions of Act No. 57 of 1974 as alleged in para. 25 of the W.S. of defendant No. 2 ? * The trial court as well as the High Court both came to the conclusion that in view of the provisions of section 29 of the Act, the suit of the appellant was not maintainable. We have gone through the provisions of the said Act and in our opinion the decision of the courts below is not correct. Section 5 of the said Act provides for the owner to be liable for certain prior liabilities and section 29 states that the said Act will have an overriding effect over all other enactments. This Act only deals with the liabilities of a company which is nationalised and there is no provision therein which in any way affects the liability of a guarantor who is bound by the deed of guarantee executed by it. The High Court has referred to a decision of this court in Maharashtra State Electricity Board, v. Official Liquidator, High Court, Ernakulam where the liability of the guarantor in a case where liability of the principal-debtor was discharged under the insolvency law or the company law, was considered. It was held in this case that in view of the unequivocal guarantee such liability of the guarantor continues and the creditor can realise the same from guarantor in view of the language of section 128 of the Contract Act as there is no discharge under section 134 of that Act.In our opinion, the principle of the aforesaid decision of this court is equally applicable in the present case. The right of the appellant to recover money from respondents Nos. 1, 2 and 3 who stood guarantors arises out of the terms of the deeds of guarantee which are not in any way superseded or brought to a naught merely because the appellant may not be able to recover money from the principal-borrower. It may here be added that even as a result of the Nationalisation Act the liability of the principal-borrower does not come to an end. It is only the mode of recovery which is referred to in the said Act. | 1[ds]In our opinion, the principle of the aforesaid decision of this court is equally applicable in the present case. The right of the appellant to recover money from respondents Nos. 1, 2 and 3 who stood guarantors arises out of the terms of the deeds of guarantee which are not in any way superseded or brought to a naught merely because the appellant may not be able to recover money from the. It may here be added that even as a result of the Nationalisation Act the liability of ther does not come to an end. It is only the mode of recovery which is referred to in the said Act. | 1 | 565 | 122 | ### Instruction:
Forecast the likely verdict of the case (granting (1) or denying (0) the appeal) and then rationalize your prediction by pinpointing and explaining pivotal sentences in the case document.
### Input:
The appellant had, after respondent No. 4s management was taken over by the U.P. State Textile Corporation Limited (respondent No. 3) under the Industries (Development and Regulation) Act, advanced some money to the said respondent No. 4. In respect of the advance so made, respondents Nos. 1, 2 and 3 executed deeds of guarantee undertaking to pay the amount due to the bank as guarantors in the event of the principal borrower being unable to pay the same. Subsequently, respondent No. 3 which had taken over the management of respondent No. 4 became sick and proceedings were initiated under the Sick Textile Undertakings (Nationalisation) Act, 1974 (for short the Act). The appellant filed suit for recovery against the guarantors and the principal-debtor of the amount claimed by it. The following preliminary issue was, on the pleadings of the parties, framed : Whether the claim of the plaintiff is not maintainable in view of the provisions of Act No. 57 of 1974 as alleged in para. 25 of the W.S. of defendant No. 2 ? * The trial court as well as the High Court both came to the conclusion that in view of the provisions of section 29 of the Act, the suit of the appellant was not maintainable. We have gone through the provisions of the said Act and in our opinion the decision of the courts below is not correct. Section 5 of the said Act provides for the owner to be liable for certain prior liabilities and section 29 states that the said Act will have an overriding effect over all other enactments. This Act only deals with the liabilities of a company which is nationalised and there is no provision therein which in any way affects the liability of a guarantor who is bound by the deed of guarantee executed by it. The High Court has referred to a decision of this court in Maharashtra State Electricity Board, v. Official Liquidator, High Court, Ernakulam where the liability of the guarantor in a case where liability of the principal-debtor was discharged under the insolvency law or the company law, was considered. It was held in this case that in view of the unequivocal guarantee such liability of the guarantor continues and the creditor can realise the same from guarantor in view of the language of section 128 of the Contract Act as there is no discharge under section 134 of that Act.In our opinion, the principle of the aforesaid decision of this court is equally applicable in the present case. The right of the appellant to recover money from respondents Nos. 1, 2 and 3 who stood guarantors arises out of the terms of the deeds of guarantee which are not in any way superseded or brought to a naught merely because the appellant may not be able to recover money from the principal-borrower. It may here be added that even as a result of the Nationalisation Act the liability of the principal-borrower does not come to an end. It is only the mode of recovery which is referred to in the said Act.
### Response:
1
### Explanation:
In our opinion, the principle of the aforesaid decision of this court is equally applicable in the present case. The right of the appellant to recover money from respondents Nos. 1, 2 and 3 who stood guarantors arises out of the terms of the deeds of guarantee which are not in any way superseded or brought to a naught merely because the appellant may not be able to recover money from the. It may here be added that even as a result of the Nationalisation Act the liability of ther does not come to an end. It is only the mode of recovery which is referred to in the said Act.
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Ram Pravesh Singh Vs. State Of Bihar | round notices were also challenged. But the High Court upheld the notices of retrenchment. The order of the High Court was challenged before this Court. During the pendency of the long drawn litigation, the newly formed Corporation decided to take over their services by extending them the same scale of Pay, which they were getting when they were in the employ of the State Government. Therefore, the only grievance that survived for consideration before this Court related to appellants therein being treated as fresh appointees on the dates of their respective appointment by the corporation, thereby denying them the benefit of their past service and seniority. It is in the context of examining the said grievance, this Court made the aforesaid observations. As noticed above, retrenchment under Section 25-FF was found to be valid. The Corporation had voluntarily taken over the services of the retrenched employees. The question whether the transferee or the purchaser of the undertaking should absorb the services of the employees of the previous employer was not in issue and therefore, the said decision is of no assistance. On the other hand, what may be relevant are the following observations of the Constitution Bench in Uma Devi (supra): "Obviously, the State is also controlled by economic considerations and financial implications of any public employment. The viability of the department or the instrumentality of the project is also of equal concern for the State. The State works out the scheme taking into consideration the financial implications and the economic aspects. Can the court impose on the State a financial burden of this nature by insisting on regularization or permanence in employment, when those employed temporarily are not needed permanently or regularly? As an example, we can envisage a direction to give permanent employment to all those who are being temporarily or casually employed in a public sector undertaking. The burden may become so heavy by such a direction that the undertaking itself may collapse under its own weight. It is not as if this had not happened. So, the court ought not to impose a financial burden on the State by such directions, as such directions may turn counterproductive." 23. The decision in Kapila Hingorani (supra) is an interim order in a public interest litigation. In the State of Bihar, various Government companies and public sector undertakings had not paid salaries to their workmen and other employees for a long time, resulting in deaths and suicides of several employees. The petitioner therein wanted the State to bear the responsibility for payment of salaries. The State resisted the petition on the footing/contending that the liabilities of the company cannot be passed on to the State by taking recourse to the doctrine of lifting the veil or otherwise. This Court issued certain interim directions for disposal of all liquidation proceedings in regard to the Government companies in question and appointment of a Committee to scrutinize (ascertain) the assets and liabilities of the company. This Court also directed the State Government to deposit a sum of Rs.50 crores before the High Court for disbursement of salaries to the employees. During the course of the said interim order, this Court observed as follows: "The government companies/public sector undertakings being "States" would be constitutionally liable to respect life and liberty of all persons in terms of Article 21 of the Constitution of India. They, therefore, must do so in cases of their own employees. The Government of the State of Bihar for all intent and purport is the sole shareholder. Although in law, its liability towards the debtors of the company may be confined to the shares held by it but having regard to the deep and pervasive control it exercises over the government companies; in the matter of enforcement of human rights and/or rights of the citizen to life and liberty, the State has also an additional duty to see that the rights of employees of such corporations are not infringed. The right to exercise deep and pervasive control would in its turn make the Government of Bihar liable to see that the life and liberty clause in respect of the employees is fully safeguarded. The Government of the State of Bihar, thus, had a constitutional obligation to protect the life and liberty of the employees of the government-owned companies/corporations who are the citizens of India. It had an additional liability having regard to its right of extensive supervision over the affairs of the company." The said observations made in an interim order with reference to the States obligations will not be of any avail to seek employment under the Board. We are not concerned in these appeals about the rights of the employees of the Society vis-Ã -vis the Society or the State Government. We are concerned with a specific question as to whether they can seek absorption under the Board. We may in this behalf refer to the decision of this Court in Bhola Nath Mukherjee v. Government of West Bengal [1997 (1) SCC 562 ] relating to transfer of a licensees undertaking to a State Electricity Board, as a consequence of revocation of the licence. In that case the Board initially allowed the employees of the erstwhile licensee to continue in its service but subsequently introduced terms which rendered them fresh appointees from the date of take over of the undertaking. The question that arose for consideration was whether the employees were entitled to compensation under Section 25FF of the Act; and whether the liability for payment of such compensation under Section 25FF of the Act was on the transferor or the Board. This Court held that employees had no right to claim any retrenchment compensation from the Board, nor did they have any right to claim to be in continuous employment on the same terms and conditions, after the purchase of the undertaking by the Board. The said decision clearly recognizes that the Board has no obligation towards the employees of the previous owner of the undertaking. 24 | 0[ds]13. It may be true that when the Board took over the undertakings of the erstwhile private licencees several decades ago, it also took over the services of the employees of such private licensees. It is also possible that this Court in exercise of its jurisdiction under Article 142, on the facts of a given case, might have directed that the persons, whose services had been terminated on account of closure of an instrumentality of the State, be continued in the service of Government Departments or other Government Corporations. It may also be true that certain enactments providing for transfer of undertakings in pursuance of nationalization or otherwise, had also provided for continuation/transfer of the services of the employees of the undertakings to the transferee. But these do not attract the principle of legitimate expectation.14. What is legitimate expectation? Obviously, it is not a legal right. It is an expectation of a benefit, relief or remedy, that may ordinarily flow from a promise or established practice. The term established practice refers to a regular, consistent predictable and certain conduct, process or activity of the decision-making authority. The expectation should be legitimate, that is, reasonable, logical and valid. Any expectation which is based on sporadic or casual or random acts, or which is unreasonable, illogical or invalid cannot be a legitimate expectation. Not being a right, it is not enforceable as such. It is a concept fashioned by courts, for judicial review of administrative action. It is procedural in character based on the requirement of a higher degree of fairness in administrative action, as a consequence of the promise made, or practice established. In short, a person can be said to have a legitimate expectation of a particular treatment, if any representation or promise is made by an authority, either expressly or impliedly, or if the regular and consistent past practice of the authority gives room for such expectation in the normal course. As a ground for relief, the efficacy of the doctrine is rather weak as its slot is just above fairness in action but far below promissory estoppel. It may only entitle an expectant: (a) to an opportunity to show cause before the expectation is dashed; or (b) to an explanation as to the cause for denial. In appropriate cases, courts may grant a direction requiring the Authority to follow the promised procedure or established practice. A legitimate expectation, even when made out, does not always entitle the expectant to a relief. Public interest, change in policy, conduct of the expectant or any other valid or bonafide reason given by the decision-maker, may be sufficient to negative the legitimate expectation.The doctrine of legitimate expectation based on established practice (as contrasted from legitimate expectation based on a promise), can be invoked only by someone who has dealings or transactions or negotiations with an authority, on which such established practice has a bearing, or by someone who has a recognized legal relationship with the authority. A total stranger unconnected with the authority or a person who had no previous dealings with the authority and who has not entered into any transaction or negotiations with the authority, cannot invoke the doctrine of legitimate expectation, merely on the ground that the authority has a general obligation to act fairly.Let us now examine whether the principles of legitimate expectation can have any application in this case. What transpired several decades ago when the Board commenced its operations and when its finances were sound, cannot have any bearing on its action in the year 1995. The position of the Board vis-Ã -vis the Society in 1995 was completely different from the position of the Board vis-Ã -vis the several ex-licensees when the Board took over their undertakings several decades back. Further, the assumption that whenever an undertaking is taken over, transferred or purchased, the transferee or purchaser should continue the services of the employees of the erstwhile owner of the undertaking, is not sound. In fact, statutory provisions seem to indicate otherwise. Section 25-FF of the Industrial Disputes Act, 1947 provides that where the ownership or management of an undertaking is transferred, whether by agreement or by operation of law, from the employer in relation to that undertaking to a new employer, every workman who has been in continuous service for not less than one year in that undertaking immediately before such transfer shall be entitled to notice and compensation in accordance with the provisions of Section 25-F, as if the workman had been retrenched, except in the cases mentioned in the proviso thereto. Therefore, the natural consequence of a transfer of an undertaking, unless there is a specific provision for continuation of the service of the workmen, is termination of employment of its employees, and the employers liability to pay compensation in accordance with SectionThe Board had never agreed nor decided to take services of any of the employees of the Society. In fact, it is not even the case of the appellants that the Board had at any point of time held out any promise or assurance to absorb their services. When the licence of the Society was revoked, the State Government appointed a Committee to examine the question whether the Board can take over the services of the employees of the Society. The Committee no doubt recommended that the services of eligible and qualified employees should be taken over. But thereafter the State Government considered the recommendation and rejected the same, apparently due to the precarious condition of the Board which itself was in dire financial straits, and was contemplating retrenchment of its own employees. At all events, any decision by the State Government either to recommend or direct the absorption of the Societys employees was not binding on the Board, as it was a matter where it could independently take a decision. It is also not in dispute that for more than two decades or more, before 1995, the Board had not taken over the employees of any private licencee. There was no occasion for consideration of such a course. Hence, it cannot be said that there was any regularity or predictability or certainty in action which can lead to a legitimate expectation. | 0 | 7,603 | 1,144 | ### 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:
round notices were also challenged. But the High Court upheld the notices of retrenchment. The order of the High Court was challenged before this Court. During the pendency of the long drawn litigation, the newly formed Corporation decided to take over their services by extending them the same scale of Pay, which they were getting when they were in the employ of the State Government. Therefore, the only grievance that survived for consideration before this Court related to appellants therein being treated as fresh appointees on the dates of their respective appointment by the corporation, thereby denying them the benefit of their past service and seniority. It is in the context of examining the said grievance, this Court made the aforesaid observations. As noticed above, retrenchment under Section 25-FF was found to be valid. The Corporation had voluntarily taken over the services of the retrenched employees. The question whether the transferee or the purchaser of the undertaking should absorb the services of the employees of the previous employer was not in issue and therefore, the said decision is of no assistance. On the other hand, what may be relevant are the following observations of the Constitution Bench in Uma Devi (supra): "Obviously, the State is also controlled by economic considerations and financial implications of any public employment. The viability of the department or the instrumentality of the project is also of equal concern for the State. The State works out the scheme taking into consideration the financial implications and the economic aspects. Can the court impose on the State a financial burden of this nature by insisting on regularization or permanence in employment, when those employed temporarily are not needed permanently or regularly? As an example, we can envisage a direction to give permanent employment to all those who are being temporarily or casually employed in a public sector undertaking. The burden may become so heavy by such a direction that the undertaking itself may collapse under its own weight. It is not as if this had not happened. So, the court ought not to impose a financial burden on the State by such directions, as such directions may turn counterproductive." 23. The decision in Kapila Hingorani (supra) is an interim order in a public interest litigation. In the State of Bihar, various Government companies and public sector undertakings had not paid salaries to their workmen and other employees for a long time, resulting in deaths and suicides of several employees. The petitioner therein wanted the State to bear the responsibility for payment of salaries. The State resisted the petition on the footing/contending that the liabilities of the company cannot be passed on to the State by taking recourse to the doctrine of lifting the veil or otherwise. This Court issued certain interim directions for disposal of all liquidation proceedings in regard to the Government companies in question and appointment of a Committee to scrutinize (ascertain) the assets and liabilities of the company. This Court also directed the State Government to deposit a sum of Rs.50 crores before the High Court for disbursement of salaries to the employees. During the course of the said interim order, this Court observed as follows: "The government companies/public sector undertakings being "States" would be constitutionally liable to respect life and liberty of all persons in terms of Article 21 of the Constitution of India. They, therefore, must do so in cases of their own employees. The Government of the State of Bihar for all intent and purport is the sole shareholder. Although in law, its liability towards the debtors of the company may be confined to the shares held by it but having regard to the deep and pervasive control it exercises over the government companies; in the matter of enforcement of human rights and/or rights of the citizen to life and liberty, the State has also an additional duty to see that the rights of employees of such corporations are not infringed. The right to exercise deep and pervasive control would in its turn make the Government of Bihar liable to see that the life and liberty clause in respect of the employees is fully safeguarded. The Government of the State of Bihar, thus, had a constitutional obligation to protect the life and liberty of the employees of the government-owned companies/corporations who are the citizens of India. It had an additional liability having regard to its right of extensive supervision over the affairs of the company." The said observations made in an interim order with reference to the States obligations will not be of any avail to seek employment under the Board. We are not concerned in these appeals about the rights of the employees of the Society vis-Ã -vis the Society or the State Government. We are concerned with a specific question as to whether they can seek absorption under the Board. We may in this behalf refer to the decision of this Court in Bhola Nath Mukherjee v. Government of West Bengal [1997 (1) SCC 562 ] relating to transfer of a licensees undertaking to a State Electricity Board, as a consequence of revocation of the licence. In that case the Board initially allowed the employees of the erstwhile licensee to continue in its service but subsequently introduced terms which rendered them fresh appointees from the date of take over of the undertaking. The question that arose for consideration was whether the employees were entitled to compensation under Section 25FF of the Act; and whether the liability for payment of such compensation under Section 25FF of the Act was on the transferor or the Board. This Court held that employees had no right to claim any retrenchment compensation from the Board, nor did they have any right to claim to be in continuous employment on the same terms and conditions, after the purchase of the undertaking by the Board. The said decision clearly recognizes that the Board has no obligation towards the employees of the previous owner of the undertaking. 24
### Response:
0
### Explanation:
private licensees. It is also possible that this Court in exercise of its jurisdiction under Article 142, on the facts of a given case, might have directed that the persons, whose services had been terminated on account of closure of an instrumentality of the State, be continued in the service of Government Departments or other Government Corporations. It may also be true that certain enactments providing for transfer of undertakings in pursuance of nationalization or otherwise, had also provided for continuation/transfer of the services of the employees of the undertakings to the transferee. But these do not attract the principle of legitimate expectation.14. What is legitimate expectation? Obviously, it is not a legal right. It is an expectation of a benefit, relief or remedy, that may ordinarily flow from a promise or established practice. The term established practice refers to a regular, consistent predictable and certain conduct, process or activity of the decision-making authority. The expectation should be legitimate, that is, reasonable, logical and valid. Any expectation which is based on sporadic or casual or random acts, or which is unreasonable, illogical or invalid cannot be a legitimate expectation. Not being a right, it is not enforceable as such. It is a concept fashioned by courts, for judicial review of administrative action. It is procedural in character based on the requirement of a higher degree of fairness in administrative action, as a consequence of the promise made, or practice established. In short, a person can be said to have a legitimate expectation of a particular treatment, if any representation or promise is made by an authority, either expressly or impliedly, or if the regular and consistent past practice of the authority gives room for such expectation in the normal course. As a ground for relief, the efficacy of the doctrine is rather weak as its slot is just above fairness in action but far below promissory estoppel. It may only entitle an expectant: (a) to an opportunity to show cause before the expectation is dashed; or (b) to an explanation as to the cause for denial. In appropriate cases, courts may grant a direction requiring the Authority to follow the promised procedure or established practice. A legitimate expectation, even when made out, does not always entitle the expectant to a relief. Public interest, change in policy, conduct of the expectant or any other valid or bonafide reason given by the decision-maker, may be sufficient to negative the legitimate expectation.The doctrine of legitimate expectation based on established practice (as contrasted from legitimate expectation based on a promise), can be invoked only by someone who has dealings or transactions or negotiations with an authority, on which such established practice has a bearing, or by someone who has a recognized legal relationship with the authority. A total stranger unconnected with the authority or a person who had no previous dealings with the authority and who has not entered into any transaction or negotiations with the authority, cannot invoke the doctrine of legitimate expectation, merely on the ground that the authority has a general obligation to act fairly.Let us now examine whether the principles of legitimate expectation can have any application in this case. What transpired several decades ago when the Board commenced its operations and when its finances were sound, cannot have any bearing on its action in the year 1995. The position of the Board vis-Ã -vis the Society in 1995 was completely different from the position of the Board vis-Ã -vis the several ex-licensees when the Board took over their undertakings several decades back. Further, the assumption that whenever an undertaking is taken over, transferred or purchased, the transferee or purchaser should continue the services of the employees of the erstwhile owner of the undertaking, is not sound. In fact, statutory provisions seem to indicate otherwise. Section 25-FF of the Industrial Disputes Act, 1947 provides that where the ownership or management of an undertaking is transferred, whether by agreement or by operation of law, from the employer in relation to that undertaking to a new employer, every workman who has been in continuous service for not less than one year in that undertaking immediately before such transfer shall be entitled to notice and compensation in accordance with the provisions of Section 25-F, as if the workman had been retrenched, except in the cases mentioned in the proviso thereto. Therefore, the natural consequence of a transfer of an undertaking, unless there is a specific provision for continuation of the service of the workmen, is termination of employment of its employees, and the employers liability to pay compensation in accordance with SectionThe Board had never agreed nor decided to take services of any of the employees of the Society. In fact, it is not even the case of the appellants that the Board had at any point of time held out any promise or assurance to absorb their services. When the licence of the Society was revoked, the State Government appointed a Committee to examine the question whether the Board can take over the services of the employees of the Society. The Committee no doubt recommended that the services of eligible and qualified employees should be taken over. But thereafter the State Government considered the recommendation and rejected the same, apparently due to the precarious condition of the Board which itself was in dire financial straits, and was contemplating retrenchment of its own employees. At all events, any decision by the State Government either to recommend or direct the absorption of the Societys employees was not binding on the Board, as it was a matter where it could independently take a decision. It is also not in dispute that for more than two decades or more, before 1995, the Board had not taken over the employees of any private licencee. There was no occasion for consideration of such a course. Hence, it cannot be said that there was any regularity or predictability or certainty in action which can lead to a legitimate expectation.
