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Swarajya Lakshmi Vs. G. G. Padma Rao | counsel on the great advances made by sulphone treatment. It was contended that sulphone treatment has been so revolutionary that leprosy should not any longer be considered to be an incurable disease. Our study of the various authorities on the subject does not support this view. It is true that sulphone is undoubtedly a great advance on the previous methods of treatment of leprosy but even sulphone does not guarantee complete cure. All authorities agree that the sequelae remain even after the most prolonged treatment with sulphone drugs. Besides, it is to be remembered that sulphone drugs were discovered about 1941 and they were very well known all over the world at the time when the Hindu Marriage Act, 1955 was passed. The legislators must be presumed to have known the effect of sulphones on leprosy. If it be true that sulphone drugs have made leprosy of all types curable there would be no point in the legislature making a provision in the Hindu Marriage Act which will entitle a spouse to a decree of divorce if the other party to the marriage would be found suffering from incurable leprosy. 12. In this view of the matter in our opinion the disease from which the appellant suffers can be described as an incurable form of leprosy. It is likely that with the future advances in the treatment of leprosy one day even this form of leprosy will be amenable to cure. We may, in this connection mention that even after the sulphone therapy a drug known as CIBA-1906 was found out which in preliminary stages appears to be equal in efficacy to the sulphones but far less toxic. Even so experts do not yet consider that with all the advances in physiotherapy, surgery or orthopedic surgery it is possible either to cure the disease completely or to correct the deformities and mutilations that are often produced by the disease. All that the text books seem to suggest is this that "eradication of the disease can, and eventually will, occur through effective treatment of the individual patient and segregation to prevent dissemination of the disease". 13. In view of our findings that the form of leprosy from which the appellant suffers was both virulent and incurable, we have come to the sad but unavoidable conclusion that this is a fit case in which the respondent should be granted a decree of divorce under the said Act. 14. Considerable arguments were made from the bar at the time of the hearing of the appeal to impress on our mind the great injustice done to the respondent by the appellants father who, we were told, had deliberately married the appellant to the respondent at a point of time when he knew she was suffering from a bad type of leprosy, by suppressing that fact from the respondent. While we have ourselves considerable suspicions in our mind that this is perhaps true, we have taken great care not to allow this fact to have any weight in the matter of deciding this appeal. In the system of marriage prevailing in the Hindu society, so long as marriages continue to be arranged by the parents, it will be iniquitous to allow the sins of the parents who arrange the marriage to visit on their children who marry. Marriage, according to Hindu Law, is a sacrament and a holy union for the performance of religious duties. There can be no question of either endangering or rupturing that relation on account of the conduct of the parents. That is why marriage even though brought about during the minority of either party thereto does not make the marriage invalid. Divorce and dissolution of marriage are concepts which were alien to Hindu Law before the statute stepped in to modify the traditional law. From the moment a marriage has been completed the relation of the husband and wife has to be considered only from the point of view of the welfare of the husband and wife and, also, we must add, of the children, if any, of the marriage. From this point of view, we have reused to be prejudiced by the consideration of what either the appellant or the appellants father may have been motivated by. The story that the respondent who was a young doctor of indifferent means was duped and beguiled into a marriage with the appellant by considerations of the position, authority, and affluence of the father-in-law is one which, even if it be true, has nothing to do with the question whether divorce should be given under the Hindu Marriage Act. Likewise, the suggestions made on behalf of the appellant that the respondent had been attempting to extort money from her father, also have no bearing on the question we have to decide here. 15. We should like to make another observation. Sociologists insist and they do so very correctly that we should not allow our minds to be swayed by feelings of emotional loathing and revulsion with which leprosy patients have been treated throughout human history in all countries throughout the world and that we should take up a very humane and balanced outlook and accept leprosy "as simply another disorder that requires medical attention". We have no doubt that this is absolutely correct about what should be the social approach to leprosy but to our mind this should not provide any justification for compelling a husband to live with a wife who is suffering from an aggravated form of leprosy and who can give him and his children leprosy almost any moment in their daily life, even though the legislature by a statute has given a husband a way of relief. We have no doubt in our minds that the law-makers do not treat the subject of divorce lightly and must have taken into consideration the consequences of one spouse being compelled to live intimately with another spouse who suffers from leprosy when they provided for a way out for the former. | 0[ds]We cannot, however, agree to accept this suggestion. Virulence as a ground for exclusion from inheritance is treated from an entirely different angle in the Hindu religious and legal texts. The general emphasis in those contexts was of the competence of a man to perform his social and religious obligations and no word has been used in those texts which could be referred to as the corresponding Sanskrit word for virulent. The decisions of the different High Courts and the Privy Council where the word virulent has been used for interpreting the Hindu law on the subject have used it to describe the leprosy of the most serious and aggravated type. This does not therefore give any sure and reliable guide in interpreting the word virulent. Since the word is not used by medical experts in describing any particular type of leprosy we have to find the meaning of the word from the dictionaries12. In this view of the matter in our opinion the disease from which the appellant suffers can be described as an incurable form of leprosy. It is likely that with the future advances in the treatment of leprosy one day even this form of leprosy will be amenable to cure. We may, in this connection mention that even after the sulphone therapy a drug known as CIBA-1906 was found out which in preliminary stages appears to be equal in efficacy to the sulphones but far less toxic. Even so experts do not yet consider that with all the advances in physiotherapy, surgery or orthopedic surgery it is possible either to cure the disease completely or to correct the deformities and mutilations that are often produced by the disease. All that the text books seem to suggest is this that "eradication of the disease can, and eventually will, occur through effective treatment of the individual patient and segregation to prevent dissemination of the disease"13. In view of our findings that the form of leprosy from which the appellant suffers was both virulent and incurable, we have come to the sad but unavoidable conclusion that this is a fit case in which the respondent should be granted a decree of divorce under the said Act14. Considerable arguments were made from the bar at the time of the hearing of the appeal to impress on our mind the great injustice done to the respondent by the appellants father who, we were told, had deliberately married the appellant to the respondent at a point of time when he knew she was suffering from a bad type of leprosy, by suppressing that fact from the respondent.While we have ourselves considerable suspicions in our mind that this is perhaps true, we have taken great care not to allow this fact to have any weight in the matter of deciding this appeal. In the system of marriage prevailing in the Hindu society, so long as marriages continue to be arranged by the parents, it will be iniquitous to allow the sins of the parents who arrange the marriage to visit on their children who marry. Marriage, according to Hindu Law, is a sacrament and a holy union for the performance of religious duties. There can be no question of either endangering or rupturing that relation on account of the conduct of the parents. That is why marriage even though brought about during the minority of either party thereto does not make the marriage invalid. Divorce and dissolution of marriage are concepts which were alien to Hindu Law before the statute stepped in to modify the traditional law. From the moment a marriage has been completed the relation of the husband and wife has to be considered only from the point of view of the welfare of the husband and wife and, also, we must add, of the children, if any, of the marriage. From this point of view, we have reused to be prejudiced by the consideration of what either the appellant or the appellants father may have been motivated by. The story that the respondent who was a young doctor of indifferent means was duped and beguiled into a marriage with the appellant by considerations of the position, authority, and affluence of the father-in-law is one which, even if it be true, has nothing to do with the question whether divorce should be given under the Hindu Marriage Act. Likewise, the suggestions made on behalf of the appellant that the respondent had been attempting to extort money from her father, also have no bearing on the question we have to decide here15. We should like to make another observation. Sociologists insist and they do so very correctly that we should not allow our minds to be swayed by feelings of emotional loathing and revulsion with which leprosy patients have been treated throughout human history in all countries throughout the world and that we should take up a very humane and balanced outlook and accept leprosy "as simply another disorder that requires medical attention". We have no doubt that this is absolutely correct about what should be the social approach to leprosy but to our mind this should not provide any justification for compelling a husband to live with a wife who is suffering from an aggravated form of leprosy and who can give him and his children leprosy almost any moment in their daily life, even though the legislature by a statute has given a husband a way of relief. We have no doubt in our minds that the law-makers do not treat the subject of divorce lightly and must have taken into consideration the consequences of one spouse being compelled to live intimately with another spouse who suffers from leprosy when they provided for a way out for the formerWe cannot, however, agree to accept this suggestion. Virulence as a ground for exclusion from inheritance is treated from an entirely different angle in the Hindu religious and legal texts. The general emphasis in those contexts was of the competence of a man to perform his social and religious obligations and no word has been used in those texts which could be referred to as the corresponding Sanskrit word for virulent. The decisions of the different High Courts and the Privy Council where the word virulent has been used for interpreting the Hindu law on the subject have used it to describe the leprosy of the most serious and aggravated type. This does not therefore give any sure and reliable guide in interpreting the word virulent. Since the word is not used by medical experts in describing any particular type of leprosy we have to find the meaning of the word from the dictionariesOur study of the various authorities on the subject does not support this view. It is true that sulphone is undoubtedly a great advance on the previous methods of treatment of leprosy but even sulphone does not guarantee complete cure. All authorities agree that the sequelae remain even after the most prolonged treatment with sulphone drugs. Besides, it is to be remembered that sulphone drugs were discovered about 1941 and they were very well known all over the world at the time whenthe Hindu Marriage Act, 1955 was passed. The legislators must be presumed to have known the effect of sulphones on leprosy. If it be true that sulphone drugs have made leprosy of all types curable there would be no point in the legislature making a provision in the Hindu Marriage Act which will entitle a spouse to a decree of divorce if the other party to the marriage would be found suffering from incurable leprosy12. In this view of the matter in our opinion the disease from which the appellant suffers can be described as an incurable form of leprosy. It is likely that with the future advances in the treatment of leprosy one day even this form of leprosy will be amenable to cure. We may, in this connection mention that even after the sulphone therapy a drug known as6 was found out which in preliminary stages appears to be equal in efficacy to the sulphones but far less toxic. Even so experts do not yet consider that with all the advances in physiotherapy, surgery or orthopedic surgery it is possible either to cure the disease completely or to correct the deformities and mutilations that are often produced by the disease. All that the text books seem to suggest is this that "eradication of the disease can, and eventually will, occur through effective treatment of the individual patient and segregation to prevent dissemination of the disease"13. In view of our findings that the form of leprosy from which the appellant suffers was both virulent and incurable, we have come to the sad but unavoidable conclusion that this is a fit case in which the respondent should be granted a decree of divorce under the said ActWhile we have ourselves considerable suspicions in our mind that this is perhaps true, we have taken great care not to allow this fact to have any weight in the matter of deciding this appeal. In the system of marriage prevailing in the Hindu society, so long as marriages continue to be arranged by the parents, it will be iniquitous to allow the sins of the parents who arrange the marriage to visit on their children who marry. Marriage, according to Hindu Law, is a sacrament and a holy union for the performance of religious duties. There can be no question of either endangering or rupturing that relation on account of the conduct of the parents. That is why marriage even though brought about during the minority of either party thereto does not make the marriage invalid. Divorce and dissolution of marriage are concepts which were alien to Hindu Law before the statute stepped in to modify the traditional law. From the moment a marriage has been completed the relation of the husband and wife has to be considered only from the point of view of the welfare of the husband and wife and, also, we must add, of the children, if any, of the marriage. From this point of view, we have reused to be prejudiced by the consideration of what either the appellant or the appellants father may have been motivated by. The story that the respondent who was a young doctor of indifferent means was duped and beguiled into a marriage with the appellant by considerations of the position, authority, and affluence of thew is one which, even if it be true, has nothing to do with the question whether divorce should be given under the Hindu Marriage Act. Likewise, the suggestions made on behalf of the appellant that the respondent had been attempting to extort money from her father, also have no bearing on the question we have to decide hereWe have no doubt that this is absolutely correct about what should be the social approach to leprosy but to our mind this should not provide any justification for compelling a husband to live with a wife who is suffering from an aggravated form of leprosy and who can give him and his children leprosy almost any moment in their daily life, even though the legislature by a statute has given a husband a way of relief. We have no doubt in our minds that thes do not treat the subject of divorce lightly and must have taken into consideration the consequences of one spouse being compelled to live intimately with another spouse who suffers from leprosy when they provided for a way out for the | 0 | 4,047 | 2,049 | ### 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:
counsel on the great advances made by sulphone treatment. It was contended that sulphone treatment has been so revolutionary that leprosy should not any longer be considered to be an incurable disease. Our study of the various authorities on the subject does not support this view. It is true that sulphone is undoubtedly a great advance on the previous methods of treatment of leprosy but even sulphone does not guarantee complete cure. All authorities agree that the sequelae remain even after the most prolonged treatment with sulphone drugs. Besides, it is to be remembered that sulphone drugs were discovered about 1941 and they were very well known all over the world at the time when the Hindu Marriage Act, 1955 was passed. The legislators must be presumed to have known the effect of sulphones on leprosy. If it be true that sulphone drugs have made leprosy of all types curable there would be no point in the legislature making a provision in the Hindu Marriage Act which will entitle a spouse to a decree of divorce if the other party to the marriage would be found suffering from incurable leprosy. 12. In this view of the matter in our opinion the disease from which the appellant suffers can be described as an incurable form of leprosy. It is likely that with the future advances in the treatment of leprosy one day even this form of leprosy will be amenable to cure. We may, in this connection mention that even after the sulphone therapy a drug known as CIBA-1906 was found out which in preliminary stages appears to be equal in efficacy to the sulphones but far less toxic. Even so experts do not yet consider that with all the advances in physiotherapy, surgery or orthopedic surgery it is possible either to cure the disease completely or to correct the deformities and mutilations that are often produced by the disease. All that the text books seem to suggest is this that "eradication of the disease can, and eventually will, occur through effective treatment of the individual patient and segregation to prevent dissemination of the disease". 13. In view of our findings that the form of leprosy from which the appellant suffers was both virulent and incurable, we have come to the sad but unavoidable conclusion that this is a fit case in which the respondent should be granted a decree of divorce under the said Act. 14. Considerable arguments were made from the bar at the time of the hearing of the appeal to impress on our mind the great injustice done to the respondent by the appellants father who, we were told, had deliberately married the appellant to the respondent at a point of time when he knew she was suffering from a bad type of leprosy, by suppressing that fact from the respondent. While we have ourselves considerable suspicions in our mind that this is perhaps true, we have taken great care not to allow this fact to have any weight in the matter of deciding this appeal. In the system of marriage prevailing in the Hindu society, so long as marriages continue to be arranged by the parents, it will be iniquitous to allow the sins of the parents who arrange the marriage to visit on their children who marry. Marriage, according to Hindu Law, is a sacrament and a holy union for the performance of religious duties. There can be no question of either endangering or rupturing that relation on account of the conduct of the parents. That is why marriage even though brought about during the minority of either party thereto does not make the marriage invalid. Divorce and dissolution of marriage are concepts which were alien to Hindu Law before the statute stepped in to modify the traditional law. From the moment a marriage has been completed the relation of the husband and wife has to be considered only from the point of view of the welfare of the husband and wife and, also, we must add, of the children, if any, of the marriage. From this point of view, we have reused to be prejudiced by the consideration of what either the appellant or the appellants father may have been motivated by. The story that the respondent who was a young doctor of indifferent means was duped and beguiled into a marriage with the appellant by considerations of the position, authority, and affluence of the father-in-law is one which, even if it be true, has nothing to do with the question whether divorce should be given under the Hindu Marriage Act. Likewise, the suggestions made on behalf of the appellant that the respondent had been attempting to extort money from her father, also have no bearing on the question we have to decide here. 15. We should like to make another observation. Sociologists insist and they do so very correctly that we should not allow our minds to be swayed by feelings of emotional loathing and revulsion with which leprosy patients have been treated throughout human history in all countries throughout the world and that we should take up a very humane and balanced outlook and accept leprosy "as simply another disorder that requires medical attention". We have no doubt that this is absolutely correct about what should be the social approach to leprosy but to our mind this should not provide any justification for compelling a husband to live with a wife who is suffering from an aggravated form of leprosy and who can give him and his children leprosy almost any moment in their daily life, even though the legislature by a statute has given a husband a way of relief. We have no doubt in our minds that the law-makers do not treat the subject of divorce lightly and must have taken into consideration the consequences of one spouse being compelled to live intimately with another spouse who suffers from leprosy when they provided for a way out for the former.
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taken into consideration the consequences of one spouse being compelled to live intimately with another spouse who suffers from leprosy when they provided for a way out for the formerWe cannot, however, agree to accept this suggestion. Virulence as a ground for exclusion from inheritance is treated from an entirely different angle in the Hindu religious and legal texts. The general emphasis in those contexts was of the competence of a man to perform his social and religious obligations and no word has been used in those texts which could be referred to as the corresponding Sanskrit word for virulent. The decisions of the different High Courts and the Privy Council where the word virulent has been used for interpreting the Hindu law on the subject have used it to describe the leprosy of the most serious and aggravated type. This does not therefore give any sure and reliable guide in interpreting the word virulent. Since the word is not used by medical experts in describing any particular type of leprosy we have to find the meaning of the word from the dictionariesOur study of the various authorities on the subject does not support this view. It is true that sulphone is undoubtedly a great advance on the previous methods of treatment of leprosy but even sulphone does not guarantee complete cure. All authorities agree that the sequelae remain even after the most prolonged treatment with sulphone drugs. Besides, it is to be remembered that sulphone drugs were discovered about 1941 and they were very well known all over the world at the time whenthe Hindu Marriage Act, 1955 was passed. The legislators must be presumed to have known the effect of sulphones on leprosy. If it be true that sulphone drugs have made leprosy of all types curable there would be no point in the legislature making a provision in the Hindu Marriage Act which will entitle a spouse to a decree of divorce if the other party to the marriage would be found suffering from incurable leprosy12. In this view of the matter in our opinion the disease from which the appellant suffers can be described as an incurable form of leprosy. It is likely that with the future advances in the treatment of leprosy one day even this form of leprosy will be amenable to cure. We may, in this connection mention that even after the sulphone therapy a drug known as6 was found out which in preliminary stages appears to be equal in efficacy to the sulphones but far less toxic. Even so experts do not yet consider that with all the advances in physiotherapy, surgery or orthopedic surgery it is possible either to cure the disease completely or to correct the deformities and mutilations that are often produced by the disease. All that the text books seem to suggest is this that "eradication of the disease can, and eventually will, occur through effective treatment of the individual patient and segregation to prevent dissemination of the disease"13. In view of our findings that the form of leprosy from which the appellant suffers was both virulent and incurable, we have come to the sad but unavoidable conclusion that this is a fit case in which the respondent should be granted a decree of divorce under the said ActWhile we have ourselves considerable suspicions in our mind that this is perhaps true, we have taken great care not to allow this fact to have any weight in the matter of deciding this appeal. In the system of marriage prevailing in the Hindu society, so long as marriages continue to be arranged by the parents, it will be iniquitous to allow the sins of the parents who arrange the marriage to visit on their children who marry. Marriage, according to Hindu Law, is a sacrament and a holy union for the performance of religious duties. There can be no question of either endangering or rupturing that relation on account of the conduct of the parents. That is why marriage even though brought about during the minority of either party thereto does not make the marriage invalid. Divorce and dissolution of marriage are concepts which were alien to Hindu Law before the statute stepped in to modify the traditional law. From the moment a marriage has been completed the relation of the husband and wife has to be considered only from the point of view of the welfare of the husband and wife and, also, we must add, of the children, if any, of the marriage. From this point of view, we have reused to be prejudiced by the consideration of what either the appellant or the appellants father may have been motivated by. The story that the respondent who was a young doctor of indifferent means was duped and beguiled into a marriage with the appellant by considerations of the position, authority, and affluence of thew is one which, even if it be true, has nothing to do with the question whether divorce should be given under the Hindu Marriage Act. Likewise, the suggestions made on behalf of the appellant that the respondent had been attempting to extort money from her father, also have no bearing on the question we have to decide hereWe have no doubt that this is absolutely correct about what should be the social approach to leprosy but to our mind this should not provide any justification for compelling a husband to live with a wife who is suffering from an aggravated form of leprosy and who can give him and his children leprosy almost any moment in their daily life, even though the legislature by a statute has given a husband a way of relief. We have no doubt in our minds that thes do not treat the subject of divorce lightly and must have taken into consideration the consequences of one spouse being compelled to live intimately with another spouse who suffers from leprosy when they provided for a way out for the
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OM PAL SINGH Vs. DISCIPLINARY AUTHORITY | 31.12.2012. 5. The penalty of reduction of pay of 15 stages was challenged by the Appellant by filing a Writ Petition. The High Court allowed the Writ Petition and directed the Respondent-Disciplinary Authority to re-examine the matter afresh. The Disciplinary Authority, in compliance with the order of the High Court, reconsidered the matter and reiterated the penalty of reduction of 15 stages lower in time scale of pay for a period of eight years. Later, the Disciplinary Authority modified the punishment of reduction to 10 stages (increments) lower in time scale of pay for a period of six years with further direction that the officer shall not earn the increments of pay during the period of said reduction and on expiry of such period, the reduction shall have the effect of postponing the future increments on his pay. Thereafter, the Appellant filed an appeal which was dismissed by the Appellate Authority. The High Court upheld the order passed by the Appellate Authority by dismissing the Writ Petition filed by the Appellant. 6. The High Court was of the opinion that the charges framed against the Appellant were fully proved and the imposition of penalty by the order dated 29.10.2015 was commensurate with the delinquency of the Appellant as the penalty imposed on the Appellant was not shockingly disproportionate. The High Court felt that the order dated 29.10.2015 did not warrant any interference. 7. Notice was issued to the Respondent by this Court to show cause as to why the Appellant shall not be entitled for salary for the period of suspension from 29.07.2003 to 10.09.2012. 8. Mr. M. Karpaga Vinayagam, learned Senior Counsel appearing for the Appellant submitted that the Appellant shall be entitled for payment of the salary during the period of his suspension as the order of dismissal was set aside and substituted by a lesser punishment. According to him, the principle of no work no pay shall not apply to the instant case. He relied upon several judgments of this Court in Bank of India v. T. S. Kelawala (1990) 4 SCC 744 , Syndicate Bank v. K. Umesh Nayak (1994) 5 SCC 572 , Ranchhodji Chaturji Thakore v. Superintendent Engineer, Gujarat Electricity Board (1996) 11 SCC 603 and Commissioner, Karnataka Housing Board v. Muddaiah (2007) 7 SCC 689 in support of his submission. 9. Mr. Rajesh Kumar-I, learned counsel appearing for the Bank submitted that the Appellant was not exonerated on the charge. The Disciplinary Authority merely reduced the penalty from dismissal to reduction in time scale of pay which does not entitle the Appellant to claim full salary for the period of suspension. A charged employee shall be entitled to claim full salary for the period of suspension only in case the order of penalty is set aside and he is held not guilty of any of the charges. He relied upon the judgment of this Court in Managing Director, ECIL, Hyderabad And Others v. B. Karunakar and Others (1993) 4 SCC 727. 10. The only question that arises for our consideration in the present appeal is whether the Appellant is entitled to payment of salary for the period of suspension i.e. from 29.07.2003 to 10.09.2012. There is no need to reiterate that the order of dismissal was set aside and the punishment of reduction in time scale of pay was imposed on the Appellant. It is clear that the findings of the Inquiry Officer that the charges against the Appellant were proved and have not been disturbed. Reduction of the penalty from dismissal to that of reduction in time scale of pay does not result in exoneration of the Appellant of the charges framed against him. However, it is for the Disciplinary Authority to take a decision as to how the period of suspension shall be treated. While passing the impugned order dated 29.10.2015, the Disciplinary Authority held that the Appellant shall not be entitled for any payment from 06.07.2004 to 29.08.2012. 11. In J.K. Synthetics Ltd. v. K.P . Agrawal & Anr. (2007) 2 SCC 433 , this Court dealt with the issue regarding the entitlement of a delinquent to claim continuity of service and consequential benefits in all cases of reinstatement as follows: 17. There is also a misconception that whenever reinstatement is directed, continuity of service and consequential benefits should follow, as a matter of course. The disastrous effect of granting several promotions as a consequential benefit to a person who has not worked for 10 to 15 years and who does not have the benefit of necessary experience for discharging the higher duties and functions of promotional posts, is seldom visualized while granting consequential benefits automatically. Whenever courts or Tribunals direct reinstatement, they should apply their judicial mind to the facts and circumstances to decide whether continuity of service and/or consequential benefits should also be directed. We may in this behalf refer to the decisions of this Court in A.P.S.R.T.C. v. S. Narasa Goud [2003 (2) SCC 212 ], A.P.S.R.T.C. v. Abdul Kareem [2005 (6) SCC 36 ] and R.S.R.T.C. v. Shyam Bihari Lal Gupta [2005 (7) SCC 406 ]. 12. It was further held in the said judgment that if reinstatement is a consequence of imposition of a lesser punishment, neither back-wages nor continuity of service nor consequential benefits follow as a natural or necessary consequence of such reinstatement. This Court went on to hold that where the misconduct was held to be proved, reinstatement by itself is a consequential benefit arising from imposition of a lesser punishment. However, this Court was of the opinion that award of back wages for the period when the employee has not worked may amount to rewarding the delinquent employee and punishing the employer for taking action against the misconduct committed by the employee, which should be avoided. 13. Following the aforementioned judgment, we are of the opinion that the decision of the Disciplinary Authority in not paying the salary for the period of suspension cannot be said to be contrary to law. | 0[ds]There is no need to reiterate that the order of dismissal was set aside and the punishment of reduction in time scale of pay was imposed on the Appellant. It is clear that the findings of the Inquiry Officer that the charges against the Appellant were proved and have not been disturbed. Reduction of the penalty from dismissal to that of reduction in time scale of pay does not result in exoneration of the Appellant of the charges framed against him. However, it is for the Disciplinary Authority to take a decision as to how the period of suspension shall be treated. While passing the impugned order dated 29.10.2015, the Disciplinary Authority held that the Appellant shall not be entitled for any payment from 06.07.2004 to 29.08.201211. In J.K. Synthetics Ltd. v. K.P . Agrawal & Anr. (2007) 2 SCC 433 , this Court dealt with the issue regarding the entitlement of a delinquent to claim continuity of service and consequential benefits in all cases of reinstatement as follows:17. There is also a misconception that whenever reinstatement is directed, continuity of service and consequential benefits should follow, as a matter of course. The disastrous effect of granting several promotions as a consequential benefit to a person who has not worked for 10 to 15 years and who does not have the benefit of necessary experience for discharging the higher duties and functions of promotional posts, is seldom visualized while granting consequential benefits automatically. Whenever courts or Tribunals direct reinstatement, they should apply their judicial mind to the facts and circumstances to decide whether continuity of service and/or consequential benefits should also be directed. We may in this behalf refer to the decisions of this Court in A.P.S.R.T.C. v. S. Narasa Goud [2003 (2) SCC 212 ], A.P.S.R.T.C. v. Abdul Kareem [2005 (6) SCC 36 ] and R.S.R.T.C. v. Shyam Bihari Lal Gupta [2005 (7) SCC 406 ]12. It was further held in the said judgment that if reinstatement is a consequence of imposition of a lesser punishment, neither back-wages nor continuity of service nor consequential benefits follow as a natural or necessary consequence of such reinstatement. This Court went on to hold that where the misconduct was held to be proved, reinstatement by itself is a consequential benefit arising from imposition of a lesser punishment. However, this Court was of the opinion that award of back wages for the period when the employee has not worked may amount to rewarding the delinquent employee and punishing the employer for taking action against the misconduct committed by the employee, which should be avoided13. Following the aforementioned judgment, we are of the opinion that the decision of the Disciplinary Authority in not paying the salary for the period of suspension cannot be said to be contrary to law. | 0 | 1,828 | 512 | ### 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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31.12.2012. 5. The penalty of reduction of pay of 15 stages was challenged by the Appellant by filing a Writ Petition. The High Court allowed the Writ Petition and directed the Respondent-Disciplinary Authority to re-examine the matter afresh. The Disciplinary Authority, in compliance with the order of the High Court, reconsidered the matter and reiterated the penalty of reduction of 15 stages lower in time scale of pay for a period of eight years. Later, the Disciplinary Authority modified the punishment of reduction to 10 stages (increments) lower in time scale of pay for a period of six years with further direction that the officer shall not earn the increments of pay during the period of said reduction and on expiry of such period, the reduction shall have the effect of postponing the future increments on his pay. Thereafter, the Appellant filed an appeal which was dismissed by the Appellate Authority. The High Court upheld the order passed by the Appellate Authority by dismissing the Writ Petition filed by the Appellant. 6. The High Court was of the opinion that the charges framed against the Appellant were fully proved and the imposition of penalty by the order dated 29.10.2015 was commensurate with the delinquency of the Appellant as the penalty imposed on the Appellant was not shockingly disproportionate. The High Court felt that the order dated 29.10.2015 did not warrant any interference. 7. Notice was issued to the Respondent by this Court to show cause as to why the Appellant shall not be entitled for salary for the period of suspension from 29.07.2003 to 10.09.2012. 8. Mr. M. Karpaga Vinayagam, learned Senior Counsel appearing for the Appellant submitted that the Appellant shall be entitled for payment of the salary during the period of his suspension as the order of dismissal was set aside and substituted by a lesser punishment. According to him, the principle of no work no pay shall not apply to the instant case. He relied upon several judgments of this Court in Bank of India v. T. S. Kelawala (1990) 4 SCC 744 , Syndicate Bank v. K. Umesh Nayak (1994) 5 SCC 572 , Ranchhodji Chaturji Thakore v. Superintendent Engineer, Gujarat Electricity Board (1996) 11 SCC 603 and Commissioner, Karnataka Housing Board v. Muddaiah (2007) 7 SCC 689 in support of his submission. 9. Mr. Rajesh Kumar-I, learned counsel appearing for the Bank submitted that the Appellant was not exonerated on the charge. The Disciplinary Authority merely reduced the penalty from dismissal to reduction in time scale of pay which does not entitle the Appellant to claim full salary for the period of suspension. A charged employee shall be entitled to claim full salary for the period of suspension only in case the order of penalty is set aside and he is held not guilty of any of the charges. He relied upon the judgment of this Court in Managing Director, ECIL, Hyderabad And Others v. B. Karunakar and Others (1993) 4 SCC 727. 10. The only question that arises for our consideration in the present appeal is whether the Appellant is entitled to payment of salary for the period of suspension i.e. from 29.07.2003 to 10.09.2012. There is no need to reiterate that the order of dismissal was set aside and the punishment of reduction in time scale of pay was imposed on the Appellant. It is clear that the findings of the Inquiry Officer that the charges against the Appellant were proved and have not been disturbed. Reduction of the penalty from dismissal to that of reduction in time scale of pay does not result in exoneration of the Appellant of the charges framed against him. However, it is for the Disciplinary Authority to take a decision as to how the period of suspension shall be treated. While passing the impugned order dated 29.10.2015, the Disciplinary Authority held that the Appellant shall not be entitled for any payment from 06.07.2004 to 29.08.2012. 11. In J.K. Synthetics Ltd. v. K.P . Agrawal & Anr. (2007) 2 SCC 433 , this Court dealt with the issue regarding the entitlement of a delinquent to claim continuity of service and consequential benefits in all cases of reinstatement as follows: 17. There is also a misconception that whenever reinstatement is directed, continuity of service and consequential benefits should follow, as a matter of course. The disastrous effect of granting several promotions as a consequential benefit to a person who has not worked for 10 to 15 years and who does not have the benefit of necessary experience for discharging the higher duties and functions of promotional posts, is seldom visualized while granting consequential benefits automatically. Whenever courts or Tribunals direct reinstatement, they should apply their judicial mind to the facts and circumstances to decide whether continuity of service and/or consequential benefits should also be directed. We may in this behalf refer to the decisions of this Court in A.P.S.R.T.C. v. S. Narasa Goud [2003 (2) SCC 212 ], A.P.S.R.T.C. v. Abdul Kareem [2005 (6) SCC 36 ] and R.S.R.T.C. v. Shyam Bihari Lal Gupta [2005 (7) SCC 406 ]. 12. It was further held in the said judgment that if reinstatement is a consequence of imposition of a lesser punishment, neither back-wages nor continuity of service nor consequential benefits follow as a natural or necessary consequence of such reinstatement. This Court went on to hold that where the misconduct was held to be proved, reinstatement by itself is a consequential benefit arising from imposition of a lesser punishment. However, this Court was of the opinion that award of back wages for the period when the employee has not worked may amount to rewarding the delinquent employee and punishing the employer for taking action against the misconduct committed by the employee, which should be avoided. 13. Following the aforementioned judgment, we are of the opinion that the decision of the Disciplinary Authority in not paying the salary for the period of suspension cannot be said to be contrary to law.
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There is no need to reiterate that the order of dismissal was set aside and the punishment of reduction in time scale of pay was imposed on the Appellant. It is clear that the findings of the Inquiry Officer that the charges against the Appellant were proved and have not been disturbed. Reduction of the penalty from dismissal to that of reduction in time scale of pay does not result in exoneration of the Appellant of the charges framed against him. However, it is for the Disciplinary Authority to take a decision as to how the period of suspension shall be treated. While passing the impugned order dated 29.10.2015, the Disciplinary Authority held that the Appellant shall not be entitled for any payment from 06.07.2004 to 29.08.201211. In J.K. Synthetics Ltd. v. K.P . Agrawal & Anr. (2007) 2 SCC 433 , this Court dealt with the issue regarding the entitlement of a delinquent to claim continuity of service and consequential benefits in all cases of reinstatement as follows:17. There is also a misconception that whenever reinstatement is directed, continuity of service and consequential benefits should follow, as a matter of course. The disastrous effect of granting several promotions as a consequential benefit to a person who has not worked for 10 to 15 years and who does not have the benefit of necessary experience for discharging the higher duties and functions of promotional posts, is seldom visualized while granting consequential benefits automatically. Whenever courts or Tribunals direct reinstatement, they should apply their judicial mind to the facts and circumstances to decide whether continuity of service and/or consequential benefits should also be directed. We may in this behalf refer to the decisions of this Court in A.P.S.R.T.C. v. S. Narasa Goud [2003 (2) SCC 212 ], A.P.S.R.T.C. v. Abdul Kareem [2005 (6) SCC 36 ] and R.S.R.T.C. v. Shyam Bihari Lal Gupta [2005 (7) SCC 406 ]12. It was further held in the said judgment that if reinstatement is a consequence of imposition of a lesser punishment, neither back-wages nor continuity of service nor consequential benefits follow as a natural or necessary consequence of such reinstatement. This Court went on to hold that where the misconduct was held to be proved, reinstatement by itself is a consequential benefit arising from imposition of a lesser punishment. However, this Court was of the opinion that award of back wages for the period when the employee has not worked may amount to rewarding the delinquent employee and punishing the employer for taking action against the misconduct committed by the employee, which should be avoided13. Following the aforementioned judgment, we are of the opinion that the decision of the Disciplinary Authority in not paying the salary for the period of suspension cannot be said to be contrary to law.