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M/S T.C.HEALTHCARE P. LTD Vs. UNION OF INDIA | excise duty. ************** 8(4). Any manufacturer, who desires revision of the retail price of a formulation fixed under sub- paragraph (1), shall make an application to the, Government in Form III or Form IV, as the case maybe, and the Government shall after making such enquiry, as it deems fit within a period of two months from the date of receipt of the complete information, fix a revised price for such formulation or reject the application for revision for reasons to be recorded in writing. ************** 8(6) No manufacturer or importer shall market a new pack, if not covered under sub-paragraph 3 of para 9, or a new formulation or a new dosage form of his existing Scheduled formulation without obtaining the prior approval of its price from the Government. 9. Power to fix ceiling price of Scheduled formulations: 1. Notwithstanding anything contained in this Order, the Government may, from time to time, by notification in the Official Gazette, fix the ceiling price of a Scheduled formulation in accordance with the formula laid down in paragraph 7, keeping in view the cost or efficiency, or both, of major manufacturers of such formulations and such price shall operate as the ceiling sale price for all such packs including those sold under generic name and for every manufacturer of such formulations. 2. The Government may, either on its own motion or on application made to it in this behalf by a manufacturer in Form III or Form IV, as the case may be, after calling for such information as it may consider necessary, by notification in the Official Gazette, fix a revised ceiling price for a Scheduled formulation. 3. With a view to enabling the manufacturers of similar formulations to sell those formulations in pack size different to the pack size for which ceiling price has been notified under the sub- paragraphs (1) and (2), manufacturers shall work out the price for their respective formulation packs in accordance with such norms, as may be notified by the Government from time to time, and he shall intimate the price of formulation pack, so worked out, to the Government and such formulation packs shall be released for sale only after the expiry of sixty days after such intimation. ************** 13. Power to recover Overcharged Amount: Notwithstanding anything contained in this order, the Government shall by notice, require the manufacturers, importers or distributors, as the case maybe, to deposit the amount accrued due to charging of prices higher than those fixed or notified by the Government under the provisions of Drugs (Prices Control) Order, 1987 and under the provisions of this Order. 9. The appellants argue before this court, that the High Court erred in overlooking that the sustained release and continuous release technologies used in their products had not been made the subject of any price fixation norm. Therefore, the price fixation resorted to in their case was contrary to law. The learned senior counsel appearing on their behalf submitted that the High Court had fallen into error in this regard, and consequently, its decision requires to be set aside. 10. The High Court, in the impugned judgment, we notice, had taken note of the notification dated 13 th August, 2008, which fixed conversion costs for plain tablets, coated tablets, dispersible tablets, gelatin coated tablets, bi layered tablets, sustained release tablets, chewable tablets, effervescent tablets, inlay tablets, capsules and other drugs. The appellants had not urged that different conversion costs were fixed for controlled release system, or the continuous release systems, anytime. In these circumstances, it was held that the pricing norms were applicable. The court also extracted Note (d) to the notification of 30 th April, 2009, which pertinently stated that: (d) For different packing materials used or different drug delivery systems or any other special features/forms claimed, the ceiling prices, as specified in Column 5 above, shall be applicable unless the companies approach NPPA for specific price approvals for its formulations 11. In this case, the appellants did not approach NPPA for specific price, or contend before it that their products contained special features. On the other hand, the allusion to sustained release and drug delivery systems (in Note (d)) clearly contemplated that unless otherwise specifically sought- in regard to particular drugs, the price fixation norms applied to all. 12. According to pharmacopedias and the US Food and Drug Administrations definitions, modifications in drug release are often desirable to increase the stability, safety and efficacy of the drug, to improve the therapeutic outcome of the drug treatment and/or to increase patient compliance and convenience of administration. In that context, the use of the term sustained release denotes the systems that maintain the rate of drug release over a sustained period. For example, if the release of the drug from the dosage form is sustained such that the release takes place throughout the entire gastrointestinal tract, one could prolong the time interval of drug concentration in the therapeutic range. This in turn may reduce the frequency of dosing, for example from three times a day to once a day. Sustained-release dosage forms achieve this mostly by the use of suitable polymers, used either to coat granules or tablets (reservoir systems) or to form a matrix in which the drug is dissolved or dispersed (matrix systems). Controlled release systems are drug delivery systems in which the drug is released in a predetermined pattern over a fixed period of time. Therefore, the materials on the record show that the DPCO was aware of the existence of different systems of drug delivery; it specifically talked of sustained release. If the appellants wished to say that the systems used by them were unique or different, it was open for them to have so demonstrated. Their omission to do so, did not in any way affect their obligation to follow the pricing norms and ceiling prices fixed by the impugned notifications. This court, therefore, sees no reason to differ from the conclusions and findings of the High Court. | 0[ds]10. The High Court, in the impugned judgment, we notice, had taken note of the notification dated 13 th August, 2008, which fixed conversion costs for plain tablets, coated tablets, dispersible tablets, gelatin coated tablets, bi layered tablets, sustained release tablets, chewable tablets, effervescent tablets, inlay tablets, capsules and other drugs. The appellants had not urged that different conversion costs were fixed for controlled release system, or the continuous release systems, anytime11. In this case, the appellants did not approach NPPA for specific price, or contend before it that their products contained special features. On the other hand, the allusion to sustained release and drug delivery systems (in Note (d)) clearly contemplated that unless otherwise specifically sought- in regard to particular drugs, the price fixation norms applied to allTherefore, the materials on the record show that the DPCO was aware of the existence of different systems of drug delivery; it specifically talked of sustained release. If the appellants wished to say that the systems used by them were unique or different, it was open for them to have so demonstrated. Their omission to do so, did not in any way affect their obligation to follow the pricing norms and ceiling prices fixed by the impugned notifications. This court, therefore, sees no reason to differ from the conclusions and findings of the High Court. | 0 | 2,751 | 265 | ### 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:
excise duty. ************** 8(4). Any manufacturer, who desires revision of the retail price of a formulation fixed under sub- paragraph (1), shall make an application to the, Government in Form III or Form IV, as the case maybe, and the Government shall after making such enquiry, as it deems fit within a period of two months from the date of receipt of the complete information, fix a revised price for such formulation or reject the application for revision for reasons to be recorded in writing. ************** 8(6) No manufacturer or importer shall market a new pack, if not covered under sub-paragraph 3 of para 9, or a new formulation or a new dosage form of his existing Scheduled formulation without obtaining the prior approval of its price from the Government. 9. Power to fix ceiling price of Scheduled formulations: 1. Notwithstanding anything contained in this Order, the Government may, from time to time, by notification in the Official Gazette, fix the ceiling price of a Scheduled formulation in accordance with the formula laid down in paragraph 7, keeping in view the cost or efficiency, or both, of major manufacturers of such formulations and such price shall operate as the ceiling sale price for all such packs including those sold under generic name and for every manufacturer of such formulations. 2. The Government may, either on its own motion or on application made to it in this behalf by a manufacturer in Form III or Form IV, as the case may be, after calling for such information as it may consider necessary, by notification in the Official Gazette, fix a revised ceiling price for a Scheduled formulation. 3. With a view to enabling the manufacturers of similar formulations to sell those formulations in pack size different to the pack size for which ceiling price has been notified under the sub- paragraphs (1) and (2), manufacturers shall work out the price for their respective formulation packs in accordance with such norms, as may be notified by the Government from time to time, and he shall intimate the price of formulation pack, so worked out, to the Government and such formulation packs shall be released for sale only after the expiry of sixty days after such intimation. ************** 13. Power to recover Overcharged Amount: Notwithstanding anything contained in this order, the Government shall by notice, require the manufacturers, importers or distributors, as the case maybe, to deposit the amount accrued due to charging of prices higher than those fixed or notified by the Government under the provisions of Drugs (Prices Control) Order, 1987 and under the provisions of this Order. 9. The appellants argue before this court, that the High Court erred in overlooking that the sustained release and continuous release technologies used in their products had not been made the subject of any price fixation norm. Therefore, the price fixation resorted to in their case was contrary to law. The learned senior counsel appearing on their behalf submitted that the High Court had fallen into error in this regard, and consequently, its decision requires to be set aside. 10. The High Court, in the impugned judgment, we notice, had taken note of the notification dated 13 th August, 2008, which fixed conversion costs for plain tablets, coated tablets, dispersible tablets, gelatin coated tablets, bi layered tablets, sustained release tablets, chewable tablets, effervescent tablets, inlay tablets, capsules and other drugs. The appellants had not urged that different conversion costs were fixed for controlled release system, or the continuous release systems, anytime. In these circumstances, it was held that the pricing norms were applicable. The court also extracted Note (d) to the notification of 30 th April, 2009, which pertinently stated that: (d) For different packing materials used or different drug delivery systems or any other special features/forms claimed, the ceiling prices, as specified in Column 5 above, shall be applicable unless the companies approach NPPA for specific price approvals for its formulations 11. In this case, the appellants did not approach NPPA for specific price, or contend before it that their products contained special features. On the other hand, the allusion to sustained release and drug delivery systems (in Note (d)) clearly contemplated that unless otherwise specifically sought- in regard to particular drugs, the price fixation norms applied to all. 12. According to pharmacopedias and the US Food and Drug Administrations definitions, modifications in drug release are often desirable to increase the stability, safety and efficacy of the drug, to improve the therapeutic outcome of the drug treatment and/or to increase patient compliance and convenience of administration. In that context, the use of the term sustained release denotes the systems that maintain the rate of drug release over a sustained period. For example, if the release of the drug from the dosage form is sustained such that the release takes place throughout the entire gastrointestinal tract, one could prolong the time interval of drug concentration in the therapeutic range. This in turn may reduce the frequency of dosing, for example from three times a day to once a day. Sustained-release dosage forms achieve this mostly by the use of suitable polymers, used either to coat granules or tablets (reservoir systems) or to form a matrix in which the drug is dissolved or dispersed (matrix systems). Controlled release systems are drug delivery systems in which the drug is released in a predetermined pattern over a fixed period of time. Therefore, the materials on the record show that the DPCO was aware of the existence of different systems of drug delivery; it specifically talked of sustained release. If the appellants wished to say that the systems used by them were unique or different, it was open for them to have so demonstrated. Their omission to do so, did not in any way affect their obligation to follow the pricing norms and ceiling prices fixed by the impugned notifications. This court, therefore, sees no reason to differ from the conclusions and findings of the High Court.
### Response:
0
### Explanation:
10. The High Court, in the impugned judgment, we notice, had taken note of the notification dated 13 th August, 2008, which fixed conversion costs for plain tablets, coated tablets, dispersible tablets, gelatin coated tablets, bi layered tablets, sustained release tablets, chewable tablets, effervescent tablets, inlay tablets, capsules and other drugs. The appellants had not urged that different conversion costs were fixed for controlled release system, or the continuous release systems, anytime11. In this case, the appellants did not approach NPPA for specific price, or contend before it that their products contained special features. On the other hand, the allusion to sustained release and drug delivery systems (in Note (d)) clearly contemplated that unless otherwise specifically sought- in regard to particular drugs, the price fixation norms applied to allTherefore, the materials on the record show that the DPCO was aware of the existence of different systems of drug delivery; it specifically talked of sustained release. If the appellants wished to say that the systems used by them were unique or different, it was open for them to have so demonstrated. Their omission to do so, did not in any way affect their obligation to follow the pricing norms and ceiling prices fixed by the impugned notifications. This court, therefore, sees no reason to differ from the conclusions and findings of the High Court.