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Lilly Kurian Vs. Sr. Lewina And Ors | which it applies. Again, we have not to consider here either the wisdom or unwisdom of such a provision or the validity of any part of section 51A of the Act on the ground that it violates any fundamental right other than the ones conferred by Art. 30(1) of the Constitution. Dwivedi J. stated: The purpose of s. 51A is to check this kind of misuse of the right to fire an employee. So the Vice-Chancellors power of approval is not unguided and unreasonable. After the Chancellor, the Vice-Chancellor is the nex t highest officer of the University. It should be presumed that in granting or withholding approval he would act according to reason and justice. 37. When the matter goes before the Vice-Chancellor for approval, both the management and the teacher or the member of the non-teaching staff should be heard by him. Hearing both parties is necessarily implied, because without hearing either of them it will be difficult for him to make up his mind whether he should grant or withhold approval to the action proposed by the managing body of the educational institution. It would also follow that while granting approval or disapproval, the Vice-Chancellor should record reasons, for the exercise of his power is subject to control by courts. The statute does not make his order final, and courts would surely nullify his order if it is arbitrary, mala fide or illegal.An analysis of the judgments in St. Xaviers Colleges case (supra) clearly shows that seven out of nine Judges held that the provisions contained in clauses (b) of sub- sections (1) and (2) of section 51A of the Act were not applicable to an educational institution established and managed by religious or linguistic minority as they interfere with the disciplinary control of the management over the staff of its educational institutions. The reasons given by the majority were that the power of the management to terminate the services of any member of the teaching or other academic and non-academic staff was based on the relationship between an employer and his employees and no encroachment could be made on this right to dispense with their services under the contract of employment, which was an integral part of the right to administer, and that these provisions conferred on the Vice-Chancellor or any other officer of the University authorised by him, uncanalised, unguided and unlimited power to veto the actions of the management. According to the majority view, the conferment an such blanket power on the Vice-Chancellor and his nominee was an infringement of the right of administration guaranteed under Art. 30(1) to the minority institutions, religious and linguistic. The majority was accordingly of the view that the provisions contained in clauses (b) of sub-sections (1) and (2) of section 51A of the Act had the effect of destroying t he minority institutions disciplinary control over the teaching and non-teaching staff of the college as no punishment could be inflicted by the management on a member of the staff unless it gets approval from an outside authority like the Vice-Chancellor or an officer of the University authorised by him. On the contrary, the two dissenting Judges were of the view that these provisions were permissive regulatory measures. The power of appeal conferred on the Vice-Chancellor under Ordinance 33(4) is not only a grave encroachment on the institutions right to enforce and ensure discipline in its administrative affairs but it is uncanalised and unguided in the sense that no restrictions are placed on the exercise of the power. The extent of the appellate power of the Vice-Chancellor is not defined; and, indeed, his powers are unlimited. The grounds on which the Vice-Chancellor can interfere in such appeals are also not defined. He may not only set aside a n order of dismissal of a teacher and order his reinstatement, but may also interfere with any of the punishments enumerated in items- (ii) to (v) of Ordinance 33(2); that is to say, he can even interfere against the infliction of minor punishments. In the absence of any guidelines, it cannot be held that the power of the Vice-Chancellor under ordinance 33(4) was merely a check on maladministration. 38. As laid down by the majority in St. Xaviers Colleges case (supra), such a blanke t power directly interferes with the disciplinary control of the managing body of a minority education institution over its teachers. The majority decision in St. Xaviers Colleges case squarely applies to the facts of the present case and acc ordingly it must be held that the impugned Ordinance 33(4) of the University of Kerala is violative of Article 30(1) of the Constitution. If the conferment of such power on an outside authority like the Vice-Chancellor, which while maintaining the formal character of a minority institution destroys the power of administration, that is, its disciplinary control, is held justifiable because it is in the public and national interest, though not in its interest as an educational institution, the right guaranteed by Article 30(1) will be, to use the well-known expression, a testing illusion, a promise of unreality.A distinction is, however, sought to be drawn between the provisions contained in clauses (b) of sub-sec tion (1) and (2) of section 51A of the Gujarat University Act, 1949 which provided that no penalty could be inflicted on a member of the teaching staff without the prior approval of the Vice-Chancellor or his nominee, and that contained in Ordinance 33(4) which confer on the Vice-Chancellor the power to hear an appeal against an order of dismissal. It is said that while a provision making the prior approval of the Vice-Chancellor a condition precedent against dismissal, removal or reduction in rank of an employee creates a fetter on the exercise of a disciplinary control, which the employer undoubtedly has, the provision conferring on the Vice-Chancellor a power to hear an appeal leaves the power of the employer untouched. We are afraid, the distinction tried to be drawn is without any basis. 39. | 0[ds]The expression conditions of service covers a wide range, as explained by the Privy Council in N.W.F. Province v. Surai Narain which was approved by this Court in State of U.P. v. Babu Ram. These decisions and also a later decision o f this Court in State of M.P. &Ors. v. Shardul Singh have made it clear that the expression conditions of service includes everything from the stage of appointment to the stage of termination to service and even beyond, and relates to matters pertaining to disciplinary action. Thus, the expression conditions of service as explained in the decisions of the Privy Council and of this Court includes the power to take disciplinary action. The rules regarding these matters are contained in Chapter LVII of the Ordinances. The Management of a private college under Ordinance 33(2) is constituted the appointing and the disciplinary authority in respect of imposition of punishment. In the course of any disciplinary proceeding, a right of appeal before the Vice-Chancellor is given to a teacher dismissed from service under Ordinance 33(4) of the Ordinances. The High Court thus rightly held that the right of appeal conferred by Ordinance 33(4) forms part of the conditions of service and, therefore, is valid.The High Court was, however, wrong in two ways. Firstly, it fell into an error in holding that the Vice- Chancellor while exercising the appellate powers under Ordinance 33(4), had not the power to direct reinstatement of a teacher or grant a declaration that his dismissal was wrongful. It also fell into an error in holding that a right of appeal before the Vice-Chancellor given to the teachers of private colleges under Ordinance 33(1) and (4), in the matter of suspension and dismissal, was not violative of the rights of religious minorities under article 30(1) of the ConstitutionThe remedy for a person aggrieved by the decision of a competent judicial tribunal is to approach for redress a superior tribunal, if there be one.Lastly it is urged that the rights of the religious and linguistic minorities in respect of their educational institutions, however, liberally construed, cannot be allowed to dominate every other fundamental rights, directive principles of State policy and broad ideals of the Constitution. Article 30(1) enables the minorities to establish and administer educational institutions of their choice but it is said they cannot be entitled to exact unjustifiable preferential or discriminatory treatment for minority institutions so as to obtain benefits but to reject obligations of statutory rights. We fail to see the relevance of these submissions while adjudging the validity of Ordinance 33(1) and (4) in the light of Article 30(1)There is direct interference with this right. The post of principal is of pivotal importance in the life of a college, around whom wheels the tone and temper of the institution, on whom depends the continuity of its traditions, maintenance of discipline and the efficiency of its teaching. The character of the institution depends on the right choice of the principal by the management. The right to choose the principal is perhaps the most important facet of t he right to administer a college. In the same way, the right to dispense with the services of the principal is an equally important facet of the same right. The imposition of any trammel, thereon, except to the extent of prescribing the requisite qualifications and the experience or otherwise fostering the interests of the institution itself, cannot but be considered as a violation of the right warranted under Article 30(1)Thus, a contention based on the absolute freedom from State control of the minorities right to administer their educational institutions was expressly negatived in this case. The Court clearly laid down a principle, namely, a regulation, which is not destructive or annihilative of the core or the substance of the right under Article 30(1), could legitimately be imposed.The right of a minority community to establish and administer educational institutions of their choice was subject matter of decision by this Court in more than one caseProjection of the minorities is an article of faith in the Constitution of India. The right to the administration of institutions of minoritys choice enshrined in Article 30(1) means management of the affairs of the institution. This right is, however, subject to the regulatory power of the State. Article 30(1) is not a charter for maladministration; regulation, so that the right to administer may be better exercised for the benefit of the institution is permiss ible; but the moment one goes beyond that and imposes, what is in truth, not a mere regulation but an impairment of the right to administer, the Article comes into play and the interference cannot be justified by pleading the interests of the gene ral public; the interests justifying interference can only be the interests of the minority concerned.The conferment of a right of appeal to an outside authority like the Vice-Chancellor under Ordinance 33(4) takes away the disciplinar y power of a minority educational authority. The Vice-Chancellor has the power to veto its disciplinary control. There is a clear interference with the disciplinary power of the minority institution. The State may regulate the exercise of the ri ght of administration but it has no power to impose any restriction which is destructive of the right itself. The conferment of such wide powers on the Vice-Chancellor amounts in reality, to a fetter on the right of administration under Artic le 30(1). This, it seems to us, would so affect the disciplinary control of a minority educational institution as to be subversive of its constitutional rights and can hardly be regarded as a regulation or a restriction in the in terest of the institution.While seven Judges who constituted the majority upheld the provisions of clauses (a) of sub-section (1) and (2) of section 51A, as they provided for a reasonable opportunity of showing cause against a penalty to be imposed as being regulatory, they held that clauses (b) of sub-sections (1) and (2) of section 51A of the Act, which confer a blanket power on the Vice-Chancellor to interfere with the disciplinary control of the management of a minority educational institution over its teachers, make a serious inroad on the right of the minority to administer an educational institution guaranteed under Article 30(1)As laid down by the majority in St. Xaviers Colleges case (supra), such a blanke t power directly interferes with the disciplinary control of the managing body of a minority education institution over its teachers. The majority decision in St. Xaviers Colleges case squarely applies to the facts of the present case and acc ordingly it must be held that the impugned Ordinance 33(4) of the University of Kerala is violative of Article 30(1) of the Constitution. If the conferment of such power on an outside authority like the Vice-Chancellor, which while maintaining the formal character of a minority institution destroys the power of administration, that is, its disciplinary control, is held justifiable because it is in the public and national interest, though not in its interest as an educational institution, the right guaranteed by Article 30(1) will be, to use the well-known expression, a testing illusion, a promise of unreality.A distinction is, however, sought to be drawn between the provisions contained in clauses (b) of sub-sec tion (1) and (2) of section 51A of the Gujarat University Act, 1949 which provided that no penalty could be inflicted on a member of the teaching staff without the prior approval of the Vice-Chancellor or his nominee, and that contained in Ordinance 33(4) which confer on the Vice-Chancellor the power to hear an appeal against an order of dismissal. It is said that while a provision making the prior approval of the Vice-Chancellor a condition precedent against dismissal, removal or reduction in rank of an employee creates a fetter on the exercise of a disciplinary control, which the employer undoubtedly has, the provision conferring on the Vice-Chancellor a power to hear an appeal leaves the power of the employer untouched. We are afraid, the distinction tried to be drawn is without any basisIncidentally, the Kerala University Act, 1969 has been repealed by the Kerala University Act, 1974, which has come into force with effect from August 18, 1974. Section 65 of that Act confers power on the Government to constitute an Appellate Tribunal. Any teacher aggrieved by an order in any disciplinary proceedings taken against him may under section 60(7) appeal to the Appellate Tribunal and the Appellate Tribunal may, after giving parties an opportunity of being heard, and after such further inquiry as may be necessary, pass such orders thereon as it may deem fit, including an order of reinstatement of the teacher concerned. Section 61 of the Act provides that (i) pending disputes between the management of a private college and any teacher relating to t he conditions of service are to be decided under and in accordance with the provision the Act, and (ii) past disputes of such nature which have arisen after August 1, 1967, and had been disposed of before the commencement of the Act, shall, if the management or the teacher applies to the Appellate Tribunal in that behalf within thirty days of the commencement of the Act, be reopened and decided in accordance with the provisions of the Act. We have been informed that the appell ant has filed an appeal before the Appellate Tribunal, Kerala under section 61 (a) of the Kerala University Act, 1974. We refrain from making any observation with regard to that appeal. We wish to say that the validity of sections 60(7), 61 and 65 was not in question before us, and so we express no opinion in regard thereto | 0 | 9,759 | 1,839 | ### 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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which it applies. Again, we have not to consider here either the wisdom or unwisdom of such a provision or the validity of any part of section 51A of the Act on the ground that it violates any fundamental right other than the ones conferred by Art. 30(1) of the Constitution. Dwivedi J. stated: The purpose of s. 51A is to check this kind of misuse of the right to fire an employee. So the Vice-Chancellors power of approval is not unguided and unreasonable. After the Chancellor, the Vice-Chancellor is the nex t highest officer of the University. It should be presumed that in granting or withholding approval he would act according to reason and justice. 37. When the matter goes before the Vice-Chancellor for approval, both the management and the teacher or the member of the non-teaching staff should be heard by him. Hearing both parties is necessarily implied, because without hearing either of them it will be difficult for him to make up his mind whether he should grant or withhold approval to the action proposed by the managing body of the educational institution. It would also follow that while granting approval or disapproval, the Vice-Chancellor should record reasons, for the exercise of his power is subject to control by courts. The statute does not make his order final, and courts would surely nullify his order if it is arbitrary, mala fide or illegal.An analysis of the judgments in St. Xaviers Colleges case (supra) clearly shows that seven out of nine Judges held that the provisions contained in clauses (b) of sub- sections (1) and (2) of section 51A of the Act were not applicable to an educational institution established and managed by religious or linguistic minority as they interfere with the disciplinary control of the management over the staff of its educational institutions. The reasons given by the majority were that the power of the management to terminate the services of any member of the teaching or other academic and non-academic staff was based on the relationship between an employer and his employees and no encroachment could be made on this right to dispense with their services under the contract of employment, which was an integral part of the right to administer, and that these provisions conferred on the Vice-Chancellor or any other officer of the University authorised by him, uncanalised, unguided and unlimited power to veto the actions of the management. According to the majority view, the conferment an such blanket power on the Vice-Chancellor and his nominee was an infringement of the right of administration guaranteed under Art. 30(1) to the minority institutions, religious and linguistic. The majority was accordingly of the view that the provisions contained in clauses (b) of sub-sections (1) and (2) of section 51A of the Act had the effect of destroying t he minority institutions disciplinary control over the teaching and non-teaching staff of the college as no punishment could be inflicted by the management on a member of the staff unless it gets approval from an outside authority like the Vice-Chancellor or an officer of the University authorised by him. On the contrary, the two dissenting Judges were of the view that these provisions were permissive regulatory measures. The power of appeal conferred on the Vice-Chancellor under Ordinance 33(4) is not only a grave encroachment on the institutions right to enforce and ensure discipline in its administrative affairs but it is uncanalised and unguided in the sense that no restrictions are placed on the exercise of the power. The extent of the appellate power of the Vice-Chancellor is not defined; and, indeed, his powers are unlimited. The grounds on which the Vice-Chancellor can interfere in such appeals are also not defined. He may not only set aside a n order of dismissal of a teacher and order his reinstatement, but may also interfere with any of the punishments enumerated in items- (ii) to (v) of Ordinance 33(2); that is to say, he can even interfere against the infliction of minor punishments. In the absence of any guidelines, it cannot be held that the power of the Vice-Chancellor under ordinance 33(4) was merely a check on maladministration. 38. As laid down by the majority in St. Xaviers Colleges case (supra), such a blanke t power directly interferes with the disciplinary control of the managing body of a minority education institution over its teachers. The majority decision in St. Xaviers Colleges case squarely applies to the facts of the present case and acc ordingly it must be held that the impugned Ordinance 33(4) of the University of Kerala is violative of Article 30(1) of the Constitution. If the conferment of such power on an outside authority like the Vice-Chancellor, which while maintaining the formal character of a minority institution destroys the power of administration, that is, its disciplinary control, is held justifiable because it is in the public and national interest, though not in its interest as an educational institution, the right guaranteed by Article 30(1) will be, to use the well-known expression, a testing illusion, a promise of unreality.A distinction is, however, sought to be drawn between the provisions contained in clauses (b) of sub-sec tion (1) and (2) of section 51A of the Gujarat University Act, 1949 which provided that no penalty could be inflicted on a member of the teaching staff without the prior approval of the Vice-Chancellor or his nominee, and that contained in Ordinance 33(4) which confer on the Vice-Chancellor the power to hear an appeal against an order of dismissal. It is said that while a provision making the prior approval of the Vice-Chancellor a condition precedent against dismissal, removal or reduction in rank of an employee creates a fetter on the exercise of a disciplinary control, which the employer undoubtedly has, the provision conferring on the Vice-Chancellor a power to hear an appeal leaves the power of the employer untouched. We are afraid, the distinction tried to be drawn is without any basis. 39.
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down a principle, namely, a regulation, which is not destructive or annihilative of the core or the substance of the right under Article 30(1), could legitimately be imposed.The right of a minority community to establish and administer educational institutions of their choice was subject matter of decision by this Court in more than one caseProjection of the minorities is an article of faith in the Constitution of India. The right to the administration of institutions of minoritys choice enshrined in Article 30(1) means management of the affairs of the institution. This right is, however, subject to the regulatory power of the State. Article 30(1) is not a charter for maladministration; regulation, so that the right to administer may be better exercised for the benefit of the institution is permiss ible; but the moment one goes beyond that and imposes, what is in truth, not a mere regulation but an impairment of the right to administer, the Article comes into play and the interference cannot be justified by pleading the interests of the gene ral public; the interests justifying interference can only be the interests of the minority concerned.The conferment of a right of appeal to an outside authority like the Vice-Chancellor under Ordinance 33(4) takes away the disciplinar y power of a minority educational authority. The Vice-Chancellor has the power to veto its disciplinary control. There is a clear interference with the disciplinary power of the minority institution. The State may regulate the exercise of the ri ght of administration but it has no power to impose any restriction which is destructive of the right itself. The conferment of such wide powers on the Vice-Chancellor amounts in reality, to a fetter on the right of administration under Artic le 30(1). This, it seems to us, would so affect the disciplinary control of a minority educational institution as to be subversive of its constitutional rights and can hardly be regarded as a regulation or a restriction in the in terest of the institution.While seven Judges who constituted the majority upheld the provisions of clauses (a) of sub-section (1) and (2) of section 51A, as they provided for a reasonable opportunity of showing cause against a penalty to be imposed as being regulatory, they held that clauses (b) of sub-sections (1) and (2) of section 51A of the Act, which confer a blanket power on the Vice-Chancellor to interfere with the disciplinary control of the management of a minority educational institution over its teachers, make a serious inroad on the right of the minority to administer an educational institution guaranteed under Article 30(1)As laid down by the majority in St. Xaviers Colleges case (supra), such a blanke t power directly interferes with the disciplinary control of the managing body of a minority education institution over its teachers. The majority decision in St. Xaviers Colleges case squarely applies to the facts of the present case and acc ordingly it must be held that the impugned Ordinance 33(4) of the University of Kerala is violative of Article 30(1) of the Constitution. If the conferment of such power on an outside authority like the Vice-Chancellor, which while maintaining the formal character of a minority institution destroys the power of administration, that is, its disciplinary control, is held justifiable because it is in the public and national interest, though not in its interest as an educational institution, the right guaranteed by Article 30(1) will be, to use the well-known expression, a testing illusion, a promise of unreality.A distinction is, however, sought to be drawn between the provisions contained in clauses (b) of sub-sec tion (1) and (2) of section 51A of the Gujarat University Act, 1949 which provided that no penalty could be inflicted on a member of the teaching staff without the prior approval of the Vice-Chancellor or his nominee, and that contained in Ordinance 33(4) which confer on the Vice-Chancellor the power to hear an appeal against an order of dismissal. It is said that while a provision making the prior approval of the Vice-Chancellor a condition precedent against dismissal, removal or reduction in rank of an employee creates a fetter on the exercise of a disciplinary control, which the employer undoubtedly has, the provision conferring on the Vice-Chancellor a power to hear an appeal leaves the power of the employer untouched. We are afraid, the distinction tried to be drawn is without any basisIncidentally, the Kerala University Act, 1969 has been repealed by the Kerala University Act, 1974, which has come into force with effect from August 18, 1974. Section 65 of that Act confers power on the Government to constitute an Appellate Tribunal. Any teacher aggrieved by an order in any disciplinary proceedings taken against him may under section 60(7) appeal to the Appellate Tribunal and the Appellate Tribunal may, after giving parties an opportunity of being heard, and after such further inquiry as may be necessary, pass such orders thereon as it may deem fit, including an order of reinstatement of the teacher concerned. Section 61 of the Act provides that (i) pending disputes between the management of a private college and any teacher relating to t he conditions of service are to be decided under and in accordance with the provision the Act, and (ii) past disputes of such nature which have arisen after August 1, 1967, and had been disposed of before the commencement of the Act, shall, if the management or the teacher applies to the Appellate Tribunal in that behalf within thirty days of the commencement of the Act, be reopened and decided in accordance with the provisions of the Act. We have been informed that the appell ant has filed an appeal before the Appellate Tribunal, Kerala under section 61 (a) of the Kerala University Act, 1974. We refrain from making any observation with regard to that appeal. We wish to say that the validity of sections 60(7), 61 and 65 was not in question before us, and so we express no opinion in regard thereto
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AJIT KR. BHUYAN Vs. DEBAJIT DAS | for consideration to the post of Executive Engineer. It appears that the Selection Board glossed over this fundamental aspect and proceeded on the basis as if respondent No.1 was eligible to be considered for promotion. In spite of aforesaid two glaring defects, which go to the root of the matter, the recommendation of the Selection Board was accepted and the Government of Assam issued orders dated August 03, 2005 promoting various persons, including respondent No.1, to the rank of Executive Engineer (Civil), PWD. Civil Appeal arising out of SLP (C) No. 2577 22. We, thus, find that the findings of the learned Single Judge to the effect that encadrement of respondent No.1 to the post of Executive Engineer was illegal not only on the ground that he was ineligible for consideration, as he had put in only three years of service, but also for the reason that there were only ten vacancies and not thirteen and, therefore, respondent No.1 could not be promoted at all, are without blemish. We are also in agreement with the findings of the learned Single Judge that respondent No.1 was guilty of committing fraudulent acts in getting his promotion to the post of Executive Engineer out of turn and contrary to the service Rules. Even the Division Bench, in the impugned judgment, accepted the aforesaid position in paragraph 20 of its judgment, which reads as under:"20) It is no doubt that the promotion of the appellant to the post of EE (encadre) and consequent encadrement is contrary to the service rules, since he had not put in the required service of five years to be eligible to the promotion to the post of EE. The condition in the promotion order that the officer ?over the post so encadred? should be in the lowest position till the senior category comes to the position appears to be an untenable condition that could be attached to the promotion under the service rules. There appears to be compounded illegalities. The promotion may be illegal. So much so the conditions stipulated is also illegal. Promotions have to be granted according to the service rules.?23. Interestingly, the Division Bench has also accepted that calculation of thirteen vacancies by the Government may also be incorrect. However, this aspect is side tracked by stating that it was a bona fide mistake and not a deliberate one. Fact remains that the Division Bench has accepted that thirteen vacancies were not in existence. 24. Notwithstanding the same, the Division Bench has non-suited the appellants only on the ground that writ petition filed by the appellants suffered from delays and laches as it was filed nine years after the promotion of respondent No.1 and has stated that even when respondent No.1 had taken undue favour in getting the promotion, it was not proper to upset the decision because of delay and laches, as also the fact that in the meantime respondent No.1 has got promotion to the post of Superintending Engineer as well. 25. It, therefore, needs to be considered as to whether the order of the learned Single Judge warranted interference thereby denying the relief to the appellants on the ground that their writ petition suffered from delays and laches. 26. Having regard to the circumstances in which respondent No.1 was given promotion to the post of Executive Engineer by creating an ex-cadre post and thereafter the manner in which he was encadred to the said post by stretching the number of vacancies against the record, speaks volumes about the manner in which undue favour was shown to respondent No.1. One has to keep in mind that at that time he was working as Officer on Special Duty to the Chief Minister. These facts reflect clear manipulation of the system at various stages to give out of turn promotion to respondent No.1 by bestowing undue favour. With such ‘flyover promotions?, respondent No.1 parachuted from Assistant Executive Engineer to Superintending Engineer by bypassing many senior colleagues in the cadre of Assistant Executive Engineer who are still stagnating in the same cadre. When this factual position emerged on record and was duly approved by the Division Bench as well, we are of the opinion that the writ petition could not be dismissed on the ground of delay and laches. In fact, the Division Bench has erred in invoking this principle by dubbing the entire exercise as a bona fide error. What happened cannot be termed as ‘bona fide?. It was a clear case of favouritism shown to respondent No.1 and the actions were contrary to Rules. 27. That apart, there is one more reason for coming to the conclusion that the Division Bench of the High Court was in error in saving respondent No.1 on the premise that the writ petitions suffered from delay and laches. In fact, the Association had submitted a representation to the then Chief Minister. Going by the nature of allegations, the Chief Minister rightly acted thereupon and referred the matter to a Committee which, after examining the matter, had also given its report stating that the promotion of respondent No.1 was against the Rules. This provides reasonable explanation for delay, if any. 28. We are of the opinion that it was virtually a case of fraud, at least on three counts. First, by creating ex-cadre post of Executive Engineer only for respondent No.1 and giving him that post when he was much junior to many others. Second, encadrement of respondent No.1 as Executive Engineer by showing that there were thirteen posts when, in fact, there were only ten posts of Executive Engineer on that date. This was done obviously with the purpose of accommodating him. Third, the promotion was given when respondent No.1 was not even eligible as per Rules as he had not put in minimum service of five years. Fraud vitiates every action and cannot be kept under the carpet on the ground that the action challenged was belated, more so when there is a reasonable explanation for such delay. | 1[ds]19. It becomes clear from the aforesaid that thispost was created specially for, which was to remain till the regular promotion ofas Executive Engineerin the parent cadre.It was nothing but an act of favouritism. Pertinently,was attached with the Chief Minister as an Officer on Special Duty at that time. It is also relevant to note that though appellant Nos. 1 and 2 had already stood promotedwho were promoted in the year 2002),t to beThey were, thus, much senior to0. Within three months of the aforesaid promotion ofwas given regular promotion in the cadre. The manner in which it was done again shows that undue favour was accorded to him. The Selection Board meeting for encadrement ofpost held bywas held on July 27, 2005. Minutes of these meeting are placed on record. It is recorded that probable vacancies in the year 2004 as assessed by the Department are thirteen, which are inclusive of existing vacancy duent of one officer and twelve vacancies that occurred duethe promotion oftwelve Executive Engineersthe rank ofSuperintending Engineers (Civil) during the year ending December 31, 2004. The Minutes also record that the Board was intimated by the Appointing Authority that the Department had given promotion tos Executive Engineercadre) with the concurrence of the Finance Department. Inter alia, on the aforesaid basis, the Selection Board recommended his encadrement. It was noted that since there were thirteen vacancies andwas at the thirteenth position in the Select List, his encadrement was recommended.Two things flow from the aforesaid Minutes, which are as follows:(a) The Board was wrongly informed that there were thirteen vacancies.was promoted asExecutive Engineer inthe year 2002 and stood promoted asExecutive Engineer inthe year 2005, i.e. within three years of his promotion asThe extant Rules provide that a person, to be eligible for promotionthe post ofExecutive Engineer, should work for a minimum period of five years asHe was, thus, not even eligible for considerationthe post ofIt appears that the Selection Board glossed over this fundamental aspect and proceeded on the basis as ifwas eligible to be considered for promotion.In spite of aforesaid two glaring defects, which goot of the matter, the recommendation of the Selection Board was accepted and the Government of Assam issued orders dated August 03, 2005 promoting various persons, includinge rank ofExecutive Engineer (Civil), PWD. Civil Appeal arising out of SLP (C) No. 257722. We, thus, find that the findings of the learned Single Judgect that encadrement ofto thepost of Executive Engineer was illegal not only on the ground that he was ineligible for consideration, as he had put in only three years of service, but also for the reason that there were only ten vacancies and not thirteen and, therefore,ld not be promoted at all, are without blemish. We are also in agreement with the findings of the learned Single Judge thatwas guilty of committing fraudulent acts in getting his promotionthe post ofExecutive Engineer out of turn and contraryce Rules. Even the Division Bench, in the impugned judgment, accepted the aforesaid position in paragraph 20 of its judgment, which reads as under:20) It is no doubt thatthe promotion ofthe appellant tothe post ofEE (encadre) and consequent encadrement is contraryce rules, since he had not put in the required service of five years to be eligiblethe post ofEE. The condition in the promotion order that the officer ?over the post so encadred? should be in the lowest position till the senior category comeson appears to be an untenable condition that could be attachedon under the service rules. There appears to be compounded illegalities. The promotion may be illegal. So much so the conditions stipulated is also illegal. Promotions have to be granted according3. Interestingly, the Division Bench has also accepted that calculation of thirteen vacancies by the Government may also be incorrect. However, this aspect is side tracked by stating that it was a bona fide mistake and not a deliberate one. Fact remains that the Division Bench has accepted that thirteen vacancies were not in existence.Notwithstanding the same, the Division Bench hasnly on the ground thatwrit petition filed by the appellants suffered from delays and laches as it was filed nine years afterthe promotion ofand has stated that even whenad taken undue favour in getting the promotion, it was not proper to upset the decision because of delay ands also thefact that in the meantimeas got promotionthe post ofSuperintending Engineer as well.es in whichwas given promotionthe post ofExecutive Engineer by creating anpost and thereafter the manner in which he was encadredthe said postby stretching the number of vacancies against the record, speaks volumes about the manner in which undue favour was shown toep in mind that at that time he was working as Officer on Special Dutyef Minister. These facts reflect clear manipulation of the system at various stages to give out of turn promotion toby bestowing undue favour. With such ‘flyover promotions?,ed fromExecutive Engineer toSuperintending Engineer by bypassing many senior colleagues in the cadre ofwho are still stagnating in the same cadre. When this factual position emerged on record and was duly approved by the Division Bench as well, we are of the opinion that the writ petition could not be dismissed on the ground of delay and laches. In fact, the Division Bench has erred in invoking this principle by dubbing the entire exercise as a bona fide error. What happened cannot be termed as ‘bona fide?. It was a clear case of favouritism shown toand the actions were contrary to Rules.That apart, there is one more reason for comingon that the Division Bench of the High Court was in error in savingon the premise that the writ petitionsfrom delay andlaches. In fact, the Association had submitted a representationen Chief Minister. Going by the nature of allegations, the Chief Minister rightly acted thereupon and referred the matter to a Committee which, after examining the matter, had also given its report stating thatthe promotion ofwas against the Rules. This provides reasonable explanation for delay, if any.We are of the opinion that it was virtually a case of fraud, at least on three counts. First, by creatingpost of Executive Engineer only forand giving him that post when he was much junior to many others. Second, encadrement ofs Executive Engineerby showing that there were thirteen posts when, in fact, there were only ten posts of Executive Engineer on that date. This was done obviously with the purpose of accommodating him. Third, the promotion was given when | 1 | 4,507 | 1,192 | ### 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:
for consideration to the post of Executive Engineer. It appears that the Selection Board glossed over this fundamental aspect and proceeded on the basis as if respondent No.1 was eligible to be considered for promotion. In spite of aforesaid two glaring defects, which go to the root of the matter, the recommendation of the Selection Board was accepted and the Government of Assam issued orders dated August 03, 2005 promoting various persons, including respondent No.1, to the rank of Executive Engineer (Civil), PWD. Civil Appeal arising out of SLP (C) No. 2577 22. We, thus, find that the findings of the learned Single Judge to the effect that encadrement of respondent No.1 to the post of Executive Engineer was illegal not only on the ground that he was ineligible for consideration, as he had put in only three years of service, but also for the reason that there were only ten vacancies and not thirteen and, therefore, respondent No.1 could not be promoted at all, are without blemish. We are also in agreement with the findings of the learned Single Judge that respondent No.1 was guilty of committing fraudulent acts in getting his promotion to the post of Executive Engineer out of turn and contrary to the service Rules. Even the Division Bench, in the impugned judgment, accepted the aforesaid position in paragraph 20 of its judgment, which reads as under:"20) It is no doubt that the promotion of the appellant to the post of EE (encadre) and consequent encadrement is contrary to the service rules, since he had not put in the required service of five years to be eligible to the promotion to the post of EE. The condition in the promotion order that the officer ?over the post so encadred? should be in the lowest position till the senior category comes to the position appears to be an untenable condition that could be attached to the promotion under the service rules. There appears to be compounded illegalities. The promotion may be illegal. So much so the conditions stipulated is also illegal. Promotions have to be granted according to the service rules.?23. Interestingly, the Division Bench has also accepted that calculation of thirteen vacancies by the Government may also be incorrect. However, this aspect is side tracked by stating that it was a bona fide mistake and not a deliberate one. Fact remains that the Division Bench has accepted that thirteen vacancies were not in existence. 24. Notwithstanding the same, the Division Bench has non-suited the appellants only on the ground that writ petition filed by the appellants suffered from delays and laches as it was filed nine years after the promotion of respondent No.1 and has stated that even when respondent No.1 had taken undue favour in getting the promotion, it was not proper to upset the decision because of delay and laches, as also the fact that in the meantime respondent No.1 has got promotion to the post of Superintending Engineer as well. 25. It, therefore, needs to be considered as to whether the order of the learned Single Judge warranted interference thereby denying the relief to the appellants on the ground that their writ petition suffered from delays and laches. 26. Having regard to the circumstances in which respondent No.1 was given promotion to the post of Executive Engineer by creating an ex-cadre post and thereafter the manner in which he was encadred to the said post by stretching the number of vacancies against the record, speaks volumes about the manner in which undue favour was shown to respondent No.1. One has to keep in mind that at that time he was working as Officer on Special Duty to the Chief Minister. These facts reflect clear manipulation of the system at various stages to give out of turn promotion to respondent No.1 by bestowing undue favour. With such ‘flyover promotions?, respondent No.1 parachuted from Assistant Executive Engineer to Superintending Engineer by bypassing many senior colleagues in the cadre of Assistant Executive Engineer who are still stagnating in the same cadre. When this factual position emerged on record and was duly approved by the Division Bench as well, we are of the opinion that the writ petition could not be dismissed on the ground of delay and laches. In fact, the Division Bench has erred in invoking this principle by dubbing the entire exercise as a bona fide error. What happened cannot be termed as ‘bona fide?. It was a clear case of favouritism shown to respondent No.1 and the actions were contrary to Rules. 27. That apart, there is one more reason for coming to the conclusion that the Division Bench of the High Court was in error in saving respondent No.1 on the premise that the writ petitions suffered from delay and laches. In fact, the Association had submitted a representation to the then Chief Minister. Going by the nature of allegations, the Chief Minister rightly acted thereupon and referred the matter to a Committee which, after examining the matter, had also given its report stating that the promotion of respondent No.1 was against the Rules. This provides reasonable explanation for delay, if any. 28. We are of the opinion that it was virtually a case of fraud, at least on three counts. First, by creating ex-cadre post of Executive Engineer only for respondent No.1 and giving him that post when he was much junior to many others. Second, encadrement of respondent No.1 as Executive Engineer by showing that there were thirteen posts when, in fact, there were only ten posts of Executive Engineer on that date. This was done obviously with the purpose of accommodating him. Third, the promotion was given when respondent No.1 was not even eligible as per Rules as he had not put in minimum service of five years. Fraud vitiates every action and cannot be kept under the carpet on the ground that the action challenged was belated, more so when there is a reasonable explanation for such delay.
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1
### Explanation:
year 2002),t to beThey were, thus, much senior to0. Within three months of the aforesaid promotion ofwas given regular promotion in the cadre. The manner in which it was done again shows that undue favour was accorded to him. The Selection Board meeting for encadrement ofpost held bywas held on July 27, 2005. Minutes of these meeting are placed on record. It is recorded that probable vacancies in the year 2004 as assessed by the Department are thirteen, which are inclusive of existing vacancy duent of one officer and twelve vacancies that occurred duethe promotion oftwelve Executive Engineersthe rank ofSuperintending Engineers (Civil) during the year ending December 31, 2004. The Minutes also record that the Board was intimated by the Appointing Authority that the Department had given promotion tos Executive Engineercadre) with the concurrence of the Finance Department. Inter alia, on the aforesaid basis, the Selection Board recommended his encadrement. It was noted that since there were thirteen vacancies andwas at the thirteenth position in the Select List, his encadrement was recommended.Two things flow from the aforesaid Minutes, which are as follows:(a) The Board was wrongly informed that there were thirteen vacancies.was promoted asExecutive Engineer inthe year 2002 and stood promoted asExecutive Engineer inthe year 2005, i.e. within three years of his promotion asThe extant Rules provide that a person, to be eligible for promotionthe post ofExecutive Engineer, should work for a minimum period of five years asHe was, thus, not even eligible for considerationthe post ofIt appears that the Selection Board glossed over this fundamental aspect and proceeded on the basis as ifwas eligible to be considered for promotion.In spite of aforesaid two glaring defects, which goot of the matter, the recommendation of the Selection Board was accepted and the Government of Assam issued orders dated August 03, 2005 promoting various persons, includinge rank ofExecutive Engineer (Civil), PWD. Civil Appeal arising out of SLP (C) No. 257722. We, thus, find that the findings of the learned Single Judgect that encadrement ofto thepost of Executive Engineer was illegal not only on the ground that he was ineligible for consideration, as he had put in only three years of service, but also for the reason that there were only ten vacancies and not thirteen and, therefore,ld not be promoted at all, are without blemish. We are also in agreement with the findings of the learned Single Judge thatwas guilty of committing fraudulent acts in getting his promotionthe post ofExecutive Engineer out of turn and contraryce Rules. Even the Division Bench, in the impugned judgment, accepted the aforesaid position in paragraph 20 of its judgment, which reads as under:20) It is no doubt thatthe promotion ofthe appellant tothe post ofEE (encadre) and consequent encadrement is contraryce rules, since he had not put in the required service of five years to be eligiblethe post ofEE. The condition in the promotion order that the officer ?over the post so encadred? should be in the lowest position till the senior category comeson appears to be an untenable condition that could be attachedon under the service rules. There appears to be compounded illegalities. The promotion may be illegal. So much so the conditions stipulated is also illegal. Promotions have to be granted according3. Interestingly, the Division Bench has also accepted that calculation of thirteen vacancies by the Government may also be incorrect. However, this aspect is side tracked by stating that it was a bona fide mistake and not a deliberate one. Fact remains that the Division Bench has accepted that thirteen vacancies were not in existence.Notwithstanding the same, the Division Bench hasnly on the ground thatwrit petition filed by the appellants suffered from delays and laches as it was filed nine years afterthe promotion ofand has stated that even whenad taken undue favour in getting the promotion, it was not proper to upset the decision because of delay ands also thefact that in the meantimeas got promotionthe post ofSuperintending Engineer as well.es in whichwas given promotionthe post ofExecutive Engineer by creating anpost and thereafter the manner in which he was encadredthe said postby stretching the number of vacancies against the record, speaks volumes about the manner in which undue favour was shown toep in mind that at that time he was working as Officer on Special Dutyef Minister. These facts reflect clear manipulation of the system at various stages to give out of turn promotion toby bestowing undue favour. With such ‘flyover promotions?,ed fromExecutive Engineer toSuperintending Engineer by bypassing many senior colleagues in the cadre ofwho are still stagnating in the same cadre. When this factual position emerged on record and was duly approved by the Division Bench as well, we are of the opinion that the writ petition could not be dismissed on the ground of delay and laches. In fact, the Division Bench has erred in invoking this principle by dubbing the entire exercise as a bona fide error. What happened cannot be termed as ‘bona fide?. It was a clear case of favouritism shown toand the actions were contrary to Rules.That apart, there is one more reason for comingon that the Division Bench of the High Court was in error in savingon the premise that the writ petitionsfrom delay andlaches. In fact, the Association had submitted a representationen Chief Minister. Going by the nature of allegations, the Chief Minister rightly acted thereupon and referred the matter to a Committee which, after examining the matter, had also given its report stating thatthe promotion ofwas against the Rules. This provides reasonable explanation for delay, if any.We are of the opinion that it was virtually a case of fraud, at least on three counts. First, by creatingpost of Executive Engineer only forand giving him that post when he was much junior to many others. Second, encadrement ofs Executive Engineerby showing that there were thirteen posts when, in fact, there were only ten posts of Executive Engineer on that date. This was done obviously with the purpose of accommodating him. Third, the promotion was given when
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Adil Jamshed Frenchman (D) By Lrs Vs. Sardar Dastur Schools Trust | Code, set aside the order of the first appellate court. 3. This is a landlord-tenant suit in which the eviction of the tenant is sought for under Section 13 of the Bombay Rents, Hotel and Lodging Houses Rates Control Act, 1947 on several grounds, namely, that the landlord reasonably and bona fide require the premises for occupation by himself, that the tenant had, without the landlords consent, erected on the premises a permanent structure and that the tenant had changed the user of the tenancy premises by conducting the coaching classes therefrom. 4. The trial court decreed that suit and directed the tenant-appellant to be ejected but only on the ground of reasonable and bona fide requirement of the landlord. The availability of other grounds for ejectment was held not to have been made out. The tenant preferred the first appeal. During the pendency of the appeal, tenant moved an application under Order 41 Rule 27 of the Code seeking permission to lead additional evidence by way of production of documents, on the ground that the said documents were not available during trial before the trial court and that the said documents were necessary for the just and fair decision on the issues involved in the case. The documents sought to be produced are : (a) correspondence between landlord and M/s. Godrej Boyce Co. Ltd. indicating negotiation for sale or use of suit premises for a showroom by the Company; (b) modified plan for construction of building submitted before the authorities by the landlords in May 1998 after the judgment passed by the trial court wherefrom it appears that the landlord does not wish to demolish the super-structure to put up the new construction; (c) Public Brochure issued by the landlords inviting donation and funds for construction, indicating lack of funds for construction with the landlord. As per the tenant, document (a) was not available to the tenant in spite of due diligence and documents (b) and (c) are the documents which came into existence after the trial court passed its judgment on 29.1.1999. 5. The first appellate court allowed the application holding inter alia that the tenants were not parties to the correspondence between the landlord and M/s. Godrej & Boyce Co.Ltd and the fact of such negotiations had been denied by the landlords and that they could not have earlier obtained the knowledge of the document in spite of due diligence. The Court has also held that the documents are necessary for a just decision of the case. 6. The High Court has, while setting aside the order of the first appellate court, held that the tenant-defendant (appellant in the first appeal) had failed to establish that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not, after the exercise of due diligence, be produced by him at the time when the decree appealed against was passed. 7. Clause (b) of sub-section (1) of Section 107 of the Code empowers an appellate court to take additional evidence. Rule 27 of Order 41 provides for the grounds on the availability of which alone, the parties to an appeal may be allowed to produce additional evidence. 8. The decree of the trial court is based on the landlords bona fide requirement of the accommodation. In appeal, the question before the Court for adjudication is whether the trial court was justified in passing the decree in favour of the landlords on the ground of bona fide need and the tenants obviously are within their rights to show that the need of the landlords is not genuine. The evidence produced in that direction would be relevant for the purpose of adjudicating the question of need of landlords. In Shiv Sarup Gupta vs. Dr. Mahesh Chand Gupta (1999) 6 SCC 222 , this Court has held that a bona fide requirement must be an outcome of a sincere and honest desire in contra-distinction with a mere pretext for evicting the tenant on the part of the landlord claiming to occupy the premises for himself or for any member of the family which would entitle the landlord to seek ejectment of the tenant. The question to be asked by a Judge of facts by placing himself in the place of the landlord is whether in the given facts proved by the material on record the need to occupy the premises can be said to be natural, real, sincere and honest. The concept of bona fide need or genuine requirement needs a practical approach instructed by the realities of life. In Deena Nath vs. Pooran Lal (2001) 5 SCC 705 , this Court related that bona fide requirement has to be distinguished from a mere whim or fanciful desire. The bona fide requirement is in praesenti and must be manifested in actual need so as to convince the Court that it is not a mere fanciful or whimsical desire. 9. It cannot be denied that the documents sought to be produced by the tenants are material and if substantiated, would have a material effect on the case of the landlords of their bona fide need of the suit premises. If, in fact, the landlord has entered into negotiations with M/s. Godrej Boyce Co. Ltd for selling or use by them of the property, the need cannot be said to be genuine. Similarly, a change in the construction plan may show that the alleged need of the landlord for the construction may not be genuine. The third document proposes to demolish the case of availability of the funds for construction with the landlord. Two of the documents came into existence after the passing of the decree by the trial court. Similarly, the correspondence entered into by the landlord with a third party could not have been within the knowledge of the tenant and therefore, the tenants statement that the documents could not have been produced before the trial court, in spite of the exercise of due diligence, was highly probable. | 1[ds]The evidence produced in that direction would be relevant for the purpose of adjudicating the question of need of landlords. In Shiv Sarup Gupta vs. Dr. Mahesh Chand Gupta (1999) 6 SCC 222 , this Court has held that a bona fide requirement must be an outcome of a sincere and honest desire in contra-distinction with a mere pretext for evicting the tenant on the part of the landlord claiming to occupy the premises for himself or for any member of the family which would entitle the landlord to seek ejectment of the tenant. The question to be asked by a Judge of facts by placing himself in the place of the landlord is whether in the given facts proved by the material on record the need to occupy the premises can be said to be natural, real, sincere and honest. The concept of bona fide need or genuine requirement needs a practical approach instructed by the realities of life. In Deena Nath vs. Pooran Lal (2001) 5 SCC 705 , this Court related that bona fide requirement has to be distinguished from a mere whim or fanciful desire. The bona fide requirement is in praesenti and must be manifested in actual need so as to convince the Court that it is not a mere fanciful or whimsical desire9. It cannot be denied that the documents sought to be produced by the tenants are material and if substantiated, would have a material effect on the case of the landlords of their bona fide need of the suit premises. If, in fact, the landlord has entered into negotiations with M/s. Godrej Boyce Co. Ltd for selling or use by them of the property, the need cannot be said to be genuine. Similarly, a change in the construction plan may show that the alleged need of the landlord for the construction may not be genuine. The third document proposes to demolish the case of availability of the funds for construction with the landlord. Two of the documents came into existence after the passing of the decree by the trial court. Similarly, the correspondence entered into by the landlord with a third party could not have been within the knowledge of the tenant and therefore, the tenants statement that the documents could not have been produced before the trial court, in spite of the exercise of due diligence, was highly probable. | 1 | 1,174 | 432 | ### 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:
Code, set aside the order of the first appellate court. 3. This is a landlord-tenant suit in which the eviction of the tenant is sought for under Section 13 of the Bombay Rents, Hotel and Lodging Houses Rates Control Act, 1947 on several grounds, namely, that the landlord reasonably and bona fide require the premises for occupation by himself, that the tenant had, without the landlords consent, erected on the premises a permanent structure and that the tenant had changed the user of the tenancy premises by conducting the coaching classes therefrom. 4. The trial court decreed that suit and directed the tenant-appellant to be ejected but only on the ground of reasonable and bona fide requirement of the landlord. The availability of other grounds for ejectment was held not to have been made out. The tenant preferred the first appeal. During the pendency of the appeal, tenant moved an application under Order 41 Rule 27 of the Code seeking permission to lead additional evidence by way of production of documents, on the ground that the said documents were not available during trial before the trial court and that the said documents were necessary for the just and fair decision on the issues involved in the case. The documents sought to be produced are : (a) correspondence between landlord and M/s. Godrej Boyce Co. Ltd. indicating negotiation for sale or use of suit premises for a showroom by the Company; (b) modified plan for construction of building submitted before the authorities by the landlords in May 1998 after the judgment passed by the trial court wherefrom it appears that the landlord does not wish to demolish the super-structure to put up the new construction; (c) Public Brochure issued by the landlords inviting donation and funds for construction, indicating lack of funds for construction with the landlord. As per the tenant, document (a) was not available to the tenant in spite of due diligence and documents (b) and (c) are the documents which came into existence after the trial court passed its judgment on 29.1.1999. 5. The first appellate court allowed the application holding inter alia that the tenants were not parties to the correspondence between the landlord and M/s. Godrej & Boyce Co.Ltd and the fact of such negotiations had been denied by the landlords and that they could not have earlier obtained the knowledge of the document in spite of due diligence. The Court has also held that the documents are necessary for a just decision of the case. 6. The High Court has, while setting aside the order of the first appellate court, held that the tenant-defendant (appellant in the first appeal) had failed to establish that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not, after the exercise of due diligence, be produced by him at the time when the decree appealed against was passed. 7. Clause (b) of sub-section (1) of Section 107 of the Code empowers an appellate court to take additional evidence. Rule 27 of Order 41 provides for the grounds on the availability of which alone, the parties to an appeal may be allowed to produce additional evidence. 8. The decree of the trial court is based on the landlords bona fide requirement of the accommodation. In appeal, the question before the Court for adjudication is whether the trial court was justified in passing the decree in favour of the landlords on the ground of bona fide need and the tenants obviously are within their rights to show that the need of the landlords is not genuine. The evidence produced in that direction would be relevant for the purpose of adjudicating the question of need of landlords. In Shiv Sarup Gupta vs. Dr. Mahesh Chand Gupta (1999) 6 SCC 222 , this Court has held that a bona fide requirement must be an outcome of a sincere and honest desire in contra-distinction with a mere pretext for evicting the tenant on the part of the landlord claiming to occupy the premises for himself or for any member of the family which would entitle the landlord to seek ejectment of the tenant. The question to be asked by a Judge of facts by placing himself in the place of the landlord is whether in the given facts proved by the material on record the need to occupy the premises can be said to be natural, real, sincere and honest. The concept of bona fide need or genuine requirement needs a practical approach instructed by the realities of life. In Deena Nath vs. Pooran Lal (2001) 5 SCC 705 , this Court related that bona fide requirement has to be distinguished from a mere whim or fanciful desire. The bona fide requirement is in praesenti and must be manifested in actual need so as to convince the Court that it is not a mere fanciful or whimsical desire. 9. It cannot be denied that the documents sought to be produced by the tenants are material and if substantiated, would have a material effect on the case of the landlords of their bona fide need of the suit premises. If, in fact, the landlord has entered into negotiations with M/s. Godrej Boyce Co. Ltd for selling or use by them of the property, the need cannot be said to be genuine. Similarly, a change in the construction plan may show that the alleged need of the landlord for the construction may not be genuine. The third document proposes to demolish the case of availability of the funds for construction with the landlord. Two of the documents came into existence after the passing of the decree by the trial court. Similarly, the correspondence entered into by the landlord with a third party could not have been within the knowledge of the tenant and therefore, the tenants statement that the documents could not have been produced before the trial court, in spite of the exercise of due diligence, was highly probable.
### Response:
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### Explanation:
The evidence produced in that direction would be relevant for the purpose of adjudicating the question of need of landlords. In Shiv Sarup Gupta vs. Dr. Mahesh Chand Gupta (1999) 6 SCC 222 , this Court has held that a bona fide requirement must be an outcome of a sincere and honest desire in contra-distinction with a mere pretext for evicting the tenant on the part of the landlord claiming to occupy the premises for himself or for any member of the family which would entitle the landlord to seek ejectment of the tenant. The question to be asked by a Judge of facts by placing himself in the place of the landlord is whether in the given facts proved by the material on record the need to occupy the premises can be said to be natural, real, sincere and honest. The concept of bona fide need or genuine requirement needs a practical approach instructed by the realities of life. In Deena Nath vs. Pooran Lal (2001) 5 SCC 705 , this Court related that bona fide requirement has to be distinguished from a mere whim or fanciful desire. The bona fide requirement is in praesenti and must be manifested in actual need so as to convince the Court that it is not a mere fanciful or whimsical desire9. It cannot be denied that the documents sought to be produced by the tenants are material and if substantiated, would have a material effect on the case of the landlords of their bona fide need of the suit premises. If, in fact, the landlord has entered into negotiations with M/s. Godrej Boyce Co. Ltd for selling or use by them of the property, the need cannot be said to be genuine. Similarly, a change in the construction plan may show that the alleged need of the landlord for the construction may not be genuine. The third document proposes to demolish the case of availability of the funds for construction with the landlord. Two of the documents came into existence after the passing of the decree by the trial court. Similarly, the correspondence entered into by the landlord with a third party could not have been within the knowledge of the tenant and therefore, the tenants statement that the documents could not have been produced before the trial court, in spite of the exercise of due diligence, was highly probable.
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The Sirsilk Ltd. And Others Vs. Government Of Andhra Pradesh & Another | award once the Government has been informed jointly by the parties that a settlement binding under S. 18 (1) has been arrived at. It is true that S. 17 (1) is mandatory and ordinarily the Government has to publish an award sent to it by the tribunal; but where a situation like the one in the present cases arises which may lead to a conflict between a settlement under S. 18 (1) and an award binding under S. 18 (3) on publication, the only solution is to withhold the award from publication. This would not in our opinion in any way affect the mandatory nature of the provision in S. 17 (1), for the Government would ordinarily have to publish the award but for the special situation arising in such cases.7. The matter may be looked at in another way. The reference to the tribunal is for the purpose of resolving the dispute that may have arisen between employers and their workmen. Where a settlement is arrived at between the parties to a dispute before the tribunal after the award has been submitted to Government but before its publication, there is in fact no dispute left to be resolved by the publication of the award. In such a case, the award sent to Government may very well be considered to have become infructuous and so the Government should refrain from publishing such an award because no dispute remains to be resolved by it.8. It is however urged that the view we have taken may create a difficulty inasmuch as it is possible for one party or the other to represent to the Government that the settlement has been arrived at as a result of fraud, misrepresentation or undue influence or that it is not binding as the workmens representative had bartered away their interests for personal considerations. This difficulty, if it is a difficulty, will always be there even in a case where a settlement has been arrived at ordinarily between the parties and is binding under S. 18 (1), even though no dispute has been referred in that connection to a tribunal. Ordinarily however such difficulty should not arise at all, if we read Ss. 2 (p), 18 (1) and 19 (1) of the Act together. Section 2 (p) lays down what a settlement is and it includes "a written agreement between the employer and workmen arrived at otherwise than in the course of conciliation proceeding where such agreement has been signed by the parties thereto in such manner as may be prescribed and a copy thereof has been sent to the appropriate Government and the conciliation officer." Therefore, the settlement has to be signed in the manner prescribed by the rules and a copy of it has to be sent to the Government and the conciliation officer. This should ordinarily ensure that the agreement has been arrived at without any of those defects to which we have referred above, if it is in accordance with the rules. Then S. 18 (1) provides that such a settlement would be binding between the parties and S. 19 (1) provides that it shall come into force on the date it was signed or on the date on which it says that it shall come into force. Therefore, as soon as an agreement is signed in the prescribed manner and a copy of it is sent to the Government and the conciliation officer it becomes binding at once on the parties to it and comes into operation on the date it is signed or on the date which might be mentioned in it for its coming into operation. In such a case there is no scope for any inquiry by Government as to the bona fide character of the settlement which becomes binding and comes into operation once it is signed in the manner provided in the rules and a copy is sent to the Government and the conciliation officer. The settlement having thus become binding and in many cases having already come into operation, there is no scope for any inquiry by the Government as to the bona fides of the settlement. In such a case in view of the possibility of conflict between the settlement in view of its binding nature under S. 18 (1) and an award which might become binding on publication under S. 18 (3), the proper course for the Government is to withhold the award from publication to avoid this conflict. If any dispute of the nature referred to above arises as to a settlement, that would be another industrial dispute, which the Government may refer for adjudication and if on such an adjudication the settlement is found not to be binding under S. 18 (1) of the Act it will always be open to the Government then to publish the award which it had withheld, though we do not think that such instances are likely to be anything but extremely rare. We are, therefore, of opinion that though S. 17 (1) is mandatory and the Government is bound to publish the award received by it from an industrial tribunal, the situation arising in a case like the present is of an exceptional nature and requires reconciliation between S. 18 (1) and S. 18 (3), and in such a situation the only way to reconcile the two provisions its to withhold the publication of the award, as a binding settlement has already come into force in order to avoid possible conflict between a binding settlement under S. 18 (1) and a binding award under S. 18 (3). In such a situation we are of opinion that the Government ought not to publish the award under S. 17 (1) and in cases where Government is going to publish it, it can be directed not to publish the award in view of the binding settlement arrived at between the parties under S. 18(1) with respect to the very matters which were the subject-matter of adjudication under the award. | 1[ds]4. We are of opinion that the first contention on behalf of the appellants, namely, that the publication of the award under S. 17 (1) is directory cannot be accepted.It is however urged that the view we have taken may create a difficulty inasmuch as it is possible for one party or the other to represent to the Government that the settlement has been arrived at as a result of fraud, misrepresentation or undue influence or that it is not binding as the workmens representative had bartered away their interests for personal considerations. This difficulty, if it is a difficulty, will always be there even in a case where a settlement has been arrived at ordinarily between the parties and is binding under S. 18 (1), even though no dispute has been referred in that connection to a tribunal. Ordinarily however such difficulty should not arise at all, if we read Ss. 2 (p), 18 (1) and 19 (1) of the Act together. Section 2 (p) lays down what a settlement is and it includes "a written agreement between the employer and workmen arrived at otherwise than in the course of conciliation proceeding where such agreement has been signed by the parties thereto in such manner as may be prescribed and a copy thereof has been sent to the appropriate Government and the conciliation officer." Therefore, the settlement has to be signed in the manner prescribed by the rules and a copy of it has to be sent to the Government and the conciliation officer. This should ordinarily ensure that the agreement has been arrived at without any of those defects to which we have referred above, if it is in accordance with the rules. Then S. 18 (1) provides that such a settlement would be binding between the parties and S. 19 (1) provides that it shall come into force on the date it was signed or on the date on which it says that it shall come into force. Therefore, as soon as an agreement is signed in the prescribed manner and a copy of it is sent to the Government and the conciliation officer it becomes binding at once on the parties to it and comes into operation on the date it is signed or on the date which might be mentioned in it for its coming into operation. In such a case there is no scope for any inquiry by Government as to the bona fide character of the settlement which becomes binding and comes into operation once it is signed in the manner provided in the rules and a copy is sent to the Government and the conciliation officer. The settlement having thus become binding and in many cases having already come into operation, there is no scope for any inquiry by the Government as to the bona fides of the settlement. In such a case in view of the possibility of conflict between the settlement in view of its binding nature under S. 18 (1) and an award which might become binding on publication under S. 18 (3), the proper course for the Government is to withhold the award from publication to avoid this conflict. If any dispute of the nature referred to above arises as to a settlement, that would be another industrial dispute, which the Government may refer for adjudication and if on such an adjudication the settlement is found not to be binding under S. 18 (1) of the Act it will always be open to the Government then to publish the award which it had withheld, though we do not think that such instances are likely to be anything but extremely rare. We are, therefore, of opinion that though S. 17 (1) is mandatory and the Government is bound to publish the award received by it from an industrial tribunal, the situation arising in a case like the present is of an exceptional nature and requires reconciliation between S. 18 (1) and S. 18 (3), and in such a situation the only way to reconcile the two provisions its to withhold the publication of the award, as a binding settlement has already come into force in order to avoid possible conflict between a binding settlement under S. 18 (1) and a binding award under S. 18 (3). In such a situation we are of opinion that the Government ought not to publish the award under S. 17 (1) and in cases where Government is going to publish it, it can be directed not to publish the award in view of the binding settlement arrived at between the parties under S. 18(1) with respect to the very matters which were the subject-matter of adjudication under the award. | 1 | 3,138 | 868 | ### 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:
award once the Government has been informed jointly by the parties that a settlement binding under S. 18 (1) has been arrived at. It is true that S. 17 (1) is mandatory and ordinarily the Government has to publish an award sent to it by the tribunal; but where a situation like the one in the present cases arises which may lead to a conflict between a settlement under S. 18 (1) and an award binding under S. 18 (3) on publication, the only solution is to withhold the award from publication. This would not in our opinion in any way affect the mandatory nature of the provision in S. 17 (1), for the Government would ordinarily have to publish the award but for the special situation arising in such cases.7. The matter may be looked at in another way. The reference to the tribunal is for the purpose of resolving the dispute that may have arisen between employers and their workmen. Where a settlement is arrived at between the parties to a dispute before the tribunal after the award has been submitted to Government but before its publication, there is in fact no dispute left to be resolved by the publication of the award. In such a case, the award sent to Government may very well be considered to have become infructuous and so the Government should refrain from publishing such an award because no dispute remains to be resolved by it.8. It is however urged that the view we have taken may create a difficulty inasmuch as it is possible for one party or the other to represent to the Government that the settlement has been arrived at as a result of fraud, misrepresentation or undue influence or that it is not binding as the workmens representative had bartered away their interests for personal considerations. This difficulty, if it is a difficulty, will always be there even in a case where a settlement has been arrived at ordinarily between the parties and is binding under S. 18 (1), even though no dispute has been referred in that connection to a tribunal. Ordinarily however such difficulty should not arise at all, if we read Ss. 2 (p), 18 (1) and 19 (1) of the Act together. Section 2 (p) lays down what a settlement is and it includes "a written agreement between the employer and workmen arrived at otherwise than in the course of conciliation proceeding where such agreement has been signed by the parties thereto in such manner as may be prescribed and a copy thereof has been sent to the appropriate Government and the conciliation officer." Therefore, the settlement has to be signed in the manner prescribed by the rules and a copy of it has to be sent to the Government and the conciliation officer. This should ordinarily ensure that the agreement has been arrived at without any of those defects to which we have referred above, if it is in accordance with the rules. Then S. 18 (1) provides that such a settlement would be binding between the parties and S. 19 (1) provides that it shall come into force on the date it was signed or on the date on which it says that it shall come into force. Therefore, as soon as an agreement is signed in the prescribed manner and a copy of it is sent to the Government and the conciliation officer it becomes binding at once on the parties to it and comes into operation on the date it is signed or on the date which might be mentioned in it for its coming into operation. In such a case there is no scope for any inquiry by Government as to the bona fide character of the settlement which becomes binding and comes into operation once it is signed in the manner provided in the rules and a copy is sent to the Government and the conciliation officer. The settlement having thus become binding and in many cases having already come into operation, there is no scope for any inquiry by the Government as to the bona fides of the settlement. In such a case in view of the possibility of conflict between the settlement in view of its binding nature under S. 18 (1) and an award which might become binding on publication under S. 18 (3), the proper course for the Government is to withhold the award from publication to avoid this conflict. If any dispute of the nature referred to above arises as to a settlement, that would be another industrial dispute, which the Government may refer for adjudication and if on such an adjudication the settlement is found not to be binding under S. 18 (1) of the Act it will always be open to the Government then to publish the award which it had withheld, though we do not think that such instances are likely to be anything but extremely rare. We are, therefore, of opinion that though S. 17 (1) is mandatory and the Government is bound to publish the award received by it from an industrial tribunal, the situation arising in a case like the present is of an exceptional nature and requires reconciliation between S. 18 (1) and S. 18 (3), and in such a situation the only way to reconcile the two provisions its to withhold the publication of the award, as a binding settlement has already come into force in order to avoid possible conflict between a binding settlement under S. 18 (1) and a binding award under S. 18 (3). In such a situation we are of opinion that the Government ought not to publish the award under S. 17 (1) and in cases where Government is going to publish it, it can be directed not to publish the award in view of the binding settlement arrived at between the parties under S. 18(1) with respect to the very matters which were the subject-matter of adjudication under the award.
### Response:
1
### Explanation:
4. We are of opinion that the first contention on behalf of the appellants, namely, that the publication of the award under S. 17 (1) is directory cannot be accepted.It is however urged that the view we have taken may create a difficulty inasmuch as it is possible for one party or the other to represent to the Government that the settlement has been arrived at as a result of fraud, misrepresentation or undue influence or that it is not binding as the workmens representative had bartered away their interests for personal considerations. This difficulty, if it is a difficulty, will always be there even in a case where a settlement has been arrived at ordinarily between the parties and is binding under S. 18 (1), even though no dispute has been referred in that connection to a tribunal. Ordinarily however such difficulty should not arise at all, if we read Ss. 2 (p), 18 (1) and 19 (1) of the Act together. Section 2 (p) lays down what a settlement is and it includes "a written agreement between the employer and workmen arrived at otherwise than in the course of conciliation proceeding where such agreement has been signed by the parties thereto in such manner as may be prescribed and a copy thereof has been sent to the appropriate Government and the conciliation officer." Therefore, the settlement has to be signed in the manner prescribed by the rules and a copy of it has to be sent to the Government and the conciliation officer. This should ordinarily ensure that the agreement has been arrived at without any of those defects to which we have referred above, if it is in accordance with the rules. Then S. 18 (1) provides that such a settlement would be binding between the parties and S. 19 (1) provides that it shall come into force on the date it was signed or on the date on which it says that it shall come into force. Therefore, as soon as an agreement is signed in the prescribed manner and a copy of it is sent to the Government and the conciliation officer it becomes binding at once on the parties to it and comes into operation on the date it is signed or on the date which might be mentioned in it for its coming into operation. In such a case there is no scope for any inquiry by Government as to the bona fide character of the settlement which becomes binding and comes into operation once it is signed in the manner provided in the rules and a copy is sent to the Government and the conciliation officer. The settlement having thus become binding and in many cases having already come into operation, there is no scope for any inquiry by the Government as to the bona fides of the settlement. In such a case in view of the possibility of conflict between the settlement in view of its binding nature under S. 18 (1) and an award which might become binding on publication under S. 18 (3), the proper course for the Government is to withhold the award from publication to avoid this conflict. If any dispute of the nature referred to above arises as to a settlement, that would be another industrial dispute, which the Government may refer for adjudication and if on such an adjudication the settlement is found not to be binding under S. 18 (1) of the Act it will always be open to the Government then to publish the award which it had withheld, though we do not think that such instances are likely to be anything but extremely rare. We are, therefore, of opinion that though S. 17 (1) is mandatory and the Government is bound to publish the award received by it from an industrial tribunal, the situation arising in a case like the present is of an exceptional nature and requires reconciliation between S. 18 (1) and S. 18 (3), and in such a situation the only way to reconcile the two provisions its to withhold the publication of the award, as a binding settlement has already come into force in order to avoid possible conflict between a binding settlement under S. 18 (1) and a binding award under S. 18 (3). In such a situation we are of opinion that the Government ought not to publish the award under S. 17 (1) and in cases where Government is going to publish it, it can be directed not to publish the award in view of the binding settlement arrived at between the parties under S. 18(1) with respect to the very matters which were the subject-matter of adjudication under the award.