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The State of Punjab Vs. Prakash Singh Cheema | A.C. Gupta, J.1. The respondent was a temporary Tax Sub-Inspector in Excise and Taxation Department of the erstwhile Patiala and East Punjab States Union. On the formation of the State of Punjab he continued in service in the new State. A charge was framed against the respondent by the Vigilance Department, Government of Punjab in which the respondent was accused of dereliction of duty and gross negligence. The memorandum accompanying the charge-sheet informed the respondent that action under Rule 7 of the Punjab Civil Services (Punishment and Appeal) Rules, l952 was proposed to be taken against him and he was asked to state in writing within three weeks from the receipt of the memorandum whether he admitted the truth of all or any of the charges and what explanation or defence if any he had to offer and whether he desired to be heard in person. The respondent filed his written statement replying to the charges. Thereafter by a communication dated May 28, 1963, addressed to the respondent the Excise and Taxation Commissioner, Punjab terminated his services by giving him one months notice. On receipt of this order the respondent made a representation to the then Chief Minister of the State. The Chief Minister called for a report and directed that in the meantime the respondent should continue in service. On June 16, 1964, the Chief Minister after considering the report ordered that in view of the respondents previous good record, he did not deserve the "punishment of termination of service only on account of a few bad reports" and that the respondent should "continue in service and his case should be reviewed after he has earned another report from the present E. T. C. (Excise and Taxation Commissioner) for the year 1964-65". However, on October 27, 1964, the Excise and Taxation Commissioner without waiting for the report as directed by the Chief Minister made an order terminating the services of the respondent. The order was in these terms:"In terms of the conditions of your service you are hereby given one months notice whereafter your services shall stand terminated."2. The respondent instituted a suit in the Court of the Senior Subordinate Judge, Patiala, on June 8, 1965, for a declaration that the order dated October 27, 1964, was illegal and void having been made without giving him an opportunity as required by Article 311 (2) of the Constitution and that he should be deemed as continuing in service and therefore entitled to all rights, benefits and privileges available to members of that service. The trial Court considering the circumstances of the case was of opinion "that the services of plaintiff were terminated by way of punishment and the impugned order was based on misconduct and inefficiency on the part of the plaintiff ." The trial Court further held that on the facts, stated above, the provisions of Article 311(2) of the Constitution were attracted and the impugned order was void having been passed in violation of that Article. On this view the trial Court decreed the suit quashing the order of termination and also granted the other declarations prayed for. On appea1 by the State of Punjab the Additional District Judge, Patiala, on a consideration of the material on record observed: "I have no doubt left in my mind that the plaintiff was visited with evil consequences due to an alleged misconduct". The Additional District Judge accordingly dismissed the appeal. On May 24, 1967, a learned Judge of the Punjab and Haryana High Court dismissed in limine the second appeal preferred by the State of Punjab. On July 28, 1967 an application for leave to prefer Letters Patent Appeal was also dismissed. The present appeal by the State of Punjab is by special leave from the order refusing the petition for leave to file Letters Patent Appeal.3. An order terminating the services of a temporary servant or a probationer, if it is by way of punishment will attract Article 311 of the Constitution: the form of the order is not conclusive, it is the substance of the matter that has to be looked into. Whether or not an order of termination is by way of punishment would depend, on the facts and circumstances of each case. This well established position has been reiterated by this Court recently in the case of Samsher Singh v. State of Punjab, (1974) 2 SCC 831 = (AIR 1974 SC 2192 = 1974 Lab IC 1381 on a review of the earlier decisions on the point, The trial Court and the first appellate court both took the view that the order of termination in the instant case was by way of punishment The High Court dismissed the second appeal in limine apparently in view of this concurrent finding. The application for leave to file a Letters Patent Appeal must therefore be held to have been rightly dismissed there being no ground on which leave could have been granted. | 0[ds]3. An order terminating the services of a temporary servant or a probationer, if it is by way of punishment will attract Article 311 of the Constitution: the form of the order is not conclusive, it is the substance of the matter that has to be looked into. Whetheror not an order of termination is by way of punishment would depend, on the facts and circumstances of each case.This well established position has been reiterated by this Court recently in the case of Samsher Singh v. State of Punjab, (1974) 2 SCC 831 = (AIR 1974 SC 2192 = 1974 Lab IC 1381 on a review of the earlier decisions on the point, The trial Court and the first appellate court both took the view that the order of termination in the instant case was by way of punishment The High Court dismissed the second appeal in limine apparently in view of this concurrent finding. The application for leave to file a Letters Patent Appeal must therefore be held to have been rightly dismissed there being no ground on which leave could have been granted. | 0 | 905 | 202 | ### 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:
A.C. Gupta, J.1. The respondent was a temporary Tax Sub-Inspector in Excise and Taxation Department of the erstwhile Patiala and East Punjab States Union. On the formation of the State of Punjab he continued in service in the new State. A charge was framed against the respondent by the Vigilance Department, Government of Punjab in which the respondent was accused of dereliction of duty and gross negligence. The memorandum accompanying the charge-sheet informed the respondent that action under Rule 7 of the Punjab Civil Services (Punishment and Appeal) Rules, l952 was proposed to be taken against him and he was asked to state in writing within three weeks from the receipt of the memorandum whether he admitted the truth of all or any of the charges and what explanation or defence if any he had to offer and whether he desired to be heard in person. The respondent filed his written statement replying to the charges. Thereafter by a communication dated May 28, 1963, addressed to the respondent the Excise and Taxation Commissioner, Punjab terminated his services by giving him one months notice. On receipt of this order the respondent made a representation to the then Chief Minister of the State. The Chief Minister called for a report and directed that in the meantime the respondent should continue in service. On June 16, 1964, the Chief Minister after considering the report ordered that in view of the respondents previous good record, he did not deserve the "punishment of termination of service only on account of a few bad reports" and that the respondent should "continue in service and his case should be reviewed after he has earned another report from the present E. T. C. (Excise and Taxation Commissioner) for the year 1964-65". However, on October 27, 1964, the Excise and Taxation Commissioner without waiting for the report as directed by the Chief Minister made an order terminating the services of the respondent. The order was in these terms:"In terms of the conditions of your service you are hereby given one months notice whereafter your services shall stand terminated."2. The respondent instituted a suit in the Court of the Senior Subordinate Judge, Patiala, on June 8, 1965, for a declaration that the order dated October 27, 1964, was illegal and void having been made without giving him an opportunity as required by Article 311 (2) of the Constitution and that he should be deemed as continuing in service and therefore entitled to all rights, benefits and privileges available to members of that service. The trial Court considering the circumstances of the case was of opinion "that the services of plaintiff were terminated by way of punishment and the impugned order was based on misconduct and inefficiency on the part of the plaintiff ." The trial Court further held that on the facts, stated above, the provisions of Article 311(2) of the Constitution were attracted and the impugned order was void having been passed in violation of that Article. On this view the trial Court decreed the suit quashing the order of termination and also granted the other declarations prayed for. On appea1 by the State of Punjab the Additional District Judge, Patiala, on a consideration of the material on record observed: "I have no doubt left in my mind that the plaintiff was visited with evil consequences due to an alleged misconduct". The Additional District Judge accordingly dismissed the appeal. On May 24, 1967, a learned Judge of the Punjab and Haryana High Court dismissed in limine the second appeal preferred by the State of Punjab. On July 28, 1967 an application for leave to prefer Letters Patent Appeal was also dismissed. The present appeal by the State of Punjab is by special leave from the order refusing the petition for leave to file Letters Patent Appeal.3. An order terminating the services of a temporary servant or a probationer, if it is by way of punishment will attract Article 311 of the Constitution: the form of the order is not conclusive, it is the substance of the matter that has to be looked into. Whether or not an order of termination is by way of punishment would depend, on the facts and circumstances of each case. This well established position has been reiterated by this Court recently in the case of Samsher Singh v. State of Punjab, (1974) 2 SCC 831 = (AIR 1974 SC 2192 = 1974 Lab IC 1381 on a review of the earlier decisions on the point, The trial Court and the first appellate court both took the view that the order of termination in the instant case was by way of punishment The High Court dismissed the second appeal in limine apparently in view of this concurrent finding. The application for leave to file a Letters Patent Appeal must therefore be held to have been rightly dismissed there being no ground on which leave could have been granted.
### Response:
0
### Explanation:
3. An order terminating the services of a temporary servant or a probationer, if it is by way of punishment will attract Article 311 of the Constitution: the form of the order is not conclusive, it is the substance of the matter that has to be looked into. Whetheror not an order of termination is by way of punishment would depend, on the facts and circumstances of each case.This well established position has been reiterated by this Court recently in the case of Samsher Singh v. State of Punjab, (1974) 2 SCC 831 = (AIR 1974 SC 2192 = 1974 Lab IC 1381 on a review of the earlier decisions on the point, The trial Court and the first appellate court both took the view that the order of termination in the instant case was by way of punishment The High Court dismissed the second appeal in limine apparently in view of this concurrent finding. The application for leave to file a Letters Patent Appeal must therefore be held to have been rightly dismissed there being no ground on which leave could have been granted.
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Bhim Sen For R.S. Malik Mathra Das Vs. The State Of Punjabunion Of India--Intervener.Prem Nath Fo | evidencing an intention on the part of Sundara Pandiya to surrender the right of succession of his branch. It has been further held that the release was not executed in favour of the head of the family or in favour of all the members of the family in order to be operative as a valid relinquishment. There can be no doubt that a member of a joint family owning an impartible estate can on behalf of himself and his heirs renounce his right of succession; but any such relinquishment must operate for the benefit of all the members and the surrender must be in favour of all the branches of the family or in favour of the head of the family as representing all its members. Here the deed was executed in favour of the widow of a deceased coparcener who as such was a stranger to the coparcenary, the family being admittedly joint at the death of Kamaraja I. It was contended that in view of the attitude taken by the parties before the High Court that the deed of release and the compromise evidenced only one arrangement to which all the members were in reality parties it should be held that the surrender of his rights by Sundara Pandiya was made in favour of Kadasami, the head of the family and it extinguished the rights of the third branch in the family zamindari. We think, however, that Kandasami in dealing with Sundara Pandiya was safeguarding his own right of succession against the attack personally directed against him and was successful in buying him off by agreeing to hand over to him a village. Both of them were claiming headship of the family on different grounds and both were asserting that the zamindari belonged to the joint family. In the compromise Kandasami was acting for his own benefit and was not making any bargain with Sundara Pandiya on behalf of the family. The family as such could not have been prejudiced in any way by the circumstances that succession went to one or the other. Be that as it may, we think the decision of this case on be made to rest on a more solid foundation than furnished by the consideration set out above.34. The whole emphasis of Mr. Raghavan who represented Kulasekara was on the words of the deed contained in cl. 5 set out above. Sundara Pandiya by this clause stipulated that he will have no right to the property shown as belonging to the widow. Sundara Pandiya was then agreeing that the widow should retain the zamindari absolutely, his mind being influenced by the will. Later on by the compromise made in Kandasamis suit what had been given absolutely to the widow was converted into a life estate with the exception of the pannai lands and Kandasami was acknowledged as the rightful heir. The recitals in the release deed, therefore, have to be read in the light of the terms and conditions of the deed of compromise and the proper inference from these is that Sundara Pandiya relinquished his rights to succeed to the zamindari immediately as the seniormost member of the family but that he did not renounce his contingent right of succeeding to it by survivorship if and when the occasion arose. It is well settled that general words of a release do not mean release of rights other than those than put up and have to be limited to the circumstances which were in the contemplation of the parties when it was executed (Vide Directors etc. of L. and S. W. Ry. Co. v. Richard Deddaridge Blackmore,4 H. L. 610.In that case it was said that general words in a release are limited to those things which were specially in the contemplation of the parties when the release was executed. This rule is good law in India as in England. The same rule has been stated in Norton on Deeds at page 206 (2nd Edn.,) thus :"the general words of a release are limited always to that thing or those things which were specially in the contemplation of the parties at the time when the release was given, though they were not mentioned in the recitals."In Hailshams Edn. of Halsburys Laws of England, vol. 7, at para. 345, the rule has been stated in these terms :"General words of release will be construed with reference to the surrounding circumstances and as being controlled by recitals and context so as to give effect to the object and purpose of the document. A release will not be construed as applying to facts of which the creditor had knowledge at the time when it was given."In Choudhry Chintaman Singh v. Mt. Nowlukho Kunwar,2 Ind. App. 263 P. C., where the document was drafted in almost the same terms as Ex. P-17, it was said that though the words of the petitioner of compromise were capable of being read as if the executants were giving up all rights whatever in the taluka of Gungore, yet in the opinion of their Lordship the transaction amounted to no more than an agreement to waive the claim to a share in and to the consequent right to a partition of the taluka and there was no intention to change the character of the estate or the mode in which it was to descend. The parties in the year 1890 were no thinking of their future rights of survivorship at all. What Sundara Pandiya must be taken to have said by this release was "I am giving up my present rights as a senior member in favour of Kandasami whom I recognize as the rightful heir to the zamindari as a member of the joint Hindu family." Kandasami agreed to give him the village of Dombacheri in lieu of recognition of his title by him. It was not within the ken of the parties then as to what was to happen to the zamindari in case Kandasamis line died out. | 1[ds]18. The claim made by the widow that the zamindari became by the arrangement of 1890 the separate property of Kandasami was disallowed by the High Court on the short ground that the documents, Exs.8, read along with the various statements made in 1889 cannot be read as changing the character of the estate from that of an impartible estate belonging to the joint family to an estate owned by Kandasami in his individual right. In the view of the High Court the only change effected by the arrangement so far as the estate was concerned was to defer the right of Kandasami to its possession as the next in succession until after the death of Kamuluammal. Kandasami could not himself make it his own private property and this was conceded by all. After hearing Mr. Pathak at considerable length we are in agreement with the High Court on this point.Reference was made to the decisions of the Privy Council inVadrevu Ranganayakamma v. Vadrevu Bulli Ramaiya,5 Cal. L. R. 439:Shivagnana Tewar v. Perasami,5 Ind. App. 61:Thakurani Tara Kumari v. Chaturbhuj Narayan Singh,42 Ind. App. 192; and it was contended that the present case was analogous to the facts of those cases and should be decided on similar lines. We are of the opinion that the facts of none of those cases bear any close resemblance to the facts of the present case. The decision in each one of those cases was given on their own peculiar set of circumstances.21. In the first case the owner of an impartible zamindari forming part of family property died leaving four sons and an infant grandson by his eldest son. During the minority of the grandson the four surviving sons executed a sanad which directed that the zamindari should be held by the grandson and that they should take an equal share of the inam lands and also manage the zamindari during the infancy of the grandson, which on his attaining majority had to be handed over to him, each confining himself to the share of the inam lands allotted to them. Certain family jewellery was also divided in a similar manner. This grandson then died leaving a son, who also died without any issue but leaving a widow. Her title to the zamindari was denied by the descendants of the four sons of the zamindar. It was held that the sanad amounted to an agreement by which the joint family was divided and that on the death of the last holder his widow was entitled to the zamindari. It was observed in this case that having partitioned the lands, the parties to the sanad proceeded to partition the jewels and his circumstance was inconsistent with the supposition that the document was executed with the intention of merely providing allotments in lieu of maintenance. It is clear from the facts of this case that the family owned other coparcenary properties besides the zamindari and the zamindari in dispute fell to the lot of the grandson as his separate property. There were other materials in the case indicating that there was complete separation between the members of this family.22. In the next case an impartible zamindari had devolved on the eldest of three undivided Hindu brothers. He executed an instrument appointing his second brother to be zamindar. The instrument recited that if the widow of the deceased who was pregnant did not give birth to a son but a daughter, he and his offspring would have no interest in the zamindari of which his younger brother would be the sole zamindar who would also allow maintenance to the third brother. The widow gave birth to a daughter and the second brother took over the zamindari. The third brother also died without issue. On the death of the second brother his son succeeded and the zamindari devolved on him who died leaving a widow. The son of the eldest brother who had renounced the zamindari sued to recover the estate against the widow. It was held that the instrument executed by the eldest brother was a renunciation by him for himself and his descendants of all interests in the zamindari either as the head or as a junior member of the joint family and consequently it became the separate property of the second brother and the widow was entitled to succeed to it in preference to the line of the eldest brother. The document on the interpretation of which this decision was given was in these termsand my offspring shall have no interest in the said palayapat, but you alone shall be the zamindar and rule and enjoy the same, allowing, at the same time, as per former agreement to the younger brother, P. Bodhagurusami Tevarwho in the pedigree is called Chinnasami,the village that had been assigned to himwords were interpreted as amounting to a renunciation of all interest in the palayapat either as the head of or as a junior member of the joint family. The rights of the youngest brother Chinnasami were expressly reserved. It was said that the effect of the transaction was to make the particular estate the property of the two instead of the three brothers, with, of course, all its incidents of impartibility and peculiar course of the descent, and to do so as effectually as if in the case of an ordinary partition between the elder brother on the one hand and the two younger brothers on the other, a particular property had fallen to the lot of the other two. Other clauses in the deed and the attending circumstances fully corroborated the construction placed upon it.23. In the last case the holder of an impartible estate of a joint Hindu family made a mokurari grant to his younger brother for maintenance. The grantee built a separate house, divided from his brothers by a wall, established therein a tulsi pinda and thakurbari and lived there separately from his brother. He defrayed the marriage expenses of his daughter subsequently to the grant. Upon these facts it was held that there was a complete separation between the brothers, and that the impartible estate consequently became separate property of the holder whose widow was entitled to succeed and have a widows estate in the zamindari. It was observed that the evidence clearly proved that there had been complete separation between Thakur Ranjit Narayan Singh and his brother Bhupat Narayan Singh in worship, food and estate. In our opinion, the decision in this case must be limited to the facts therein disclosed and can have no general application to cases of impartible estates where the only right left to the junior members of the family is the right to take the estate by survivorship in cases of failure of lineal heirs in the line of the last zamindar. The junior members can neither demand partition of the estate nor can they claim maintenance as of right except on the strength of custom, nor are they entitled to possession or enjoyment of the estate.24. In our opinion division amongst the members of this family by allotment of properties was not possible as the only property known to belong to the family was the impartible zamindari of which partition could not be made or demanded. To establish that an impartible estate has ceased to be joint family property for purposes of succession it is necessary to prove an intention, express or implied, on the part of the junior members of the family to give up their chance of succeeding to the estate. In each case, it is incumbent on the plaintiff to adduce satisfactory grounds for holding that the joint ownership of the defendants branch in the estate was determined so that it became the separate property of the last holders branch. The test to be applied is whether the facts show a clear intention to renounce or surrender any interest in the impartible estate or a relinquishment of the right of succession and an intention to impress upon the zamindari the character of separate property.25. Reference in this connection may be made to the decision of the Privy Council inKonammal v. Annadana, 55 Ind. App. 114 P. C. In that case on the dealt of a holder his elder son being feeble in mind, his younger son succeeded to the zamindari by an arrangement with the adult members of the family in the year 1922. The estate then descended from father to son till 1914 when the junior branch became extinct and possession was taken by a senior member of the branch who claimed it by survivorship while the mother of the last holder claimed the estate as an heir to separate property, and it was held that the setting aside of the elder son in 1822 did not deprive his descendants of their rights as members of the family to succeed on failure of the junior branch. In this case there was complete passing over of one branch of the family and succession vested in the next junior branch; yet when that branch failed, the members of the senior branch were held yet to possess their right to succeed to the zamindari by survivorship.The evidence in the present case is trivial and inconclusive and from the documents above mentioned no intention can be deduced on the part of the junior members on the part of any other member of the family of disrupting and dividing the family and renouncing their expectancy of succession. On the other hand, the statements made in 1889 and 1890 by the members of the family clearly indicate that none of them had any intention of giving up his rights of heirship to the zamindari. There was no charge of this frame of mind at any later stage of the family arrangement. Sundara Pandiya onclearly stated that the wish of the family was that the widow should be in charge of the estate and after her the next heir should succeed and that it was Kandasami. Kandasami said that he was the next heir, the family being undivided. In the compromise this statement was reiterated. Their intention was to preserve their rights to take the zamindari if the line of Kandasami became extinct.29.Mr. Pathak then put his case from a different point of view. He urged that Kandasami had the power to alienate the zamindari or any part of it and by an act of alienation he could defeat the right of survivorship vesting in the other members to claim the zamindari on failure of his line. Similarly he said he could divide the impartible estate amongst the different members of the family and that is what he must be presumed to have done in the present case. The argument, though plausible is fallacious. The right to bring about a partition of an impartible estate cannot be inferred from the power of alienation that the holder thereof mayIn the case of an impartible estate the power to divide it amongst the members does not exist, though the power in the holder to alienate it is there and from the existence of one power the other cannot be deduced, as it is destructive of the very nature and character of the estate and makes it partible property capable of partition.30. It seems to us that Kandasami instead of intending to separate from the family was by his actions consolidating the family unity. By the family arrangement he no doubt successfully got himself declared as the next person entitled to hold the joint family zamindari, but he evinced no intention of converting it into his own separate property. He preserved the estate for the family by saving it from the attack of the widow who wanted to take it under the will of her husband and antagonistically to the family. By the suit which he brought and which was eventually compromised he successfully avoided that attack on the family estate at the sacrifice of his right of enjoying it during the lifetime of the widow. He also by this arrangement safeguarded himself against the attack of Sundara Pandiya on his title as an heir. By his act the rule of descent of lineal primogenture prevailing in the family with regard to the zamindari was firmly established. It would be unjust and uncharitable to conclude from the circumstances that the actions of Kandasami in 1890 were in any way hostile to the interests of the family. As he was throughout acting for the benefit of the family his actions were approved by all the members and they got a provision made for themselves for their maintenance in the arrangement. In the suit that he filed against Kamuluammal he in unambiguous terms alleged that he was claiming the zamindari as a member of the undivided Hindu family and it was in that status that he made the compromise with her and agreed to obtain possession of the estate after her death.31. After Kandasamis death when the zamindari came by descent to Kamaraia II he also followed in the footsteps of his ancestor. During the period of his stewardship of the estate he tried to implement it by recovering the pannai lands which under the compromise had gone out of the estate to Kamulu absolutely. He was successful in his efforts though as a result of the decision in the present case his labours in this direction have proved futile as the release deed has been held to be vitiated by fraud.32. For the reasons given above we hold that there exist no satisfactory grounds for holding that the arrangement made in 1890 evidences a partition amongst the members of the joint family or proves an intention on the part of the junior members of the family to renounce their expectancy of succession by survivorship on failure of male lineal descendants in the second branch of the family. The question whether there was separation among the members of the family is primarily a question of fact and the Courts below having held that it is not proved, there are no valid grounds for disturbing that finding. Chinnathayis claim, therefore, to the zamindari must be held to have been rightly disallowed.33. As regards the claim of Kulasekara to the zamindari, it has been disallowed in the two Courts below on the ground that the deed of release; Ex. P 17, does not extinguish the right of survivorship of the third branch to take the estate on the second branch becoming extinct and that the document could not be read as evidencing an intention on the part of Sundara Pandiya to surrender the right of succession of his branch. It has been further held that the release was not executed in favour of the head of the family or in favour of all the members of the family in order to be operative as a valid relinquishment. There can be no doubt that a member of a joint family owning an impartible estate can on behalf of himself and his heirs renounce his right of succession; but any such relinquishment must operate for the benefit of all the members and the surrender must be in favour of all the branches of the family or in favour of the head of the family as representing all its members. Here the deed was executed in favour of the widow of a deceased coparcener who as such was a stranger to the coparcenary, the family being admittedly joint at the death of Kamaraja I. It was contended that in view of the attitude taken by the parties before the High Court that the deed of release and the compromise evidenced only one arrangement to which all the members were in reality parties it should be held that the surrender of his rights by Sundara Pandiya was made in favour of Kadasami, the head of the family and it extinguished the rights of the third branch in the family zamindari. We think, however, that Kandasami in dealing with Sundara Pandiya was safeguarding his own right of succession against the attack personally directed against him and was successful in buying him off by agreeing to hand over to him a village. Both of them were claiming headship of the family on different grounds and both were asserting that the zamindari belonged to the joint family. In the compromise Kandasami was acting for his own benefit and was not making any bargain with Sundara Pandiya on behalf of the family. The family as such could not have been prejudiced in any way by the circumstances that succession went to one or the other. Be that as it may, we think the decision of this case on be made to rest on a more solid foundation than furnished by the consideration set out above.34. The whole emphasis of Mr. Raghavan who represented Kulasekara was on the words of the deed contained in cl. 5 set out above. Sundara Pandiya by this clause stipulated that he will have no right to the property shown as belonging to the widow. Sundara Pandiya was then agreeing that the widow should retain the zamindari absolutely, his mind being influenced by the will. Later on by the compromise made in Kandasamis suit what had been given absolutely to the widow was converted into a life estate with the exception of the pannai lands and Kandasami was acknowledged as the rightful heir. The recitals in the release deed, therefore, have to be read in the light of the terms and conditions of the deed of compromise and the proper inference from these is that Sundara Pandiya relinquished his rights to succeed to the zamindari immediately as the seniormost member of the family but that he did not renounce his contingent right of succeeding to it by survivorship if and when the occasion arose. It is well settled that general words of a release do not mean release of rights other than those than put up and have to be limited to the circumstances which were in the contemplation of the parties when it was executed (Vide Directors etc. of L. and S. W. Ry. Co. v. Richard Deddaridge Blackmore,4 H. L. 610.In that case it was said that general words in a release are limited to those things which were specially in the contemplation of the parties when the release was executed. | 1 | 8,678 | 3,225 | ### Instruction:
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evidencing an intention on the part of Sundara Pandiya to surrender the right of succession of his branch. It has been further held that the release was not executed in favour of the head of the family or in favour of all the members of the family in order to be operative as a valid relinquishment. There can be no doubt that a member of a joint family owning an impartible estate can on behalf of himself and his heirs renounce his right of succession; but any such relinquishment must operate for the benefit of all the members and the surrender must be in favour of all the branches of the family or in favour of the head of the family as representing all its members. Here the deed was executed in favour of the widow of a deceased coparcener who as such was a stranger to the coparcenary, the family being admittedly joint at the death of Kamaraja I. It was contended that in view of the attitude taken by the parties before the High Court that the deed of release and the compromise evidenced only one arrangement to which all the members were in reality parties it should be held that the surrender of his rights by Sundara Pandiya was made in favour of Kadasami, the head of the family and it extinguished the rights of the third branch in the family zamindari. We think, however, that Kandasami in dealing with Sundara Pandiya was safeguarding his own right of succession against the attack personally directed against him and was successful in buying him off by agreeing to hand over to him a village. Both of them were claiming headship of the family on different grounds and both were asserting that the zamindari belonged to the joint family. In the compromise Kandasami was acting for his own benefit and was not making any bargain with Sundara Pandiya on behalf of the family. The family as such could not have been prejudiced in any way by the circumstances that succession went to one or the other. Be that as it may, we think the decision of this case on be made to rest on a more solid foundation than furnished by the consideration set out above.34. The whole emphasis of Mr. Raghavan who represented Kulasekara was on the words of the deed contained in cl. 5 set out above. Sundara Pandiya by this clause stipulated that he will have no right to the property shown as belonging to the widow. Sundara Pandiya was then agreeing that the widow should retain the zamindari absolutely, his mind being influenced by the will. Later on by the compromise made in Kandasamis suit what had been given absolutely to the widow was converted into a life estate with the exception of the pannai lands and Kandasami was acknowledged as the rightful heir. The recitals in the release deed, therefore, have to be read in the light of the terms and conditions of the deed of compromise and the proper inference from these is that Sundara Pandiya relinquished his rights to succeed to the zamindari immediately as the seniormost member of the family but that he did not renounce his contingent right of succeeding to it by survivorship if and when the occasion arose. It is well settled that general words of a release do not mean release of rights other than those than put up and have to be limited to the circumstances which were in the contemplation of the parties when it was executed (Vide Directors etc. of L. and S. W. Ry. Co. v. Richard Deddaridge Blackmore,4 H. L. 610.In that case it was said that general words in a release are limited to those things which were specially in the contemplation of the parties when the release was executed. This rule is good law in India as in England. The same rule has been stated in Norton on Deeds at page 206 (2nd Edn.,) thus :"the general words of a release are limited always to that thing or those things which were specially in the contemplation of the parties at the time when the release was given, though they were not mentioned in the recitals."In Hailshams Edn. of Halsburys Laws of England, vol. 7, at para. 345, the rule has been stated in these terms :"General words of release will be construed with reference to the surrounding circumstances and as being controlled by recitals and context so as to give effect to the object and purpose of the document. A release will not be construed as applying to facts of which the creditor had knowledge at the time when it was given."In Choudhry Chintaman Singh v. Mt. Nowlukho Kunwar,2 Ind. App. 263 P. C., where the document was drafted in almost the same terms as Ex. P-17, it was said that though the words of the petitioner of compromise were capable of being read as if the executants were giving up all rights whatever in the taluka of Gungore, yet in the opinion of their Lordship the transaction amounted to no more than an agreement to waive the claim to a share in and to the consequent right to a partition of the taluka and there was no intention to change the character of the estate or the mode in which it was to descend. The parties in the year 1890 were no thinking of their future rights of survivorship at all. What Sundara Pandiya must be taken to have said by this release was "I am giving up my present rights as a senior member in favour of Kandasami whom I recognize as the rightful heir to the zamindari as a member of the joint Hindu family." Kandasami agreed to give him the village of Dombacheri in lieu of recognition of his title by him. It was not within the ken of the parties then as to what was to happen to the zamindari in case Kandasamis line died out.
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were in any way hostile to the interests of the family. As he was throughout acting for the benefit of the family his actions were approved by all the members and they got a provision made for themselves for their maintenance in the arrangement. In the suit that he filed against Kamuluammal he in unambiguous terms alleged that he was claiming the zamindari as a member of the undivided Hindu family and it was in that status that he made the compromise with her and agreed to obtain possession of the estate after her death.31. After Kandasamis death when the zamindari came by descent to Kamaraia II he also followed in the footsteps of his ancestor. During the period of his stewardship of the estate he tried to implement it by recovering the pannai lands which under the compromise had gone out of the estate to Kamulu absolutely. He was successful in his efforts though as a result of the decision in the present case his labours in this direction have proved futile as the release deed has been held to be vitiated by fraud.32. For the reasons given above we hold that there exist no satisfactory grounds for holding that the arrangement made in 1890 evidences a partition amongst the members of the joint family or proves an intention on the part of the junior members of the family to renounce their expectancy of succession by survivorship on failure of male lineal descendants in the second branch of the family. The question whether there was separation among the members of the family is primarily a question of fact and the Courts below having held that it is not proved, there are no valid grounds for disturbing that finding. Chinnathayis claim, therefore, to the zamindari must be held to have been rightly disallowed.33. As regards the claim of Kulasekara to the zamindari, it has been disallowed in the two Courts below on the ground that the deed of release; Ex. P 17, does not extinguish the right of survivorship of the third branch to take the estate on the second branch becoming extinct and that the document could not be read as evidencing an intention on the part of Sundara Pandiya to surrender the right of succession of his branch. It has been further held that the release was not executed in favour of the head of the family or in favour of all the members of the family in order to be operative as a valid relinquishment. There can be no doubt that a member of a joint family owning an impartible estate can on behalf of himself and his heirs renounce his right of succession; but any such relinquishment must operate for the benefit of all the members and the surrender must be in favour of all the branches of the family or in favour of the head of the family as representing all its members. Here the deed was executed in favour of the widow of a deceased coparcener who as such was a stranger to the coparcenary, the family being admittedly joint at the death of Kamaraja I. It was contended that in view of the attitude taken by the parties before the High Court that the deed of release and the compromise evidenced only one arrangement to which all the members were in reality parties it should be held that the surrender of his rights by Sundara Pandiya was made in favour of Kadasami, the head of the family and it extinguished the rights of the third branch in the family zamindari. We think, however, that Kandasami in dealing with Sundara Pandiya was safeguarding his own right of succession against the attack personally directed against him and was successful in buying him off by agreeing to hand over to him a village. Both of them were claiming headship of the family on different grounds and both were asserting that the zamindari belonged to the joint family. In the compromise Kandasami was acting for his own benefit and was not making any bargain with Sundara Pandiya on behalf of the family. The family as such could not have been prejudiced in any way by the circumstances that succession went to one or the other. Be that as it may, we think the decision of this case on be made to rest on a more solid foundation than furnished by the consideration set out above.34. The whole emphasis of Mr. Raghavan who represented Kulasekara was on the words of the deed contained in cl. 5 set out above. Sundara Pandiya by this clause stipulated that he will have no right to the property shown as belonging to the widow. Sundara Pandiya was then agreeing that the widow should retain the zamindari absolutely, his mind being influenced by the will. Later on by the compromise made in Kandasamis suit what had been given absolutely to the widow was converted into a life estate with the exception of the pannai lands and Kandasami was acknowledged as the rightful heir. The recitals in the release deed, therefore, have to be read in the light of the terms and conditions of the deed of compromise and the proper inference from these is that Sundara Pandiya relinquished his rights to succeed to the zamindari immediately as the seniormost member of the family but that he did not renounce his contingent right of succeeding to it by survivorship if and when the occasion arose. It is well settled that general words of a release do not mean release of rights other than those than put up and have to be limited to the circumstances which were in the contemplation of the parties when it was executed (Vide Directors etc. of L. and S. W. Ry. Co. v. Richard Deddaridge Blackmore,4 H. L. 610.In that case it was said that general words in a release are limited to those things which were specially in the contemplation of the parties when the release was executed.