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M/S Girias Invest.Pvt.Ltd Vs. State Of Karnataka | 3 SCC 752 , Om Prakash & Anr. Vs. State of U.P. & Ors. (1998) 6 SCC 1 , Union of India & Ors. vs. Mukesh Hans (2004) 8 SCC 14 , Union of India & Ors. vs. Krishan Lal & Ors. (2004) 8 SCC 453 , Hindustan Petroleum Cor. Ltd. vs. Darius Shapur Chennai & Ors. (2005) 7 SCC 627 and P.Naranayyapa & Anr. Vs. State of Karnataka (2006) 7 SCC 578 . Concededly, Section 28 (3) of the Act gives a right of personal hearing to the owner of the land or any other interested person and the judgments cited by the learned counsel therefore eminently support the appellants case. The question as to whether an effective personal hearing was given or not, however is a question of fact and we notice from a perusal of the record that such hearing was indeed given and that the appellant had exercised his rights thereunder and it was only after the procedure under section 28(3) had been followed, that the final Notification had been issued. We find that the learned Single Judge and the Division Bench of the High Court have given categorical findings against the appellant on this score and we have no reason to differ therefrom. We have nevertheless examined the record to re-assure ourselves as to the correctness of the High Courts decision. After the objections/documents had been filed, the file was taken up by the Collector on 16th January, 2006 on which date Shri N.R. Prakash representing the land owners was not present. The Collector, after examining the facts of the case, adjourned the case to 24th January 2006 for orders in accordance with Section 28(3) of the Act and the final orders on the proceedings under section 28(3) of the Act were, in fact, made on the 2nd February 2006. Mr. Dave has emphasized that as the matter had been adjourned on 16th January 2006 for orders there was absolutely no justification in finalizing the proceedings on 2nd February 2006 without giving a hearing to the appellants. We observe, however, that merely because the word orders has been recorded in the proceedings of 16th January 2006, it does not imply that the matter remained incohate or that it envisaged a further hearing. The record shows that comprehensive objections alongwith documents had been filed by the appellants on 16th January 2006 wherein after stating the history as to how they had become owners of the land they had given their objections to its acquisition and in paragraphs 19 and 21 stated as under: In the event of your requiring any clarification, we also request you to offer us a personal hearing in the above matter for us to place the above facts for your kind consideration. We do hope that justice would be done and valuable investment in the land would be protected and we are permitted to carry on the construction of the Shopping Complex as planned towards which the necessary finance have been made available to us by Andhra Bank. We have to request you to provide us with a personal hearing in the matter, as also permit us to file any other documents or additional statements as may be required. 20. The aforesaid paragraphs clearly reveal that the request for a personal hearing was conditional in that if a clarification or additional documents were required, time for that purpose be given. It is also significant that the objections filed by the appellants form (almost exclusively) the basis for the present writ petition inasmuch the fact that there was no need for the change of the alignment of the trumpet interchange and the access road or that alternative land was available for that purpose, had been spelt out therein. The Collector in dealing with the objections had observed that several objections/documents had been filed by the appellants but were liable to rejection as the acquisition was necessary for the Bangalore Airport. We are also not mindful of the fact that though the rights of an individual whose property is sought to be acquired must be scrupulously respected, an acquisition for the benefit of the public at large is not to be lightly quashed and extraordinary reasons must exist for doing so. This is the ratio of the judgment of this Court in Ramniklal N.Bhutta & Anr. Vs. State of Maharashtra & Ors. (1997) 1 SCC 134 wherein it has been held as under: Whatever may have been the practices in the past, a time has come where the courts should keep the larger public interest in mind while exercising their power of granting stay/injunction. The power under Article 226 is discretionary. It will be exercised only in furtherance of interests of justice and not merely on the making out of a legal point. And in the matter of land acquisition for public purposes, the interests of justice and the public interest coalesce. They are very often one and the same. Even in a civil suit, granting of injunction or other similar orders, more particularly of an interlocutory nature, is equally discretionary. The courts have to weigh the public interest vis-à-vis the private interest while exercising the power under Article 226 - indeed any of their discretionary powers. It may even be open to the High Court to direct, in case it finds finally that the acquisition was vitiated on account of non-compliance with some legal requirement that the person interested shall also be entitled to a particular amount of damages to be awarded as a lump sum or calculated at a certain percentage of compensation payable. There are many ways of affording appropriate relief and redressing a wrong; quashing the acquisition proceedings is not the only mode of redress. To wit, it is ultimately a matter of balancing the competing interests. Beyond this, it is neither possible nor advisable to say. We hope and trust that these considerations will be duly borne in mind by the courts while dealing with challenges to acquisition proceedings. | 0[ds]are unable to accept this argument as the facts depict quite a different picture. From the statement of objections filed on behalf of the respondent No.1, the State of Karnataka before the Karnataka High Court, we notice that the lands covered by the Notification dated 6th April 2004 were proposed to be acquired based on the tentative requirements indicated by the Airport Authority in its letter dated 2nd December 2002. After issuance of the aforesaid Notification a letter was addressed to the Airport Authority to reappraise the matter keeping in view the technical needs and requirements on which a team of the Chief Executive Officer and Head Technical of the Airport Authority, a representative of the KSIIDC and other local revenue officials visited the site on 1st September 2004 and noticed that there were some adverse ground conditions and difficulties such as the existence of a large pond which necessitated the change. It also appears that there was a great deal of correspondence between all concerned and the final decision was taken to change the location of the trumpet interchange and access road after due deliberation, as has been revealed from the letters dated 22nd April 2005, 14th July 2005 and 19th July 2005.8. Mr. Daves peripheral argument that the change had been made on account of the objections raised by the prospective land losers of the first acquisition is also unacceptable as this objection had been made only with respect to the land proposed for the special runway, a fact which had also figured in the letter dated 19th July 2005. It is the admitted position that the land had been purchased by the appellants vide sale deeds dated 23rd November 2005 and 26th November 2005 i.e. long after the final decision had been taken to acquire the land in the light of the revised proposal. It is also significant that in the objections filed before the Land Acquisition Collector, no malafide against any person has been alleged. We also find that malafides have been alleged in paragraph 4.9 of the pleadings filed before the Karnataka High Court.11. It is obvious from a reading of the pleadings quoted above that only vague allegations of malafides have been leveled and that too without any basis. There can be two ways by which a case of malafides can be made out; one that the action which is impugned has been taken with the specific object of damaging the interest of the party and, secondly, such action is aimed at helping some party which results in damage to the party alleging malafides. It would be seen that there is no allegation whatsoever in the pleadings that the case falls within the first category but an inference of malafide has been sought to be drawn in the course of a vague pleading that the change had been made to help certain important persons who would have lost their land under the original acquisition. These allegations have been replied to in the paragraph quoted above and reveal that the land which had been denotified belonged to those who had absolutely no position or power. In this view of the matter, the judgments cited by Mr. Dave have absolutely no bearing of the facts of the case19. Mr. Dave has argued with emphasis, that the personal hearing envisaged to an interested person under section 28(3) of the Act had in fact not been given to the appellants and that the proceedings held by the Collector pursuant to the notice dated 12th December 2005 were a mere eye wash. He has pointed out that as per the written objections filed by the petitioner on 16th January 2006, a specific request had been made for a personal hearing, but notwithstanding the request the Collector gave his decision on the objections on 2nd February 2006 and the final Notification was issued on 2nd June 2006. To supplement his argument that in the absence of a personal hearing under section 5(A) of the Land Acquisition Act, or section 28(3) of the Act stand vitiated, Mr. Dave has placed reliance on Shri Farid Ahmad Abdul Samad & Anr. Vs. The Municipal Corporation of City of Ahmedabad & Anr. (1976) 3 SCC 719 , Rambhai Lakhabai Bhakt vs. State of Gujarat & Anr. (1995) 3 SCC 752 , Om Prakash & Anr. Vs. State of U.P. & Ors. (1998) 6 SCC 1 , Union of India & Ors. vs. Mukesh Hans (2004) 8 SCC 14 , Union of India & Ors. vs. Krishan Lal & Ors. (2004) 8 SCC 453 , Hindustan Petroleum Cor. Ltd. vs. Darius Shapur Chennai & Ors. (2005) 7 SCC 627 and P.Naranayyapa & Anr. Vs. State of Karnataka (2006) 7 SCC 578 . Concededly, Section 28 (3) of the Act gives a right of personal hearing to the owner of the land or any other interested person and the judgments cited by the learned counsel therefore eminently support the appellants case. The question as to whether an effective personal hearing was given or not, however is a question of fact and we notice from a perusal of the record that such hearing was indeed given and that the appellant had exercised his rights thereunder and it was only after the procedure under section 28(3) had been followed, that the final Notification had been issued. We find that the learned Single Judge and the Division Bench of the High Court have given categorical findings against the appellant on this score and we have no reason to differ therefrom. We have nevertheless examined the record to re-assure ourselves as to the correctness of the High Courts decision. After the objections/documents had been filed, the file was taken up by the Collector on 16th January, 2006 on which date Shri N.R. Prakash representing the land owners was not present. The Collector, after examining the facts of the case, adjourned the case to 24th January 2006 for orders in accordance with Section 28(3) of the Act and the final orders on the proceedings under section 28(3) of the Act were, in fact, made on the 2nd February 2006. Mr. Dave has emphasized that as the matter had been adjourned on 16th January 2006 for orders there was absolutely no justification in finalizing the proceedings on 2nd February 2006 without giving a hearing to the appellants. We observe, however, that merely because the word orders has been recorded in the proceedings of 16th January 2006, it does not imply that the matter remained incohate or that it envisaged a further hearing. The record shows that comprehensive objections alongwith documents had been filed by the appellants on 16th January 2006 wherein after stating the history as to how they had become owners of the land they had given their objections to its acquisition and in paragraphs 19 and 21 stated as under:In the event of your requiring any clarification, we also request you to offer us a personal hearing in the above matter for us to place the above facts for your kind considerationWe do hope that justice would be done and valuable investment in the land would be protected and we are permitted to carry on the construction of the Shopping Complex as planned towards which the necessary finance have been made available to us by Andhra BankWe have to request you to provide us with a personal hearing in the matter, as also permit us to file any other documents or additional statements as may be required20. The aforesaid paragraphs clearly reveal that the request for a personal hearing was conditional in that if a clarification or additional documents were required, time for that purpose be given. It is also significant that the objections filed by the appellants form (almost exclusively) the basis for the present writ petition inasmuch the fact that there was no need for the change of the alignment of the trumpet interchange and the access road or that alternative land was available for that purpose, had been spelt out therein. The Collector in dealing with the objections had observed that several objections/documents had been filed by the appellants but were liable to rejection as the acquisition was necessary for the Bangalore Airport. We are also not mindful of the fact that though the rights of an individual whose property is sought to be acquired must be scrupulously respected, an acquisition for the benefit of the public at large is not to be lightly quashed and extraordinary reasons must exist for doing so. This is the ratio of the judgment of this Court in Ramniklal N.Bhutta & Anr. Vs. State of Maharashtra & Ors. (1997) 1 SCC 134 wherein it has been held as under:Whatever may have been the practices in the past, a time has come where the courts should keep the larger public interest in mind while exercising their power of granting stay/injunction. The power under Article 226 is discretionary. It will be exercised only in furtherance of interests of justice and not merely on the making out of a legal point. And in the matter of land acquisition for public purposes, the interests of justice and the public interest coalesce. They are very often one and the same. Even in a civil suit, granting of injunction or other similar orders, more particularly of an interlocutory nature, is equally discretionary. The courts have to weigh the public interest vis-à-vis the private interest while exercising the power under Article 226 - indeed any of their discretionary powers. It may even be open to the High Court to direct, in case it finds finally that the acquisition was vitiated on account of non-compliance with some legal requirement that the person interested shall also be entitled to a particular amount of damages to be awarded as a lump sum or calculated at a certain percentage of compensation payable. There are many ways of affording appropriate relief and redressing a wrong; quashing the acquisition proceedings is not the only mode of redress. To wit, it is ultimately a matter of balancing the competing interests. Beyond this, it is neither possible nor advisable to say. We hope and trust that these considerations will be duly borne in mind by the courts while dealing with challenges to acquisition proceedings | 0 | 7,921 | 1,852 | ### 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:
3 SCC 752 , Om Prakash & Anr. Vs. State of U.P. & Ors. (1998) 6 SCC 1 , Union of India & Ors. vs. Mukesh Hans (2004) 8 SCC 14 , Union of India & Ors. vs. Krishan Lal & Ors. (2004) 8 SCC 453 , Hindustan Petroleum Cor. Ltd. vs. Darius Shapur Chennai & Ors. (2005) 7 SCC 627 and P.Naranayyapa & Anr. Vs. State of Karnataka (2006) 7 SCC 578 . Concededly, Section 28 (3) of the Act gives a right of personal hearing to the owner of the land or any other interested person and the judgments cited by the learned counsel therefore eminently support the appellants case. The question as to whether an effective personal hearing was given or not, however is a question of fact and we notice from a perusal of the record that such hearing was indeed given and that the appellant had exercised his rights thereunder and it was only after the procedure under section 28(3) had been followed, that the final Notification had been issued. We find that the learned Single Judge and the Division Bench of the High Court have given categorical findings against the appellant on this score and we have no reason to differ therefrom. We have nevertheless examined the record to re-assure ourselves as to the correctness of the High Courts decision. After the objections/documents had been filed, the file was taken up by the Collector on 16th January, 2006 on which date Shri N.R. Prakash representing the land owners was not present. The Collector, after examining the facts of the case, adjourned the case to 24th January 2006 for orders in accordance with Section 28(3) of the Act and the final orders on the proceedings under section 28(3) of the Act were, in fact, made on the 2nd February 2006. Mr. Dave has emphasized that as the matter had been adjourned on 16th January 2006 for orders there was absolutely no justification in finalizing the proceedings on 2nd February 2006 without giving a hearing to the appellants. We observe, however, that merely because the word orders has been recorded in the proceedings of 16th January 2006, it does not imply that the matter remained incohate or that it envisaged a further hearing. The record shows that comprehensive objections alongwith documents had been filed by the appellants on 16th January 2006 wherein after stating the history as to how they had become owners of the land they had given their objections to its acquisition and in paragraphs 19 and 21 stated as under: In the event of your requiring any clarification, we also request you to offer us a personal hearing in the above matter for us to place the above facts for your kind consideration. We do hope that justice would be done and valuable investment in the land would be protected and we are permitted to carry on the construction of the Shopping Complex as planned towards which the necessary finance have been made available to us by Andhra Bank. We have to request you to provide us with a personal hearing in the matter, as also permit us to file any other documents or additional statements as may be required. 20. The aforesaid paragraphs clearly reveal that the request for a personal hearing was conditional in that if a clarification or additional documents were required, time for that purpose be given. It is also significant that the objections filed by the appellants form (almost exclusively) the basis for the present writ petition inasmuch the fact that there was no need for the change of the alignment of the trumpet interchange and the access road or that alternative land was available for that purpose, had been spelt out therein. The Collector in dealing with the objections had observed that several objections/documents had been filed by the appellants but were liable to rejection as the acquisition was necessary for the Bangalore Airport. We are also not mindful of the fact that though the rights of an individual whose property is sought to be acquired must be scrupulously respected, an acquisition for the benefit of the public at large is not to be lightly quashed and extraordinary reasons must exist for doing so. This is the ratio of the judgment of this Court in Ramniklal N.Bhutta & Anr. Vs. State of Maharashtra & Ors. (1997) 1 SCC 134 wherein it has been held as under: Whatever may have been the practices in the past, a time has come where the courts should keep the larger public interest in mind while exercising their power of granting stay/injunction. The power under Article 226 is discretionary. It will be exercised only in furtherance of interests of justice and not merely on the making out of a legal point. And in the matter of land acquisition for public purposes, the interests of justice and the public interest coalesce. They are very often one and the same. Even in a civil suit, granting of injunction or other similar orders, more particularly of an interlocutory nature, is equally discretionary. The courts have to weigh the public interest vis-à-vis the private interest while exercising the power under Article 226 - indeed any of their discretionary powers. It may even be open to the High Court to direct, in case it finds finally that the acquisition was vitiated on account of non-compliance with some legal requirement that the person interested shall also be entitled to a particular amount of damages to be awarded as a lump sum or calculated at a certain percentage of compensation payable. There are many ways of affording appropriate relief and redressing a wrong; quashing the acquisition proceedings is not the only mode of redress. To wit, it is ultimately a matter of balancing the competing interests. Beyond this, it is neither possible nor advisable to say. We hope and trust that these considerations will be duly borne in mind by the courts while dealing with challenges to acquisition proceedings.
### Response:
0
### Explanation:
(1995) 3 SCC 752 , Om Prakash & Anr. Vs. State of U.P. & Ors. (1998) 6 SCC 1 , Union of India & Ors. vs. Mukesh Hans (2004) 8 SCC 14 , Union of India & Ors. vs. Krishan Lal & Ors. (2004) 8 SCC 453 , Hindustan Petroleum Cor. Ltd. vs. Darius Shapur Chennai & Ors. (2005) 7 SCC 627 and P.Naranayyapa & Anr. Vs. State of Karnataka (2006) 7 SCC 578 . Concededly, Section 28 (3) of the Act gives a right of personal hearing to the owner of the land or any other interested person and the judgments cited by the learned counsel therefore eminently support the appellants case. The question as to whether an effective personal hearing was given or not, however is a question of fact and we notice from a perusal of the record that such hearing was indeed given and that the appellant had exercised his rights thereunder and it was only after the procedure under section 28(3) had been followed, that the final Notification had been issued. We find that the learned Single Judge and the Division Bench of the High Court have given categorical findings against the appellant on this score and we have no reason to differ therefrom. We have nevertheless examined the record to re-assure ourselves as to the correctness of the High Courts decision. After the objections/documents had been filed, the file was taken up by the Collector on 16th January, 2006 on which date Shri N.R. Prakash representing the land owners was not present. The Collector, after examining the facts of the case, adjourned the case to 24th January 2006 for orders in accordance with Section 28(3) of the Act and the final orders on the proceedings under section 28(3) of the Act were, in fact, made on the 2nd February 2006. Mr. Dave has emphasized that as the matter had been adjourned on 16th January 2006 for orders there was absolutely no justification in finalizing the proceedings on 2nd February 2006 without giving a hearing to the appellants. We observe, however, that merely because the word orders has been recorded in the proceedings of 16th January 2006, it does not imply that the matter remained incohate or that it envisaged a further hearing. The record shows that comprehensive objections alongwith documents had been filed by the appellants on 16th January 2006 wherein after stating the history as to how they had become owners of the land they had given their objections to its acquisition and in paragraphs 19 and 21 stated as under:In the event of your requiring any clarification, we also request you to offer us a personal hearing in the above matter for us to place the above facts for your kind considerationWe do hope that justice would be done and valuable investment in the land would be protected and we are permitted to carry on the construction of the Shopping Complex as planned towards which the necessary finance have been made available to us by Andhra BankWe have to request you to provide us with a personal hearing in the matter, as also permit us to file any other documents or additional statements as may be required20. The aforesaid paragraphs clearly reveal that the request for a personal hearing was conditional in that if a clarification or additional documents were required, time for that purpose be given. It is also significant that the objections filed by the appellants form (almost exclusively) the basis for the present writ petition inasmuch the fact that there was no need for the change of the alignment of the trumpet interchange and the access road or that alternative land was available for that purpose, had been spelt out therein. The Collector in dealing with the objections had observed that several objections/documents had been filed by the appellants but were liable to rejection as the acquisition was necessary for the Bangalore Airport. We are also not mindful of the fact that though the rights of an individual whose property is sought to be acquired must be scrupulously respected, an acquisition for the benefit of the public at large is not to be lightly quashed and extraordinary reasons must exist for doing so. This is the ratio of the judgment of this Court in Ramniklal N.Bhutta & Anr. Vs. State of Maharashtra & Ors. (1997) 1 SCC 134 wherein it has been held as under:Whatever may have been the practices in the past, a time has come where the courts should keep the larger public interest in mind while exercising their power of granting stay/injunction. The power under Article 226 is discretionary. It will be exercised only in furtherance of interests of justice and not merely on the making out of a legal point. And in the matter of land acquisition for public purposes, the interests of justice and the public interest coalesce. They are very often one and the same. Even in a civil suit, granting of injunction or other similar orders, more particularly of an interlocutory nature, is equally discretionary. The courts have to weigh the public interest vis-à-vis the private interest while exercising the power under Article 226 - indeed any of their discretionary powers. It may even be open to the High Court to direct, in case it finds finally that the acquisition was vitiated on account of non-compliance with some legal requirement that the person interested shall also be entitled to a particular amount of damages to be awarded as a lump sum or calculated at a certain percentage of compensation payable. There are many ways of affording appropriate relief and redressing a wrong; quashing the acquisition proceedings is not the only mode of redress. To wit, it is ultimately a matter of balancing the competing interests. Beyond this, it is neither possible nor advisable to say. We hope and trust that these considerations will be duly borne in mind by the courts while dealing with challenges to acquisition proceedings
|
Manoj Kumar and Ors Vs. State of Haryana and Ors | of market value the price reflected therein may the as the norm and the market value of the land under acquisition may be deduced by making suitable adjustments for the plus and minus factors vis-a-vis land under acquisition by placing the two in juxtaposition. (12) A balance sheet of plus and minus factors may be drawn for this purpose and the relevant factors may be evaluated a price variation as a prudent purchaser would do. (13) The market value of the land under acquisition has thereafter to be deduced by loading the price reflected in the instance taken as norm for plus factors and unloading it for minus factors. (14) The exercise indicated in Clauses (11) to (13) has to be undertaken in a common sense manner, as a prudent man of the world of business would do. We may illustrate some such illustrative (not exhaustive) factors: Plus factors Minus factors 1. smallness of size 1. largeness of area 2. proximity to a road 2. situation in the interior at a distance from the road 3. frontage on a road 3. narrow strip of land with very small frontage compared to depth 4. nearness to 4. lower level developed area requiring the depressed portion to be filled up 5. regular shape 5. remoteness from developed locality 6. level vis-à-vis 6. some special land under disadvantageous factor acquisition which would deter a purchaser 7. special value for an owner of an adjoining property to whom it may have some very special advantage (15) The evaluation of these factors of course depends on the facts of each case. There cannot be any hard and fast or rigid rule. Common sense is the best and most reliable guide. For instance, take the factor regarding the size. A building plot of land say 500 to 1000 sq. yds. cannot be compared with a large tract or block of land of say 10,000 sq. yds. or more. Firstly while a smaller plot is within the reach of many, a large block of land will have to be developed by preparing a lay out, carving out roads, leaving open space, plotting out smaller plots, waiting for purchasers (meanwhile the invested money will be blocked up) and the hazards of an entrepreneur. The factor can be discounted by making a deduction by way of an allowance at an appropriate rate ranging approximately between 20 per cent to 50 per cent to account for land required to be set apart for carving out lands and plotting out small plots. The discounting will to some extent also depend on whether it is a rural area or urban area, whether building activity is picking up, and whether waiting period during which the capital of the entrepreneur would be locked up, will be longer or shorter and the attendant hazards. (16) Every case must be dealt with on its own fact pattern bearing in mind all these factors as a prudent purchaser of land in which position the judge must place himself. (17) These are general guidelines to be applied with understanding informed with common sense. 27. When we take into consideration various sale transactions, even if we choose out of sale deeds which had been placed on record, one of the transaction reflects the price of approximately Rs. 2,500/- per square yard. When we consider the decision of Swaran Singh, the compensation has been determined by the High Court with respect to Notification dated 28.4.1999. The Award was passed, on the basis of the transaction dated 10.6.1997, at the rate of Rs. 1560/- per square meter between Power Grid Corporation and HUDA. 28. The High Court has fixed the compensation at Rs. 1560/- per square meter in the case of Swaran Singh (supra). In the case of Swaran Singh (supra), the High Court has observed that it was prepared to make reduction at about 20% but, as the transaction took place in the year 1997, an escalation at about 10% per year would offset the reduction that might be required. Then the value of the land under Ex. P8 on 10.6.1997 has been taken into consideration. Thus the arguments raised by the learned Counsel for the State that in the Swaran Singhs case, no cut had been applied, cannot be said to be correct but at the same time, the adequate cut had not been applied in said case for development when large tract is acquired. The Certain area has to be utilized in development. 29. Though we could have discarded decisions of Swarna Singh in toto. However considering the sale transactions of subsequent year also the compensation has to be worked out. We take into consideration both. 30. The High Court has determined the compensation in the instant case by adding 15% cumulatively over and above what has been determined in the case of Swaran Singh. The High Court has given compensation at the rate of Rs. 3610/- per square meters i.e. Rs. 1,46,09,000/- per acre. 31. The High Court has granted 15% cumulative increase which was not justified. In the decision of Om Prakash (supra) 12% increase was given. Even if we accept some increase annually due to development made after previous acquisition but that could not have been granted on cumulative basis but on a flat basis, that too considering subsequent rate offered for nearby areas. There was no justification to grant 15% cumulative increase per annum. Normally 10% to 12% flat increase is to be given, as observed in Haridwar Development Authority v. Raghubir Singh and Ors. (2010) 11 SCC 581. 32. Even if we calculate compensation by adding between 12 to 13% flat increase, taking base price at Rs. 1560/- granted in the case of Swaran Singh in the facts of the case, the price would come approximately to Rs. 1.10 crores per acre. Further deduction in addition to deduction made in Swaran Singhs case (supra) is required to be made towards development, it would be appropriate to deduct further amount of Rs. 15 lakhs. | 1[ds]11. After hearing learned Counsel for the parties, we are of the considered opinion that the methodology adopted by the High Court for determining the compensation could not be said to be appropriate and in accordance with the settled proposition of law by a catena of decisions of this Court. It was incumbent upon the High Court to take into consideration various transactions that were on record, entered into before the date of issuance of Notification Under Section 4 of the Act.12. The High Court has also erred in law in not deducting the amount towards the development of exemplar sale of 1997. When the large area had been acquired. The two kind of deductions have to be made one for development and in case of exemplar transaction is a small area, the reduction is required to be made to arrive at the value of large tract.13. In Major General Kapil Mehra and Ors. v. Union of India and Anr. [(2015) 2 SC 262] this Court has considered various decisions regarding deduction to be made for development and if exemplar is small developed plots how its value is to be worked out for large areas and observed:33. In Haryana State Agricultural Market Board v. Krishan Kumar, (2011) 15 SCC 297, it was held as under:10. It is now well settled that if the value of small developed plots should be the basis, appropriate deductions will have to be made therefrom towards the area to be used for roads, drains, and common facilities like a park, open space, etc. Thereafter, further deduction will have to be made towards the cost of development, that is, the cost of leveling the land, cost of laying roads and drains, and the cost of drawing electrical, water and sewer lines.35. Reiterating the Rule of one-third deduction towards development, in Sabhia Mohammed Yusuf Abdul Hamid Mulla v. Special Land Acquisition Officer, (2012) 7 SCC 595 , this Court in paragraph 19 held as under:19. In fixing the market value of the acquired land, which is undeveloped or underdeveloped, the courts have generally approved deduction of 1/3rd of the market value towards development cost except when no development is required to be made for implementation of the public purpose for which land is acquired. In Kasturi v. State of Haryana (2003) 1 SCC 354 ) the Court held: (SCC pp. 359-60, para 7)7... It is well settled that in respect of agricultural land or undeveloped land which has potential value for housing or commercial purposes, normally 1/3rd amount of compensation has to be deducted out of the amount of compensation payable on the acquired land subject to certain variations depending on its nature, location, extent of expenditure involved for development and the area required for road and other civic amenities to develop the land so as to make the plots for residential or commercial purposes. A land may be plain or uneven, the soil of the land may be soft or hard bearing on the foundation for the purpose of making construction; maybe the land is situated in the midst of a developed area all around but that land may have a hillock or may be low-lying or may be having deep ditches. So the amount of expenses that may be incurred in developing the area also varies. A claimant who claims that his land is fully developed and nothing more is required to be done for developmental purposes must show on the basis of evidence that it is such a land and it is so located. In the absence of such evidence, merely saying that the area adjoining his land is a developed area, is not enough, particularly when the extent of the acquired land is large and even if a small portion of the land is abutting the main road in the developed area, does not give the land the character or a developed area. In 84 acres of land acquired even if one portion on one side abuts the main road, the remaining large area where planned development is required, needs laying of internal roads, drainage, sewer, water, electricity lines, providing civic amenities, etc. However, in cases of some land where there are certain advantages by virtue of the developed area around, it may help in reducing the percentage of cut to be applied, as the developmental charges required may be less on that account. There may be various factual factors which may have to be taken into consideration while applying the cut in payment of compensation towards developmental charges, may be in some cases it is more than 1/3rd and in some cases less than 1/3rd. It must be remembered that there is difference between a developed area and an area having potential value, which is yet to be developed. The fact that an area is developed or adjacent to a developed area will not ipso facto make every land situated in the area also developed to be valued as a building site or plot, particularly when vast tracts are acquired, as in this case, for development purpose.The Rule of 1/3rd deduction was reiterated in Tejumal Bhojwani v. State of U.P. ((2003)10 SCC 525 , V. Hanumantha Reddy v. Land Acquisition Officer, (2003) 12 SCC 642 , H.P. Housing Board v. Bharat S. Negi (2004) 2 SCC 184 and Kiran Tandon v. Allahabad Development Authority (2004)10 SCC 745 36. While determining the market value of the acquired land, normally one-third deduction i.e. 33 1/3% towards development charges is allowed. One-third deduction towards development was allowed in Tehsildar(L.A.) v. A. Mangala Gowri, (1991) 4 SCC 218 ; Gulzara Singh v. State of Punjab, (1993) 4 SCC 245 ; Santosh Kumari v. State of Haryana, (1996) 10 SCC 631 ; Revenue Divisional Officer & L.A.O. v. Sk. Azam Saheb, (2009) 4 SCC 395 ; A.P. Housing Board v. K. Manohar Reddy, (2010)12 SCC 707 ; Ashrafi v. State of Haryana, (2013) 5 SCC 527 and Kashmir Singh v. State of Haryana, (2014) 2 SCC 165. 37. Depending on nature and location of the acquired land, extent of land required to be set apart and expenses involved in development, 30% to 50% deduction towards development was allowed in Haryana State Agricultural Market Board v. Krishan Kumar (2011) 15 SCC 297; Director, Land Acquisition v. Malla Atchinaidua 2006 (12) SCC 87 ; Mummidi Apparao v. Nagarjuna Fertilizers & Chemicals Ltd. AIR 2009 SC 1506 ; and Lal Chand v. Union of India (2009) 15 SCC 769. 38. In few other cases, deduction of more than 50% was upheld. In the facts and circumstances of the case in Basavva v. Land Acquisition Officer, (1996) 9 SCC 640 , this Court upheld the deduction of 65%. In Kanta Devi v. State of Haryana (2008) 15 SCC 201 , deduction of 60% towards development charges was held to be legal. This Court in Subh Ram v. State of Haryana, (2010) 1 SCC 444 , held that deduction of 67% amount was not improper. Similarly, in Chandrasekhar v. Land Acquisition Officer, (2012) 1 SCC 390 , deduction of 70% was upheld.39. We have referred to various decisions of this Court on deduction towards development to stress upon the point that deduction towards development depends upon the nature and location of the acquired land. The deduction includes components of land required to be set apart under the building Rules for roads, sewage, electricity, parks, and other common facilities and also deduction towards development charges like laying of roads, construction of sewerage.Thus, it was incumbent on the High Court to make appropriate deductions.14. In our opinion, the High Court could not have placed an outright reliance on the decision of Swaran Singhs case, without considering the nature of transaction relied upon in the said decision. The decision could not have been applied ipso facto to the facts of the instant case. In such cases, where such judgments/awards are relied on as evidence, though they are relevant, but cannot be said to be binding with respect to the determination of the price, that has to depend on the evidence adduced in the case. However, in the instant case, it appears that the land in Swaran Singhs case was situated just across the road as observed by the High Court as such it is relevant evidence but not binding. As such it could have been taken into consideration due to the nearness of the area, but at the same time what was the nature of the transaction relied upon in the said case was also required to be looked into in an objective manner. Such decisions in other cases cannot be adopted without examining the basis for determining compensation whether sale transaction referred to therein can be relied upon or not and what was the distance, size and also bonafide nature of transaction before such judgments/awards are relied on for deciding the subsequent cases. It is not open to accepting determination in a mechanical manner without considering the merit. Such determination cannot be said to be binding. We have come across several decisions where the High Court is adopting the previous decisions as binding. The determination of compensation in each case depends upon the nature of land and what is the evidence adduced in each case, may be that better evidence has been adduced in later case regarding the actual value of property and subsequent sale deeds after the award and before preliminary notification Under Section 4 are also to be considered, if filed. It is not proper to ignore the evidence adduced in the case at hand. The compensation cannot be determined by blindly following the previous award/judgment. It has to be considered only a piece of evidence not beyond that. Court has to apply the judicial mind and is supposed not to follow the previous awards without due consideration of the facts and circumstances and evidence adduced in the case in question. The current value reflected by comparable sale deeds is more reliable and binding for determination of compensation in such cases award/judgment relating to an acquisition made before 5 to 10 years cannot form the safe basis for determining compensation.15. The awards and judgment in the cases of others not being inter parties are not binding as precedents. Recently, we have seen the trend of the courts to follow them blindly probably under the misconception of the concept of equality and fair treatment. The courts are being swayed away and this approach in the absence of and similar nature and situation of land is causing more injustice and tantamount to giving equal treatment in the case of unequals. As per situation of a village, nature of land its value differ from the distance to distance even two to three-kilometer distance may also make the material difference in value. Land abutting Highway may fetch higher value but not land situated in interior villages.16. The previous awards/judgments are the only piece of evidence at par with comparative sale transactions. The similarity of the land covered by previous judgment/award is required to be proved like any other comparative exemplar. In case previous award/judgment is based on exemplar, which is not similar or acceptable, previous award/judgment of court cannot be said to be binding. Such determination has to be out rightly rejected. In case some mistake has been done in awarding compensation, it cannot be followed on the ground of parity an illegality cannot be perpetuated. Such award/judgment would be wholly irrelevant.17. There is yet another serious infirmity seen in following the judgment or award passed in acquisition made before 10 to 12 years and price is being determined on that basis by giving either flat increase or cumulative increase as per the choice of individual Judge without going into the factual scenario. The said method of determining compensation is available only when there is absence of sale transaction before issuance of notification Under Section 4 of the Act and for giving annual increase, evidence should reflect that price of land had appreciated regularly and did not remain static. The Recent trend for last several years indicates that price of land is more or less static if it has not gone down. At present, there is no appreciation of value. Thus, in our opinion, it is not a very safe method of determining compensation.18. To base determination of compensation on a previous award/judgment, the evidence considered in the previous judgment/award and its acceptability on judicial parameters has to be necessarily gone into, otherwise, gross injustice may be caused to any of the parties. In case some gross mistake or illegality has been committed in previous award/judgment of not making deduction etc. and/or sufficient evidence had not been adduced and better evidence is adduced in case at hand, previous award/judgment being not inter-parties cannot be followed and if land is not similar in nature in all aspects it has to be out-rightly rejected as done in the case of comparative exemplars. Sale deeds are at par for evidentiary value with such awards of the court as court bases its conclusions on such transaction only, to ultimately determine the value of the property.19. To rely upon judgment/award in case it does not form part of evidence recorded by reference court, an application Under Order 41 Rule 27 is to be filed to adduce evidence and if it is allowed opposite party has to be given opportunity to lead evidence in rebuttal. The award/judgment cannot be taken into consideration while hearing arguments unless they form part of evidence in the case.24. Basic principle before following award/judgment or comparative sales is that land should be comparable in nature and quality as laid down in State of Madhya Pradesh v. Kanshi Ram (2014) 100 SCC 506 and Hirabai and Ors. v. Land Acquisition Officer-cum-Assistant Commission (2010) 10 SCC 492 and in close proximity of time to preliminary notification Under Section 4 of the Act. In the instant case, we hold that the High Court could not have followed the judgment in a blind manner as done without due consideration of various aspects.25. The High Court has observed that the decision in Swaran Singhs case has been affirmed by the judgment of the Supreme Court. As a matter of fact, the special leave petition was dismissed. The dismissal of the special leave petition without assigning of reason cannot be treated as a binding precedent of this Court. The High Court treated as if this Court has decided the matter on merits and has approved the decision of the High Court. Even if that be so, the Courts are bound to take into consideration the various aspects as discussed in each and every case before relying upon and following the award or judgment in other cases relating to determination of the compensation as there is no res judicata in such cases. In each case, some change in the factual scenario is bound to be there such as quality of the land, category, time gap and largeness and smallness, deduction to be made. There are various factors which have to be taken into consideration only then, decision has to be rendered.26. This Court in Chimanlal Hargovind Das v. Special Land Acquisition Officer, Poona and Anr. (1988) 3 SCC 751 has laid down broad principles to be followed in the case of determination of compensation thus:4. The following factors must be etched on the mental screen:(1) A reference Under Section 18 of the Land Acquisition Act is not an appeal against the award and the court cannot take into account the material relied upon by the Land Acquisition Officer in his award unless the same material is produced and proved before the court.(2) So also the award of the Land Acquisition Officer is not to be treated as a judgment of the trial court open or exposed to challenge before the court hearing the reference. It is merely an offer made by the Land Acquisition Officer and the material utilised by him for making his valuation cannot be utilised by the court unless produced and proved before it. It is not the function of the court to sit in appeal against the award, approve or disapprove its reasoning, or correct its error or affirm, modify or reverse the conclusion reached by the Land Acquisition Officer, as if it were an appellate court.(3) The court has to treat the reference as an original proceeding before it and determine the market value afresh on the basis of the material produced before it.(4) The claimant is in the position of a Plaintiff who has to show that the price offered for his land in the award is inadequate on the basis of the materials produced in the court. Of course the materials placed and proved by the other side can also be taken into account for this purpose.(5) The market value of land under acquisition has to be determined as on the crucial date of publication of the notification Under Section 4 of the Land Acquisition Act (dates of notifications Under Sections 6 and 9 are irrelevant).(6) The determination has to be made standing on the date line of valuation (date of publication of notification Under Section 4) as if the valuer is a hypothetical purchaser willing to purchase land from the open market and is prepared to pay a reasonable price as on that day. It has also to be assumed that the vendor is willing to sell the land at a reasonable price.(7) In doing so by the instances method, the court has to correlate the market value reflected in the most comparable instance, which provides the index of market value.(8) Only genuine instances have to be taken into account. (Sometimes instances are rigged up in anticipation of acquisition of land.)(9) Even post-notification instances can be taken into account (1) if they are very proximate, (2) genuine and (3) the acquisition itself has not motivated the purchaser to pay a higher price on account of the resultant improvement in development prospects.(10) The most comparable instances out of the genuine instances have to be identified on the following considerations:(i) proximity from time angle,(ii) proximity from situation angle.(11) Having identified the instances which provide the index of market value the price reflected therein may the as the norm and the market value of the land under acquisition may be deduced by making suitable adjustments for the plus and minus factors vis-a-vis land under acquisition by placing the two in juxtaposition.(12) A balance sheet of plus and minus factors may be drawn for this purpose and the relevant factors may be evaluated a price variation as a prudent purchaser would do.(13) The market value of the land under acquisition has thereafter to be deduced by loading the price reflected in the instance taken as norm for plus factors and unloading it for minus factors.(14) The exercise indicated in Clauses (11) to (13) has to be undertaken in a common sense manner, as a prudent man of the world of business would do. We may illustrate some such illustrative (not exhaustive) factors:Plus factors Minus factors1. smallness of size 1. largeness of area 2. proximity to a road2. situation in the interior at a distance from the road3. frontage on a road 3. narrow strip of land with very small frontage compared to depth4. nearness to 4. lower level developed area requiring the depressed portion to be filled up5. regular shape 5. remoteness from developed locality6. level vis-à-vis 6. some special land under disadvantageous factor acquisition which would deter a purchaser7. special value for an owner of an adjoining property to whom it may have some very special advantage(15) The evaluation of these factors of course depends on the facts of each case. There cannot be any hard and fast or rigid rule. Common sense is the best and most reliable guide. For instance, take the factor regarding the size. A building plot of land say 500 to 1000 sq. yds. cannot be compared with a large tract or block of land of say 10,000 sq. yds. or more. Firstly while a smaller plot is within the reach of many, a large block of land will have to be developed by preparing a lay out, carving out roads, leaving open space, plotting out smaller plots, waiting for purchasers (meanwhile the invested money will be blocked up) and the hazards of an entrepreneur. The factor can be discounted by making a deduction by way of an allowance at an appropriate rate ranging approximately between 20 per cent to 50 per cent to account for land required to be set apart for carving out lands and plotting out small plots. The discounting will to some extent also depend on whether it is a rural area or urban area, whether building activity is picking up, and whether waiting period during which the capital of the entrepreneur would be locked up, will be longer or shorter and the attendant hazards.(16) Every case must be dealt with on its own fact pattern bearing in mind all these factors as a prudent purchaser of land in which position the judge must place himself.(17) These are general guidelines to be applied with understanding informed with common sense.27. When we take into consideration various sale transactions, even if we choose out of sale deeds which had been placed on record, one of the transaction reflects the price of approximately Rs. 2,500/- per square yard. When we consider the decision of Swaran Singh, the compensation has been determined by the High Court with respect to Notification dated 28.4.1999. The Award was passed, on the basis of the transaction dated 10.6.1997, at the rate of Rs. 1560/- per square meter between Power Grid Corporation and HUDA.28. The High Court has fixed the compensation at Rs. 1560/- per square meter in the case of Swaran Singh (supra). In the case of Swaran Singh (supra), the High Court has observed that it was prepared to make reduction at about 20% but, as the transaction took place in the year 1997, an escalation at about 10% per year would offset the reduction that might be required. Then the value of the land under Ex. P8 on 10.6.1997 has been taken into consideration. Thus the arguments raised by the learned Counsel for the State that in the Swaran Singhs case, no cut had been applied, cannot be said to be correct but at the same time, the adequate cut had not been applied in said case for development when large tract is acquired. The Certain area has to be utilized in development.29. Though we could have discarded decisions of Swarna Singh in toto. However considering the sale transactions of subsequent year also the compensation has to be worked out. We take into consideration both.30. The High Court has determined the compensation in the instant case by adding 15% cumulatively over and above what has been determined in the case of Swaran Singh. The High Court has given compensation at the rate of Rs. 3610/- per square meters i.e. Rs. 1,46,09,000/- per acre.31. The High Court has granted 15% cumulative increase which was not justified. In the decision of Om Prakash (supra) 12% increase was given. Even if we accept some increase annually due to development made after previous acquisition but that could not have been granted on cumulative basis but on a flat basis, that too considering subsequent rate offered for nearby areas. There was no justification to grant 15% cumulative increase per annum. Normally 10% to 12% flat increase is to be given, as observed in Haridwar Development Authority v. Raghubir Singh and Ors. (2010) 11 SCC 581. 32. Even if we calculate compensation by adding between 12 to 13% flat increase, taking base price at Rs. 1560/- granted in the case of Swaran Singh in the facts of the case, the price would come approximately to Rs. 1.10 crores per acre. Further deduction in addition to deduction made in Swaran Singhs case (supra) is required to be made towards development, it would be appropriate to deduct further amount of Rs. 15 lakhs. | 1 | 8,023 | 4,505 | ### 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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of market value the price reflected therein may the as the norm and the market value of the land under acquisition may be deduced by making suitable adjustments for the plus and minus factors vis-a-vis land under acquisition by placing the two in juxtaposition. (12) A balance sheet of plus and minus factors may be drawn for this purpose and the relevant factors may be evaluated a price variation as a prudent purchaser would do. (13) The market value of the land under acquisition has thereafter to be deduced by loading the price reflected in the instance taken as norm for plus factors and unloading it for minus factors. (14) The exercise indicated in Clauses (11) to (13) has to be undertaken in a common sense manner, as a prudent man of the world of business would do. We may illustrate some such illustrative (not exhaustive) factors: Plus factors Minus factors 1. smallness of size 1. largeness of area 2. proximity to a road 2. situation in the interior at a distance from the road 3. frontage on a road 3. narrow strip of land with very small frontage compared to depth 4. nearness to 4. lower level developed area requiring the depressed portion to be filled up 5. regular shape 5. remoteness from developed locality 6. level vis-à-vis 6. some special land under disadvantageous factor acquisition which would deter a purchaser 7. special value for an owner of an adjoining property to whom it may have some very special advantage (15) The evaluation of these factors of course depends on the facts of each case. There cannot be any hard and fast or rigid rule. Common sense is the best and most reliable guide. For instance, take the factor regarding the size. A building plot of land say 500 to 1000 sq. yds. cannot be compared with a large tract or block of land of say 10,000 sq. yds. or more. Firstly while a smaller plot is within the reach of many, a large block of land will have to be developed by preparing a lay out, carving out roads, leaving open space, plotting out smaller plots, waiting for purchasers (meanwhile the invested money will be blocked up) and the hazards of an entrepreneur. The factor can be discounted by making a deduction by way of an allowance at an appropriate rate ranging approximately between 20 per cent to 50 per cent to account for land required to be set apart for carving out lands and plotting out small plots. The discounting will to some extent also depend on whether it is a rural area or urban area, whether building activity is picking up, and whether waiting period during which the capital of the entrepreneur would be locked up, will be longer or shorter and the attendant hazards. (16) Every case must be dealt with on its own fact pattern bearing in mind all these factors as a prudent purchaser of land in which position the judge must place himself. (17) These are general guidelines to be applied with understanding informed with common sense. 27. When we take into consideration various sale transactions, even if we choose out of sale deeds which had been placed on record, one of the transaction reflects the price of approximately Rs. 2,500/- per square yard. When we consider the decision of Swaran Singh, the compensation has been determined by the High Court with respect to Notification dated 28.4.1999. The Award was passed, on the basis of the transaction dated 10.6.1997, at the rate of Rs. 1560/- per square meter between Power Grid Corporation and HUDA. 28. The High Court has fixed the compensation at Rs. 1560/- per square meter in the case of Swaran Singh (supra). In the case of Swaran Singh (supra), the High Court has observed that it was prepared to make reduction at about 20% but, as the transaction took place in the year 1997, an escalation at about 10% per year would offset the reduction that might be required. Then the value of the land under Ex. P8 on 10.6.1997 has been taken into consideration. Thus the arguments raised by the learned Counsel for the State that in the Swaran Singhs case, no cut had been applied, cannot be said to be correct but at the same time, the adequate cut had not been applied in said case for development when large tract is acquired. The Certain area has to be utilized in development. 29. Though we could have discarded decisions of Swarna Singh in toto. However considering the sale transactions of subsequent year also the compensation has to be worked out. We take into consideration both. 30. The High Court has determined the compensation in the instant case by adding 15% cumulatively over and above what has been determined in the case of Swaran Singh. The High Court has given compensation at the rate of Rs. 3610/- per square meters i.e. Rs. 1,46,09,000/- per acre. 31. The High Court has granted 15% cumulative increase which was not justified. In the decision of Om Prakash (supra) 12% increase was given. Even if we accept some increase annually due to development made after previous acquisition but that could not have been granted on cumulative basis but on a flat basis, that too considering subsequent rate offered for nearby areas. There was no justification to grant 15% cumulative increase per annum. Normally 10% to 12% flat increase is to be given, as observed in Haridwar Development Authority v. Raghubir Singh and Ors. (2010) 11 SCC 581. 32. Even if we calculate compensation by adding between 12 to 13% flat increase, taking base price at Rs. 1560/- granted in the case of Swaran Singh in the facts of the case, the price would come approximately to Rs. 1.10 crores per acre. Further deduction in addition to deduction made in Swaran Singhs case (supra) is required to be made towards development, it would be appropriate to deduct further amount of Rs. 15 lakhs.