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Authorized Officer, State Bank of Travancore & Another Vs. K.C. Mathew | fact that a statutory alternative remedy was available to the respondent under Section 17 of the Act.”13. The same view was reiterated in Kanaiyalal Lalchand Sachdev and others vs. State of Maharashtra and others, 2011 (2) SCC 782 observing:“23. In our opinion, therefore, the High Court rightly dismissed the petition on the ground that an efficacious remedy was available to the appellants under Section 17 of the Act. It is well settled that ordinarily relief under Articles 226/227 of the Constitution of India is not available if an efficacious alternative remedy is available to any aggrieved person. (See Sadhana Lodh v. National Insurance Co. Ltd.; Surya Dev Rai v. Ram Chander Rai and SBI v. Allied Chemical Laboratories.)”14. In Ikbal (supra), it was observed that the action of the Bank under Section 13(4) of the ‘SARFAESI Act’ available to challenge by the aggrieved under Section 17 was an efficacious remedy and the institution directly under Article 226 was not sustainable, relying upon Satyawati Tandon (Supra), observing :“27. No doubt an alternative remedy is not an absolute bar to the exercise of extraordinary jurisdiction under Article 226 but by now it is well settled that where a statute provides efficacious and adequate remedy, the High Court will do well in not entertaining a petition under Article 226. On misplaced considerations, statutory procedures cannot be allowed to be circumvented.***28…….In our view, there was no justification whatsoever for the learned Single Judge to allow the borrower to bypass the efficacious remedy provided to him under Section 17 and invoke the extraordinary jurisdiction in his favour when he had disentitled himself for such relief by his conduct. The Single Judge was clearly in error in invoking his extraordinary jurisdiction under Article 226 in light of the peculiar facts indicated above. The Division Bench also erred in affirming the erroneous order of the Single Judge.”15. A similar view was taken in Punjab National Bank and another vs. Imperial Gift House and others, (2013) 14 SCC 622 , observing:-“3. Upon receipt of notice, the respondents filed representation under Section 13(3-A) of the Act, which was rejected. Thereafter, before any further action could be taken under Section 13(4) of the Act by the Bank, the writ petition was filed before the High Court.4. In our view, the High Court was not justified in entertaining the writ petition against the notice issued under Section 13(2) of the Act and quashing the proceedings initiated by the Bank.”16. It is the solemn duty of the Court to apply the correct law without waiting for an objection to be raised by a party, especially when the law stands well settled. Any departure, if permissible, has to be for reasons discussed, of the case falling under a defined exception, duly discussed after noticing the relevant law. In financial matters grant of ex-parte interim orders can have a deleterious effect and it is not sufficient to say that the aggrieved has the remedy to move for vacating the interim order. Loans by financial institutions are granted from public money generated at the tax payers expense. Such loan does not become the property of the person taking the loan, but retains its character of public money given in a fiduciary capacity as entrustment by the public. Timely repayment also ensures liquidity to facilitate loan to another in need, by circulation of the money and cannot be permitted to be blocked by frivolous litigation by those who can afford the luxury of the same. The caution required, as expressed in Satyawati Tandon (supra), has also not been kept in mind before passing the impugned interim order:-“46. It must be remembered that stay of an action initiated by the State and/or its agencies/instrumentalities for recovery of taxes, cess, fees, etc. seriously impedes execution of projects of public importance and disables them from discharging their constitutional and legal obligations towards the citizens. In cases relating to recovery of the dues of banks, financial institutions and secured creditors, stay granted by the High Court would have serious adverse impact on the financial health of such bodies/institutions, which (sic will) ultimately prove detrimental to the economy of the nation. Therefore, the High Court should be extremely careful and circumspect in exercising its discretion to grant stay in such matters. Of course, if the petitioner is able to show that its case falls within any of the exceptions carved out in Baburam Prakash Chandra Maheshwari v. Antarim Zila Parishad, Whirlpool Corpn. v. Registrar of Trade Marks and Harbanslal Sahnia v. Indian Oil Corpn. Ltd. and some other judgments, then the High Court may, after considering all the relevant parameters and public interest, pass an appropriate interim order.”17. The writ petition ought not to have been entertained and the interim order granted for the mere asking without assigning special reasons, and that too without even granting opportunity to the Appellant to contest the maintainability of the writ petition and failure to notice the subsequent developments in the interregnum. The opinion of the Division Bench that the counter affidavit having subsequently been filed, stay/modification could be sought of the interim order cannot be considered sufficient justification to have declined interference.18. We cannot help but disapprove the approach of the High Court for reasons already noticed in Dwarikesh Sugar Industries Ltd. vs. Prem Heavy Engineering Works (P) Ltd. and Another, 1997 (6) SCC 450 , observing :-“32. When a position, in law, is well settled as a result of judicial pronouncement of this Court, it would amount to judicial impropriety to say the least, for the subordinate courts including the High Courts to ignore the settled decisions and then to pass a judicial order which is clearly contrary to the settled legal position. Such judicial adventurism cannot be permitted and we strongly deprecate the tendency of the subordinate courts in not applying the settled principles and in passing whimsical orders which necessarily has the effect of granting wrongful and unwarranted relief to one of the parties. It is time that this tendency stops.” | 1[ds]The normal rule is that a writ petition under Article 226 of the Constitution ought not to be entertained if alternate statutory remedies are available, except in cases falling within the well defined exceptions as observed in Commissioner of Income Tax and Others vs. Chhabil Dass Agarwal, 2014 (1) SCCThe pleadings in the writ petition are very bald and contain no statement that the grievances fell within any of the well defined exceptions. The allegation for violation of principles of natural justice is rhetorical, without any details and the prejudice caused thereby. It harps only on a desire for regularisation of the loan account, even while the Respondent acknowledges its own inability to service the loan account for reasons attributable to it alone. The writ petition was filed in undue haste in March 2015 immediately after disposal of objections under Section 13(3A).The Section 13(4) notice along with possession notice under Rule 8 was issued on 21.04.2015. The remedy under Section 17 of the SARFAESI Act was now available to the Respondent if aggrieved. These developments were not brought on record or placed before the Court when the impugned interim order came to be passed on 24.04.2015. The writ petition was clearly not instituted bonafide, but patently to stall further action for recovery. There is no pleading why the remedy available under Section 17 of the Act before the Debt Recovery Tribunal was not efficacious and the compelling reasons forthe same. Unfortunately, the High Court also did not dwell upon the same or record any special reasons for grant of interim relief by direction to deposit.9. The statement of objects and reasons of the SARFAESI Act states that the banking and financial sector in the country was felt not to have a level playing field in comparison to other participants in the financial markets in the world. The financial institutions in India did not have the power to take possession of securities and sell them. The existing legal framework relating to commercial transactions had not kept pace with changing commercial practices and financial sector reforms resulting in tardy recovery of defaulting loans and mountingassets of banks and financial institutions. The Narasimhan Committee I and II as also the Andhyarujina Committee constituted by the Central Government Act had suggested enactment of new legislation for securitisation and empowering banks and financial institutions to take possession of securities and sell them without court intervention which would enable them to realise long term assets, manage problems of liquidity, asset liability mismatches and improve recovery. The proceedings under the Recovery of Debts due to Banks and Financial Institutions Act, 1993, (hereinafter referred to as ‘the DRTwith passage of time, had become synonymous with those before regular courts affecting expeditious adjudication. All these aspects have not been kept in mind and considered before passing the impugned order.It is the solemn duty of the Court to apply the correct law without waiting for an objection to be raised by a party, especially when the law stands well settled. Any departure, if permissible, has to be for reasons discussed, of the case falling under a defined exception, duly discussed after noticing the relevant law. In financial matters grant ofinterim orders can have a deleterious effect and it is not sufficient to say that the aggrieved has the remedy to move for vacating the interim order. Loans by financial institutions are granted from public money generated at the tax payers expense. Such loan does not become the property of the person taking the loan, but retains its character of public money given in a fiduciary capacity as entrustment by the public. Timely repayment also ensures liquidity to facilitate loan to another in need, by circulation of the money and cannot be permitted to be blocked by frivolous litigation by those who can afford the luxury of the same.The writ petition ought not to have been entertained and the interim order granted for the mere asking without assigning special reasons, and that too without even granting opportunity to the Appellant to contest the maintainability of the writ petition and failure to notice the subsequent developments in the interregnum. The opinion of the Division Bench that the counter affidavit having subsequently been filed, stay/modification could be sought of the interim order cannot be considered sufficient justification to have declined interference.18. We cannot help but disapprove the approach of the High Court for reasons already noticed in Dwarikesh Sugar Industries Ltd. vs. Prem Heavy Engineering Works (P) Ltd. and Another, 1997 (6) SCC 450 , observingWhen a position, in law, is well settled as a result of judicial pronouncement of this Court, it would amount to judicial impropriety to say the least, for the subordinate courts including the High Courts to ignore the settled decisions and then to pass a judicial order which is clearly contrary to the settled legal position. Such judicial adventurism cannot be permitted and we strongly deprecate the tendency of the subordinate courts in not applying the settled principles and in passing whimsical orders which necessarily has the effect of granting wrongful and unwarranted relief to one of the parties. It is time that this tendency | 1 | 3,370 | 928 | ### 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:
fact that a statutory alternative remedy was available to the respondent under Section 17 of the Act.”13. The same view was reiterated in Kanaiyalal Lalchand Sachdev and others vs. State of Maharashtra and others, 2011 (2) SCC 782 observing:“23. In our opinion, therefore, the High Court rightly dismissed the petition on the ground that an efficacious remedy was available to the appellants under Section 17 of the Act. It is well settled that ordinarily relief under Articles 226/227 of the Constitution of India is not available if an efficacious alternative remedy is available to any aggrieved person. (See Sadhana Lodh v. National Insurance Co. Ltd.; Surya Dev Rai v. Ram Chander Rai and SBI v. Allied Chemical Laboratories.)”14. In Ikbal (supra), it was observed that the action of the Bank under Section 13(4) of the ‘SARFAESI Act’ available to challenge by the aggrieved under Section 17 was an efficacious remedy and the institution directly under Article 226 was not sustainable, relying upon Satyawati Tandon (Supra), observing :“27. No doubt an alternative remedy is not an absolute bar to the exercise of extraordinary jurisdiction under Article 226 but by now it is well settled that where a statute provides efficacious and adequate remedy, the High Court will do well in not entertaining a petition under Article 226. On misplaced considerations, statutory procedures cannot be allowed to be circumvented.***28…….In our view, there was no justification whatsoever for the learned Single Judge to allow the borrower to bypass the efficacious remedy provided to him under Section 17 and invoke the extraordinary jurisdiction in his favour when he had disentitled himself for such relief by his conduct. The Single Judge was clearly in error in invoking his extraordinary jurisdiction under Article 226 in light of the peculiar facts indicated above. The Division Bench also erred in affirming the erroneous order of the Single Judge.”15. A similar view was taken in Punjab National Bank and another vs. Imperial Gift House and others, (2013) 14 SCC 622 , observing:-“3. Upon receipt of notice, the respondents filed representation under Section 13(3-A) of the Act, which was rejected. Thereafter, before any further action could be taken under Section 13(4) of the Act by the Bank, the writ petition was filed before the High Court.4. In our view, the High Court was not justified in entertaining the writ petition against the notice issued under Section 13(2) of the Act and quashing the proceedings initiated by the Bank.”16. It is the solemn duty of the Court to apply the correct law without waiting for an objection to be raised by a party, especially when the law stands well settled. Any departure, if permissible, has to be for reasons discussed, of the case falling under a defined exception, duly discussed after noticing the relevant law. In financial matters grant of ex-parte interim orders can have a deleterious effect and it is not sufficient to say that the aggrieved has the remedy to move for vacating the interim order. Loans by financial institutions are granted from public money generated at the tax payers expense. Such loan does not become the property of the person taking the loan, but retains its character of public money given in a fiduciary capacity as entrustment by the public. Timely repayment also ensures liquidity to facilitate loan to another in need, by circulation of the money and cannot be permitted to be blocked by frivolous litigation by those who can afford the luxury of the same. The caution required, as expressed in Satyawati Tandon (supra), has also not been kept in mind before passing the impugned interim order:-“46. It must be remembered that stay of an action initiated by the State and/or its agencies/instrumentalities for recovery of taxes, cess, fees, etc. seriously impedes execution of projects of public importance and disables them from discharging their constitutional and legal obligations towards the citizens. In cases relating to recovery of the dues of banks, financial institutions and secured creditors, stay granted by the High Court would have serious adverse impact on the financial health of such bodies/institutions, which (sic will) ultimately prove detrimental to the economy of the nation. Therefore, the High Court should be extremely careful and circumspect in exercising its discretion to grant stay in such matters. Of course, if the petitioner is able to show that its case falls within any of the exceptions carved out in Baburam Prakash Chandra Maheshwari v. Antarim Zila Parishad, Whirlpool Corpn. v. Registrar of Trade Marks and Harbanslal Sahnia v. Indian Oil Corpn. Ltd. and some other judgments, then the High Court may, after considering all the relevant parameters and public interest, pass an appropriate interim order.”17. The writ petition ought not to have been entertained and the interim order granted for the mere asking without assigning special reasons, and that too without even granting opportunity to the Appellant to contest the maintainability of the writ petition and failure to notice the subsequent developments in the interregnum. The opinion of the Division Bench that the counter affidavit having subsequently been filed, stay/modification could be sought of the interim order cannot be considered sufficient justification to have declined interference.18. We cannot help but disapprove the approach of the High Court for reasons already noticed in Dwarikesh Sugar Industries Ltd. vs. Prem Heavy Engineering Works (P) Ltd. and Another, 1997 (6) SCC 450 , observing :-“32. When a position, in law, is well settled as a result of judicial pronouncement of this Court, it would amount to judicial impropriety to say the least, for the subordinate courts including the High Courts to ignore the settled decisions and then to pass a judicial order which is clearly contrary to the settled legal position. Such judicial adventurism cannot be permitted and we strongly deprecate the tendency of the subordinate courts in not applying the settled principles and in passing whimsical orders which necessarily has the effect of granting wrongful and unwarranted relief to one of the parties. It is time that this tendency stops.”
### Response:
1
### Explanation:
The normal rule is that a writ petition under Article 226 of the Constitution ought not to be entertained if alternate statutory remedies are available, except in cases falling within the well defined exceptions as observed in Commissioner of Income Tax and Others vs. Chhabil Dass Agarwal, 2014 (1) SCCThe pleadings in the writ petition are very bald and contain no statement that the grievances fell within any of the well defined exceptions. The allegation for violation of principles of natural justice is rhetorical, without any details and the prejudice caused thereby. It harps only on a desire for regularisation of the loan account, even while the Respondent acknowledges its own inability to service the loan account for reasons attributable to it alone. The writ petition was filed in undue haste in March 2015 immediately after disposal of objections under Section 13(3A).The Section 13(4) notice along with possession notice under Rule 8 was issued on 21.04.2015. The remedy under Section 17 of the SARFAESI Act was now available to the Respondent if aggrieved. These developments were not brought on record or placed before the Court when the impugned interim order came to be passed on 24.04.2015. The writ petition was clearly not instituted bonafide, but patently to stall further action for recovery. There is no pleading why the remedy available under Section 17 of the Act before the Debt Recovery Tribunal was not efficacious and the compelling reasons forthe same. Unfortunately, the High Court also did not dwell upon the same or record any special reasons for grant of interim relief by direction to deposit.9. The statement of objects and reasons of the SARFAESI Act states that the banking and financial sector in the country was felt not to have a level playing field in comparison to other participants in the financial markets in the world. The financial institutions in India did not have the power to take possession of securities and sell them. The existing legal framework relating to commercial transactions had not kept pace with changing commercial practices and financial sector reforms resulting in tardy recovery of defaulting loans and mountingassets of banks and financial institutions. The Narasimhan Committee I and II as also the Andhyarujina Committee constituted by the Central Government Act had suggested enactment of new legislation for securitisation and empowering banks and financial institutions to take possession of securities and sell them without court intervention which would enable them to realise long term assets, manage problems of liquidity, asset liability mismatches and improve recovery. The proceedings under the Recovery of Debts due to Banks and Financial Institutions Act, 1993, (hereinafter referred to as ‘the DRTwith passage of time, had become synonymous with those before regular courts affecting expeditious adjudication. All these aspects have not been kept in mind and considered before passing the impugned order.It is the solemn duty of the Court to apply the correct law without waiting for an objection to be raised by a party, especially when the law stands well settled. Any departure, if permissible, has to be for reasons discussed, of the case falling under a defined exception, duly discussed after noticing the relevant law. In financial matters grant ofinterim orders can have a deleterious effect and it is not sufficient to say that the aggrieved has the remedy to move for vacating the interim order. Loans by financial institutions are granted from public money generated at the tax payers expense. Such loan does not become the property of the person taking the loan, but retains its character of public money given in a fiduciary capacity as entrustment by the public. Timely repayment also ensures liquidity to facilitate loan to another in need, by circulation of the money and cannot be permitted to be blocked by frivolous litigation by those who can afford the luxury of the same.The writ petition ought not to have been entertained and the interim order granted for the mere asking without assigning special reasons, and that too without even granting opportunity to the Appellant to contest the maintainability of the writ petition and failure to notice the subsequent developments in the interregnum. The opinion of the Division Bench that the counter affidavit having subsequently been filed, stay/modification could be sought of the interim order cannot be considered sufficient justification to have declined interference.18. We cannot help but disapprove the approach of the High Court for reasons already noticed in Dwarikesh Sugar Industries Ltd. vs. Prem Heavy Engineering Works (P) Ltd. and Another, 1997 (6) SCC 450 , observingWhen a position, in law, is well settled as a result of judicial pronouncement of this Court, it would amount to judicial impropriety to say the least, for the subordinate courts including the High Courts to ignore the settled decisions and then to pass a judicial order which is clearly contrary to the settled legal position. Such judicial adventurism cannot be permitted and we strongly deprecate the tendency of the subordinate courts in not applying the settled principles and in passing whimsical orders which necessarily has the effect of granting wrongful and unwarranted relief to one of the parties. It is time that this tendency
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Shiromani Gurdwara Parbandhakcommittee Vs. Lt. Sardar Raghbir Singh And Others | to the provisions of Section 88. there shall be one committee for the Gurdwaras known as the Darbar Sahib, Amritsar, and the Baba Atal Sahib, and all other Notified Sikh Gurdwaras situated within the municipal boundaries of Amritsar other than the Sri Akal Takht Sahib."16. Section 86 is as follows (in so far as it is relevant):"For every Notified Sikh Gurdwara other than a Gurdwara specified in section 85 a committee shall be constituted after it has been declared to be a Sikh Gurdwara under the provisions of this Act".17. Section 88 is as follows (in so far as it is relevant):"(1) The committees described in sections 85 and 86 shall be constituted as soon as may be after the constitution of the Board, provided that no committee shall be constituted for any gurdwara under the provisions of this Act unless and until it has been declared to be a Sikh Gurdwara under the provisions of this Act.(2) When all the members of my committee described in section 85 have been elected or co-opted, as the case may be, according to the provisions of that section, the Provincial Government shall notify the fact, that the committee has been duly constituted, and the date, of the publication of the Notification shall be deemed to be the date of the constitution of the committee".18. Now, it is not disputed that the present plaintiff is the Committee of Management for all the Gurdwaras situated within the Municipal limits of Amritsar, except the Gurdwara Sri Akal Takht Sahib was constituted prior to the year 1930 and was in fact functioning at the date of the compromises in the section 5 proceedings dated the 6th February, 1930. It is also not disputed that by virtue of Section 85(2), this committee also became the committee concerned with the suit Gurdwara, which is admittedly located within the Municipal limits of Amritsar. But it is contended for the appellants that this Committee becomes concerned with the suit Gurdwara only from the date when the notification under, section 17 is issued, i.e. from the 3rd March, 1937, and that therefore, the plaintiff had one year from that date for the filing of the suit and that in the situation, section 25-A in providing the alternative period of limitation as being "one year from the date of the constitution of the committee", must be construed reasonably as being one year from the date of the notification in such a case and that for the purposes of this, section, the pre-existing committee must be deemed to have been constituted for the suit Gurdwara only on the date of the notification.19. In support of this contention it has been pointed out that the specific policy of the Act as disclosed in sections 86 and 88 is that no Committee is to be formed for a Gurdwara until after it has been declared a Sikh Gurdwara under the provisions of the Act.It is accordingly urged that the phrase "constitution of the committee" in section 25-A should be construed so as to indicate a point of time not earlier than the notification of the concerned Gurdwara and that in the circumstances and in such cases the date of the notification of the Gurdwara must be the date of the constitution of the concerned committee. It appears to us, however, that this contention is untenable.20. Section 86 in terms relates to a Notified Sikh Gurdwara other than Gurdwaras specified in Section 821. . Hence so far as our present purpose is concerned, the policy underlying Section 86 does not necessarily apply to the Gurdwaras within the Municipal limits of Amritsar for which a Committee already exists.Moreover, sub-section (2) of S. 88 provides with reference to Committees under Section 85, that, as soon as all the members described therein have been elected or co-opted, the fact should be duly, notified, and also declares in clear and categorical terms that the date of the publication of the notification shall be deemed to be the date of the constitution of the Committee.22. In the face of this deeming provision relating to these committees, it is not permissible to impute to such a Committee any other date as the date of its constitution for any of the purpose of the Act and to imply an exception and an addendum to the specific deeming provision. This would be legislating. We cannot therefore, accept the contention of the appellant that the date of the notification under Section 17 in the present case should be deemed to be the date of the constitution of the Committee concerned for the purposes of Section 25-A.It has been urged that this view deprives the Committee of the benefit of the longer alternative period of limitation and that in a case where no notification under Section 17 has been issued until after the expiry of an year from the date of the final decision that the Gurdwara claimed is a Sikh Gurdwara, the remedy under Section 25-A would become inapplicable. It may be that an exceptional case of undue delay in the publication of the notification may be a casus omissus but such a delay need not be assumed to be a matter of course. That, at any rate is not the present case where the notification was in fact issued within nine months of the decision of the High Court. The Committee which should have been alert with reference to these matters, had, not only the whole of these nine months to take steps to get the notification published earlier, but, it had three months thereafter to come forward with the present suit. However this may be, we do not consider that there is any question of hardship, because obviously Section 25-A is only an enabling section providing a cheap remedy by way of a suit before the Tribunal itself. We are clearly of the opinion that the present suit under Section 25-A is barred by limitation and on this ground the appeal must fail.23. | 0[ds]On the merits, the case for the plaintiff is quite simple. The plaintiff says that whatever may be the position with reference to the earlier compromises arrived at between the parties in the proceedings under Section 5 of the Act, the later proceedings with reference to those very properties under Section 10 of the Act resulted in the judgment of the High Court dated the 16th June 1936, which is conclusive and binding. By virtue of the said judgment and the notification dated the 3rd March, 1937, following thereupon, the plaintiff is entitled to possession of the properties by virtue of S. 25A of the Act.Though we have heard elaborate arguments from both sides on these various contentions, it appeared to us ultimately that the plea of limitation is decisive against the appellants and that it is unnecessary to express any opinion on any of the other contentions raised.Hence so far as our present purpose is concerned, the policy underlying Section 86 does not necessarily apply to the Gurdwaras within the Municipal limits of Amritsar for which a Committee already exists.Moreover, sub-section (2) of S. 88 provides with reference to Committees under Section 85, that, as soon as all the members described therein have been elected or co-opted, the fact should be duly, notified, and also declares in clear and categorical terms that the date of the publication of the notification shall be deemed to be the date of the constitution of thethe face of this deeming provision relating to these committees, it is not permissible to impute to such a Committee any other date as the date of its constitution for any of the purpose of the Act and to imply an exception and an addendum to the specific deeming provision. This would be legislating. We cannot therefore, accept the contention of the appellant that the date of the notification under Section 17 in the present case should be deemed to be the date of the constitution of the Committee concerned for the purposes of Section 25-A.It has been urged that this view deprives the Committee of the benefit of the longer alternative period of limitation and that in a case where no notification under Section 17 has been issued until after the expiry of an year from the date of the final decision that the Gurdwara claimed is a Sikh Gurdwara, the remedy under Section 25-A would become inapplicable. It may be that an exceptional case of undue delay in the publication of the notification may be a casus omissus but such a delay need not be assumed to be a matter of course. That, at any rate is not the present case where the notification was in fact issued within nine months of the decision of the High Court. The Committee which should have been alert with reference to these matters, had, not only the whole of these nine months to take steps to get the notification published earlier, but, it had three months thereafter to come forward with the present suit. However this may be, we do not consider that there is any question of hardship, because obviously Section 25-A is only an enabling section providing a cheap remedy by way of a suit before the Tribunal itself. We are clearly of the opinion that the present suit under Section 25-A is barred by limitation and on this ground the appeal must fail. | 0 | 3,891 | 608 | ### 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:
to the provisions of Section 88. there shall be one committee for the Gurdwaras known as the Darbar Sahib, Amritsar, and the Baba Atal Sahib, and all other Notified Sikh Gurdwaras situated within the municipal boundaries of Amritsar other than the Sri Akal Takht Sahib."16. Section 86 is as follows (in so far as it is relevant):"For every Notified Sikh Gurdwara other than a Gurdwara specified in section 85 a committee shall be constituted after it has been declared to be a Sikh Gurdwara under the provisions of this Act".17. Section 88 is as follows (in so far as it is relevant):"(1) The committees described in sections 85 and 86 shall be constituted as soon as may be after the constitution of the Board, provided that no committee shall be constituted for any gurdwara under the provisions of this Act unless and until it has been declared to be a Sikh Gurdwara under the provisions of this Act.(2) When all the members of my committee described in section 85 have been elected or co-opted, as the case may be, according to the provisions of that section, the Provincial Government shall notify the fact, that the committee has been duly constituted, and the date, of the publication of the Notification shall be deemed to be the date of the constitution of the committee".18. Now, it is not disputed that the present plaintiff is the Committee of Management for all the Gurdwaras situated within the Municipal limits of Amritsar, except the Gurdwara Sri Akal Takht Sahib was constituted prior to the year 1930 and was in fact functioning at the date of the compromises in the section 5 proceedings dated the 6th February, 1930. It is also not disputed that by virtue of Section 85(2), this committee also became the committee concerned with the suit Gurdwara, which is admittedly located within the Municipal limits of Amritsar. But it is contended for the appellants that this Committee becomes concerned with the suit Gurdwara only from the date when the notification under, section 17 is issued, i.e. from the 3rd March, 1937, and that therefore, the plaintiff had one year from that date for the filing of the suit and that in the situation, section 25-A in providing the alternative period of limitation as being "one year from the date of the constitution of the committee", must be construed reasonably as being one year from the date of the notification in such a case and that for the purposes of this, section, the pre-existing committee must be deemed to have been constituted for the suit Gurdwara only on the date of the notification.19. In support of this contention it has been pointed out that the specific policy of the Act as disclosed in sections 86 and 88 is that no Committee is to be formed for a Gurdwara until after it has been declared a Sikh Gurdwara under the provisions of the Act.It is accordingly urged that the phrase "constitution of the committee" in section 25-A should be construed so as to indicate a point of time not earlier than the notification of the concerned Gurdwara and that in the circumstances and in such cases the date of the notification of the Gurdwara must be the date of the constitution of the concerned committee. It appears to us, however, that this contention is untenable.20. Section 86 in terms relates to a Notified Sikh Gurdwara other than Gurdwaras specified in Section 821. . Hence so far as our present purpose is concerned, the policy underlying Section 86 does not necessarily apply to the Gurdwaras within the Municipal limits of Amritsar for which a Committee already exists.Moreover, sub-section (2) of S. 88 provides with reference to Committees under Section 85, that, as soon as all the members described therein have been elected or co-opted, the fact should be duly, notified, and also declares in clear and categorical terms that the date of the publication of the notification shall be deemed to be the date of the constitution of the Committee.22. In the face of this deeming provision relating to these committees, it is not permissible to impute to such a Committee any other date as the date of its constitution for any of the purpose of the Act and to imply an exception and an addendum to the specific deeming provision. This would be legislating. We cannot therefore, accept the contention of the appellant that the date of the notification under Section 17 in the present case should be deemed to be the date of the constitution of the Committee concerned for the purposes of Section 25-A.It has been urged that this view deprives the Committee of the benefit of the longer alternative period of limitation and that in a case where no notification under Section 17 has been issued until after the expiry of an year from the date of the final decision that the Gurdwara claimed is a Sikh Gurdwara, the remedy under Section 25-A would become inapplicable. It may be that an exceptional case of undue delay in the publication of the notification may be a casus omissus but such a delay need not be assumed to be a matter of course. That, at any rate is not the present case where the notification was in fact issued within nine months of the decision of the High Court. The Committee which should have been alert with reference to these matters, had, not only the whole of these nine months to take steps to get the notification published earlier, but, it had three months thereafter to come forward with the present suit. However this may be, we do not consider that there is any question of hardship, because obviously Section 25-A is only an enabling section providing a cheap remedy by way of a suit before the Tribunal itself. We are clearly of the opinion that the present suit under Section 25-A is barred by limitation and on this ground the appeal must fail.23.
### Response:
0
### Explanation:
On the merits, the case for the plaintiff is quite simple. The plaintiff says that whatever may be the position with reference to the earlier compromises arrived at between the parties in the proceedings under Section 5 of the Act, the later proceedings with reference to those very properties under Section 10 of the Act resulted in the judgment of the High Court dated the 16th June 1936, which is conclusive and binding. By virtue of the said judgment and the notification dated the 3rd March, 1937, following thereupon, the plaintiff is entitled to possession of the properties by virtue of S. 25A of the Act.Though we have heard elaborate arguments from both sides on these various contentions, it appeared to us ultimately that the plea of limitation is decisive against the appellants and that it is unnecessary to express any opinion on any of the other contentions raised.Hence so far as our present purpose is concerned, the policy underlying Section 86 does not necessarily apply to the Gurdwaras within the Municipal limits of Amritsar for which a Committee already exists.Moreover, sub-section (2) of S. 88 provides with reference to Committees under Section 85, that, as soon as all the members described therein have been elected or co-opted, the fact should be duly, notified, and also declares in clear and categorical terms that the date of the publication of the notification shall be deemed to be the date of the constitution of thethe face of this deeming provision relating to these committees, it is not permissible to impute to such a Committee any other date as the date of its constitution for any of the purpose of the Act and to imply an exception and an addendum to the specific deeming provision. This would be legislating. We cannot therefore, accept the contention of the appellant that the date of the notification under Section 17 in the present case should be deemed to be the date of the constitution of the Committee concerned for the purposes of Section 25-A.It has been urged that this view deprives the Committee of the benefit of the longer alternative period of limitation and that in a case where no notification under Section 17 has been issued until after the expiry of an year from the date of the final decision that the Gurdwara claimed is a Sikh Gurdwara, the remedy under Section 25-A would become inapplicable. It may be that an exceptional case of undue delay in the publication of the notification may be a casus omissus but such a delay need not be assumed to be a matter of course. That, at any rate is not the present case where the notification was in fact issued within nine months of the decision of the High Court. The Committee which should have been alert with reference to these matters, had, not only the whole of these nine months to take steps to get the notification published earlier, but, it had three months thereafter to come forward with the present suit. However this may be, we do not consider that there is any question of hardship, because obviously Section 25-A is only an enabling section providing a cheap remedy by way of a suit before the Tribunal itself. We are clearly of the opinion that the present suit under Section 25-A is barred by limitation and on this ground the appeal must fail.
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Amrit Bhikaji Kale and Others Vs. Kashinath Janardhan Trade and Another | nullity.The attempt to overcome this position by urging that the order was erroneous was rightly repelled by the High Court holding that the orders were null and void, proceeding on an erroneous assumption of jurisdictional fact that the recorded owner was a minor on the tillers day. When a Tribunal of limited jurisdiction clutches at a jurisdiction by ignoring a statutory provision and its consequences in law on the status of parties or by a decision wholly unwarranted, with regard to the jurisdictional fact, its decision is a nullity and can be set up in collateral proceeding. The Tribunal clutched at a jurisdiction not vested in it and in such a situation it cannot be disputed that the Tribunal lacked the jurisdiction to entertain any A proceeding purporting to be between landlord and tenant on the erroneous assumption that tenant was still a tenant though he had long since become the deemed purchaser. The tenant has ceased to be a tenant much prior to the orders passed by the Tribunal on April 24, 1961 and July 13, 1967 holding that the date of compulsory purchase was postponed. The compulsory purchase by the operation of law had taken place as early as April 1, 1957 and that legal position cannot be wished away.6. Mr. Lalit, however, contended that the statement of Janardhan in the proceeding u/s 14 read with sec. 29 of the Tenancy Act stating that he had become old and was unable to cultivate the land and he is willing to hand over possession would estop the respondent from contending to the contrary. It was further urged that respondent himself was present on the date on which Janardhan gave his statement on October S, 1967 and he concurred with the statement of Janardhan. We are not unaware of the landed gentry exercising such influence over the tenants that in the absence of le gal literacy they may make any statement contrary to their legally protected interest. A measure of agrarian reform cannot be permitted to be defeated by such devious means of the landlords. However apart from ignorance of his position assuming that Janardhan relinquished his right as tenant, landlord Ashoklal was nontheless not entitled to recover possession because, when Janardhan, the deemed purchaser agreed to hand over possession subject to the provision of sec. IS, the land would be at the disposal of Collector under sec. 32 P. Landlord even in such a situation is not entitled to be restored to possession without bringing his case under sec. 15 which appears not to be the case of landlord. And look at the bon a fides of the landlord. Ashoklal as soon as he managed to obtain wholly void order for possession, managed to transfer the lands to the petitioners within a span of less than 2 weeks. It would thus appear that even Ashoklal and his nex t friend must be presumably aware of the void character of the order and therefore posthaste with a view to thwarting any further legal proceeding and confuse Janardhan, Ashoklal through his next friend managed to transfer the land to the petitio ners and let the petitioners fight the deemed purchaser. A measure whereby tenant was to be made the owner of the land cannot be permitted to be defeated by such jugglery of orders by low-level revenue officers who hardly knew what they we re doing. Look at the lack of knowledge of law of the Tribunal. While overlooking the relevant date, and it took into account the subsequent date which was wholly irrelevant and impermissible. Though landlord Tarachand had died much after 1. 4.1957 in proceeding u/s 32-G minor Ashoklal whose name was mutated on death of A Tarachand, the authority declared the sale having been postponed even though statute had already operated and sale taken place. Can a statutory Tribunal charged with a duty to implement the law betray such total lack of knowledge so as to be counter-productive ? Same is the case with the decision of Tenancy Aval Karkoon. A proceeding u/s 14 read with sec. 29 of the Tenancy Act, started on the footing that the relationship of landlord and tenant subsisted should have been thrown out at the threshold because a decade back the then tenant Janardhan had become the deemed purchaser. Therefore these orders were wholly null and void and hence non est and cannot thwart subsequent proceedings. The nullity can be set up in subsequent proceedings.Janardhan was deprived of his possession by an order which had no legal sanction. He was deprived of possession on the footing that he w as a tenant ignoring and overlooking the statutory event that he had become the owner. Even when the Legislature passed such a revolutionary measure its knowledge was not transmitted to the persons for whose benefit the measure was enacted an d there was no awakening to ones right. Undoubtedly, a communication gap and for want of legal literacy Janardhan was taken on a joy ride and was illegally made to part with possession. Subsequently everyone realised the blunder committed b y them and therefore when the proceedings started on the notice given by Janardhan, the Tribunal determined the price. Appeal of the petitioners to Assistant Collector failed, revision petition to the Maharashtra Revenue Tribunal at the instance of the petitioners failed so also the writ petition u/s 227 of the petitioners failed. All authorities concurrently held that Janardhan had become the owner and the Tribunal was right in determining the price.The authority u/s 84 held that petitioners were not entitled to retain possession as their occupation was contrary to the provisions of the Tenancy Act and they had acquired no title to the land by the purported sale by Ashoklal. The direction for restoring possess ion to Janardhan was rightly given. A revision petition and a writ petition to the High Court at the instance of the petitioners failed.7. We find that the High Court was right in rejecting both the A petitions. | 0[ds]It is an admitted position that on April 1, 1957 Tarachand was the landlord and Janardhan was the tenant. Tarachan d landlord was under no disability as envisaged by sec.Therefore on April 1, 1957 Janardhan became deemed purchaser. and Mr. Lalit could not controvert this position.If Janardhan became the deemed purchaser on tillers day, the relationship of landlord and tenant between Tarachand and Janardhan came to be extinguished and no right could be claimed either by Tarachand or anyone claiming through him such as Ashoklal or the present purchasers on the footing that they are the Owners of the land on or after April 1, 1957. This basic fact is Acombined effect of sec.and 32 would show that where the landlord is under no disability as envisaged by sec.the tenant of such landlord by operation of law would become the deemed purchaser but where the landlord is of a class or category as set out in sec.such a s a minor, a widow or a person subject to any mental or physical disability, the date of compulsory sale would be postponed as therein provided. Now, if Tarachand, the landlord was under no disability and he was alive on April 1, 1957 and he was the owner, his tenant Janardhan became the deemed purchaser. This conclusion, in our opinion, isattempt to overcome this position by urging that the order was erroneous was rightly repelled by the High Court holding that the orders were null and void, proceeding on an erroneous assumption of jurisdictional fact that the recorded owner was a minor on the tillers day. When a Tribunal of limited jurisdiction clutches at a jurisdiction by ignoring a statutory provision and its consequences in law on the status of parties or by a decision wholly unwarranted, with regard to the jurisdictional fact, its decision is a nullity and can be set up in collateral proceeding. The Tribunal clutched at a jurisdiction not vested in it and in such a situation it cannot be disputed that the Tribunal lacked the jurisdiction to entertain any A proceeding purporting to be between landlord and tenant on the erroneous assumption that tenant was still a tenant though he had long since become the deemed purchaser. The tenant has ceased to be a tenant much prior to the orders passed by the Tribunal on April 24, 1961 and July 13, 1967 holding that the date of compulsory purchase was postponed. The compulsory purchase by the operation of law had taken place as early as April 1, 1957 and that legal position cannot be wishedare not unaware of the landed gentry exercising such influence over the tenants that in the absence of le gal literacy they may make any statement contrary to their legally protected interest. A measure of agrarian reform cannot be permitted to be defeated by such devious means of the landlords. However apart from ignorance of his position assuming that Janardhan relinquished his right as tenant, landlord Ashoklal was nontheless not entitled to recover possession because, when Janardhan, the deemed purchaser agreed to hand over possession subject to the provision of sec. IS, the land would be at the disposal of Collector under sec. 32 P. Landlord even in such a situation is not entitled to be restored to possession without bringing his case under sec. 15 which appears not to be the case of landlord. And look at the bon a fides of the landlord. Ashoklal as soon as he managed to obtain wholly void order for possession, managed to transfer the lands to the petitioners within a span of less than 2when the Legislature passed such a revolutionary measure its knowledge was not transmitted to the persons for whose benefit the measure was enacted an d there was no awakening to ones right. Undoubtedly, a communication gap and for want of legal literacy Janardhan was taken on a joy ride and was illegally made to part with possession. Subsequently everyone realised the blunder committed b y them and therefore when the proceedings started on the notice given by Janardhan, the Tribunal determined the price. Appeal of the petitioners to Assistant Collector failed, revision petition to the Maharashtra Revenue Tribunal at the instance of the petitioners failed so also the writ petition u/s 227 of the petitioners failed. All authorities concurrently held that Janardhan had become the owner and the Tribunal was right in determining the price.The authority u/s 84 held that petitioners were not entitled to retain possession as their occupation was contrary to the provisions of the Tenancy Act and they had acquired no title to the land by the purported sale by Ashoklal. | 0 | 3,452 | 827 | ### Instruction:
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nullity.The attempt to overcome this position by urging that the order was erroneous was rightly repelled by the High Court holding that the orders were null and void, proceeding on an erroneous assumption of jurisdictional fact that the recorded owner was a minor on the tillers day. When a Tribunal of limited jurisdiction clutches at a jurisdiction by ignoring a statutory provision and its consequences in law on the status of parties or by a decision wholly unwarranted, with regard to the jurisdictional fact, its decision is a nullity and can be set up in collateral proceeding. The Tribunal clutched at a jurisdiction not vested in it and in such a situation it cannot be disputed that the Tribunal lacked the jurisdiction to entertain any A proceeding purporting to be between landlord and tenant on the erroneous assumption that tenant was still a tenant though he had long since become the deemed purchaser. The tenant has ceased to be a tenant much prior to the orders passed by the Tribunal on April 24, 1961 and July 13, 1967 holding that the date of compulsory purchase was postponed. The compulsory purchase by the operation of law had taken place as early as April 1, 1957 and that legal position cannot be wished away.6. Mr. Lalit, however, contended that the statement of Janardhan in the proceeding u/s 14 read with sec. 29 of the Tenancy Act stating that he had become old and was unable to cultivate the land and he is willing to hand over possession would estop the respondent from contending to the contrary. It was further urged that respondent himself was present on the date on which Janardhan gave his statement on October S, 1967 and he concurred with the statement of Janardhan. We are not unaware of the landed gentry exercising such influence over the tenants that in the absence of le gal literacy they may make any statement contrary to their legally protected interest. A measure of agrarian reform cannot be permitted to be defeated by such devious means of the landlords. However apart from ignorance of his position assuming that Janardhan relinquished his right as tenant, landlord Ashoklal was nontheless not entitled to recover possession because, when Janardhan, the deemed purchaser agreed to hand over possession subject to the provision of sec. IS, the land would be at the disposal of Collector under sec. 32 P. Landlord even in such a situation is not entitled to be restored to possession without bringing his case under sec. 15 which appears not to be the case of landlord. And look at the bon a fides of the landlord. Ashoklal as soon as he managed to obtain wholly void order for possession, managed to transfer the lands to the petitioners within a span of less than 2 weeks. It would thus appear that even Ashoklal and his nex t friend must be presumably aware of the void character of the order and therefore posthaste with a view to thwarting any further legal proceeding and confuse Janardhan, Ashoklal through his next friend managed to transfer the land to the petitio ners and let the petitioners fight the deemed purchaser. A measure whereby tenant was to be made the owner of the land cannot be permitted to be defeated by such jugglery of orders by low-level revenue officers who hardly knew what they we re doing. Look at the lack of knowledge of law of the Tribunal. While overlooking the relevant date, and it took into account the subsequent date which was wholly irrelevant and impermissible. Though landlord Tarachand had died much after 1. 4.1957 in proceeding u/s 32-G minor Ashoklal whose name was mutated on death of A Tarachand, the authority declared the sale having been postponed even though statute had already operated and sale taken place. Can a statutory Tribunal charged with a duty to implement the law betray such total lack of knowledge so as to be counter-productive ? Same is the case with the decision of Tenancy Aval Karkoon. A proceeding u/s 14 read with sec. 29 of the Tenancy Act, started on the footing that the relationship of landlord and tenant subsisted should have been thrown out at the threshold because a decade back the then tenant Janardhan had become the deemed purchaser. Therefore these orders were wholly null and void and hence non est and cannot thwart subsequent proceedings. The nullity can be set up in subsequent proceedings.Janardhan was deprived of his possession by an order which had no legal sanction. He was deprived of possession on the footing that he w as a tenant ignoring and overlooking the statutory event that he had become the owner. Even when the Legislature passed such a revolutionary measure its knowledge was not transmitted to the persons for whose benefit the measure was enacted an d there was no awakening to ones right. Undoubtedly, a communication gap and for want of legal literacy Janardhan was taken on a joy ride and was illegally made to part with possession. Subsequently everyone realised the blunder committed b y them and therefore when the proceedings started on the notice given by Janardhan, the Tribunal determined the price. Appeal of the petitioners to Assistant Collector failed, revision petition to the Maharashtra Revenue Tribunal at the instance of the petitioners failed so also the writ petition u/s 227 of the petitioners failed. All authorities concurrently held that Janardhan had become the owner and the Tribunal was right in determining the price.The authority u/s 84 held that petitioners were not entitled to retain possession as their occupation was contrary to the provisions of the Tenancy Act and they had acquired no title to the land by the purported sale by Ashoklal. The direction for restoring possess ion to Janardhan was rightly given. A revision petition and a writ petition to the High Court at the instance of the petitioners failed.7. We find that the High Court was right in rejecting both the A petitions.