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1
### Explanation:
following considerations:(i) proximity from time angle,(ii) proximity from situation angle.(11) Having identified the instances which provide the index of market value the price reflected therein may the as the norm and the market value of the land under acquisition may be deduced by making suitable adjustments for the plus and minus factors vis-a-vis land under acquisition by placing the two in juxtaposition.(12) A balance sheet of plus and minus factors may be drawn for this purpose and the relevant factors may be evaluated a price variation as a prudent purchaser would do.(13) The market value of the land under acquisition has thereafter to be deduced by loading the price reflected in the instance taken as norm for plus factors and unloading it for minus factors.(14) The exercise indicated in Clauses (11) to (13) has to be undertaken in a common sense manner, as a prudent man of the world of business would do. We may illustrate some such illustrative (not exhaustive) factors:Plus factors Minus factors1. smallness of size 1. largeness of area 2. proximity to a road2. situation in the interior at a distance from the road3. frontage on a road 3. narrow strip of land with very small frontage compared to depth4. nearness to 4. lower level developed area requiring the depressed portion to be filled up5. regular shape 5. remoteness from developed locality6. level vis-à-vis 6. some special land under disadvantageous factor acquisition which would deter a purchaser7. special value for an owner of an adjoining property to whom it may have some very special advantage(15) The evaluation of these factors of course depends on the facts of each case. There cannot be any hard and fast or rigid rule. Common sense is the best and most reliable guide. For instance, take the factor regarding the size. A building plot of land say 500 to 1000 sq. yds. cannot be compared with a large tract or block of land of say 10,000 sq. yds. or more. Firstly while a smaller plot is within the reach of many, a large block of land will have to be developed by preparing a lay out, carving out roads, leaving open space, plotting out smaller plots, waiting for purchasers (meanwhile the invested money will be blocked up) and the hazards of an entrepreneur. The factor can be discounted by making a deduction by way of an allowance at an appropriate rate ranging approximately between 20 per cent to 50 per cent to account for land required to be set apart for carving out lands and plotting out small plots. The discounting will to some extent also depend on whether it is a rural area or urban area, whether building activity is picking up, and whether waiting period during which the capital of the entrepreneur would be locked up, will be longer or shorter and the attendant hazards.(16) Every case must be dealt with on its own fact pattern bearing in mind all these factors as a prudent purchaser of land in which position the judge must place himself.(17) These are general guidelines to be applied with understanding informed with common sense.27. When we take into consideration various sale transactions, even if we choose out of sale deeds which had been placed on record, one of the transaction reflects the price of approximately Rs. 2,500/- per square yard. When we consider the decision of Swaran Singh, the compensation has been determined by the High Court with respect to Notification dated 28.4.1999. The Award was passed, on the basis of the transaction dated 10.6.1997, at the rate of Rs. 1560/- per square meter between Power Grid Corporation and HUDA.28. The High Court has fixed the compensation at Rs. 1560/- per square meter in the case of Swaran Singh (supra). In the case of Swaran Singh (supra), the High Court has observed that it was prepared to make reduction at about 20% but, as the transaction took place in the year 1997, an escalation at about 10% per year would offset the reduction that might be required. Then the value of the land under Ex. P8 on 10.6.1997 has been taken into consideration. Thus the arguments raised by the learned Counsel for the State that in the Swaran Singhs case, no cut had been applied, cannot be said to be correct but at the same time, the adequate cut had not been applied in said case for development when large tract is acquired. The Certain area has to be utilized in development.29. Though we could have discarded decisions of Swarna Singh in toto. However considering the sale transactions of subsequent year also the compensation has to be worked out. We take into consideration both.30. The High Court has determined the compensation in the instant case by adding 15% cumulatively over and above what has been determined in the case of Swaran Singh. The High Court has given compensation at the rate of Rs. 3610/- per square meters i.e. Rs. 1,46,09,000/- per acre.31. The High Court has granted 15% cumulative increase which was not justified. In the decision of Om Prakash (supra) 12% increase was given. Even if we accept some increase annually due to development made after previous acquisition but that could not have been granted on cumulative basis but on a flat basis, that too considering subsequent rate offered for nearby areas. There was no justification to grant 15% cumulative increase per annum. Normally 10% to 12% flat increase is to be given, as observed in Haridwar Development Authority v. Raghubir Singh and Ors. (2010) 11 SCC 581. 32. Even if we calculate compensation by adding between 12 to 13% flat increase, taking base price at Rs. 1560/- granted in the case of Swaran Singh in the facts of the case, the price would come approximately to Rs. 1.10 crores per acre. Further deduction in addition to deduction made in Swaran Singhs case (supra) is required to be made towards development, it would be appropriate to deduct further amount of Rs. 15 lakhs.
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Laxmi Khandsari Etc. Etc Vs. State Of U.P. & Ors | control order was violative of Article 14 of the Constitution. It was contended that since the state had already fixed reserved areas for the factories, the selection of khandsari units for banning or stopping their production amounted to a mini classification units for banning or stopping their production amounted to a mini classification without any rational basis. We are, however, unable to accept this contention because in view of the various circumstances discussed above, the classification, if at all it was based on a reasonable nexus with the object sought to be achieved by the notification. Certain other aspects were also raised by Mr. Dayal which amount to almost a repetition of the main arguments placed before us by Mr. Garg and the counsel following him.84. Thus, on an overall consideration of the various aspects of the matter we are fully satisfied that applying the well-established tests of reasonableness, the impugned notification cannot be said to contain the quality of unreasonableness but is per se fair and reasonable and fully satisfies the conditions laid down by this Court in determining whether or not a restriction is reasonable.85. Before closing the judgment we would like to lay down certain guide lines for any future policy that the government may consider fit to shape in the light of the discussion on the points raised before us in this case. In fact, both counsel for the petitioners and the Attorney General had requested us to lay down certain guide lines to so that the government may benefit from the same. Although we have upheld the impugned notification but having regard to the special features of the present case we are not quite satisfied that a better policy to control sugar or increase its production could not be followed which may satisfy the parties concerned, viz., the crushers, the mills, the sugar-cane growers and the consumers.86. In case the government decides to impose a ban in future on the power crushers or other units. It may consider the desirability of giving a bare minimum hearing not too all the owners of khandsari units but to only one representative of the Association representing them all, and getting their views on the subject. It is possible that they might given some suggestions which the government would like to incorporate in formulating its policy. Even if the government thinks that an emergent situation has arisen and it may not be possible to give a hearing at least representation against the propose action may be called for from such Association and considered after giving the shortest possible notice. Not that such action is a legal requirement but it will generate greater confidence of the persons who may be affected by any order to be passed against them. In the same token, we may mention that when in passing an order like the impugned one the government has adopted the trial and error method, it would be in the fitness of things if the matter is carried to its logical end so that any future order passed contains the colour and quality of objectively.87. Secondly, could it not be possible for the government to allow the crushers to function by regulating the working hours or to fix a quota of sugar-cane to be delivered to the mills and the crushers in the ratio of 60 : 40 or 70 : 30 as may be advised by the experts and to insist that on the crushers and the mills should pay a uniform price to the cane growers? The counsel for the petitioners have brought to our notice a disturbing element in the entire case which is that in the past although the sugar-cane growers supplied sugar-cane on condition of payment to them of the support price fixed by the government yet the mills did not pay the price to the cane growers for a long time with the result that arrears accumulate running into lakhs of rupees. It would indeed be extremely desirable for the government to take steps to see that payment of the price of the quantity of the cane supplied to the mills or the crushers is paid against delivery or at any rate, within a reasonable time therefore so as to provide a strong incentive to the farmers to increase their production and earn substantial profits by supplying the sugar-cane to mills or crushers during the crushing season (October to May).88. Lastly, it was represented to us by the petitioners that the crushers are used for the twin purpose of production of khandsari sugar and gur, rab, etc., but as the crushers are sealed by the officers of the government, the owners are not in a position to produce even gur or rab on the production of which not only no ban has been imposed by the impugned notification but the same has been completely exempted from the purview of the notification. Thus, it was asserted the at the owners of crushers who want to switch over to production of gur, or rab, because of the ban imposed by the government on the production of khandsari may be allowed to do so. The Attorney General, however, pointed out that if this course is adopted it will be difficult to detect as to how many crushers are producing khandsari sugar in the garbs of gur or rab. Wherever any step for banning production is taken, the government has to evolve some procedure to detect the defaulters and with the resource at in command, we cannot understand why a special staff cannot be appointed ton a temporary basis for looking after the compliance of the order by the crushers and making surprise checks periodically. Another method to prevent the abuse of the privilege of production of gur or rab by producing khandsari in a clandestine fashion may be to insert a condition in the licences of the manufactures of khandsari sugar that if they produce khandsari during the period of the ban their licences would be cancelled. | 0[ds]the onus is not he State to prove or justify that the restraint or restrictions imposed on the fundamental rights under clauses (2) to (6) of the Article are reasonable. In the instant case, weWe, therefore, fully agree with the contention advanced by the petitioners that where there is a clear violation of Article 19(10(g), the State has to justify by acceptable evidence, inevitable consequences or sufficient materials that the restriction, whether partial or complete, is in public interest and contains the quality of reasonableness. This proposition has not been disputed by the counsel for the respondents, who have, however, submitted that from the circumstances and materials produced by them the onus of proving that the restrictions are in public interest and are reasonable has been amply discharged by them.It is abundantly clear that fundamental rights enshrined in Part III of the Constitution are neither absolute nor unlimited but are subject to reasonable restrictions which may be imposed by the State in public interest under clauses (2) to (6) of Article 19. As to what are reasonable restrictions would naturally depend on the nature and circumstances of the case, the character of the statute, the object which it seeks to serve, the existing circumstances, the extent of the evil sought to be remedied as also the nature of restraint or restriction placed on the rights of the citizen. It is difficult to lay down any hard and fast rule of universal application but this Court has consistently held that in imposing such restrictions the State must adopt an objective standard amounting to a social control by restricting the rights of the citizens where the necessities of the situation demand. It is manifest that the adopting the social control one of the primary considerations which should weigh with the court is that as the directive principles contained in the Constitution aim at the establishment of an egalitarian society so as to bring about a welfare State within the framework of the Constitution, these principles also should be kept in mind in judging the question as to whether or not the restrictions are reasonable. If the restrictions imposed appear to be consistent with the directive principles of State policy they would have to be upheld as the same would be in public interest and manifestly reasonable.It is true that one of the important considerations which must weigh with the court in determining the reasonableness of a restriction is that is should not contravene the directive principles contained in Part IV of the Constitution which undoubtedly has a direct bearing on the question as held by this Court in the cases of Saghir Ahmad v. State of U. P. and State of Bombay v. F. N.In the light of the principles enunciated and the decisions discussed above, we now proceed to examine the facts and circumstances placed before us by the Union of India to prove that the restrictions imposed under the impugned notification contain the quality of reasonableness and are not violative of Article 19(1) (g). The main pleas of the State of Uttar Pradesh which have been adopted by the Union of India, are to be found in Paragraphs 6 to 11 of the counter-affidavit filed by the respondents in Writ Petitions 5565-5567 of 1980. The respondents have taken the stand that there has been a very steep rise in the prices of sugar which is doubtless an essential commodity. It has further been alleged that one of the major factors responsible for the present rise in the prices of sugar is that there is a sharp rise in demand for consumption of sugar whereas its production has slumped to a very low level. In order to illustrate the point it has been averred that the demand of sugar in the country has increased to over 60 lakh tonnes whereas production of the commodity in the proceeding year (1979-80) was only about 39.5 lakh tonnes. In order to meet the demand, the Central Government had to import for the first time after several years 2 lakh tonnes of sugar at a cost of about one hundred crores of rupees. One reason for the shortfall in production during 1979-80 was the poor availability of cane to the sugar factories. This is turn resulted from the works drought conditions faced by our country particularly in the State of Uttar Pradesh which is one of the main suppliers of sugar-cane. Yet another cause of the shortage was that the sugar famine led to the large-scale diversion of cane to gur and khandsari manufacturers. The counter-affidavit then proceeds to give a chart of the production of sugar by the crushers and theis no reliable evidence to rebut the aforesaid facts detailed in the counter-affidavit of theargument is, no doubt, attractive but we are not sure if and when these harsher terms are imposed on the petitioners, it would be possible for them to run the aforesaid impositions. At any rate, since the impugned notification has expired the government will certainly consider the desirability of a reappraisal of the situation after taking into account this aspect of the matter. It was further pointed out by the Union of India that only 39 sugar-mills are in the private sector and ensuring actual availability of sugar-cane at reasonable rates to the sugar-mills was the prime consideration which formed the basis of the impugned notification in conformity with the object of the Act of 1955 and the Control Order so as to maintain a fair price for the general public. Learning a lesson from the performs of the sugar market in the proceeding year, the government thought it more desirable to channelise the production (sic) of sugar-cane so that the interests of neither the sugar-mill owners nor of the khandsari units nor those of the cane growers suffered.After a careful consideration of the arguments and documents produced by both the parties we are satisfied that the restriction imposed by the impugned notification in stopping the crushers for the period October 10 to December 1, 1980 is in public interest and bears a reasonable nexus to the object which is sought to be achieved, namely, to reduce shortage of sugar and ensure a more equitable distribution of this commodity.We are of the opinion that this argument of Mr. Gupta is sound and must prevail. The Additional Advocate General, U. P. sought to draw several distinctions between a vertical power crusher and a horizontal one, namely, (1) a vertical power crusher can crush 1500 quintals of sugar-cane per month whereas a horizontal one crushes 5600 quintals of the commodity in the same period; (2) vertical power crushers are non-commercial and fall within the category of cottage industry whereas horizontal power crushers are included in the category of small scale industry; (3) vertical power crushers run by their owners themselves and draw supplies from sugar-cane growers and (4) vertical power crushers do not require any licence. So far as the last part of the argument of the Additional Advocate General of U. P. the vertical power crushers do not require a licence is concerned, it is factually wrong because all such crushers require a licence by virtue of the Orders passed by the Central Government under Section 3 of the Act of 1955. Regarding the other distinctive features the mere ipse dixit of deponent Gupta who has sworn an affidavit, there is absolutely no documentary evidence to support the features pointed out or relied upon by the Additional Advocate General. In these circumstances it has not been proved to our satisfaction that there is any real distinction between a vertical and a horizontal power crusher, and we regard both as falling in the same class. The notification by exempting vertical power crushers and prohibiting horizontal power crusher is clearly discriminatory and the discrimination is not justified by any rational nexus between the prohibition and the object sought to be achieved.Having regard therefore to the facts and circumstances proved in this case it cannot be said that either the control Order for the impugned notification is against the tenor and spirit of Section 3. On the other hand it is manifestly clear from the circumstances disclosed above that it is in pursuance of the aim and object for which Section 3 was enshrined in the Act of 1955 that the Control Order and the notification were promulgated. The contention of the learned counsel for the petitioner on this score is accordingly overruled.Thus, on an overall consideration of the various aspects of the matter we are fully satisfied that applying the well-established tests of reasonableness, the impugned notification cannot be said to contain the quality of unreasonableness but is per se fair and reasonable and fully satisfies the conditions laid down by this Court in determining whether or not a restriction is reasonable.Secondly, could it not be possible for the government to allow the crushers to function by regulating the working hours or to fix a quota of sugar-cane to be delivered to the mills and the crushers in the ratio of 60 : 40 or 70 : 30 as may be advised by the experts and to insist that on the crushers and the mills should pay a uniform price to the cane growers? The counsel for the petitioners have brought to our notice a disturbing element in the entire case which is that in the past although the sugar-cane growers supplied sugar-cane on condition of payment to them of the support price fixed by the government yet the mills did not pay the price to the cane growers for a long time with the result that arrears accumulate running into lakhs of rupees. It would indeed be extremely desirable for the government to take steps to see that payment of the price of the quantity of the cane supplied to the mills or the crushers is paid against delivery or at any rate, within a reasonable time therefore so as to provide a strong incentive to the farmers to increase their production and earn substantial profits by supplying the sugar-cane to mills or crushers during the crushing season (October to May).88. Lastly, it was represented to us by the petitioners that the crushers are used for the twin purpose of production of khandsari sugar and gur, rab, etc., but as the crushers are sealed by the officers of the government, the owners are not in a position to produce even gur or rab on the production of which not only no ban has been imposed by the impugned notification but the same has been completely exempted from the purview of the notification. Thus, it was asserted the at the owners of crushers who want to switch over to production of gur, or rab, because of the ban imposed by the government on the production of khandsari may be allowed to do so. The Attorney General, however, pointed out that if this course is adopted it will be difficult to detect as to how many crushers are producing khandsari sugar in the garbs of gur or rab. Wherever any step for banning production is taken, the government has to evolve some procedure to detect the defaulters and with the resource at in command, we cannot understand why a special staff cannot be appointed ton a temporary basis for looking after the compliance of the order by the crushers and making surprise checks periodically. Another method to prevent the abuse of the privilege of production of gur or rab by producing khandsari in a clandestine fashion may be to insert a condition in the licences of the manufactures of khandsari sugar that if they produce khandsari during the period of the ban their licences would be cancelled.It is not disputed that sugar was being produced in the State of U. P. by thethrough hydraulic process and by the power crushers drew their raw material, namely,from the sugar cane growers. In order to facilitate production by themost of whom were controlled by the state, a reserved area of the fields growingwas fixed throughout the State. The notification applied only to the reserved areas of a mill and not to any other areas. In other words, any area which fell outside the reserved area was not affected by the notification and the power crushers situated in that area could still manufacture khandsari by the open pan process. Thus, it would be seen that the ban imposed by the notification was confined only to a particular area in the State of U. P.4. Secondly, the notification limited the ban to work power crushers only to a short period of one month and a half i. e., from October 9, 1980 to December 1, 1980. Thirdly (and it has also not been disputed) the owners of power crushers of khandsari units, who are the petitioners in these cases, had taken out regular licenses under the U. P. Khandsari Sugar Manufacturers Licensing Order of 1967 (hereinafter referred to as the Licensing Order). It, therefore, logically follows that the power crushers owned or worked by the petitioners were governed by the conditions of the licenses under which they were working the crushers. Forthly, what was prohibited by the notification was only the manufacture of khandsari while the production of gur or rab fromA large number of documents in the nature of affidavits,report and books have been filed by the counsel for both the parties in support of their respective contentions. We might also mention here that the notification has since spent its force and, in fact, was not carried into effect because immediately after it was issued the present writ petitions were filed in this Court and the petitioners obtained stay of the operation of the notification from this Court. Thehowever, insisted that the matter should be finally decided so that if the Central Government wants to take any steps of this kind in future, it may be aware of the correct constitutional or legal position. The petitioners also insisted that the constitutional and legal questions involved in these cases may be decided even though our decision may be more or less of an academic value.On the contention according to which the impugned notification is violative of Article 19(1) (g), it may be necessary to dwell in some detail. It is no doubt well settled that where a citizen complains of the violation of fundamental rights contained in(g) of clause (1) of Article 19 or for that matter in any of(a) to (g) thereof,the onus is not he State to prove or justify that the restraint or restrictions imposed on the fundamental rights under clauses (2) to (6) of the Article are reasonable. In the instant case, weare mainly concerned with(4), (5) and (6) of Article 19. As far back as 1955 this Court in Saghir Ahmad v. State of U. P. made this position very clear and observed as follows : | 0 | 16,602 | 2,675 | ### Instruction:
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control order was violative of Article 14 of the Constitution. It was contended that since the state had already fixed reserved areas for the factories, the selection of khandsari units for banning or stopping their production amounted to a mini classification units for banning or stopping their production amounted to a mini classification without any rational basis. We are, however, unable to accept this contention because in view of the various circumstances discussed above, the classification, if at all it was based on a reasonable nexus with the object sought to be achieved by the notification. Certain other aspects were also raised by Mr. Dayal which amount to almost a repetition of the main arguments placed before us by Mr. Garg and the counsel following him.84. Thus, on an overall consideration of the various aspects of the matter we are fully satisfied that applying the well-established tests of reasonableness, the impugned notification cannot be said to contain the quality of unreasonableness but is per se fair and reasonable and fully satisfies the conditions laid down by this Court in determining whether or not a restriction is reasonable.85. Before closing the judgment we would like to lay down certain guide lines for any future policy that the government may consider fit to shape in the light of the discussion on the points raised before us in this case. In fact, both counsel for the petitioners and the Attorney General had requested us to lay down certain guide lines to so that the government may benefit from the same. Although we have upheld the impugned notification but having regard to the special features of the present case we are not quite satisfied that a better policy to control sugar or increase its production could not be followed which may satisfy the parties concerned, viz., the crushers, the mills, the sugar-cane growers and the consumers.86. In case the government decides to impose a ban in future on the power crushers or other units. It may consider the desirability of giving a bare minimum hearing not too all the owners of khandsari units but to only one representative of the Association representing them all, and getting their views on the subject. It is possible that they might given some suggestions which the government would like to incorporate in formulating its policy. Even if the government thinks that an emergent situation has arisen and it may not be possible to give a hearing at least representation against the propose action may be called for from such Association and considered after giving the shortest possible notice. Not that such action is a legal requirement but it will generate greater confidence of the persons who may be affected by any order to be passed against them. In the same token, we may mention that when in passing an order like the impugned one the government has adopted the trial and error method, it would be in the fitness of things if the matter is carried to its logical end so that any future order passed contains the colour and quality of objectively.87. Secondly, could it not be possible for the government to allow the crushers to function by regulating the working hours or to fix a quota of sugar-cane to be delivered to the mills and the crushers in the ratio of 60 : 40 or 70 : 30 as may be advised by the experts and to insist that on the crushers and the mills should pay a uniform price to the cane growers? The counsel for the petitioners have brought to our notice a disturbing element in the entire case which is that in the past although the sugar-cane growers supplied sugar-cane on condition of payment to them of the support price fixed by the government yet the mills did not pay the price to the cane growers for a long time with the result that arrears accumulate running into lakhs of rupees. It would indeed be extremely desirable for the government to take steps to see that payment of the price of the quantity of the cane supplied to the mills or the crushers is paid against delivery or at any rate, within a reasonable time therefore so as to provide a strong incentive to the farmers to increase their production and earn substantial profits by supplying the sugar-cane to mills or crushers during the crushing season (October to May).88. Lastly, it was represented to us by the petitioners that the crushers are used for the twin purpose of production of khandsari sugar and gur, rab, etc., but as the crushers are sealed by the officers of the government, the owners are not in a position to produce even gur or rab on the production of which not only no ban has been imposed by the impugned notification but the same has been completely exempted from the purview of the notification. Thus, it was asserted the at the owners of crushers who want to switch over to production of gur, or rab, because of the ban imposed by the government on the production of khandsari may be allowed to do so. The Attorney General, however, pointed out that if this course is adopted it will be difficult to detect as to how many crushers are producing khandsari sugar in the garbs of gur or rab. Wherever any step for banning production is taken, the government has to evolve some procedure to detect the defaulters and with the resource at in command, we cannot understand why a special staff cannot be appointed ton a temporary basis for looking after the compliance of the order by the crushers and making surprise checks periodically. Another method to prevent the abuse of the privilege of production of gur or rab by producing khandsari in a clandestine fashion may be to insert a condition in the licences of the manufactures of khandsari sugar that if they produce khandsari during the period of the ban their licences would be cancelled.
### Response:
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### Explanation:
function by regulating the working hours or to fix a quota of sugar-cane to be delivered to the mills and the crushers in the ratio of 60 : 40 or 70 : 30 as may be advised by the experts and to insist that on the crushers and the mills should pay a uniform price to the cane growers? The counsel for the petitioners have brought to our notice a disturbing element in the entire case which is that in the past although the sugar-cane growers supplied sugar-cane on condition of payment to them of the support price fixed by the government yet the mills did not pay the price to the cane growers for a long time with the result that arrears accumulate running into lakhs of rupees. It would indeed be extremely desirable for the government to take steps to see that payment of the price of the quantity of the cane supplied to the mills or the crushers is paid against delivery or at any rate, within a reasonable time therefore so as to provide a strong incentive to the farmers to increase their production and earn substantial profits by supplying the sugar-cane to mills or crushers during the crushing season (October to May).88. Lastly, it was represented to us by the petitioners that the crushers are used for the twin purpose of production of khandsari sugar and gur, rab, etc., but as the crushers are sealed by the officers of the government, the owners are not in a position to produce even gur or rab on the production of which not only no ban has been imposed by the impugned notification but the same has been completely exempted from the purview of the notification. Thus, it was asserted the at the owners of crushers who want to switch over to production of gur, or rab, because of the ban imposed by the government on the production of khandsari may be allowed to do so. The Attorney General, however, pointed out that if this course is adopted it will be difficult to detect as to how many crushers are producing khandsari sugar in the garbs of gur or rab. Wherever any step for banning production is taken, the government has to evolve some procedure to detect the defaulters and with the resource at in command, we cannot understand why a special staff cannot be appointed ton a temporary basis for looking after the compliance of the order by the crushers and making surprise checks periodically. Another method to prevent the abuse of the privilege of production of gur or rab by producing khandsari in a clandestine fashion may be to insert a condition in the licences of the manufactures of khandsari sugar that if they produce khandsari during the period of the ban their licences would be cancelled.It is not disputed that sugar was being produced in the State of U. P. by thethrough hydraulic process and by the power crushers drew their raw material, namely,from the sugar cane growers. In order to facilitate production by themost of whom were controlled by the state, a reserved area of the fields growingwas fixed throughout the State. The notification applied only to the reserved areas of a mill and not to any other areas. In other words, any area which fell outside the reserved area was not affected by the notification and the power crushers situated in that area could still manufacture khandsari by the open pan process. Thus, it would be seen that the ban imposed by the notification was confined only to a particular area in the State of U. P.4. Secondly, the notification limited the ban to work power crushers only to a short period of one month and a half i. e., from October 9, 1980 to December 1, 1980. Thirdly (and it has also not been disputed) the owners of power crushers of khandsari units, who are the petitioners in these cases, had taken out regular licenses under the U. P. Khandsari Sugar Manufacturers Licensing Order of 1967 (hereinafter referred to as the Licensing Order). It, therefore, logically follows that the power crushers owned or worked by the petitioners were governed by the conditions of the licenses under which they were working the crushers. Forthly, what was prohibited by the notification was only the manufacture of khandsari while the production of gur or rab fromA large number of documents in the nature of affidavits,report and books have been filed by the counsel for both the parties in support of their respective contentions. We might also mention here that the notification has since spent its force and, in fact, was not carried into effect because immediately after it was issued the present writ petitions were filed in this Court and the petitioners obtained stay of the operation of the notification from this Court. Thehowever, insisted that the matter should be finally decided so that if the Central Government wants to take any steps of this kind in future, it may be aware of the correct constitutional or legal position. The petitioners also insisted that the constitutional and legal questions involved in these cases may be decided even though our decision may be more or less of an academic value.On the contention according to which the impugned notification is violative of Article 19(1) (g), it may be necessary to dwell in some detail. It is no doubt well settled that where a citizen complains of the violation of fundamental rights contained in(g) of clause (1) of Article 19 or for that matter in any of(a) to (g) thereof,the onus is not he State to prove or justify that the restraint or restrictions imposed on the fundamental rights under clauses (2) to (6) of the Article are reasonable. In the instant case, weare mainly concerned with(4), (5) and (6) of Article 19. As far back as 1955 this Court in Saghir Ahmad v. State of U. P. made this position very clear and observed as follows :
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Krishnabai Anaji Ghule and Others Vs. Nivrutti Ramchandra Raykar and Another | the appellate stage. T he Tribunal observed that the delay in producing this evidence having been satisfactorily explained, the tenants ought to have been allowed to produce the evidence which has some bearing in the issues arising in the matter. The piece of evidence sought to be produced at the appellate stage by the tenants was bearing on the question of bonafide of the partition. It is the same contention differently clothed. In this connection, the Tribunal observed that despite the proceedings under Sec. 88-C having finally concluded between the parties:"It was still open to the tenants to show that the manner in which the partition was effected and the time chosen therefore and particularly the fact that the entire tenanted land was allotted to the share of one coparcener to the exclusion of others has an important bearing on the question of bonafides."This view was sought to be supported by relying upon Arvindlal Bhukhanda v. Khandu. The High Court in a petition under Art. 2 27 while setting aside the order of remand observed that the delay in producing additional evidence was unexplained looking to the protracted proceedings commencing from 1962 and the bonafide of the partition was not questioned, except at the revisional stage.Mr. Tarkunde, learned counsel for respondents took serious exception to the second observation and pointed out that it is contrary to record. In this connection, he drew our attention to Point No. 5 framed by the Tehsildar while holding the enquiry after the remand which was as under:"5. Whether the partition made by the landlord is valid. And whether it can be challenged in these proceedings?"12. He recorded a finding that there was a partition in the landlords family in 1959 and the same cannot be challenged in the present proceedings, In the appeal by the tenants, the Appellate Court disposed of the contention on the bonafide of the partition by observing that he was in agreement with the reasoning of the Tehsildar. The Maharashtra Revenue Tribunal in the revision petition by the tenants held that once a certificate is granted to a landlord under Sec. 88-C on the basis that he is the exclusive owner of the land it is not open to the tenant in an enquiry under Sec. 33-B to challenge the partition under it. In support of this view, the Tribunal relied upon two un-reported decisions of the Bombay High Court and finally observed that it is futile to challenge the validity of the partition. It thus appears that High Court committed an error apparent on record while observing that the validity of partition was questioned for the first time at the revisional stage. But having said this it must also be pointed out that the contention raised by the tenant about the bonafides of partition in the proceedings under Sec. 33-B has been rightly negatived on the short ground that the bona fides, genuineness and validity of the partition was directly and substantially in issue in the proceedings under Sec. 88-C and concurrently held in favour of the landlord upto the High Court and the same must be held to be concluded between the parties and on this short ground, the decision of the High Court setting aside the order of remand can be confirmed.In the view that we take in the circumstances herein discussed, the bonafides of the partition cannot be put in issue, the contention raised by Mr. Tarkunde becomes a non-issue and it will also dispose of his supplementary contention that the Sub Divisional officer hearing the appeal was in error in declining to give an opportunity to the tenants to produce additional evidence which was primarily for the purpose of showing that the partition was neither genuine nor bonafide. And in our opinion in the facts of this case it is no more relevant.13. Incidentally it was urged that the landlord is staying at Poona and that he is florist and the land involved in dispute is at Village Manjari and therefore it is not possible to believe that the landlord would be able to personally cultivate the land or that he can undertake the avocation of cultivation of land by investing funds when the area available is less than an economic holding. These are pure questions of facts concurrently held in favour of the landlord and we are not disposed to re-examine them at this stage and at this distance of time.14. One aspect which, frankly has dominated out thinking is the relative economic position of tenants and landlord in this case. Anaji Ghule was a tenant of 4 acres out of 7 acres and 13 gunthas of land comprising in Survey No. 14/A/2. Tilekar was a tenant of the remaining 3 acres and 13 gunthas. Anaji Ghule died leaving behind him two sons and a widow, who are appellants No. 1 to 3. Appellant " Krishnabai the widow holds excluding the leased land 16 acres and 17 gunthas of land; first son Shivaji 8 acres and 9 gunthas, and Bala the second son 8 acres and 10 gunthas of land. Presumably all the three inherited the land from Shri Ghule and therefore the total holding would be 32 acres and 36 gunthas of land. And it is interesting to no te some features of the partition effected by tenants heirs amongst themselves. The widow is allotted double the share of each son. There is nothing to show that the mother and two sons have separated. And their total holding is 32 acres an d 36 gunthas. As against the holding of first set of tenants of 32 acres and 36 gunthas, the landlord seeks possession of 4 acres of land. In the case of Tilekar he holds 8 acres and 4 gunthas and the landlords 3 acres and 13 gundhas. Would it be fair to deny this very reasonable request in appeal under Art. 136 when all authorities including High Court have held in favour of this petty small landlord. We decline to interfere.Accordingl | 0[ds]One aspect which, frankly has dominated out thinking is the relative economic position of tenants and landlord in this case. Anaji Ghule was a tenant of 4 acres out of 7 acres and 13 gunthas of land comprising in Survey No. 14/A/2. Tilekar was a tenant of the remaining 3 acres and 13 gunthas. Anaji Ghule died leaving behind him two sons and a widow, who are appellants No. 1 to 3. Appellant " Krishnabai the widow holds excluding the leased land 16 acres and 17 gunthas of land; first son Shivaji 8 acres and 9 gunthas, and Bala the second son 8 acres and 10 gunthas of land. Presumably all the three inherited the land from Shri Ghule and therefore the total holding would be 32 acres and 36 gunthas of land. And it is interesting to no te some features of the partition effected by tenants heirs amongst themselves. The widow is allotted double the share of each son. There is nothing to show that the mother and two sons have separated. And their total holding is 32 acres an d 36 gunthas. As against the holding of first set of tenants of 32 acres and 36 gunthas, the landlord seeks possession of 4 acres of land. In the case of Tilekar he holds 8 acres and 4 gunthas and the landlords 3 acres and 13 gundhas. Would it be fair to deny this very reasonable request in appeal under Art. 136 when all authorities including High Court have held in favour of this petty small landlord. We decline tothe view that we take in the circumstances herein discussed, the bonafides of the partition cannot be put in issue, the contention raised by Mr. Tarkunde becomes aand it will also dispose of his supplementary contention that the Sub Divisional officer hearing the appeal was in error in declining to give an opportunity to the tenants to produce additional evidence which was primarily for the purpose of showing that the partition was neither genuine nor bonafide. And in our opinion in the facts of this case it is no morethus appears that High Court committed an error apparent on record while observing that the validity of partition was questioned for the first time at the revisional stage. But having said this it must also be pointed out that the contention raised by the tenant about the bonafides of partition in the proceedings under Sec.has been rightly negatived on the short ground that the bona fides, genuineness and validity of the partition was directly and substantially in issue in the proceedings under Sec.and concurrently held in favour of the landlord upto the High Court and the same must be held to be concluded between the parties and on this short ground, the decision of the High Court setting aside the order of remand can be confirmed.Inthe view that we take in the circumstances herein discussed, the bonafides of the partition cannot be put in issue, the contention raised by Mr. Tarkunde becomes aand it will also dispose of his supplementary contention that the Sub Divisional officer hearing the appeal was in error in declining to give an opportunity to the tenants to produce additional evidence which was primarily for the purpose of showing that the partition was neither genuine nor bonafide. And in our opinion in the facts of this case it is no more | 0 | 4,778 | 601 | ### Instruction:
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the appellate stage. T he Tribunal observed that the delay in producing this evidence having been satisfactorily explained, the tenants ought to have been allowed to produce the evidence which has some bearing in the issues arising in the matter. The piece of evidence sought to be produced at the appellate stage by the tenants was bearing on the question of bonafide of the partition. It is the same contention differently clothed. In this connection, the Tribunal observed that despite the proceedings under Sec. 88-C having finally concluded between the parties:"It was still open to the tenants to show that the manner in which the partition was effected and the time chosen therefore and particularly the fact that the entire tenanted land was allotted to the share of one coparcener to the exclusion of others has an important bearing on the question of bonafides."This view was sought to be supported by relying upon Arvindlal Bhukhanda v. Khandu. The High Court in a petition under Art. 2 27 while setting aside the order of remand observed that the delay in producing additional evidence was unexplained looking to the protracted proceedings commencing from 1962 and the bonafide of the partition was not questioned, except at the revisional stage.Mr. Tarkunde, learned counsel for respondents took serious exception to the second observation and pointed out that it is contrary to record. In this connection, he drew our attention to Point No. 5 framed by the Tehsildar while holding the enquiry after the remand which was as under:"5. Whether the partition made by the landlord is valid. And whether it can be challenged in these proceedings?"12. He recorded a finding that there was a partition in the landlords family in 1959 and the same cannot be challenged in the present proceedings, In the appeal by the tenants, the Appellate Court disposed of the contention on the bonafide of the partition by observing that he was in agreement with the reasoning of the Tehsildar. The Maharashtra Revenue Tribunal in the revision petition by the tenants held that once a certificate is granted to a landlord under Sec. 88-C on the basis that he is the exclusive owner of the land it is not open to the tenant in an enquiry under Sec. 33-B to challenge the partition under it. In support of this view, the Tribunal relied upon two un-reported decisions of the Bombay High Court and finally observed that it is futile to challenge the validity of the partition. It thus appears that High Court committed an error apparent on record while observing that the validity of partition was questioned for the first time at the revisional stage. But having said this it must also be pointed out that the contention raised by the tenant about the bonafides of partition in the proceedings under Sec. 33-B has been rightly negatived on the short ground that the bona fides, genuineness and validity of the partition was directly and substantially in issue in the proceedings under Sec. 88-C and concurrently held in favour of the landlord upto the High Court and the same must be held to be concluded between the parties and on this short ground, the decision of the High Court setting aside the order of remand can be confirmed.In the view that we take in the circumstances herein discussed, the bonafides of the partition cannot be put in issue, the contention raised by Mr. Tarkunde becomes a non-issue and it will also dispose of his supplementary contention that the Sub Divisional officer hearing the appeal was in error in declining to give an opportunity to the tenants to produce additional evidence which was primarily for the purpose of showing that the partition was neither genuine nor bonafide. And in our opinion in the facts of this case it is no more relevant.13. Incidentally it was urged that the landlord is staying at Poona and that he is florist and the land involved in dispute is at Village Manjari and therefore it is not possible to believe that the landlord would be able to personally cultivate the land or that he can undertake the avocation of cultivation of land by investing funds when the area available is less than an economic holding. These are pure questions of facts concurrently held in favour of the landlord and we are not disposed to re-examine them at this stage and at this distance of time.14. One aspect which, frankly has dominated out thinking is the relative economic position of tenants and landlord in this case. Anaji Ghule was a tenant of 4 acres out of 7 acres and 13 gunthas of land comprising in Survey No. 14/A/2. Tilekar was a tenant of the remaining 3 acres and 13 gunthas. Anaji Ghule died leaving behind him two sons and a widow, who are appellants No. 1 to 3. Appellant " Krishnabai the widow holds excluding the leased land 16 acres and 17 gunthas of land; first son Shivaji 8 acres and 9 gunthas, and Bala the second son 8 acres and 10 gunthas of land. Presumably all the three inherited the land from Shri Ghule and therefore the total holding would be 32 acres and 36 gunthas of land. And it is interesting to no te some features of the partition effected by tenants heirs amongst themselves. The widow is allotted double the share of each son. There is nothing to show that the mother and two sons have separated. And their total holding is 32 acres an d 36 gunthas. As against the holding of first set of tenants of 32 acres and 36 gunthas, the landlord seeks possession of 4 acres of land. In the case of Tilekar he holds 8 acres and 4 gunthas and the landlords 3 acres and 13 gundhas. Would it be fair to deny this very reasonable request in appeal under Art. 136 when all authorities including High Court have held in favour of this petty small landlord. We decline to interfere.Accordingl
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### Explanation:
One aspect which, frankly has dominated out thinking is the relative economic position of tenants and landlord in this case. Anaji Ghule was a tenant of 4 acres out of 7 acres and 13 gunthas of land comprising in Survey No. 14/A/2. Tilekar was a tenant of the remaining 3 acres and 13 gunthas. Anaji Ghule died leaving behind him two sons and a widow, who are appellants No. 1 to 3. Appellant " Krishnabai the widow holds excluding the leased land 16 acres and 17 gunthas of land; first son Shivaji 8 acres and 9 gunthas, and Bala the second son 8 acres and 10 gunthas of land. Presumably all the three inherited the land from Shri Ghule and therefore the total holding would be 32 acres and 36 gunthas of land. And it is interesting to no te some features of the partition effected by tenants heirs amongst themselves. The widow is allotted double the share of each son. There is nothing to show that the mother and two sons have separated. And their total holding is 32 acres an d 36 gunthas. As against the holding of first set of tenants of 32 acres and 36 gunthas, the landlord seeks possession of 4 acres of land. In the case of Tilekar he holds 8 acres and 4 gunthas and the landlords 3 acres and 13 gundhas. Would it be fair to deny this very reasonable request in appeal under Art. 136 when all authorities including High Court have held in favour of this petty small landlord. We decline tothe view that we take in the circumstances herein discussed, the bonafides of the partition cannot be put in issue, the contention raised by Mr. Tarkunde becomes aand it will also dispose of his supplementary contention that the Sub Divisional officer hearing the appeal was in error in declining to give an opportunity to the tenants to produce additional evidence which was primarily for the purpose of showing that the partition was neither genuine nor bonafide. And in our opinion in the facts of this case it is no morethus appears that High Court committed an error apparent on record while observing that the validity of partition was questioned for the first time at the revisional stage. But having said this it must also be pointed out that the contention raised by the tenant about the bonafides of partition in the proceedings under Sec.has been rightly negatived on the short ground that the bona fides, genuineness and validity of the partition was directly and substantially in issue in the proceedings under Sec.and concurrently held in favour of the landlord upto the High Court and the same must be held to be concluded between the parties and on this short ground, the decision of the High Court setting aside the order of remand can be confirmed.Inthe view that we take in the circumstances herein discussed, the bonafides of the partition cannot be put in issue, the contention raised by Mr. Tarkunde becomes aand it will also dispose of his supplementary contention that the Sub Divisional officer hearing the appeal was in error in declining to give an opportunity to the tenants to produce additional evidence which was primarily for the purpose of showing that the partition was neither genuine nor bonafide. And in our opinion in the facts of this case it is no more
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Raichand Amulakh Shah Vs. Union Of India | of the words "wharfage" and "demurrage" as understood by the Act and the rules made thereunder. There is no definition of "wharfage" in the Act. But S. 46C(d) defines demurrage to mean the charge levied after the expiry of the free time allowed for loading or unloading a wagon. But the rules, presumably made under the Act, give a clear idea of the meaning of those words. The relevant rule is R. 85 and it reads :"The actual wharfage and demurrage rules locally in force on different railways are published in each Railways Tarrifs and may be ascertained on application at stations."The following wharfage and demurrage rules were in force on the B. B. and C. I. Railway, which is now named as the Western Railway, Clauses (A) and (B) thereof give the rates of wharfage and demurrage and clause (C) defines "demurrage" wharfage", Clause (C) reads :(i) When wagons required to be unloaded by consignees are not unloaded within the free time of six daylight hours, after being placed in position for unloading, demurrage as per clause (B) (ii) above will be charged for such time above six daylight hours, as the goods remain in the wagon, and wharfage, at the rate notified as applicable at the station will be charged if the goods are not removed from the railway premises by the end of the day following that on which they are unloaded."(ii) When wagons requiring to be unloaded by consignees are unloaded with the free time of six daylight hours, after being placed in position for unloading, wharfage at the rate notified as applicable at the station will be charged if the goods are not removed from the railway premises by the end of the day following that on which the free time of six daylight hours, expires.Demurrage is therefore a charge levied on the goods not unloaded from the wagons within the free time of six daylight hours and wharfage is the charge levied on goods not removed from the railway premises after the expiry of the free time allowed for that purpose. In deed S. 46C(d) of the Act, which was inserted by Act, 65 of 1945, has practically adopted the definition of the word "demurrage" given in the said rule. Wharfage and demurrage are, therefore, charges levied in respect of goods retained in the wagons or in the railway premises beyond the free time allowed for clearance under the rules.8. The question is whether such charges are "terminals" as defined in the Act. The expression "terminal charges" was defined for the first time in the Indian Railway Act 1890. It was taken from the definition in S. 55 of the English Railway and Canal Traffic Act, 1888. Terminal charges are of two categories : (1) charges for services, and (2) charges for accommodation and appliances which facilitate business. The "service terminals" comprise of remuneration for the handling of goods at the terminal station i.e., where the railway employees are engaged in weighing, loading, unloading etc. As distinguished from this "service terminals" there are "station terminals" which are charges for providing accommodation incidental to the business of a carrier, such as "working charges, repairs, renewals, insurance of station buildings, sidings, sheds, platforms, warehouses, cranes, hydraulic power, fixed appliances etc." Both demurrage and wharfage would fall within the head of "station terminals", because they are charges levied for the use either of the wagon or of the platform or goods-shed after the transit or conveyance is complete and is not incidental to the conveyance as such. Charges levied in respect of stations are included in the definition of "terminals" under the Act. As the wharfage and demurrage are charges in respect of goods unloaded from wagons and kept at the station, and also in respect of goods kept on platforms of the station, the said charges could certainly be described as charges in respect of the station. If so, it follows that the said charges are "terminals" within the meaning of the definition of the said expression in the Act.9. Let us now see whether any remedy is provided by the Act for an aggrieved party to ask for a refund of the charges collected on the ground mentioned in the plaint. The Tribunal constituted under S. 34 of the Act has jurisdiction to decide whether the charges levied by the railway administration other than the standardised terminal charges were unreasonable. The Act does not provide for any remedy for an aggrieved party to approach the Tribunal for a refund of the amount collected by the railway administration by way of wharfage or demurrage on the ground that the rules empowering the said administration to do so are ultra vires or that the amounts so collected are in excess of wharfage or demurrage leviable under the rules. If the impugned charges are standarised terminal charges, the dispute in regard thereto falls outside S. 41 of the Act. If they are charges other than the standardised terminal charges, the jurisdiction of the Tribunal is confined only to the question of its reasonableness. It has no jurisdiction to decide whether the rules empowering the railway administration to levy a particular charge are ultra vires or whether the railway administration collected amounts in excess of the charges which it can legally levy under a rule. If so, it is clear that no provision has been made under the Act giving a remedy to an aggrieved party to ask for a refund of amounts, such as those alleged to have been collected from the appellants. Section 26, therefore, cannot be a bar against the maintainability of the suits filed by the appellants.10. We do not propose to express our view in this case, as it has not been argued before us, whether the demurrage charges in question fell within the meaning of the expression "demurrage charges" in S. 45 of the Act and, if so, whether the jurisdiction of the Tribunal could only be invoked in the manner prescribed thereunder. | 0[ds]The scheme of the said provisions is clear. The Central Government fixes the rates of terminal and other charges for the whole or a part of a railway. If a railway administration levies charges other than the standardised terminal charges which are unreasonable, an aggrieved party may file a complaint against the administration before the Railway Rates Tribunal. The decision of the Tribunal is final. In regard to "demurrage charges" mentioned in S. 45 of the Act, the Tribunal has no jurisdiction to entertain a claim in respect thereof, except by a reference made to the Tribunal by the Central Government. Section 26 bars the jurisdiction of ordinary civil courts to entertain a suit or a proceeding for anything done or any omission made by the railway administration in violation or contravention of any of the provisions of Chapter V. In regard to such violation, an aggrieved party can only proceed in the manner provided by theis therefore a charge levied on the goods not unloaded from the wagons within the free time of six daylight hours and wharfage is the charge levied on goods not removed from the railway premises after the expiry of the free time allowed for that purpose. In deed S. 46C(d) of the Act, which was inserted by Act, 65 of 1945, has practically adopted the definition of the word "demurrage" given in the said rule. Wharfage and demurrage are, therefore, charges levied in respect of goods retained in the wagons or in the railway premises beyond the free time allowed for clearance under theexpression "terminal charges" was defined for the first time in the Indian Railway Act 1890. It was taken from the definition in S. 55 of the English Railway and Canal Traffic Act, 1888. Terminal charges are of two categories : (1) charges for services, and (2) charges for accommodation and appliances which facilitate business. The "service terminals" comprise of remuneration for the handling of goods at the terminal station i.e., where the railway employees are engaged in weighing, loading, unloading etc. As distinguished from this "service terminals" there are "station terminals" which are charges for providing accommodation incidental to the business of a carrier, such as "working charges, repairs, renewals, insurance of station buildings, sidings, sheds, platforms, warehouses, cranes, hydraulic power, fixed appliances etc." Both demurrage and wharfage would fall within the head of "station terminals", because they are charges levied for the use either of the wagon or of the platform or goods-shed after the transit or conveyance is complete and is not incidental to the conveyance as such. Charges levied in respect of stations are included in the definition of "terminals" under the Act. As the wharfage and demurrage are charges in respect of goods unloaded from wagons and kept at the station, and also in respect of goods kept on platforms of the station, the said charges could certainly be described as charges in respect of the station. If so, it follows that the said charges are "terminals" within the meaning of the definition of the said expression in theAct does not provide for any remedy for an aggrieved party to approach the Tribunal for a refund of the amount collected by the railway administration by way of wharfage or demurrage on the ground that the rules empowering the said administration to do so are ultra vires or that the amounts so collected are in excess of wharfage or demurrage leviable under the rules. If the impugned charges are standarised terminal charges, the dispute in regard thereto falls outside S. 41 of the Act. If they are charges other than the standardised terminal charges, the jurisdiction of the Tribunal is confined only to the question of its reasonableness. It has no jurisdiction to decide whether the rules empowering the railway administration to levy a particular charge are ultra vires or whether the railway administration collected amounts in excess of the charges which it can legally levy under a rule. If so, it is clear that no provision has been made under the Act giving a remedy to an aggrieved party to ask for a refund of amounts, such as those alleged to have been collected from the appellants. Section 26, therefore, cannot be a bar against the maintainability of the suits filed by the appellants.10. We do not propose to express our view in this case, as it has not been argued before us, whether the demurrage charges in question fell within the meaning of the expression "demurrage charges" in S. 45 of the Act and, if so, whether the jurisdiction of the Tribunal could only be invoked in the manner prescribed thereunder. | 0 | 2,876 | 870 | ### 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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of the words "wharfage" and "demurrage" as understood by the Act and the rules made thereunder. There is no definition of "wharfage" in the Act. But S. 46C(d) defines demurrage to mean the charge levied after the expiry of the free time allowed for loading or unloading a wagon. But the rules, presumably made under the Act, give a clear idea of the meaning of those words. The relevant rule is R. 85 and it reads :"The actual wharfage and demurrage rules locally in force on different railways are published in each Railways Tarrifs and may be ascertained on application at stations."The following wharfage and demurrage rules were in force on the B. B. and C. I. Railway, which is now named as the Western Railway, Clauses (A) and (B) thereof give the rates of wharfage and demurrage and clause (C) defines "demurrage" wharfage", Clause (C) reads :(i) When wagons required to be unloaded by consignees are not unloaded within the free time of six daylight hours, after being placed in position for unloading, demurrage as per clause (B) (ii) above will be charged for such time above six daylight hours, as the goods remain in the wagon, and wharfage, at the rate notified as applicable at the station will be charged if the goods are not removed from the railway premises by the end of the day following that on which they are unloaded."(ii) When wagons requiring to be unloaded by consignees are unloaded with the free time of six daylight hours, after being placed in position for unloading, wharfage at the rate notified as applicable at the station will be charged if the goods are not removed from the railway premises by the end of the day following that on which the free time of six daylight hours, expires.Demurrage is therefore a charge levied on the goods not unloaded from the wagons within the free time of six daylight hours and wharfage is the charge levied on goods not removed from the railway premises after the expiry of the free time allowed for that purpose. In deed S. 46C(d) of the Act, which was inserted by Act, 65 of 1945, has practically adopted the definition of the word "demurrage" given in the said rule. Wharfage and demurrage are, therefore, charges levied in respect of goods retained in the wagons or in the railway premises beyond the free time allowed for clearance under the rules.8. The question is whether such charges are "terminals" as defined in the Act. The expression "terminal charges" was defined for the first time in the Indian Railway Act 1890. It was taken from the definition in S. 55 of the English Railway and Canal Traffic Act, 1888. Terminal charges are of two categories : (1) charges for services, and (2) charges for accommodation and appliances which facilitate business. The "service terminals" comprise of remuneration for the handling of goods at the terminal station i.e., where the railway employees are engaged in weighing, loading, unloading etc. As distinguished from this "service terminals" there are "station terminals" which are charges for providing accommodation incidental to the business of a carrier, such as "working charges, repairs, renewals, insurance of station buildings, sidings, sheds, platforms, warehouses, cranes, hydraulic power, fixed appliances etc." Both demurrage and wharfage would fall within the head of "station terminals", because they are charges levied for the use either of the wagon or of the platform or goods-shed after the transit or conveyance is complete and is not incidental to the conveyance as such. Charges levied in respect of stations are included in the definition of "terminals" under the Act. As the wharfage and demurrage are charges in respect of goods unloaded from wagons and kept at the station, and also in respect of goods kept on platforms of the station, the said charges could certainly be described as charges in respect of the station. If so, it follows that the said charges are "terminals" within the meaning of the definition of the said expression in the Act.9. Let us now see whether any remedy is provided by the Act for an aggrieved party to ask for a refund of the charges collected on the ground mentioned in the plaint. The Tribunal constituted under S. 34 of the Act has jurisdiction to decide whether the charges levied by the railway administration other than the standardised terminal charges were unreasonable. The Act does not provide for any remedy for an aggrieved party to approach the Tribunal for a refund of the amount collected by the railway administration by way of wharfage or demurrage on the ground that the rules empowering the said administration to do so are ultra vires or that the amounts so collected are in excess of wharfage or demurrage leviable under the rules. If the impugned charges are standarised terminal charges, the dispute in regard thereto falls outside S. 41 of the Act. If they are charges other than the standardised terminal charges, the jurisdiction of the Tribunal is confined only to the question of its reasonableness. It has no jurisdiction to decide whether the rules empowering the railway administration to levy a particular charge are ultra vires or whether the railway administration collected amounts in excess of the charges which it can legally levy under a rule. If so, it is clear that no provision has been made under the Act giving a remedy to an aggrieved party to ask for a refund of amounts, such as those alleged to have been collected from the appellants. Section 26, therefore, cannot be a bar against the maintainability of the suits filed by the appellants.10. We do not propose to express our view in this case, as it has not been argued before us, whether the demurrage charges in question fell within the meaning of the expression "demurrage charges" in S. 45 of the Act and, if so, whether the jurisdiction of the Tribunal could only be invoked in the manner prescribed thereunder.
### Response:
0
### Explanation:
The scheme of the said provisions is clear. The Central Government fixes the rates of terminal and other charges for the whole or a part of a railway. If a railway administration levies charges other than the standardised terminal charges which are unreasonable, an aggrieved party may file a complaint against the administration before the Railway Rates Tribunal. The decision of the Tribunal is final. In regard to "demurrage charges" mentioned in S. 45 of the Act, the Tribunal has no jurisdiction to entertain a claim in respect thereof, except by a reference made to the Tribunal by the Central Government. Section 26 bars the jurisdiction of ordinary civil courts to entertain a suit or a proceeding for anything done or any omission made by the railway administration in violation or contravention of any of the provisions of Chapter V. In regard to such violation, an aggrieved party can only proceed in the manner provided by theis therefore a charge levied on the goods not unloaded from the wagons within the free time of six daylight hours and wharfage is the charge levied on goods not removed from the railway premises after the expiry of the free time allowed for that purpose. In deed S. 46C(d) of the Act, which was inserted by Act, 65 of 1945, has practically adopted the definition of the word "demurrage" given in the said rule. Wharfage and demurrage are, therefore, charges levied in respect of goods retained in the wagons or in the railway premises beyond the free time allowed for clearance under theexpression "terminal charges" was defined for the first time in the Indian Railway Act 1890. It was taken from the definition in S. 55 of the English Railway and Canal Traffic Act, 1888. Terminal charges are of two categories : (1) charges for services, and (2) charges for accommodation and appliances which facilitate business. The "service terminals" comprise of remuneration for the handling of goods at the terminal station i.e., where the railway employees are engaged in weighing, loading, unloading etc. As distinguished from this "service terminals" there are "station terminals" which are charges for providing accommodation incidental to the business of a carrier, such as "working charges, repairs, renewals, insurance of station buildings, sidings, sheds, platforms, warehouses, cranes, hydraulic power, fixed appliances etc." Both demurrage and wharfage would fall within the head of "station terminals", because they are charges levied for the use either of the wagon or of the platform or goods-shed after the transit or conveyance is complete and is not incidental to the conveyance as such. Charges levied in respect of stations are included in the definition of "terminals" under the Act. As the wharfage and demurrage are charges in respect of goods unloaded from wagons and kept at the station, and also in respect of goods kept on platforms of the station, the said charges could certainly be described as charges in respect of the station. If so, it follows that the said charges are "terminals" within the meaning of the definition of the said expression in theAct does not provide for any remedy for an aggrieved party to approach the Tribunal for a refund of the amount collected by the railway administration by way of wharfage or demurrage on the ground that the rules empowering the said administration to do so are ultra vires or that the amounts so collected are in excess of wharfage or demurrage leviable under the rules. If the impugned charges are standarised terminal charges, the dispute in regard thereto falls outside S. 41 of the Act. If they are charges other than the standardised terminal charges, the jurisdiction of the Tribunal is confined only to the question of its reasonableness. It has no jurisdiction to decide whether the rules empowering the railway administration to levy a particular charge are ultra vires or whether the railway administration collected amounts in excess of the charges which it can legally levy under a rule. If so, it is clear that no provision has been made under the Act giving a remedy to an aggrieved party to ask for a refund of amounts, such as those alleged to have been collected from the appellants. Section 26, therefore, cannot be a bar against the maintainability of the suits filed by the appellants.10. We do not propose to express our view in this case, as it has not been argued before us, whether the demurrage charges in question fell within the meaning of the expression "demurrage charges" in S. 45 of the Act and, if so, whether the jurisdiction of the Tribunal could only be invoked in the manner prescribed thereunder.
|
P.P. Enterprises Etc Vs. Union of India and Others Etc | the right of the citizens where the necessities of the situation demand. The restrictions must be in public interest and are imposed by striking a just balance between th e deprivation of right and the danager or evil sought to be avoided. If the restrictions imposed appear to be consistent with the directive principles of State policy they would have to be upheld as the same would be in public interest and manifestly reasonable. Further, restrictions may be partial, complete, permanent or temporary but they must bear a close nexus with the object in the interest of which they are imposed. Another important test is that restriction should not be excessive or arbitrary. The court must examine the direct and immediate import of - the restrictions on the rights of the citizens and determine if the restric tions are in larger public interest while deciding the question that they contain the quality of reasonableness. In such cases a doctrinaire approach should not be made but care should be taken to see that the real purpose which is sought to be achieved by restricting the rights of the citizens is sub-served. At the same time, the possibility of an alternative scheme which might have been but has not been enforced would not expose the restrict ions to challenge on the ground that they are not reasonable."12. Judged in that light and on an overall consideration of the various aspects of the matter, restrictions put by the impugned order can by no means be said to be unreasonable. It is only regulatory and not prohibitory.13. We now take up the last contention, namely, the impugned order being violative of Article 14 of the Constitution. The learned counsel seeks to invoke Article 14 on two grounds: (1) the impu gned order applies two standards, one for the dealers, at Calcutta, who had been authorised to keep 3, 500 quintals at one time, while the dealers at other places have been authorised to keep only 250 quintals in cities with a population of one lakh or more, and only 100 quintals in other towns with a population of less than one lakh.14. The fixation of limits for storing sugar in Calcutta and other places is not arbitrary but is based on reasonable classification. The government is the best judge of the situation in a particular State and that quantity of sugar will meet the exigencies of the situation at a particular place is purely a governmental function. For one, Calcutta serves as a feeder line to meet the requiremen ts of sugar to the eastern part of the country, and therefore, the stocks of sugar to be held by the dealers in Calcutta are not required for consumption in Calcutta alone Besides, Calcutta being far away from the sugar manufacturing units in Bih ar and Uttar Pradesh, from where bulk of supplies are obtained, sugar is transported by the wholesale dealers in railway wagons which take sometime unusually longer time in transit. These and various other factors have been taken into consideration by the Government while fixing the storage limits of sugar for the dealers in Calcutta.15. His second ground for invoking Article 14 of the Constitution is that the impugned order is unreasonable and impracticable in that no dealer can be sur e of the sale of sugar on any particular day. If per chance a dealer is not able to dispose of the excess sugar on a particular. day he would expose himself to punishment under the Act. No provision has been made in the order or in the rules for the purchase by the Government of the excess sugar. For the State it was contended that similar orders with regard to wheat came up for consideration in this Court in Suraj Mal Kailash Chand Ors. v. Union of India &Anr. and Bishambhar Dayal Chandra Mohan Ors. etc. v. State of Uttar Pradesh &ors. etc.(2) when this Court upheld the validity of these orders. In view of the decision of this Court in those cases it is not open to Shri Shanti Bhushan to challenge the constitutional vali dity of the impugned order.Shri Shanti Bhushan, however, refutes the argument and says that those decisions do not stand in the way of the petitioners. The situation with regard to wheat was quite different inasmuch . s clause 25 of the im pugned order in Sutlaj Mals case (supra) provided that the State Government or the Collector or the Licensing Authority may issue directions to any dealer with regard to purchase, sale, disposal, storage or exhibition of the price and stock l ist of all or any of the trade articles. But there is no such provision in the impugned order in the instant case and, therefore, the dealers can expose themselves to punishment merely because at any particular point of time the stock was in exces s of the prescribed limits. Bishambhar Dayals case (supra) also related to wheat. There was a scheme for the procurement of wheat by the State Government but there is no such scheme in respect of sugar. This fact distinguishes the present case for the facts-of the aforesaid decision.16. The argument though attractive cannot be accepted. Over the years sugar has become a scare commodity and people have to purchase it even at a prohibitive price. In the circumstances it A cannot be exp ected that the dealers would not be able to sell the sugar in their stock. There is absolutely no difficulty in selling the sugar at any time at the prevalent market price. If in a rare case there is difficulty on that score we hope and trust that the concerned Government would allow a reasonable time within which the petitioners are permitted to dispose of the excess quantity of sugar, if any. In any case, in some given case there may be some hardship but it cannot be said on that account that the impugned order is violative of Article 14 of the Constitution. | 0[ds]The language of section 3 (1) coupled with clause (d) of subsection (2) of section 3 is wide enough to cover the impugned order. Section 3 (1) authorises the Central Government to pass an order for regulating or prohibiting the production, supply and distribution of an essential commodity and trade and commerce therein if it is of opinion that it is necessary or expedient to do so for securing the equitable distribution and availability. at a fair price of the essential commodity. The same power has been made more specific by clause (d) of sub-section (2) of section 3, which provides for regulating by licences. p ermits or otherwise, the storage, transport, distribution, disposal, acquisition, use or consumption of, any essential commodity. Sugar, which term includes khandsari, is an essential commodity and over the years it has become a scarce commodity. In the public interest it became essential to pass the impugned order to secure its equitable distribution and availability at fair prices. To that end it became necessary to prevent hoarding and black-marketing. The expression " to secure their equitable distribution and availability at fair prices" is wide enough to cover the impugned order. Likewise, the expression "storage and distribution" used in clause (d) of sub-section (2) of section 3 should be giv en a liberal construction to give effect to the legislative intent of public welfare. So construed, the impugned order is fully protected and is not ultra vires section 3 of the Essential Commodities Act, 195 5.This leads us to th e second contention, namely, the impugned order being violative of Article 19 (1) (g) of The Constitution inasmuch as it imposed unreasonable restriction on the right of the petitioners to carry on trade orfacts of the present cases are materially different from the facts of H . Sanjeeviahs case (supra). In that case the impugned provisos to rule 2 completely prohibited the transport of the forest produce between sun-set and sun- rise. But in the cases in hand the direction enjoined a recognised dealer not to k eep sugar in stock at any time in excess of the quantity specified therein. It only seeks to regulate the limit of storage of sugar and does not prohibit its storage. The case of H. Sanjeeviah, therefore, is not of much help to the petitionersnow take up the last contention, namely, the impugned order being violative of Article 14 of the Constitution. The learned counsel seeks to invoke Article 14 on two grounds: (1) the impu gned order applies two standards, one for the dealers, at Calcutta, who had been authorised to keep 3, 500 quintals at one time, while the dealers at other places have been authorised to keep only 250 quintals in cities with a population of one lakh or more, and only 100 quintals in other towns with a population of less than onefixation of limits for storing sugar in Calcutta and other places is not arbitrary but is based on reasonable classification. The government is the best judge of the situation in a particular State and that quantity of sugar will meet the exigencies of the situation at a particular place is purely a governmental function. For one, Calcutta serves as a feeder line to meet the requiremen ts of sugar to the eastern part of the country, and therefore, the stocks of sugar to be held by the dealers in Calcutta are not required for consumption in Calcutta alone Besides, Calcutta being far away from the sugar manufacturing units in Bih ar and Uttar Pradesh, from where bulk of supplies are obtained, sugar is transported by the wholesale dealers in railway wagons which take sometime unusually longer time in transit. These and various other factors have been taken into consideration by the Government while fixing the storage limits of sugar for the dealers insecond ground for invoking Article 14 of the Constitution is that the impugned order is unreasonable and impracticable in that no dealer can be sur e of the sale of sugar on any particular day. If per chance a dealer is not able to dispose of the excess sugar on a particular. day he would expose himself to punishment under the Act. No provision has been made in the order or in the rules for the purchase by the Government of the excessargument though attractive cannot be accepted. Over the years sugar has become a scare commodity and people have to purchase it even at a prohibitive price. In the circumstances it A cannot be exp ected that the dealers would not be able to sell the sugar in their stock. There is absolutely no difficulty in selling the sugar at any time at the prevalent market price. If in a rare case there is difficulty on that score we hope and trust that the concerned Government would allow a reasonable time within which the petitioners are permitted to dispose of the excess quantity of sugar, if any. In any case, in some given case there may be some hardship but it cannot be said on that account that the impugned order is violative of Article 14 of the Constitution. | 0 | 3,260 | 955 | ### Instruction:
Estimate the outcome of the case (positive (1) or negative (0) for the appellant) and then give a reasoned explanation by examining important sentences within the case documentation.
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the right of the citizens where the necessities of the situation demand. The restrictions must be in public interest and are imposed by striking a just balance between th e deprivation of right and the danager or evil sought to be avoided. If the restrictions imposed appear to be consistent with the directive principles of State policy they would have to be upheld as the same would be in public interest and manifestly reasonable. Further, restrictions may be partial, complete, permanent or temporary but they must bear a close nexus with the object in the interest of which they are imposed. Another important test is that restriction should not be excessive or arbitrary. The court must examine the direct and immediate import of - the restrictions on the rights of the citizens and determine if the restric tions are in larger public interest while deciding the question that they contain the quality of reasonableness. In such cases a doctrinaire approach should not be made but care should be taken to see that the real purpose which is sought to be achieved by restricting the rights of the citizens is sub-served. At the same time, the possibility of an alternative scheme which might have been but has not been enforced would not expose the restrict ions to challenge on the ground that they are not reasonable."12. Judged in that light and on an overall consideration of the various aspects of the matter, restrictions put by the impugned order can by no means be said to be unreasonable. It is only regulatory and not prohibitory.13. We now take up the last contention, namely, the impugned order being violative of Article 14 of the Constitution. The learned counsel seeks to invoke Article 14 on two grounds: (1) the impu gned order applies two standards, one for the dealers, at Calcutta, who had been authorised to keep 3, 500 quintals at one time, while the dealers at other places have been authorised to keep only 250 quintals in cities with a population of one lakh or more, and only 100 quintals in other towns with a population of less than one lakh.14. The fixation of limits for storing sugar in Calcutta and other places is not arbitrary but is based on reasonable classification. The government is the best judge of the situation in a particular State and that quantity of sugar will meet the exigencies of the situation at a particular place is purely a governmental function. For one, Calcutta serves as a feeder line to meet the requiremen ts of sugar to the eastern part of the country, and therefore, the stocks of sugar to be held by the dealers in Calcutta are not required for consumption in Calcutta alone Besides, Calcutta being far away from the sugar manufacturing units in Bih ar and Uttar Pradesh, from where bulk of supplies are obtained, sugar is transported by the wholesale dealers in railway wagons which take sometime unusually longer time in transit. These and various other factors have been taken into consideration by the Government while fixing the storage limits of sugar for the dealers in Calcutta.15. His second ground for invoking Article 14 of the Constitution is that the impugned order is unreasonable and impracticable in that no dealer can be sur e of the sale of sugar on any particular day. If per chance a dealer is not able to dispose of the excess sugar on a particular. day he would expose himself to punishment under the Act. No provision has been made in the order or in the rules for the purchase by the Government of the excess sugar. For the State it was contended that similar orders with regard to wheat came up for consideration in this Court in Suraj Mal Kailash Chand Ors. v. Union of India &Anr. and Bishambhar Dayal Chandra Mohan Ors. etc. v. State of Uttar Pradesh &ors. etc.(2) when this Court upheld the validity of these orders. In view of the decision of this Court in those cases it is not open to Shri Shanti Bhushan to challenge the constitutional vali dity of the impugned order.Shri Shanti Bhushan, however, refutes the argument and says that those decisions do not stand in the way of the petitioners. The situation with regard to wheat was quite different inasmuch . s clause 25 of the im pugned order in Sutlaj Mals case (supra) provided that the State Government or the Collector or the Licensing Authority may issue directions to any dealer with regard to purchase, sale, disposal, storage or exhibition of the price and stock l ist of all or any of the trade articles. But there is no such provision in the impugned order in the instant case and, therefore, the dealers can expose themselves to punishment merely because at any particular point of time the stock was in exces s of the prescribed limits. Bishambhar Dayals case (supra) also related to wheat. There was a scheme for the procurement of wheat by the State Government but there is no such scheme in respect of sugar. This fact distinguishes the present case for the facts-of the aforesaid decision.16. The argument though attractive cannot be accepted. Over the years sugar has become a scare commodity and people have to purchase it even at a prohibitive price. In the circumstances it A cannot be exp ected that the dealers would not be able to sell the sugar in their stock. There is absolutely no difficulty in selling the sugar at any time at the prevalent market price. If in a rare case there is difficulty on that score we hope and trust that the concerned Government would allow a reasonable time within which the petitioners are permitted to dispose of the excess quantity of sugar, if any. In any case, in some given case there may be some hardship but it cannot be said on that account that the impugned order is violative of Article 14 of the Constitution.