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It is an admitted position that on April 1, 1957 Tarachand was the landlord and Janardhan was the tenant. Tarachan d landlord was under no disability as envisaged by sec.Therefore on April 1, 1957 Janardhan became deemed purchaser. and Mr. Lalit could not controvert this position.If Janardhan became the deemed purchaser on tillers day, the relationship of landlord and tenant between Tarachand and Janardhan came to be extinguished and no right could be claimed either by Tarachand or anyone claiming through him such as Ashoklal or the present purchasers on the footing that they are the Owners of the land on or after April 1, 1957. This basic fact is Acombined effect of sec.and 32 would show that where the landlord is under no disability as envisaged by sec.the tenant of such landlord by operation of law would become the deemed purchaser but where the landlord is of a class or category as set out in sec.such a s a minor, a widow or a person subject to any mental or physical disability, the date of compulsory sale would be postponed as therein provided. Now, if Tarachand, the landlord was under no disability and he was alive on April 1, 1957 and he was the owner, his tenant Janardhan became the deemed purchaser. This conclusion, in our opinion, isattempt to overcome this position by urging that the order was erroneous was rightly repelled by the High Court holding that the orders were null and void, proceeding on an erroneous assumption of jurisdictional fact that the recorded owner was a minor on the tillers day. When a Tribunal of limited jurisdiction clutches at a jurisdiction by ignoring a statutory provision and its consequences in law on the status of parties or by a decision wholly unwarranted, with regard to the jurisdictional fact, its decision is a nullity and can be set up in collateral proceeding. The Tribunal clutched at a jurisdiction not vested in it and in such a situation it cannot be disputed that the Tribunal lacked the jurisdiction to entertain any A proceeding purporting to be between landlord and tenant on the erroneous assumption that tenant was still a tenant though he had long since become the deemed purchaser. The tenant has ceased to be a tenant much prior to the orders passed by the Tribunal on April 24, 1961 and July 13, 1967 holding that the date of compulsory purchase was postponed. The compulsory purchase by the operation of law had taken place as early as April 1, 1957 and that legal position cannot be wishedare not unaware of the landed gentry exercising such influence over the tenants that in the absence of le gal literacy they may make any statement contrary to their legally protected interest. A measure of agrarian reform cannot be permitted to be defeated by such devious means of the landlords. However apart from ignorance of his position assuming that Janardhan relinquished his right as tenant, landlord Ashoklal was nontheless not entitled to recover possession because, when Janardhan, the deemed purchaser agreed to hand over possession subject to the provision of sec. IS, the land would be at the disposal of Collector under sec. 32 P. Landlord even in such a situation is not entitled to be restored to possession without bringing his case under sec. 15 which appears not to be the case of landlord. And look at the bon a fides of the landlord. Ashoklal as soon as he managed to obtain wholly void order for possession, managed to transfer the lands to the petitioners within a span of less than 2when the Legislature passed such a revolutionary measure its knowledge was not transmitted to the persons for whose benefit the measure was enacted an d there was no awakening to ones right. Undoubtedly, a communication gap and for want of legal literacy Janardhan was taken on a joy ride and was illegally made to part with possession. Subsequently everyone realised the blunder committed b y them and therefore when the proceedings started on the notice given by Janardhan, the Tribunal determined the price. Appeal of the petitioners to Assistant Collector failed, revision petition to the Maharashtra Revenue Tribunal at the instance of the petitioners failed so also the writ petition u/s 227 of the petitioners failed. All authorities concurrently held that Janardhan had become the owner and the Tribunal was right in determining the price.The authority u/s 84 held that petitioners were not entitled to retain possession as their occupation was contrary to the provisions of the Tenancy Act and they had acquired no title to the land by the purported sale by Ashoklal.
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Union of India (UOI) and Ors Vs. Satish Kumar Mehta (D) thr. L.Rs | Kurian Joseph, J.1. Leave granted.2. The Appellants are before this Court aggrieved by the judgment dated 6.8.2012 in RFA(OS) No. 107/2009 and Cross Objections C.M. No. 472/2010. The appeal was filed by the Appellants herein aggrieved by the judgment dated 23.09.2009 in Civil Suit (OS) No. 264/2004. That suit was filed by the Respondent challenging the demand for an amount of Rs. 42,11,604/- towards misuser charges, for having used the residential property for non-residential purposes. No doubt, such misuse was by a sub-tenant, who was evicted by the Respondent subsequently on account of violation of the lease conditions. The learned Single Judge decreed the suit. The decretal portion reads as follows:...Accordingly, the demand raised in the letter dated 17th December 2003 of the Defendants towards misuser charges payable by the Plaintiff in respect of the suit property would stand modified as under: (i) Rs. 10,31,630/- + Rs. 10,316/- towards misuser charges for the first floor (ii) Rs. 55,866/- for the misuse of the ground floor the Plaintiff. (iii) Other sums demanded in the letter dated 17th December 2003 i.e. the sums under Sl. Nos. 1 to 3, Ground Rent under Head "A", and Misuse Charges at Ground Floor under Head "B" to the extent admitted by the Plaintiff in para 25 of the plaint (and in para 21 of his affidavit dated 15th September 2006). The above sums will be paid by the Plaintiff together with simple interest at 10% p.a. from 1st January 2004 till the date of payment. The interest rate is what is indicated in the calculations given by the Plaintiff himself. Since the demand raised is as of 17th December 2003, the interest payable will be calculated for the period 1st January 2004 till date of actual payment. Against the sum so payable, the Plaintiff is entitled to adjust the amount of Rs. 10 lakhs deposited in this Court together with the interest accrued thereon, and after payment of the balance amount within a period of four weeks, the Plaintiff is entitled to have the breaches regularised.3. The Appellants pursued the matter before the Division Bench in the First Appeal. The Respondent filed a cross objection. It was the main contention of the Appellants that having regard to the admitted misuse, the Respondent was liable to pay the demand, as raised by the Appellants. On the contrary, the Respondent contended that even assuming that the Respondent was liable to pay the misuser charges it could in no way exceed the rent he had already received, in terms of the Circular dated 31.03.1976. We find it difficult to appreciate the contention raised by the Respondent. That circular only states that having regard, to the peculiar facts of each case, in consultation with the Ministry of Works and Housing and Finance and taking note of the inability on the part of the lessee, an appropriate order would be passed limiting it to the income of the lessee.4. Be that as it may, on going through the plaint, we find that in unequivocal terms, the Respondent/Plaintiff had averred in the plaint that the charges cannot exceed Rs. 10,31,630/-.5. Having heard learned Counsel appearing for the Appellants extensively and Mr. Jayant Bhushan, learned senior Counsel appearing for the Respondents and going through the pleadings we find that in any case the Respondent cannot go back on what he had agreed towards the payment of misuse charges, in the suit filed by him. Though Mr. Bhushan, learned senior Counsel invited our attention to a decision of this Court in D.D.A. v. Ram Prakash, reported in (2011) 4 SCC 180 , we do not think that the said decision would be of any help to the Respondents. What the Court held in the said case was that what would be the reasonable time would depend upon the facts and circumstances of each case. In the present case, action had already been initiated in 1978 for the misuse of the premises.6. Mr. Bhushan, learned senior Counsel, made a vehement submission that the offer to pay an amount of Rs. 10,31,630/- was an alternative submission recorded by the Division Bench in the impugned judgment. We have gone through the plaint. We find it difficult to appreciate that it was an alternative submission. The clear case of the Respondent/Plaintiff was that the amount in any case, cannot exceed Rs. 10,31,630/-. | 1[ds]We find it difficult to appreciate the contention raised by the Respondent. That circular only states that having regard, to the peculiar facts of each case, in consultation with the Ministry of Works and Housing and Finance and taking note of the inability on the part of the lessee, an appropriate order would be passed limiting it to the income of the lessee4. Be that as it may, on going through the plaint, we find that in unequivocal terms, the Respondent/Plaintiff had averred in the plaint that the charges cannot exceed Rs. 10,31,630/-5. Having heard learned Counsel appearing for the Appellants extensively and Mr. Jayant Bhushan, learned senior Counsel appearing for the Respondents and going through the pleadings we find that in any case the Respondent cannot go back on what he had agreed towards the payment of misuse charges, in the suit filed by him. Though Mr. Bhushan, learned senior Counsel invited our attention to a decision of this Court in D.D.A. v. Ram Prakash, reported in (2011) 4 SCC 180 , we do not think that the said decision would be of any help to the Respondents. What the Court held in the said case was that what would be the reasonable time would depend upon the facts and circumstances of each case. In the present case, action had already been initiated in 1978 for the misuse of the premisesWe have gone through the plaint. We find it difficult to appreciate that it was an alternative submission. The clear case of the Respondent/Plaintiff was that the amount in any case, cannot exceed Rs. 10,31,630/-. | 1 | 826 | 299 | ### Instruction:
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Kurian Joseph, J.1. Leave granted.2. The Appellants are before this Court aggrieved by the judgment dated 6.8.2012 in RFA(OS) No. 107/2009 and Cross Objections C.M. No. 472/2010. The appeal was filed by the Appellants herein aggrieved by the judgment dated 23.09.2009 in Civil Suit (OS) No. 264/2004. That suit was filed by the Respondent challenging the demand for an amount of Rs. 42,11,604/- towards misuser charges, for having used the residential property for non-residential purposes. No doubt, such misuse was by a sub-tenant, who was evicted by the Respondent subsequently on account of violation of the lease conditions. The learned Single Judge decreed the suit. The decretal portion reads as follows:...Accordingly, the demand raised in the letter dated 17th December 2003 of the Defendants towards misuser charges payable by the Plaintiff in respect of the suit property would stand modified as under: (i) Rs. 10,31,630/- + Rs. 10,316/- towards misuser charges for the first floor (ii) Rs. 55,866/- for the misuse of the ground floor the Plaintiff. (iii) Other sums demanded in the letter dated 17th December 2003 i.e. the sums under Sl. Nos. 1 to 3, Ground Rent under Head "A", and Misuse Charges at Ground Floor under Head "B" to the extent admitted by the Plaintiff in para 25 of the plaint (and in para 21 of his affidavit dated 15th September 2006). The above sums will be paid by the Plaintiff together with simple interest at 10% p.a. from 1st January 2004 till the date of payment. The interest rate is what is indicated in the calculations given by the Plaintiff himself. Since the demand raised is as of 17th December 2003, the interest payable will be calculated for the period 1st January 2004 till date of actual payment. Against the sum so payable, the Plaintiff is entitled to adjust the amount of Rs. 10 lakhs deposited in this Court together with the interest accrued thereon, and after payment of the balance amount within a period of four weeks, the Plaintiff is entitled to have the breaches regularised.3. The Appellants pursued the matter before the Division Bench in the First Appeal. The Respondent filed a cross objection. It was the main contention of the Appellants that having regard to the admitted misuse, the Respondent was liable to pay the demand, as raised by the Appellants. On the contrary, the Respondent contended that even assuming that the Respondent was liable to pay the misuser charges it could in no way exceed the rent he had already received, in terms of the Circular dated 31.03.1976. We find it difficult to appreciate the contention raised by the Respondent. That circular only states that having regard, to the peculiar facts of each case, in consultation with the Ministry of Works and Housing and Finance and taking note of the inability on the part of the lessee, an appropriate order would be passed limiting it to the income of the lessee.4. Be that as it may, on going through the plaint, we find that in unequivocal terms, the Respondent/Plaintiff had averred in the plaint that the charges cannot exceed Rs. 10,31,630/-.5. Having heard learned Counsel appearing for the Appellants extensively and Mr. Jayant Bhushan, learned senior Counsel appearing for the Respondents and going through the pleadings we find that in any case the Respondent cannot go back on what he had agreed towards the payment of misuse charges, in the suit filed by him. Though Mr. Bhushan, learned senior Counsel invited our attention to a decision of this Court in D.D.A. v. Ram Prakash, reported in (2011) 4 SCC 180 , we do not think that the said decision would be of any help to the Respondents. What the Court held in the said case was that what would be the reasonable time would depend upon the facts and circumstances of each case. In the present case, action had already been initiated in 1978 for the misuse of the premises.6. Mr. Bhushan, learned senior Counsel, made a vehement submission that the offer to pay an amount of Rs. 10,31,630/- was an alternative submission recorded by the Division Bench in the impugned judgment. We have gone through the plaint. We find it difficult to appreciate that it was an alternative submission. The clear case of the Respondent/Plaintiff was that the amount in any case, cannot exceed Rs. 10,31,630/-.