### Response:
0
### Explanation:
The language of section 3 (1) coupled with clause (d) of subsection (2) of section 3 is wide enough to cover the impugned order. Section 3 (1) authorises the Central Government to pass an order for regulating or prohibiting the production, supply and distribution of an essential commodity and trade and commerce therein if it is of opinion that it is necessary or expedient to do so for securing the equitable distribution and availability. at a fair price of the essential commodity. The same power has been made more specific by clause (d) of sub-section (2) of section 3, which provides for regulating by licences. p ermits or otherwise, the storage, transport, distribution, disposal, acquisition, use or consumption of, any essential commodity. Sugar, which term includes khandsari, is an essential commodity and over the years it has become a scarce commodity. In the public interest it became essential to pass the impugned order to secure its equitable distribution and availability at fair prices. To that end it became necessary to prevent hoarding and black-marketing. The expression " to secure their equitable distribution and availability at fair prices" is wide enough to cover the impugned order. Likewise, the expression "storage and distribution" used in clause (d) of sub-section (2) of section 3 should be giv en a liberal construction to give effect to the legislative intent of public welfare. So construed, the impugned order is fully protected and is not ultra vires section 3 of the Essential Commodities Act, 195 5.This leads us to th e second contention, namely, the impugned order being violative of Article 19 (1) (g) of The Constitution inasmuch as it imposed unreasonable restriction on the right of the petitioners to carry on trade orfacts of the present cases are materially different from the facts of H . Sanjeeviahs case (supra). In that case the impugned provisos to rule 2 completely prohibited the transport of the forest produce between sun-set and sun- rise. But in the cases in hand the direction enjoined a recognised dealer not to k eep sugar in stock at any time in excess of the quantity specified therein. It only seeks to regulate the limit of storage of sugar and does not prohibit its storage. The case of H. Sanjeeviah, therefore, is not of much help to the petitionersnow take up the last contention, namely, the impugned order being violative of Article 14 of the Constitution. The learned counsel seeks to invoke Article 14 on two grounds: (1) the impu gned order applies two standards, one for the dealers, at Calcutta, who had been authorised to keep 3, 500 quintals at one time, while the dealers at other places have been authorised to keep only 250 quintals in cities with a population of one lakh or more, and only 100 quintals in other towns with a population of less than onefixation of limits for storing sugar in Calcutta and other places is not arbitrary but is based on reasonable classification. The government is the best judge of the situation in a particular State and that quantity of sugar will meet the exigencies of the situation at a particular place is purely a governmental function. For one, Calcutta serves as a feeder line to meet the requiremen ts of sugar to the eastern part of the country, and therefore, the stocks of sugar to be held by the dealers in Calcutta are not required for consumption in Calcutta alone Besides, Calcutta being far away from the sugar manufacturing units in Bih ar and Uttar Pradesh, from where bulk of supplies are obtained, sugar is transported by the wholesale dealers in railway wagons which take sometime unusually longer time in transit. These and various other factors have been taken into consideration by the Government while fixing the storage limits of sugar for the dealers insecond ground for invoking Article 14 of the Constitution is that the impugned order is unreasonable and impracticable in that no dealer can be sur e of the sale of sugar on any particular day. If per chance a dealer is not able to dispose of the excess sugar on a particular. day he would expose himself to punishment under the Act. No provision has been made in the order or in the rules for the purchase by the Government of the excessargument though attractive cannot be accepted. Over the years sugar has become a scare commodity and people have to purchase it even at a prohibitive price. In the circumstances it A cannot be exp ected that the dealers would not be able to sell the sugar in their stock. There is absolutely no difficulty in selling the sugar at any time at the prevalent market price. If in a rare case there is difficulty on that score we hope and trust that the concerned Government would allow a reasonable time within which the petitioners are permitted to dispose of the excess quantity of sugar, if any. In any case, in some given case there may be some hardship but it cannot be said on that account that the impugned order is violative of Article 14 of the Constitution.
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KUSUMBEN INDERSINGH DHUPIA Vs. SUDHABEN BIHARILALJI BHAIYA | BANUMATHI, J.: (1) Leave granted. (2) This appeal arises out of judgment and order dated 28 th January, 2014 passed by the High Court of Gujarat at Ahmedabad in Special Civil Application NO.16821 of 2011 in and by which the High Court affirmed the order of the Trial Court and thereby declining to restore the suit. (3) The appellant-plaintiff filed Civil Suit NO.217 of 1994 against respondents No.1 and 2 for declaration and injunction in respect of plot no.16-E, admeasuring 250 sq. yds. on Revenue Survey No.62-65, Village Althan, Surat. The issues were framed on 3 rd October, 2008 and the suit was dismissed for default on 6 th November, 2008. (4) The appellant-plaintiff immediately filed an application under Order IX, Rule 9 of the C.P.C. for restoration of the said suit on 4 th December, 2008 which came to be dismissed on 21 st July, 2011 on the ground that the plaintiff and his advocate are continuously remaining absent and the plaintiff is not interested in pursuing the matter. The revision petition, Special Civil Application No.16821 of 2011, preferred by the appellant-plaintiff before the High Court also came to be dismissed. Being aggrieved, the appellant-plaintiff is before us. (5) The first respondent is represented by Mrs. Saroj Haresh Raichura, Advocate. Second respondent-Bhagwandas Nandlal Bagdi, remained unserved in spite of issuance of notice. By Order dated 4 th December, 2018, substituted service was ordered. In compliance thereof, the appellant-plaintiff effected service through paper publication in ‘Gujarati Daily? and has also filed affidavit to that effect. Service on the second respondent is held to be sufficient. (6) We have heard Mr. Shamik Sanjanwala, learned counsel appearing for the appellant-plaintiff and Mrs. Saroj Haresh Raichura, learned counsel appearing for respondent No.1 and also perused the impugned judgment and other materials on record. (7) Mr. Shamik Sanjanwala, learned counsel appearing for the appellant-plaintiff, has drawn our attention to the RojKam- order sheet of the 11 th Additional Senior Civil Judge, Surat, and submitted that after filing the application for restoration of the suit, the appellant-plaintiff remained present in almost all the hearings but the matter could not be taken up as the business of the court did not permit. Mr. Shamik further submitted that only on the date of hearing i.e. 21 st July, 2011, the appellant-plaintiff could not be present and on that date the Trial Court has dismissed the application filed under Order IX, Rule 9 of the C.P.C., by observing that the appellant- plaintiff was remaining absent continuously. (8) Mr. Shamik has taken us through the various dates of hearing before the Trial Court in support of his contention. In the Rojkam-order sheet, of the Trial Court it is seen that although the application (under Order IX, Rule 9 of the C.P.C.) for restoration of the suit was filed as early as on 4 th December, 2008, which was well within the period of limitation and the appellant-plaintiff was present in most of the hearings, the application could not be taken up as the business of the Trial Court did not permit to proceed with the matter. By perusal of Rojkam-order sheet, it also appears that though the appellant-plaintiff was present number of times and the respondents-defendants were not present. The appellant- plaintiff remained present before the Trial Court on 02.02.2009, 20.04.2009, 25.06.2009, 24.08.2009, 29.09.2009, 11.11.2009, 09.12.2009, 11.01.2010, 16.02.2010, 16.03.2010, 17.04.2010, 26.07.2010, 07.08.2010, 18.11.2010, 05.01.2011, 05.02.2011, 24.02.2011, 16.03.2011, 22.03.2011 and 11.05.2011 as per the Rojkam-order sheet. (9) Having regard to the Rojkam-order sheet of the Trial Court, we are of the view that both the Trial Court as well as the High Court were not right in observing that the appellant- plaintiff was not interested in pursuing the restoration application. As pointed out earlier, application for restoration of the suit filed by the appellant-plaintiff was well within the period of limitation. The appellant-plaintiff was present in almost all hearings before the Trial Court which indicates that he was genuinely pursing the matter. The appellant-plaintiff having filed the suit for declaration and injunction in our considered view ought to be given an opportunity to pursue his suit. | 1[ds]In the Rojkam-order sheet, of the Trial Court it is seen that although the application (under Order IX, Rule 9 of the C.P.C.) for restoration of the suit was filed as early as on 4 th December, 2008, which was well within the period of limitation and the appellant-plaintiff was present in most of the hearings, the application could not be taken up as the business of the Trial Court did not permit to proceed with the matter. By perusal of Rojkam-order sheet, it also appears that though the appellant-plaintiff was present number of times and the respondents-defendants were not present. The appellant- plaintiff remained present before the Trial Court on 02.02.2009, 20.04.2009, 25.06.2009, 24.08.2009, 29.09.2009, 11.11.2009, 09.12.2009, 11.01.2010, 16.02.2010, 16.03.2010, 17.04.2010, 26.07.2010, 07.08.2010, 18.11.2010, 05.01.2011, 05.02.2011, 24.02.2011, 16.03.2011, 22.03.2011 and 11.05.2011 as per the Rojkam-orderHaving regard to the Rojkam-order sheet of the Trial Court, we are of the view that both the Trial Court as well as the High Court were not right in observing that the appellant- plaintiff was not interested in pursuing the restoration application. As pointed out earlier, application for restoration of the suit filed by the appellant-plaintiff was well within the period of limitation. The appellant-plaintiff was present in almost all hearings before the Trial Court which indicates that he was genuinely pursing the matter. The appellant-plaintiff having filed the suit for declaration and injunction in our considered view ought to be given an opportunity to pursue his suit. | 1 | 792 | 283 | ### 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:
BANUMATHI, J.: (1) Leave granted. (2) This appeal arises out of judgment and order dated 28 th January, 2014 passed by the High Court of Gujarat at Ahmedabad in Special Civil Application NO.16821 of 2011 in and by which the High Court affirmed the order of the Trial Court and thereby declining to restore the suit. (3) The appellant-plaintiff filed Civil Suit NO.217 of 1994 against respondents No.1 and 2 for declaration and injunction in respect of plot no.16-E, admeasuring 250 sq. yds. on Revenue Survey No.62-65, Village Althan, Surat. The issues were framed on 3 rd October, 2008 and the suit was dismissed for default on 6 th November, 2008. (4) The appellant-plaintiff immediately filed an application under Order IX, Rule 9 of the C.P.C. for restoration of the said suit on 4 th December, 2008 which came to be dismissed on 21 st July, 2011 on the ground that the plaintiff and his advocate are continuously remaining absent and the plaintiff is not interested in pursuing the matter. The revision petition, Special Civil Application No.16821 of 2011, preferred by the appellant-plaintiff before the High Court also came to be dismissed. Being aggrieved, the appellant-plaintiff is before us. (5) The first respondent is represented by Mrs. Saroj Haresh Raichura, Advocate. Second respondent-Bhagwandas Nandlal Bagdi, remained unserved in spite of issuance of notice. By Order dated 4 th December, 2018, substituted service was ordered. In compliance thereof, the appellant-plaintiff effected service through paper publication in ‘Gujarati Daily? and has also filed affidavit to that effect. Service on the second respondent is held to be sufficient. (6) We have heard Mr. Shamik Sanjanwala, learned counsel appearing for the appellant-plaintiff and Mrs. Saroj Haresh Raichura, learned counsel appearing for respondent No.1 and also perused the impugned judgment and other materials on record. (7) Mr. Shamik Sanjanwala, learned counsel appearing for the appellant-plaintiff, has drawn our attention to the RojKam- order sheet of the 11 th Additional Senior Civil Judge, Surat, and submitted that after filing the application for restoration of the suit, the appellant-plaintiff remained present in almost all the hearings but the matter could not be taken up as the business of the court did not permit. Mr. Shamik further submitted that only on the date of hearing i.e. 21 st July, 2011, the appellant-plaintiff could not be present and on that date the Trial Court has dismissed the application filed under Order IX, Rule 9 of the C.P.C., by observing that the appellant- plaintiff was remaining absent continuously. (8) Mr. Shamik has taken us through the various dates of hearing before the Trial Court in support of his contention. In the Rojkam-order sheet, of the Trial Court it is seen that although the application (under Order IX, Rule 9 of the C.P.C.) for restoration of the suit was filed as early as on 4 th December, 2008, which was well within the period of limitation and the appellant-plaintiff was present in most of the hearings, the application could not be taken up as the business of the Trial Court did not permit to proceed with the matter. By perusal of Rojkam-order sheet, it also appears that though the appellant-plaintiff was present number of times and the respondents-defendants were not present. The appellant- plaintiff remained present before the Trial Court on 02.02.2009, 20.04.2009, 25.06.2009, 24.08.2009, 29.09.2009, 11.11.2009, 09.12.2009, 11.01.2010, 16.02.2010, 16.03.2010, 17.04.2010, 26.07.2010, 07.08.2010, 18.11.2010, 05.01.2011, 05.02.2011, 24.02.2011, 16.03.2011, 22.03.2011 and 11.05.2011 as per the Rojkam-order sheet. (9) Having regard to the Rojkam-order sheet of the Trial Court, we are of the view that both the Trial Court as well as the High Court were not right in observing that the appellant- plaintiff was not interested in pursuing the restoration application. As pointed out earlier, application for restoration of the suit filed by the appellant-plaintiff was well within the period of limitation. The appellant-plaintiff was present in almost all hearings before the Trial Court which indicates that he was genuinely pursing the matter. The appellant-plaintiff having filed the suit for declaration and injunction in our considered view ought to be given an opportunity to pursue his suit.
### Response:
1
### Explanation:
In the Rojkam-order sheet, of the Trial Court it is seen that although the application (under Order IX, Rule 9 of the C.P.C.) for restoration of the suit was filed as early as on 4 th December, 2008, which was well within the period of limitation and the appellant-plaintiff was present in most of the hearings, the application could not be taken up as the business of the Trial Court did not permit to proceed with the matter. By perusal of Rojkam-order sheet, it also appears that though the appellant-plaintiff was present number of times and the respondents-defendants were not present. The appellant- plaintiff remained present before the Trial Court on 02.02.2009, 20.04.2009, 25.06.2009, 24.08.2009, 29.09.2009, 11.11.2009, 09.12.2009, 11.01.2010, 16.02.2010, 16.03.2010, 17.04.2010, 26.07.2010, 07.08.2010, 18.11.2010, 05.01.2011, 05.02.2011, 24.02.2011, 16.03.2011, 22.03.2011 and 11.05.2011 as per the Rojkam-orderHaving regard to the Rojkam-order sheet of the Trial Court, we are of the view that both the Trial Court as well as the High Court were not right in observing that the appellant- plaintiff was not interested in pursuing the restoration application. As pointed out earlier, application for restoration of the suit filed by the appellant-plaintiff was well within the period of limitation. The appellant-plaintiff was present in almost all hearings before the Trial Court which indicates that he was genuinely pursing the matter. The appellant-plaintiff having filed the suit for declaration and injunction in our considered view ought to be given an opportunity to pursue his suit.
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State of Madhya Pradesh and Another Vs. Rameshwar Prasad (Deceased - By L.Rs.) and Others | are, therefore, of the opinion that the judgment of the Madhya Pradesh High Court in Kanahyalal Pandits case (supra) decided on November 17, 1964 was not correctly decided. The High Court in the instant case had based its order mainly on the judgment of the Madhya Pradesh Court in Kanahyalal Pandits case (supra) which being incorrectly decided, the judgment of the High Court in this case must be quashed on this ground alone, and the representation filed by the respondent long after the expiry of the time mentioned in the Gazette publishing the provisional gradation list would have to be rejected as belated.9. Even on merits a cursory glance of the principles and the formula formulated by the Government in preparing the gradation list would reveal that no injustice or prejudice was caused to the respondent. In paragraph - 3 of the counter-affidavit by the appellant it has been averred as follows :"It is further submitted that the inter se seniority in Madhya Bharat and Vindhya Pradesh units had become final after taking into consideration the service rendered in the princely States and cannot now be challenged. After the seniority in the units of Madhya Bharat and Vindhya Pradesh was finally determined, the posts of Assistant Sales Tax Officers of Madhya Bharat and Sales Tax Inspector including Assistant District Excise and Sales Tax Officer of Vindhya Pradesh region. According to the principles adopted for determining the seniority, the length of continuous service on equated post was considered. The seniority of a person is determined with reference to a particular date allotted to him for this purpose. When once the seniority in the integrating units was determined in this manner by the Governments of those units, it is submitted that the seniority of the incumbents from the units of Madhya Bharat and Vindhya Pradesh could not be disturbed after the reorganisation of States under S.115 of that Act to the detriment of the incumbents."10. It has thus been explained by the appellants that as the Sales Tax Department in the integrating States of Madhya Pradesh was not the persons absorbed in the Department brought with them the seniority already assigned to them. It was also pointed out in the counter-affidavit that in these circumstances it cannot be said that as the Sales Tax Department came into existence in 1950 in Madhya Bharat and Vindhya Pradesh Regions, the personnel of these regions ipso facto become junior to those in Mahakoshal region where the Act had come into force in 1947. We fully agree with the explanation given by the appellants in the counter-affidavit as the same appears to be reasonable and convincing, and seeks to chalk out an objective formula so that the least prejudice is caused to the employees concern. It is manifest that the services rendered in the erstwhile princely States by the Officers who were put above the respondent were taken into account in the equated posts. Thus the equation of the posts was in conformity with the principles laid down in S.115 of the States Reorganisation Act and was done in consultation with the Advisory Committee and was finally approved by the Central Government. To accept the prayer of the respondent would be to set at naught the services rendered by the officers who were put above the respondent in the erstwhile princely State in grades which were more or less similar to the one held by the respondent. In these circumstances we find ourselves the view taken by the High Court.11. In Union of India and another v. P. K. Roy and others, [1970-I L.L.J. 633], a similar argument made by some of the employees coming from erstwhile princely States was repelled and this Court observed as follows :"In our opinion, the procedure adopted in this case does not contracted in this case does not contravene the provisions of S.115(5) of the said Act, because it was the Central Government which laid down the principles for integration, it was the Central Government which considered the representations and passed final orders and both the preliminary and final gradation lists were prepared and published by the State Government under the direction and with the sanction of the preliminary and final gradation lists were prepared and published by the State Government under the direction and with the sanction of the Central Government."12. Similarly in N. Subba Rao etc. v. Union of India and others, (1973) 1 S.C.R. 945 this court laid down that under S.115 of the States Reorganisation Act two requirements were necessary - that there should be a division and integration of the services among the new States; and (ii) that a fair and equitable treatment should be ensured to all persons affected by the integration of the services among the new States; and (ii) that a fair and equitable treatment should be ensured to all persons affected by the integration. In that case also the conference of the Chief Secretaries had preceded the drawing up of the provisional gradation list formulating four principles, namely, (i) the nature and duties of a post; (ii) the responsibilities and powers exercised by the officers holding a post, the extent of territorial or other charge held or responsibilities discharged; (iii) the minimum qualifications, if any, prescribed for the two posts, and (iv) the salary of the post. These principles were approved by the Court in that case.13. In the instant case also the appellants stated in their counter-affidavit that the principles mentioned above were duly taken into consideration and in addition to this the equated grades held by the respondent and the other officers were also taken into consideration in order to fix the seniority of the respondent.14. In these circumstances we are satisfied that the Government had prepared the final gradation list after an objective and thorough consideration of the various aspects of the career of the employees and the principles which governed the list were wholly in consonance with the provisions of S.115 of the States Reorganisation Act, 1956. | 1[ds]7. The High Court appears to have quashed a part of the gradation list mainly on two grounds. In the first place it held, following the decision of the High Court in Kanahyalal Pandits case that as the final gradation list was legally erroneous. Secondly, it was held by the High Court that the contention of the respondent that the services rendered by the other five officers in Madhya Bharat and Vindhya Pradesh ought not to have been considered was valid and should have been given effect to by the Government in preparing the final gradation list. We are satisfied after perusal of the materials that the first ground alone the order of preparing a tentative or provisional gradation list was to give an opportunity to the officers whose seniority was determined in the list to make their representation within a month from the date of the publication of the provisional gradation list, then his representation should have been rejected outright. The Madhya Pradesh High Court was in error in taking the view that the employee concerned should have waited for filing his representation until the final gradation list was published.The aforesaid view taken by the High Court is not at all intelligible. In fact the purport of S. 115(5)(b) of the States Reorganisation Act, 1956 was that there should be a fair and equitable treatment of all persons affected by the provisions of that section. This could only be done if before a final gradation list was prepared the officers were given an opportunity to acquaint the Government with their respective points of view. It was indeed a strange view to take that the provisional gradation list was absolutely of no consequence and after the said list was finalised and the time for filling representation expired, then alone the employees concerned should have been asked to file their representations. This is really putting the cart before the horse. Once the list was finalised, it would be difficult for the Government to review its orders which would lead to serious complications and dislocation to the service structure of the State. It appears to us from a perusal of the various clauses of S.115 of the States Reorganisation Act that the statute contemplated three stages for determining the seniority of the officers - (i) the formation of Advisory Committees and determination of principles on the basis of which the seniority was to be determined; (ii) the preparation of a provisional gradation list so as to give an opportunity to the employees concerned to file their objections; and (iii) the publication of the final gradation list after consideration of the objections filed by the employees concerned and taking an overall view of the matter. In these circumstances, therefore, the view of the Madhya Pradesh High Court that the representation filed by the respondent was premature is legally erroneous and we are unable to agree with the same. We are, therefore, of the opinion that the judgment of the Madhya Pradesh High Court in Kanahyalal Pandits case (supra) decided on November 17, 1964 was not correctly decided. The High Court in the instant case had based its order mainly on the judgment of the Madhya Pradesh Court in Kanahyalal Pandits case (supra) which being incorrectly decided, the judgment of the High Court in this case must be quashed on this ground alone, and the representation filed by the respondent long after the expiry of the time mentioned in the Gazette publishing the provisional gradation list would have to be rejected as belated.It has thus been explained by the appellants that as the Sales Tax Department in the integrating States of Madhya Pradesh was not the persons absorbed in the Department brought with them the seniority already assigned to them. It was also pointed out in thet in these circumstances it cannot be said that as the Sales Tax Department came into existence in 1950 in Madhya Bharat and Vindhya Pradesh Regions, the personnel of these regions ipso facto become junior to those in Mahakoshal region where the Act had come into force in 1947.We fully agree with the explanation given by the appellants in the counter-affidavit as the same appears to be reasonable and convincing, and seeks to chalk out an objective formula so that the least prejudice is caused to the employees concern. It is manifest that the services rendered in the erstwhile princely States by the Officers who were put above the respondent were taken into account in the equated posts. Thus the equation of the posts was in conformity with the principles laid down in S.115 of the States Reorganisation Act and was done in consultation with the Advisory Committee and was finally approved by the Central Government. To accept the prayer of the respondent would be to set at naught the services rendered by the officers who were put above the respondent in the erstwhile princely State in grades which were more or less similar to the one held by the respondent. In these circumstances we find ourselves the view taken by the High Court.In the instant case also the appellants stated in their counter-affidavit that the principles mentioned above were duly taken into consideration and in addition to this the equated grades held by the respondent and the other officers were also taken into consideration in order to fix the seniority of the respondent.14. In these circumstances we are satisfied that the Government had prepared the final gradation list after an objective and thorough consideration of the various aspects of the career of the employees and the principles which governed the list were wholly in consonance with the provisions of S.115 of the States Reorganisation Act, 1956. | 1 | 3,328 | 1,009 | ### 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:
are, therefore, of the opinion that the judgment of the Madhya Pradesh High Court in Kanahyalal Pandits case (supra) decided on November 17, 1964 was not correctly decided. The High Court in the instant case had based its order mainly on the judgment of the Madhya Pradesh Court in Kanahyalal Pandits case (supra) which being incorrectly decided, the judgment of the High Court in this case must be quashed on this ground alone, and the representation filed by the respondent long after the expiry of the time mentioned in the Gazette publishing the provisional gradation list would have to be rejected as belated.9. Even on merits a cursory glance of the principles and the formula formulated by the Government in preparing the gradation list would reveal that no injustice or prejudice was caused to the respondent. In paragraph - 3 of the counter-affidavit by the appellant it has been averred as follows :"It is further submitted that the inter se seniority in Madhya Bharat and Vindhya Pradesh units had become final after taking into consideration the service rendered in the princely States and cannot now be challenged. After the seniority in the units of Madhya Bharat and Vindhya Pradesh was finally determined, the posts of Assistant Sales Tax Officers of Madhya Bharat and Sales Tax Inspector including Assistant District Excise and Sales Tax Officer of Vindhya Pradesh region. According to the principles adopted for determining the seniority, the length of continuous service on equated post was considered. The seniority of a person is determined with reference to a particular date allotted to him for this purpose. When once the seniority in the integrating units was determined in this manner by the Governments of those units, it is submitted that the seniority of the incumbents from the units of Madhya Bharat and Vindhya Pradesh could not be disturbed after the reorganisation of States under S.115 of that Act to the detriment of the incumbents."10. It has thus been explained by the appellants that as the Sales Tax Department in the integrating States of Madhya Pradesh was not the persons absorbed in the Department brought with them the seniority already assigned to them. It was also pointed out in the counter-affidavit that in these circumstances it cannot be said that as the Sales Tax Department came into existence in 1950 in Madhya Bharat and Vindhya Pradesh Regions, the personnel of these regions ipso facto become junior to those in Mahakoshal region where the Act had come into force in 1947. We fully agree with the explanation given by the appellants in the counter-affidavit as the same appears to be reasonable and convincing, and seeks to chalk out an objective formula so that the least prejudice is caused to the employees concern. It is manifest that the services rendered in the erstwhile princely States by the Officers who were put above the respondent were taken into account in the equated posts. Thus the equation of the posts was in conformity with the principles laid down in S.115 of the States Reorganisation Act and was done in consultation with the Advisory Committee and was finally approved by the Central Government. To accept the prayer of the respondent would be to set at naught the services rendered by the officers who were put above the respondent in the erstwhile princely State in grades which were more or less similar to the one held by the respondent. In these circumstances we find ourselves the view taken by the High Court.11. In Union of India and another v. P. K. Roy and others, [1970-I L.L.J. 633], a similar argument made by some of the employees coming from erstwhile princely States was repelled and this Court observed as follows :"In our opinion, the procedure adopted in this case does not contracted in this case does not contravene the provisions of S.115(5) of the said Act, because it was the Central Government which laid down the principles for integration, it was the Central Government which considered the representations and passed final orders and both the preliminary and final gradation lists were prepared and published by the State Government under the direction and with the sanction of the preliminary and final gradation lists were prepared and published by the State Government under the direction and with the sanction of the Central Government."12. Similarly in N. Subba Rao etc. v. Union of India and others, (1973) 1 S.C.R. 945 this court laid down that under S.115 of the States Reorganisation Act two requirements were necessary - that there should be a division and integration of the services among the new States; and (ii) that a fair and equitable treatment should be ensured to all persons affected by the integration of the services among the new States; and (ii) that a fair and equitable treatment should be ensured to all persons affected by the integration. In that case also the conference of the Chief Secretaries had preceded the drawing up of the provisional gradation list formulating four principles, namely, (i) the nature and duties of a post; (ii) the responsibilities and powers exercised by the officers holding a post, the extent of territorial or other charge held or responsibilities discharged; (iii) the minimum qualifications, if any, prescribed for the two posts, and (iv) the salary of the post. These principles were approved by the Court in that case.13. In the instant case also the appellants stated in their counter-affidavit that the principles mentioned above were duly taken into consideration and in addition to this the equated grades held by the respondent and the other officers were also taken into consideration in order to fix the seniority of the respondent.14. In these circumstances we are satisfied that the Government had prepared the final gradation list after an objective and thorough consideration of the various aspects of the career of the employees and the principles which governed the list were wholly in consonance with the provisions of S.115 of the States Reorganisation Act, 1956.
### Response:
1
### Explanation:
7. The High Court appears to have quashed a part of the gradation list mainly on two grounds. In the first place it held, following the decision of the High Court in Kanahyalal Pandits case that as the final gradation list was legally erroneous. Secondly, it was held by the High Court that the contention of the respondent that the services rendered by the other five officers in Madhya Bharat and Vindhya Pradesh ought not to have been considered was valid and should have been given effect to by the Government in preparing the final gradation list. We are satisfied after perusal of the materials that the first ground alone the order of preparing a tentative or provisional gradation list was to give an opportunity to the officers whose seniority was determined in the list to make their representation within a month from the date of the publication of the provisional gradation list, then his representation should have been rejected outright. The Madhya Pradesh High Court was in error in taking the view that the employee concerned should have waited for filing his representation until the final gradation list was published.The aforesaid view taken by the High Court is not at all intelligible. In fact the purport of S. 115(5)(b) of the States Reorganisation Act, 1956 was that there should be a fair and equitable treatment of all persons affected by the provisions of that section. This could only be done if before a final gradation list was prepared the officers were given an opportunity to acquaint the Government with their respective points of view. It was indeed a strange view to take that the provisional gradation list was absolutely of no consequence and after the said list was finalised and the time for filling representation expired, then alone the employees concerned should have been asked to file their representations. This is really putting the cart before the horse. Once the list was finalised, it would be difficult for the Government to review its orders which would lead to serious complications and dislocation to the service structure of the State. It appears to us from a perusal of the various clauses of S.115 of the States Reorganisation Act that the statute contemplated three stages for determining the seniority of the officers - (i) the formation of Advisory Committees and determination of principles on the basis of which the seniority was to be determined; (ii) the preparation of a provisional gradation list so as to give an opportunity to the employees concerned to file their objections; and (iii) the publication of the final gradation list after consideration of the objections filed by the employees concerned and taking an overall view of the matter. In these circumstances, therefore, the view of the Madhya Pradesh High Court that the representation filed by the respondent was premature is legally erroneous and we are unable to agree with the same. We are, therefore, of the opinion that the judgment of the Madhya Pradesh High Court in Kanahyalal Pandits case (supra) decided on November 17, 1964 was not correctly decided. The High Court in the instant case had based its order mainly on the judgment of the Madhya Pradesh Court in Kanahyalal Pandits case (supra) which being incorrectly decided, the judgment of the High Court in this case must be quashed on this ground alone, and the representation filed by the respondent long after the expiry of the time mentioned in the Gazette publishing the provisional gradation list would have to be rejected as belated.It has thus been explained by the appellants that as the Sales Tax Department in the integrating States of Madhya Pradesh was not the persons absorbed in the Department brought with them the seniority already assigned to them. It was also pointed out in thet in these circumstances it cannot be said that as the Sales Tax Department came into existence in 1950 in Madhya Bharat and Vindhya Pradesh Regions, the personnel of these regions ipso facto become junior to those in Mahakoshal region where the Act had come into force in 1947.We fully agree with the explanation given by the appellants in the counter-affidavit as the same appears to be reasonable and convincing, and seeks to chalk out an objective formula so that the least prejudice is caused to the employees concern. It is manifest that the services rendered in the erstwhile princely States by the Officers who were put above the respondent were taken into account in the equated posts. Thus the equation of the posts was in conformity with the principles laid down in S.115 of the States Reorganisation Act and was done in consultation with the Advisory Committee and was finally approved by the Central Government. To accept the prayer of the respondent would be to set at naught the services rendered by the officers who were put above the respondent in the erstwhile princely State in grades which were more or less similar to the one held by the respondent. In these circumstances we find ourselves the view taken by the High Court.In the instant case also the appellants stated in their counter-affidavit that the principles mentioned above were duly taken into consideration and in addition to this the equated grades held by the respondent and the other officers were also taken into consideration in order to fix the seniority of the respondent.14. In these circumstances we are satisfied that the Government had prepared the final gradation list after an objective and thorough consideration of the various aspects of the career of the employees and the principles which governed the list were wholly in consonance with the provisions of S.115 of the States Reorganisation Act, 1956.