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### Explanation:
We find it difficult to appreciate the contention raised by the Respondent. That circular only states that having regard, to the peculiar facts of each case, in consultation with the Ministry of Works and Housing and Finance and taking note of the inability on the part of the lessee, an appropriate order would be passed limiting it to the income of the lessee4. Be that as it may, on going through the plaint, we find that in unequivocal terms, the Respondent/Plaintiff had averred in the plaint that the charges cannot exceed Rs. 10,31,630/-5. Having heard learned Counsel appearing for the Appellants extensively and Mr. Jayant Bhushan, learned senior Counsel appearing for the Respondents and going through the pleadings we find that in any case the Respondent cannot go back on what he had agreed towards the payment of misuse charges, in the suit filed by him. Though Mr. Bhushan, learned senior Counsel invited our attention to a decision of this Court in D.D.A. v. Ram Prakash, reported in (2011) 4 SCC 180 , we do not think that the said decision would be of any help to the Respondents. What the Court held in the said case was that what would be the reasonable time would depend upon the facts and circumstances of each case. In the present case, action had already been initiated in 1978 for the misuse of the premisesWe have gone through the plaint. We find it difficult to appreciate that it was an alternative submission. The clear case of the Respondent/Plaintiff was that the amount in any case, cannot exceed Rs. 10,31,630/-.
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M/S. Falcon Tyres Ltd Vs. State Of Karnataka | agricultural produce within the meaning of agricultural produce as defined under the Act." 9. We do not find any substance in the submission of the learned counsel for the appellant that the semicolon after the word cotton does not mean that the first part of the Section is disjunctive from such produce as has been subjected to any physical, chemical or other process. Section 2 (A) (1) is in two parts, it excludes two types of food from agricultural produce. According to us, the definition of the agriculture and horticulture produce does not say as to what would be included in the agriculture or horticulture produce, in substance it includes all agriculture or horticulture produce but excludes, (1) tea, coffee, rubber, cashew, cardamom, pepper and cotton from the definition of the agriculture or horticulture produce though all these products as per dictionary meaning or in common parlance would be understood as agricultural produce and (2) "such produce as has been subject to any physical, chemical or other process for being made fit for consumption", meaning thereby that the agricultural produce other than what has been excluded, which has been subjected to any physical, chemical or other process for making it fit for consumption would also be excluded from the definition of the agriculture or horticulture produce except where such agricultural produce is merely cleaned, graded, sorted or dried. For example, if the potatoes are cleaned, graded, sorted or dried, they will remain agricultural produce but in case raw potato is subjected to a process and converted into chips for human consumption it would cease to be agricultural produce for the purposes of the Entry Tax Act. The words "such produce" in the second part does not refer to the produce which has already been excluded from the agricultural or horticulture produce but refers to such other agricultural produce which has been subjected to any physical, chemical or other process for being made fit for human consumption. 10. We do not agree with the submission of the learned counsel for the appellant that what is excluded is only such tea, coffee, rubber etc., which are subjected to any physical, chemical or other process for making them fit for consumption. In our opinion, the definition of the agriculture and horticulture produce does not say as to what would be included in the agriculture or horticulture produce, in substance it includes all agriculture or horticulture produce but excludes tea, coffee, rubber, cashew, cardamom, pepper and cotton from the definition of the agriculture or horticulture produce though all these products as per dictionary meaning or in common parlance would be understood as agricultural produce. 11. From the reading of the definition under Section 2 (A) (1), it unequivocally emerges that rubber and few other items enumerated therein are excluded from being agricultural produce or horticulture produce. For all intent and purposes as far as the present Act is concerned, it is the definition given in the Act which will govern the expression agricultural produce. While reading Entry 2 in the Second Schedule to the Act there is no scope to include rubber from being exempt from payment of entry tax. Entry 2 of Second Schedule creates exceptions regarding few of the excluded items from payment of Entry Tax but not all excluded items. The items for which an exception has been created in Entry 2 of the Second Schedule would only be exempt from payment of entry tax and not all the items, which have been excluded from being agricultural produce in the definition clause. While interpreting the provisions of present Act the legislative intention will have to be given effect to inconsonance with the definition as contained in the statute. 12. In the definition clause of Section 2 (A) (1) rubber is excluded form the agricultural produce, sub-section (6) of Section 3 provides for exemption in respect of goods specified in the Second Schedule. At Sl. No. 2 of the Second Schedule, only tea, coffee and cotton (whether ginned or un-ginned) have been given exemption from payment of Entry Tax and not other items such as rubber, cashew, cardamom and pepper and such other agricultural produce which has been subjected to any process for making it fit for human consumption. Intention of the legislature is that though tea, coffee and cotton have been excluded in the definition clause from the agricultural produce but for the purposes of the Entry Tax Act tea, coffee and cotton are exempted from payment of Entry Tax. This is an exception created by the legislature. If the legislature intended to create exception for rubber also it could have done it but it chose not to do it. Simply because the legislature has included tea, coffee and cotton in the Second Schedule exempting it from payment of Entry Tax does not mean that all other agricultural produce items which have been excluded from the definition of the agricultural produce would stand included in the Second Schedule to the Act exempting them from payment of Entry Tax. This would be doing violation to the Act as well as acting contrary to the intent of the legislature. 13. Learned counsel for the appellant relied upon Karnataka Forest Development Corporation Ltd. Vs. Cantreads Private Limited and Others, 1994 (4) SCC 455 , to contend that rubber is an agricultural produce. This was a case under the Karnataka Forest Act, 1963 for the purposes of levy of the Forest Development Tax. The meaning assigned to the agricultural produce in the present Act is different from what was assigned to it in the Karnataka Forest Act, 1963. The same is not relevant. Similarly, he cited two other judgments which are not germane to the point and need not even be noticed. 14. The Legislature has deliberately excluded certain items from being agricultural produce and therefore while interpreting the provisions of the present Act, the legislative intention will have to be given effect to in consonance with the definition as contained in the statute. 15. | 0[ds]We do not find any substance in the submission of the learned counsel for the appellant that the semicolon after the word cotton does not mean that the first part of the Section is disjunctive from such produce as has been subjected to any physical, chemical or other process. Section 2 (A) (1) is in two parts, it excludes two types of food from agricultural produce. According to us, the definition of the agriculture and horticulture produce does not say as to what would be included in the agriculture or horticulture produce, in substance it includes all agriculture or horticulture produce but excludes, (1) tea, coffee, rubber, cashew, cardamom, pepper and cotton from the definition of the agriculture or horticulture produce though all these products as per dictionary meaning or in common parlance would be understood as agricultural produce and (2) "such produce as has been subject to any physical, chemical or other process for being made fit for consumption", meaning thereby that the agricultural produce other than what has been excluded, which has been subjected to any physical, chemical or other process for making it fit for consumption would also be excluded from the definition of the agriculture or horticulture produce except where such agricultural produce is merely cleaned, graded, sorted or dried. For example, if the potatoes are cleaned, graded, sorted or dried, they will remain agricultural produce but in case raw potato is subjected to a process and converted into chips for human consumption it would cease to be agricultural produce for the purposes of the Entry Tax Act. The words "such produce" in the second part does not refer to the produce which has already been excluded from the agricultural or horticulture produce but refers to such other agricultural produce which has been subjected to any physical, chemical or other process for being made fit for human consumptionWe do not agree with the submission of the learned counsel for the appellant that what is excluded is only such tea, coffee, rubber etc., which are subjected to any physical, chemical or other process for making them fit for consumption. In our opinion, the definition of the agriculture and horticulture produce does not say as to what would be included in the agriculture or horticulture produce, in substance it includes all agriculture or horticulture produce but excludes tea, coffee, rubber, cashew, cardamom, pepper and cotton from the definition of the agriculture or horticulture produce though all these products as per dictionary meaning or in common parlance would be understood as agricultural produceFrom the reading of the definition under Section 2 (A) (1), it unequivocally emerges that rubber and few other items enumerated therein are excluded from being agricultural produce or horticulture produce. For all intent and purposes as far as the present Act is concerned, it is the definition given in the Act which will govern the expression agricultural produce. While reading Entry 2 in the Second Schedule to the Act there is no scope to include rubber from being exempt from payment of entry tax. Entry 2 of Second Schedule creates exceptions regarding few of the excluded items from payment of Entry Tax but not all excluded items. The items for which an exception has been created in Entry 2 of the Second Schedule would only be exempt from payment of entry tax and not all the items, which have been excluded from being agricultural produce in the definition clause. While interpreting the provisions of present Act the legislative intention will have to be given effect to inconsonance with the definition as contained in the statuteIn the definition clause of Section 2 (A) (1) rubber is excluded form the agricultural produce, sub-section (6) of Section 3 provides for exemption in respect of goods specified in the Second Schedule. At Sl. No. 2 of the Second Schedule, only tea, coffee and cotton (whether ginned or un-ginned) have been given exemption from payment of Entry Tax and not other items such as rubber, cashew, cardamom and pepper and such other agricultural produce which has been subjected to any process for making it fit for human consumption. Intention of the legislature is that though tea, coffee and cotton have been excluded in the definition clause from the agricultural produce but for the purposes of the Entry Tax Act tea, coffee and cotton are exempted from payment of Entry Tax. This is an exception created by the legislature. If the legislature intended to create exception for rubber also it could have done it but it chose not to do it. Simply because the legislature has included tea, coffee and cotton in the Second Schedule exempting it from payment of Entry Tax does not mean that all other agricultural produce items which have been excluded from the definition of the agricultural produce would stand included in the Second Schedule to the Act exempting them from payment of Entry Tax. This would be doing violation to the Act as well as acting contrary to the intent of the legislatureThe Legislature has deliberately excluded certain items from being agricultural produce and therefore while interpreting the provisions of the present Act, the legislative intention will have to be given effect to in consonance with the definition as contained in the statute | 0 | 3,026 | 966 | ### 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:
agricultural produce within the meaning of agricultural produce as defined under the Act." 9. We do not find any substance in the submission of the learned counsel for the appellant that the semicolon after the word cotton does not mean that the first part of the Section is disjunctive from such produce as has been subjected to any physical, chemical or other process. Section 2 (A) (1) is in two parts, it excludes two types of food from agricultural produce. According to us, the definition of the agriculture and horticulture produce does not say as to what would be included in the agriculture or horticulture produce, in substance it includes all agriculture or horticulture produce but excludes, (1) tea, coffee, rubber, cashew, cardamom, pepper and cotton from the definition of the agriculture or horticulture produce though all these products as per dictionary meaning or in common parlance would be understood as agricultural produce and (2) "such produce as has been subject to any physical, chemical or other process for being made fit for consumption", meaning thereby that the agricultural produce other than what has been excluded, which has been subjected to any physical, chemical or other process for making it fit for consumption would also be excluded from the definition of the agriculture or horticulture produce except where such agricultural produce is merely cleaned, graded, sorted or dried. For example, if the potatoes are cleaned, graded, sorted or dried, they will remain agricultural produce but in case raw potato is subjected to a process and converted into chips for human consumption it would cease to be agricultural produce for the purposes of the Entry Tax Act. The words "such produce" in the second part does not refer to the produce which has already been excluded from the agricultural or horticulture produce but refers to such other agricultural produce which has been subjected to any physical, chemical or other process for being made fit for human consumption. 10. We do not agree with the submission of the learned counsel for the appellant that what is excluded is only such tea, coffee, rubber etc., which are subjected to any physical, chemical or other process for making them fit for consumption. In our opinion, the definition of the agriculture and horticulture produce does not say as to what would be included in the agriculture or horticulture produce, in substance it includes all agriculture or horticulture produce but excludes tea, coffee, rubber, cashew, cardamom, pepper and cotton from the definition of the agriculture or horticulture produce though all these products as per dictionary meaning or in common parlance would be understood as agricultural produce. 11. From the reading of the definition under Section 2 (A) (1), it unequivocally emerges that rubber and few other items enumerated therein are excluded from being agricultural produce or horticulture produce. For all intent and purposes as far as the present Act is concerned, it is the definition given in the Act which will govern the expression agricultural produce. While reading Entry 2 in the Second Schedule to the Act there is no scope to include rubber from being exempt from payment of entry tax. Entry 2 of Second Schedule creates exceptions regarding few of the excluded items from payment of Entry Tax but not all excluded items. The items for which an exception has been created in Entry 2 of the Second Schedule would only be exempt from payment of entry tax and not all the items, which have been excluded from being agricultural produce in the definition clause. While interpreting the provisions of present Act the legislative intention will have to be given effect to inconsonance with the definition as contained in the statute. 12. In the definition clause of Section 2 (A) (1) rubber is excluded form the agricultural produce, sub-section (6) of Section 3 provides for exemption in respect of goods specified in the Second Schedule. At Sl. No. 2 of the Second Schedule, only tea, coffee and cotton (whether ginned or un-ginned) have been given exemption from payment of Entry Tax and not other items such as rubber, cashew, cardamom and pepper and such other agricultural produce which has been subjected to any process for making it fit for human consumption. Intention of the legislature is that though tea, coffee and cotton have been excluded in the definition clause from the agricultural produce but for the purposes of the Entry Tax Act tea, coffee and cotton are exempted from payment of Entry Tax. This is an exception created by the legislature. If the legislature intended to create exception for rubber also it could have done it but it chose not to do it. Simply because the legislature has included tea, coffee and cotton in the Second Schedule exempting it from payment of Entry Tax does not mean that all other agricultural produce items which have been excluded from the definition of the agricultural produce would stand included in the Second Schedule to the Act exempting them from payment of Entry Tax. This would be doing violation to the Act as well as acting contrary to the intent of the legislature. 13. Learned counsel for the appellant relied upon Karnataka Forest Development Corporation Ltd. Vs. Cantreads Private Limited and Others, 1994 (4) SCC 455 , to contend that rubber is an agricultural produce. This was a case under the Karnataka Forest Act, 1963 for the purposes of levy of the Forest Development Tax. The meaning assigned to the agricultural produce in the present Act is different from what was assigned to it in the Karnataka Forest Act, 1963. The same is not relevant. Similarly, he cited two other judgments which are not germane to the point and need not even be noticed. 14. The Legislature has deliberately excluded certain items from being agricultural produce and therefore while interpreting the provisions of the present Act, the legislative intention will have to be given effect to in consonance with the definition as contained in the statute. 15.
### Response:
0
### Explanation:
We do not find any substance in the submission of the learned counsel for the appellant that the semicolon after the word cotton does not mean that the first part of the Section is disjunctive from such produce as has been subjected to any physical, chemical or other process. Section 2 (A) (1) is in two parts, it excludes two types of food from agricultural produce. According to us, the definition of the agriculture and horticulture produce does not say as to what would be included in the agriculture or horticulture produce, in substance it includes all agriculture or horticulture produce but excludes, (1) tea, coffee, rubber, cashew, cardamom, pepper and cotton from the definition of the agriculture or horticulture produce though all these products as per dictionary meaning or in common parlance would be understood as agricultural produce and (2) "such produce as has been subject to any physical, chemical or other process for being made fit for consumption", meaning thereby that the agricultural produce other than what has been excluded, which has been subjected to any physical, chemical or other process for making it fit for consumption would also be excluded from the definition of the agriculture or horticulture produce except where such agricultural produce is merely cleaned, graded, sorted or dried. For example, if the potatoes are cleaned, graded, sorted or dried, they will remain agricultural produce but in case raw potato is subjected to a process and converted into chips for human consumption it would cease to be agricultural produce for the purposes of the Entry Tax Act. The words "such produce" in the second part does not refer to the produce which has already been excluded from the agricultural or horticulture produce but refers to such other agricultural produce which has been subjected to any physical, chemical or other process for being made fit for human consumptionWe do not agree with the submission of the learned counsel for the appellant that what is excluded is only such tea, coffee, rubber etc., which are subjected to any physical, chemical or other process for making them fit for consumption. In our opinion, the definition of the agriculture and horticulture produce does not say as to what would be included in the agriculture or horticulture produce, in substance it includes all agriculture or horticulture produce but excludes tea, coffee, rubber, cashew, cardamom, pepper and cotton from the definition of the agriculture or horticulture produce though all these products as per dictionary meaning or in common parlance would be understood as agricultural produceFrom the reading of the definition under Section 2 (A) (1), it unequivocally emerges that rubber and few other items enumerated therein are excluded from being agricultural produce or horticulture produce. For all intent and purposes as far as the present Act is concerned, it is the definition given in the Act which will govern the expression agricultural produce. While reading Entry 2 in the Second Schedule to the Act there is no scope to include rubber from being exempt from payment of entry tax. Entry 2 of Second Schedule creates exceptions regarding few of the excluded items from payment of Entry Tax but not all excluded items. The items for which an exception has been created in Entry 2 of the Second Schedule would only be exempt from payment of entry tax and not all the items, which have been excluded from being agricultural produce in the definition clause. While interpreting the provisions of present Act the legislative intention will have to be given effect to inconsonance with the definition as contained in the statuteIn the definition clause of Section 2 (A) (1) rubber is excluded form the agricultural produce, sub-section (6) of Section 3 provides for exemption in respect of goods specified in the Second Schedule. At Sl. No. 2 of the Second Schedule, only tea, coffee and cotton (whether ginned or un-ginned) have been given exemption from payment of Entry Tax and not other items such as rubber, cashew, cardamom and pepper and such other agricultural produce which has been subjected to any process for making it fit for human consumption. Intention of the legislature is that though tea, coffee and cotton have been excluded in the definition clause from the agricultural produce but for the purposes of the Entry Tax Act tea, coffee and cotton are exempted from payment of Entry Tax. This is an exception created by the legislature. If the legislature intended to create exception for rubber also it could have done it but it chose not to do it. Simply because the legislature has included tea, coffee and cotton in the Second Schedule exempting it from payment of Entry Tax does not mean that all other agricultural produce items which have been excluded from the definition of the agricultural produce would stand included in the Second Schedule to the Act exempting them from payment of Entry Tax. This would be doing violation to the Act as well as acting contrary to the intent of the legislatureThe Legislature has deliberately excluded certain items from being agricultural produce and therefore while interpreting the provisions of the present Act, the legislative intention will have to be given effect to in consonance with the definition as contained in the statute
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