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Arun Kumar Jagatramka Vs. Jindal Steel and Power Ltd. & Anr | do not find any merit in the challenge to the validity of Regulation 2B. E Epilogue 85. In paragraph 24 of our judgment, we noted the two issues which had been framed by the NCLAT in the impugned judgment in the first of the appeals. The first issue was Whether in a liquidation proceeding under [IBC] the Scheme for Compromise and Arrangement can be made in terms of Sections 230 to 232 of the [Act of 2013]. While we noted in paragraph 25, that no challenge has been made by the appellant in regard to the finding of the NCLAT on this issue, it is imperative for us to make some remarks in relation to this issue and the larger issue of judicial intervention by the NCLT and NCLAT while adjudicating disputes under the IBC. 86. To begin with, we would like to take note of the observations made by the Insolvency Law Committee in its Report of February 2020(Available at accessed on 10 March 2021). The Committee began by acknowledging that the floating of schemes of compromise or arrangement under Sections 230 to 232 of the Act, even for companies undergoing liquidation, was not part of the framework under the IBC. This, the Committee noted, had led to a multiplicity of issues including, but not limited to, the duality of the role of the NCLT (as a supervisory Adjudicatory Authority under the IBC versus the driving Tribunal under the Act of 2013) and indeed the very question before us in this case, whether the disqualification under Section 29A and proviso to Section 35(1)(f) of the IBC also attaches to Section 230 of the Act of 2013. However, the Committee notes that judicial intervention by the NCLAT along with the IBBIs introduction of new regulations have led to some alignment in the two frameworks. 87. The Committee thereafter notes that the introduction of such schemes into the framework of the IBC may be worrisome since it will alter the incentives during the CIRP and lead to destructive delays, which often plagued the process under the Sick Industrial Companies (Special Provisions) Act, 1985.(Ibid, at para 4.5.) However, it nonetheless also acknowledges the benefits such schemes may have to offer. Even so, the Committee concludes by noting that such schemes, if at all they are to be brought in, should not be under the Act of 2013 but the IBC itself. The Report notes thus: 4.6…However, the Committee was of the view that such a process for compromise or settlement need not be effected only through the schemes mechanism under the Companies Act, 2013, and felt that the liquidator could be given the power to effect a compromise or settlement with specific creditors with respect to their claims against the corporate debtor under the Code. 4.7 Given the incompatibility of schemes of arrangement and the liquidation process, the Committee recommended that recourse to Section 230 of the Companies Act, 2013 for effecting schemes of arrangement or compromise should not be available during liquidation of the corporate debtor under the Code. However, the Committee felt that an appropriate process to allow the liquidator to effect a compromise or settlement with specific creditors should be devised under the Code. (emphasis in original) 88. Due to the ambiguity in the application of the two frameworks, it became imperative that a clarification be issued in this regard. The introduction of the proviso to Regulation 2B was a step in this direction which sought to clarify the position with respect to the applicability of the disqualifications set out in Section 29A of the IBC to Section 230 of the Act of 2013 in tandem with the legislative intendment. 89. At this juncture, it is important to remember that the explicit recognition of the schemes under Section 230 into the liquidation process under the IBC was through the judicial intervention of the NCLAT in Y Shivram Prasad (supra). Since the efficacy of this arrangement is not challenged before us in this case, we cannot comment on its merits. However, we do take this opportunity to offer a note of caution for the NCLT and NCLAT, functioning as the Adjudicatory Authority and Appellate Authority under the IBC respectively, from judicially interfering in the framework envisaged under the IBC. As we have noted earlier in the judgment, the IBC was introduced in order to overhaul the insolvency and bankruptcy regime in India. As such, it is a carefully considered and well thought out piece of legislation which sought to shed away the practices of the past. The legislature has also been working hard to ensure that the efficacy of this legislation remains robust by constantly amending it based on its experience. Consequently, the need for judicial intervention or innovation from the NCLT and NCLAT should be kept at its bare minimum and should not disturb the foundational principles of the IBC. This conscious shift in their role has been noted in the report of the Bankruptcy Law Reforms Committee (2015) in the following terms: An adjudicating authority ensures adherence to the process At all points, the adherence to the process and compliance with all applicable laws is controlled by the adjudicating authority. The adjudicating authority gives powers to the insolvency professional to take appropriate action against the directors and management of the entity, with recommendations from the creditors committee. All material actions and events during the process are recorded at the adjudicating authority. The adjudicating authority can assess and penalise frivolous applications. The adjudicator hears allegations of violations and fraud while the process is on. The adjudicating authority will adjudicate on fraud, particularly during the process resolving bankruptcy. Appeals/actions against the behaviour of the insolvency professional are directed to the Regulator/Adjudicator. 90. Once again, we must clarify that our observations here are not on the merits of the issue, which has not been challenged before us, but only limited to serve as guiding principles to the benches of NCLT and NCLAT adjudicating disputes under the IBC, going forward. F Conclusion | 0[ds]25. The first of the above issues has been answered in the affirmative by the NCLAT, to which, as Mr Sandeep Bajaj, learned Counsel for the appellant noted, there is no challenge. The real bone of dispute relates to the second issue.47. The underlying purpose of introducing Section 29A was adverted to in a judgment of this court in Chitra Sharma v. Union of India (2018) 18 SCC 575 ; hereinafter, referred to as Chitra Sharma. One of us (Justice DY Chandrachud) speaking for a Bench of three learned judges took note of the Statement of Objects and Reasons accompanying the Bill and emphasised the purpose of Section 29A thus:38. Parliament has introduced Section 29A into IBC with a specific purpose. The provisions of Section 29A are intended to ensure that among others, persons responsible for insolvency of the corporate debtor do not participate in the resolution process. The Statement of Objects and Reasons appended to the Insolvency and Bankruptcy Code (Amendment) Bill, 2017, which was ultimately enacted as Act 8 of 2018, states thus:2. The provisions for insolvency resolution and liquidation of a corporate person in the Code did not restrict or bar any person from submitting a resolution plan or participating in the acquisition process of the assets of a company at the time of liquidation. Concerns have been raised that persons who, with their misconduct contributed to defaults of companies or are otherwise undesirable, may misuse this situation due to lack of prohibition or restrictions to participate in the resolution or liquidation process, and gain or regain control of the corporate debtor. This may undermine the processes laid down in the Code as the unscrupulous person would be seen to be rewarded at the expense of creditors. In addition, in order to check that the undesirable persons who may have submitted their resolution plans in the absence of such a provision, responsibility is also being entrusted on the committee of creditors to give a reasonable period to repay overdue amounts and become eligible.Parliament was evidently concerned over the fact that persons whose misconduct has contributed to defaults on the part of debtor companies misuse the absence of a bar on their participation in the resolution process to gain an entry. Parliament was of the view that to allow such persons to participate in the resolution process would undermine the salutary object and purpose of the Act. It was in this background that Section 29A has now specified a list of persons who are not eligible to be resolution applicants.48. The Court held that Section 29A has been enacted in the larger public interest and to facilitate effective corporate governance. The Court further observed that Parliament rectified a loophole in the Act which allowed backdoor entry to erstwhile managements in the CIRP.49. In Arcelormittal India Private Limited v. Satish Kumar Gupta & Ors. (2019) 2 SCC 1 ; hereinafter, referred to as Arcelormittal, Justice Rohinton F Nariman, speaking for himself and Justice Indu Malhotra, reiterated the same principle when he underscored the need to impart a purposive interpretation to Section 29A depending both on the text and context in which the provision was enacted:30. A purposive interpretation of Section 29A, depending both on the text and the context in which the provision was enacted, must, therefore, inform our interpretation of the same. We are concerned in the present matter with clauses (c), (f), (i) and (j) thereof.The decision adverts to Section 29A as a typical instance of a see-through provision so that one is able to arrive at persons who are actually in control, whether jointly or in concert with other persons.50. In Swiss Ribbons (supra), the constitutionality of certain provisions of the IBC was challenged. Justice Rohinton F Nariman emphasised the object of the IBC in the following observations:27. As is discernible, the Preamble gives an insight into what is sought to be achieved by the Code. The Code is first and foremost, a Code for reorganization and insolvency resolution of corporate debtors. Unless such reorganization is effected in a time-bound manner, the value of the assets of such persons will deplete. Therefore, maximization of value of the assets of such persons so that they are efficiently run as going concerns is another very important objective of the Code. This, in turn, will promote entrepreneurship as the persons in management of the corporate debtor are removed and replaced by entrepreneurs. When, therefore, a resolution plan takes off and the corporate debtor is brought back into the economic mainstream, it is able to repay its debts, which, in turn, enhances the viability of credit in the hands of banks and financial institutions. Above all, ultimately, the interests of all stakeholders are looked after as the corporate debtor itself becomes a beneficiary of the resolution scheme—workers are paid, the creditors in the long run will be repaid in full, and shareholders/investors are able to maximize their investment. Timely resolution of a corporate debtor who is in the red, by an effective legal framework, would go a long way to support the development of credit markets. Since more investment can be made with funds that have come back into the economy, business then eases up, which leads, overall, to higher economic growth and development of the Indian economy. What is interesting to note is that the Preamble does not, in any manner, refer to liquidation, which is only availed of as a last resort if there is either no resolution plan or the resolution plans submitted are not up to the mark. Even in liquidation, the liquidator can sell the business of the corporate debtor as a going concern. (See ArcelorMittal [ArcelorMittal (India) (P) Ltd. v. Satish Kumar Gupta, (2019) 2 SCC 1 ] at para 83, fn 3).28. It can thus be seen that the primary focus of the legislation is to ensure revival and continuation of the corporate debtor by protecting the corporate debtor from its own management and from a corporate death by liquidation. The Code is thus a beneficial legislation which puts the corporate debtor back on its feet, not being a mere recovery legislation for creditors. The interests of the corporate debtor have, therefore, been bifurcated and separated from that of its promoters/those who are in management. Thus, the resolution process is not adversarial to the corporate debtor but, in fact, protective of its interests. The moratorium imposed by Section 14 is in the interest of the corporate debtor itself, thereby preserving the assets of the corporate debtor during the resolution process. The timelines within which the resolution process is to take place again protects the corporate debtors assets from further dilution, and also protects all its creditors and workers by seeing that the resolution process goes through as fast as possible so that another management can, through its entrepreneurial skills, resuscitate the corporate debtor to achieve all these ends.51. While adverting to the earlier decision in Chitra Sharma and Arcelormittal (supra), which had elucidated the object underlying Section 29A, this Court in Swiss Ribbons (supra) held that the norm underlying Section 29A continues to permeate Section 35(1)(f) when it applies not merely to resolution applicants, but to liquidation also. Rejecting the plea that Section 35(1)(f) is ultra vires, this Court held:102. According to the learned counsel for the petitioners, when immovable and movable property is sold in liquidation, it ought to be sold to any person, including persons who are not eligible to be resolution applicants as, often, it is the erstwhile promoter who alone may purchase such properties piecemeal by public auction or by private contract. The same rationale that has been provided earlier in this judgment will apply to this proviso as well — there is no vested right in an erstwhile promoter of a corporate debtor to bid for the immovable and movable property of the corporate debtor in liquidation. Further, given the categories of persons who are ineligible under Section 29A, which includes persons who are malfeasant, or persons who have fallen foul of the law in some way, and persons who are unable to pay their debts in the grace period allowed, are further, by this proviso, interdicted from purchasing assets of the corporate debtor whose debts they have either willfully not paid or have been unable to pay. The legislative purpose which permeates Section 29A continues to permeate the section when it applies not merely to resolution applicants, but to liquidation also. Consequently, this plea is also rejected.52. This line of decisions, beginning with Chitra Sharma (supra) and continuing to Arcelormittal (supra) and Swiss Ribbons (supra) is significant in adopting a purposive interpretation of Section 29A. Section 29A has been construed to be a crucial link in ensuring that the objects of the IBC are not defeated by allowing ineligible persons, including but not confined to those in the management who have run the company aground, to return in the new avatar of resolution applicants. Section 35(1)(f) is placed in the same continuum when the Court observes that the erstwhile promoters of a corporate debtor have no vested right to bid for the property of the corporate debtor in liquidation. The values which animate Section 29A continue to provide sustenance to the rationale underlying the exclusion of the same category of persons from the process of liquidation involving the sale of assets, by virtue of the provisions of Section 35(1)(f). More recent precedents of this Court continue to adopt a purposive interpretation of the provisions of the IBC. (See in this context the judgments in Phoenix ARC Private Limited v. Spade Financial Service(2021 SCC OnLine SC 51 at paragraphs 103-104) ,Ramesh Kymal v. M/s Siemens Gamesa Renewable Power Pvt Ltd.(C.A. No. 4050 of 2020, decided on 9 February 2021, at paragraphs 23 and 25) and Anuj Jain, Interim Resolution Professional for Jaypee Infratech Limited v. Axis Bank Limited((2020) 8 SCC 401, at paras 28.4 and 28.5).)53. The purpose of the ineligibility under Section 29A is to achieve a sustainable revival and to ensure that a person who is the cause of the problem either by a design or a default cannot be a part of the process of solution. Section 29A, it must be noted, encompasses not only conduct in relation to the corporate debtor but in relation to other companies as well. This is evident from clause (c) (an account of a corporate debtor under the management or control of such person or of whom such person is a promoter, classified as a non-performing asset), and clauses (e), (f), (g), (h) and (i) which have widened the net beyond the conduct in relation to the corporate debtor.63. The provisions of Section 391 came up for interpretation in a decision of this Court in Meghal Homes (supra). Justice PK Balasubramanyan, speaking for the two judge Bench of this Court, adverted to the earlier decision in Miheer H Mafatlal v. Mafatlal Industries Ltd. (1997) 1 SCC 579 which had dealt with the jurisdiction of the Company Court (or the Company Law Board as it then was) while sanctioning a scheme of merger or amalgamation of two companies. The earlier decision, as this Court noted, did not involve either a transferor or transferee in liquidation. Hence, this Court did not have occasion to consider whether any additional tests have to be satisfied when the company concerned is in liquidation and a compromise or arrangement in respect of it is proposed. Dealing specifically with a company which has been ordered to be wound up, this Court observed that the Company Court (before whom the jurisdiction under the erstwhile Section 391 was vested at the material time) had necessarily to see whether the scheme contemplates revival of the business of the company. In that context, this Court observed:47. When a company is ordered to be wound up, the assets of it are put in possession of the Official Liquidator. The assets become custodia legis. The follow-up, in the absence of a revival of the company, is the realisation of the assets of the company by the Official Liquidator and distribution of the proceeds to the creditors, workers and contributories of the company ultimately resulting in the death of the company by an order under Section 481 of the Act, being passed. But, nothing stands in the way of the Company Court, before the ultimate step is taken or before the assets are disposed of, to accept a scheme or proposal for revival of the Company. In that context, the court has necessarily to see whether the scheme contemplates revival of the business of the company, makes provisions for paying off creditors or for satisfying their claims as agreed to by them and for meeting the liability of the workers in terms of Section 529 and Section 529A of the Act. Of course, the court has to see to the bona fides of the scheme and to ensure that what is put forward is not a ruse to dispose of the assets of the company in liquidation.Moreover, the Court held that in the case of a company which has been wound up it would have to perceive aspects of public interest, commercial morality and the existence of a bona fide intent to revive the company, while considering whether a compromise or arrangement put forward under Section 391 should be accepted. While the Court would not sit in appeal over the commercial wisdom of the shareholders, it will certainly consider whether there is a genuine attempt to public interest and conforms to commercial morality. On the facts of the case, the Court found that it was difficult to hold that it is a scheme for revival of the Company, the clear statutory intention behind entertaining a proposal under Section 391. These observations of the two judge Bench in Meghal Homes (supra) have a significant bearing on the nature of a compromise or arrangement which fell within the purview of Section 391 of the Act of 1956. This Court emphasized that where a company is in liquidation, its assets are custodia legis, the liquidator being the custodian for the distribution of the liquidation estate. A compromise or arrangement in respect of a company in liquidation must foster a revival of the company, this being (as the Court termed it ) the clear statutory intention behind entertaining a proposal under Section 391 in respect of a company in liquidation.64. Now, there is no reference in the body of the IBC to a scheme of compromise or arrangement under Section 230 of the Act of 2013. Sub-section (1) of Section 230 was however amended with effect from 15 November 2016 so as to allow for a scheme of compromise or arrangement being proposed on the application of a liquidator who has been appointed under the provisions of the IBC.The submission of Mr Bajaj however misses the crucial interface between the provisions of Section 230 of the Act of 2013 in their engagement with a company in respect of which the provisions of the IBC have been invoked, resulting in an order of liquidation under Section 33 of the IBC. Liquidation of the company under the IBC, as emphasized by this Court in its previous decisions, is a matter of last resort. Section 33 requires the NCLT, acting as the Adjudicating Authority, to pass an order for the liquidation of the corporate debtor where:(i) before the expiry of the insolvency resolution process period or the maximum period contemplated for its completion a resolution plan has not been received under Sub-section (6) of Section 30; or(ii) the resolution plan has been rejected under Section 31 for non-compliance with the requirements of the provision.65. Under Sub-Section (2) of Section 33, the Adjudicating Authority has to pass a liquidation order where the resolution professional, during the CIRP but before the confirmation of the resolution plan, intimates the Adjudicating Authority of the decision of the CoC approved by not less than 66 per cent of the voting shares to liquidate the corporate debtor. Under Section 34, upon the Adjudication Authority passing an order for liquidation of the corporate debtor under Section 33, the resolution professional appointed for the CIRP under Chapter II is to act as a liquidator for the purpose of liquidation. Section 35 proceeds to stipulate that subject to the directions of the Adjudicating Authority, the liquidator shall have the powers and duties enumerated in the provision.66. What emerges from the above discussion is that the provisions of the IBC contain a comprehensive scheme, first, for the initiation of the CIRP at the behest of financial creditor under Section 7 or at the behest of the operational creditor under Section 9 or the corporate debtor under Section 10. Chapter II provides for the appointment of an interim resolution professional(IRP) in Section 17 and the constitution of a CoC under Section 21. Chapter II contemplates the submission of a resolution plan in Section 30 and the approval of the plan in Section 31. Liquidation forms a part of a distinct Chapter - Chapter III. Liquidation under Section 33 is contemplated in specific eventualities which are adverted to in Sub- Section (1) and Sub-section (2) as noted above.67. Now, it is in this backdrop that it becomes necessary to revisit, in the context of the above discussion the three modes in which a revival is contemplated under the provisions of the IBC. The first of those modes of revival is in the form of the CIRP elucidated in the provisions of Chapter II of the IBC. The second mode is where the corporate debtor or its business is sold as a going concern within the purview of clauses (e) and (f) of Regulation 32. The third is when a revival is contemplated through the modalities provided in Section 230 of the Act of 2013. A scheme of compromise or arrangement under Section 230, in the context of a company which is in liquidation under the IBC, follows upon an order under Section 33 and the appointment of a liquidator under Section 34. While there is no direct recognition of the provisions of Section 230 of the Act of 2013 in the IBC, a decision was rendered by the NCLAT on 27 February 2019 in Y Shivram Prasad v. S Dhanapal(2019 SCC OnLine NCLAT 172; herein, referred to as Y Shivram Prasad). NCLAT in the course of its decision observed that during the liquidation process the steps which are required to be taken by the liquidator include a compromise or arrangement in terms of Section 230 of the Act of 2013, so as to ensure the revival and continuance of the corporate debtor by protecting it from its management and from a death by liquidation. The decision by NCLAT took note of the fact that while passing the order under Section 230, the Adjudicating Authority would perform a dual role: one as the Adjudicating Authority in the matter of liquidation under the IBC and the other as a Tribunal for passing an order under Section 230 of the Act of 2013. Following the decision of NCLAT, an amendment was made on 25 July 2019 to the Liquidation Process Regulations by the IBBI so as to refer to the process envisaged under Section 230 of the Act of 2013.68. The statutory scheme underlying the IBC and the legislative history of its linkage with Section 230 of the Act of 2013, in the context of a company which is in liquidation, has important consequences for the outcome of the controversy in the present case. The first point is that a liquidation under Chapter III of the IBC follows upon the entire gamut of proceedings contemplated under that statute. The second point to be noted is that one of the modes of revival in the course of the liquidation process is envisaged in the enabling provisions of Section 230 of the Act of 2013, to which recourse can be taken by the liquidator appointed under Section 34 of the IBC. The third point is that the statutorily contemplated activities of the liquidator do not cease while inviting a scheme of compromise or arrangement under Section 230. The appointment of the liquidator in an IBC liquidation is provided in Section 34 and their duties are specified in Section 35. In taking recourse to the provisions of Section 230 of the Act of 2013, the liquidator appointed under the IBC is , above all, to attempt a revival of the corporate debtor so as to save it from the prospect of a corporate death. The consequence of the approval of the scheme of revival or compromise, and its sanction thereafter by the Tribunal under Sub-section (6), is that the scheme attains a binding character upon stakeholders including the liquidator who has been appointed under the IBC. In this backdrop, it is difficult to accept the submission of Mr Bajaj that Section 230 of the Act of 2013 is a standalone provision which has no connect with the provisions of the IBC. Undoubtedly, Section 230 of the Act of 2013 is wider in its ambit in the sense that it is not confined only to a company in liquidation or to corporate debtor which is being wound up under Chapter III of the IBC. Obviously, therefore, the rigors of the IBC will not apply to proceedings under Section 230 of the Act of 2013 where the scheme of compromise or arrangement proposed is in relation to an entity which is not the subject of a proceeding under the IBC. But, when, as in the present case, the process of invoking the provisions of Section 230 of the Act of 2013 traces its origin or, as it may be described, the trigger to the liquidation proceedings which have been initiated under the IBC, it becomes necessary to read both sets of provisions in harmony. A harmonious construction between the two statutes would ensure that while on the one hand a scheme of compromise or arrangement under Section 230 is being pursued, this takes place in a manner which is consistent with the underlying principles of the IBC because the scheme is proposed in respect of an entity which is undergoing liquidation under Chapter III of the IBC. As such, the company has to be protected from its management and a corporate death. It would lead to a manifest absurdity if the very persons who are ineligible for submitting a resolution plan, participating in the sale of assets of the company in liquidation or participating in the sale of the corporate debtor as a going concern, are somehow permitted to propose a compromise or arrangement under Section 230 of the Act of 2013.69. The IBC has made a provision for ineligibility under Section 29A which operates during the course of the CIRP. A similar provision is engrafted in Section 35(1)(f) which forms a part of the liquidation provisions contained in Chapter III as well. In the context of the statutory linkage provided by the provisions of Section 230 of the Act of 2013 with Chapter III of the IBC, where a scheme is proposed of a company which is in liquidation under the IBC, it would be far-fetched to hold that the ineligibilities which attach under Section 35(1)(f) read with Section 29A would not apply when Section 230 is sought to be invoked. Such an interpretation would result in defeating the provisions of the IBC and must be eschewed.We find no merit in this contention. As explained above, the stages of submitting a resolution plan, selling assets of a company in liquidation and selling the company as a going concern during liquidation, all indicate that the promoter or those in the management of the company must not be allowed a back-door entry in the company and are hence, ineligible to participate during these stages. Proposing a scheme of compromise or arrangement under Section 230 of the Act of 2013, while the company is undergoing liquidation under the provisions of the IBC lies in a similar continuum. Thus, the prohibitions that apply in the former situations must naturally also attach to the latter to ensure that like situations are treated equally.In the decision of this Court in Brilliant Alloys (supra), it has been held that a withdrawal may be contemplated even after the issuance of invitation of expression of interest. In Swiss Ribbons (supra), the provisions of Section 12-A were upheld against the challenge that they violated Article 14 of the Constitution. Justice Rohinton F Nariman, while adverting to the decision in Brilliant Alloys (supra), noted that Regulation 30-A(1) has been held not to be mandatory but directory because in a given case an application for withdrawal may be allowed for exceptional reasons even after issuance of an invitation for expression of interest under Section 36-A. Dealing with the provisions of Section 12-A, this Court observed:82. It is clear that once the Code gets triggered by admission of a creditors petition under Sections 7 to 9, the proceeding that is before the adjudicating authority, being a collective proceeding, is a proceeding in rem. Being a proceeding in rem, it is necessary that the body which is to oversee the resolution process must be consulted before any individual corporate debtor is allowed to settle its claim.· A question arises as to what is to happen before a Committee of Creditors is constituted (as per the timelines that are specified, a Committee of Creditors can be appointed at any time within 30 days from the date of appointment of the interim resolution professional). We make it clear that at any stage where the Committee of Creditors is not yet constituted, a party can approach NCLT directly, which Tribunal may, in exercise of its inherent powers under Rule 11 of NCLT Rules, 2016, allow or disallow an application for withdrawal or settlement. This will be decided after hearing all the parties concerned and considering all relevant factors on the facts of each case.83. The main thrust against the provision of Section 12-A is the fact that ninety per cent of the Committee of Creditors has to allow withdrawal. This high threshold has been explained in the ILC Report as all financial creditors have to put their heads together to allow such withdrawal as, ordinarily, an omnibus settlement involving all creditors ought, ideally, to be entered into . This explains why ninety per cent, which is substantially all the financial creditors, have to grant their approval to an individual withdrawal or settlement. In any case, the figure of ninety per cent, in the absence of anything further to show that it is arbitrary, must pertain to the domain of legislative policy, which has been explained by the Report (supra). Also, it is clear, that under Section 60 of the Code, the Committee of Creditors do not have the last word on the subject. If the Committee of Creditors arbitrarily rejects a just settlement and/or withdrawal claim, NCLT, and thereafter, NCLAT can always set aside such decision under Section 60 of the Code. For all these reasons, we are of the view that Section 12-A also passes constitutional muster.74. There is a fundamental fallacy in the submission. An application for withdrawal under Section 12-A is not intended to be a culmination of the resolution process. This, as the statutory scheme would indicate, is at the inception of the process. Rule 8 of the Adjudicating Authority Rules, as we have seen earlier, contemplates a withdrawal before admission. Section 12-A subjects a withdrawal of an application, which has been admitted under Sections 7, 9 and 10, to the requirement of an approval of ninety per cent voting shares of the CoC. The decision of this Court in Swiss Ribbons (para 82 extracted above) stipulates that where the CoC has not yet been constituted, the NCLT, functioning as the Adjudicating Authority, may be moved directly for withdrawal which, in the exercise of its inherent powers under Rule 11 of the Adjudicating Authority Rules, may allow or disallow the application for withdrawal or settlement after hearing the parties and considering the relevant factors on the facts of each case. A withdrawal in other words is by the applicant. The withdrawal leads to a status quo ante in respect of the liabilities of the corporate debtor. A withdrawal under Section 12-A is in the nature of settlement, which has to be distinguished both from a resolution plan which is approved under Section 31 and a scheme which is sanctioned under Section 230 of the Act of 2013. A resolution plan upon approval under Section 31(1) of the IBC is binding on the corporate debtor, its employees, members, creditors (including the central and state governments), local authorities, guarantors and other stakeholders. The approval of a resolution plan under Section 31 results in a clean slate, as held in the judgment of this Court in Committee of Creditors of Essar Steel India Limited v. Satish Kumar Gupta (2020) 8 SCC 531. Justice Rohinton F Nariman, speaking for the three judge Bench of this Court, observed:105. Section 31(1) of the Code makes it clear that once a resolution plan is approved by the Committee of Creditors it shall be binding on all stakeholders, including guarantors. This is for the reason that this provision ensures that the successful resolution applicant starts running the business of the corporate debtor on a fresh slate as it were. In SBI v. V. Ramakrishnan [SBI v. V. Ramakrishnan, (2018) 17 SCC 394 : (2019) 2 SCC (Civ) 458] , this Court relying upon Section 31 of the Code has held: (SCC p. 411, para 25)25. Section 31 of the Act was also strongly relied upon by the respondents. This section only states that once a resolution plan, as approved by the Committee of Creditors, takes effect, it shall be binding on the corporate debtor as well as the guarantor. This is for the reason that otherwise, under Section 133 of the Contract Act, 1872, any change made to the debt owed by the corporate debtor, without the suretys consent, would relieve the guarantor from payment. Section 31(1), in fact, makes it clear that the guarantor cannot escape payment as the resolution plan, which has been approved, may well include provisions as to payments to be made by such guarantor. This is perhaps the reason that Annexure VI(e) to Form 6 contained in the Rules and Regulation 36(2) referred to above, require information as to personal guarantees that have been given in relation to the debts of the corporate debtor. Far from supporting the stand of the respondents, it is clear that in point of fact, Section 31 is one more factor in favour of a personal guarantor having to pay for debts due without any moratorium applying to save him.In the same vein, the Court observed:107. For the same reason, the impugned NCLAT judgment [Standard Chartered Bank v. Satish Kumar Gupta, 2019 SCC OnLine NCLAT 388] in holding that claims that may exist apart from those decided on merits by the resolution professional and by the Adjudicating Authority/Appellate Tribunal can now be decided by an appropriate forum in terms of Section 60(6) of the Code, also militates against the rationale of Section 31 of the Code. A successful resolution applicant cannot suddenly be faced with undecided claims after the resolution plan submitted by him has been accepted as this would amount to a hydra head popping up which would throw into uncertainty amounts payable by a prospective resolution applicant who would successfully take over the business of the corporate debtor. All claims must be submitted to and decided by the resolution professional so that a prospective resolution applicant knows exactly what has to be paid in order that it may then take over and run the business of the corporate debtor. This the successful resolution applicant does on a fresh slate, as has been pointed out by us hereinabove. For these reasons, NCLAT judgment must also be set aside on this count.75. The benefit under Section 31, following upon the approval of the resolution plan, is that the successful resolution applicant starts running the business of the corporate debtor on a fresh slate. The scheme of compromise or arrangement under Section 230 of the Act of 2013 cannot certainly be equated with a withdrawal simpliciter of an application, as is contemplated under Section 12-A of the IBC. A scheme of compromise or arrangement, upon receiving sanction under Sub-section (6) of Section 230, binds the company, its creditors and members or a class of persons or creditors as the case may be as well as the liquidator (appointed under the Act of 2013 or the IBC). Both, the resolution plan upon being approved under Section 31 of the IBC and a scheme of compromise or arrangement upon being sanctioned under Sub-section (6) of Section 230, represent the culmination of the process. This must be distinguished from a mere withdrawal of an application under Section 12-A. There is a clear distinction between these processes, in terms of statutory context and its consequences and the latter cannot be equated with the former.76. Additionally, there is no merit in the submission that Section 35(1)(f) applies only to a liquidator who conducts a sale of the property of the corporate debtor in liquidation but not to the NLCT, acting as the Tribunal, when it exercises its powers under Section 230 of the Act of 2013. The liquidator appointed under the provisions of Chapter III of the IBC is entrusted with several powers and duties. Sections 37 to 42 of the IBC are illustrative of the powers of the liquidator in the course of the liquidation. The liquidator exercises several functions which are of a quasi-judicial in nature and character. Section 35(1) itself enunciates that the powers and duties which are entrusted to the liquidator are subject to the directions of the adjudicating authority. The liquidator, in other words, exercises functions which have been made amenable to the jurisdiction of the NCLT, acting as the Adjudicating Authority. To hold therefore that the ineligibility prescribed under the provisions of Section 35(1)(f) can be disregarded by the Tribunal for the purpose of considering an application for a scheme of compromise or arrangement under Section 230 of the Act of 2013, in respect of a company which is under liquidation under the IBC, would not be a correct construction of the provisions of law.77. Regulation 2B(1) introduced on 25 July 2019 provides that where a compromise or arrangement is proposed under Section 230 of the Act of 2013, it shall be completed within ninety days of the order of liquidation under sub- Sections (1) and (4) of Section 33. The proviso to Regulation 2B has been inserted with effect from 6 January 2020 to stipulate that a person who is not eligible under the IBC to submit a resolution plan for insolvency resolution of the corporate debtor shall not be a party in any manner to such compromise or arrangement.80. The discussion paper brought out on 3 November 2019 by IBBI discussed the applicability of Section 29A of the IBC to a compromise and arrangement under Section 230 of the Act of 2013. The discussion paper notes that there were many instances where the NCLAT had allowed the application under Section 230 of the Act of 2013. In that context, the discussion paper notes thus:21. Section 29 A of the Code prohibits certain persons from becoming a resolution applicant/ submitting a resolution plan in a CIRP. Proviso to section 35(1)(f) of the Code mandates that a Liquidator shall not sell the immoveable and moveable property or actionable claims of the CD in liquidation to any person who is not eligible to be a resolution applicant. These provisions were inserted in the Code with effect from 23rd November, 2017, while section 230 of the Act was amended along with the enactment of the Code. There is no explicit prohibition on persons ineligible to submit resolution plans under section 29A from proposing compromise or arrangement made under Section 230 of the Act, which may result in person ineligible under section 29A acquiring control of the CD. Thus, while section 29A of the Code is applicable to a CD when it is under CIRP and when it is under Liquidation Process, it is not applicable to the same CD when it is undergoing compromise or arrangement, in between CIR process and liquidation process. This has created an anomaly that section 29A is applicable during the stage before and the stage after compromise and arrangement and not during compromise and arrangement.22. Section 29A of the Code keeps out a person, who is a wilfull defaulter, who has an account with non-performing assets for a long period, etc. and therefore, is likely to be a risk to a successful resolution of insolvency of a company. This rationale equally applies to the stage of compromise or arrangement. Non-applicability of section 29A at the stage of compromise or arrangement may undermine the process and may reward unscrupulous persons at the expense of creditors. Thus, it may be necessary to harmonise the provisions in the Code and the Act to provide level playing field.81. The discussion paper also notes that it was necessary to have a discussion on the following amongst other issues:f. Should the persons ineligible under section 29A of the Code to be a resolution applicant be barred from becoming a party in compromise or arrangements under section 230 of the Companies Act, 2013?g. Or, should applicability of section 230 of the companies act, 2013 during liquidation process under the Coe be reviewed?82. Thereafter, public comments were invited. The discussion paper is what it professes to be – a matter for discussion in the public realm. This cannot be held to constitute an admission of IBBI that an applicant who is ineligible under Section 29A may submit a scheme of compromise or arrangement under Section 230 of the Act of 2013. The validity of the provisions of Regulation 2B, more specifically the proviso, has to be considered on their own footing.Under Sub-Section (1) of Section 240, the power to frame regulations is conditioned by two requirements: first, the regulations have to be consistent with the provisions of the IBC and the rules framed by the Central Government; and second, the regulations must be to carry out the provisions of the IBC. Regulation 2B meets both the requirements, of being consistent with the provisions of IBC and of being made in order to carry out the provisions of the IBC, for the reasons discussed earlier in this judgment.The position in our view can be considered from two perspectives, independent of the provisions of Regulation 2B. We have indicated in the discussion earlier that even in the absence of the Regulation 2B, a person ineligible under Section 29A read with Section 35(1)(f) is not permitted to propose a scheme for revival under Section 230, in the case of a company which is undergoing a liquidation under the IBC. We have come to the conclusion, as noted for the reasons indicated earlier, that in the case of a company which is undergoing liquidation pursuant to the provisions of Chapter III of the IBC, a scheme of compromise or arrangement proposed under Section 230 is a facet of the liquidation process. The object of the scheme of compromise or arrangement is to revive the company. The principle was enunciated in the decision in Meghal Homes (supra) while construing the provisions of erstwhile Section 391. The same rationale which permeates the resolution process under Chapter II (by virtue of the provisions of Section 29A) permeates the liquidation process under Chapter III (by virtue of the provisions of Section 35(1)(f)). That being the position, there can be no manner of doubt that the proviso to Regulation 2B is clarificatory in nature. Even absent the proviso, a person who is ineligible under Section 29A would not be permitted to propose a compromise or arrangement under Section 230 of the Act of 2013. We therefore do not find any merit in the challenge to the validity of Regulation 2B.85. In paragraph 24 of our judgment, we noted the two issues which had been framed by the NCLAT in the impugned judgment in the first of the appeals. The first issue was Whether in a liquidation proceeding under [IBC] the Scheme for Compromise and Arrangement can be made in terms of Sections 230 to 232 of the [Act of 2013]. While we noted in paragraph 25, that no challenge has been made by the appellant in regard to the finding of the NCLAT on this issue, it is imperative for us to make some remarks in relation to this issue and the larger issue of judicial intervention by the NCLT and NCLAT while adjudicating disputes under the IBC.86. To begin with, we would like to take note of the observations made by the Insolvency Law Committee in its Report of February 2020(Available at accessed on 10 March 2021). The Committee began by acknowledging that the floating of schemes of compromise or arrangement under Sections 230 to 232 of the Act, even for companies undergoing liquidation, was not part of the framework under the IBC. This, the Committee noted, had led to a multiplicity of issues including, but not limited to, the duality of the role of the NCLT (as a supervisory Adjudicatory Authority under the IBC versus the driving Tribunal under the Act of 2013) and indeed the very question before us in this case, whether the disqualification under Section 29A and proviso to Section 35(1)(f) of the IBC also attaches to Section 230 of the Act of 2013. However, the Committee notes that judicial intervention by the NCLAT along with the IBBIs introduction of new regulations have led to some alignment in the two frameworks.87. The Committee thereafter notes that the introduction of such schemes into the framework of the IBC may be worrisome since it will alter the incentives during the CIRP and lead to destructive delays, which often plagued the process under the Sick Industrial Companies (Special Provisions) Act, 1985.(Ibid, at para 4.5.) However, it nonetheless also acknowledges the benefits such schemes may have to offer. Even so, the Committee concludes by noting that such schemes, if at all they are to be brought in, should not be under the Act of 2013 but the IBC itself. The Report notes thus:4.6…However, the Committee was of the view that such a process for compromise or settlement need not be effected only through the schemes mechanism under the Companies Act, 2013, and felt that the liquidator could be given the power to effect a compromise or settlement with specific creditors with respect to their claims against the corporate debtor under the Code.4.7 Given the incompatibility of schemes of arrangement and the liquidation process, the Committee recommended that recourse to Section 230 of the Companies Act, 2013 for effecting schemes of arrangement or compromise should not be available during liquidation of the corporate debtor under the Code. However, the Committee felt that an appropriate process to allow the liquidator to effect a compromise or settlement with specific creditors should be devised under the Code.88. Due to the ambiguity in the application of the two frameworks, it became imperative that a clarification be issued in this regard. The introduction of the proviso to Regulation 2B was a step in this direction which sought to clarify the position with respect to the applicability of the disqualifications set out in Section 29A of the IBC to Section 230 of the Act of 2013 in tandem with the legislative intendment.89. At this juncture, it is important to remember that the explicit recognition of the schemes under Section 230 into the liquidation process under the IBC was through the judicial intervention of the NCLAT in Y Shivram Prasad (supra). Since the efficacy of this arrangement is not challenged before us in this case, we cannot comment on its merits. However, we do take this opportunity to offer a note of caution for the NCLT and NCLAT, functioning as the Adjudicatory Authority and Appellate Authority under the IBC respectively, from judicially interfering in the framework envisaged under the IBC. As we have noted earlier in the judgment, the IBC was introduced in order to overhaul the insolvency and bankruptcy regime in India. As such, it is a carefully considered and well thought out piece of legislation which sought to shed away the practices of the past. The legislature has also been working hard to ensure that the efficacy of this legislation remains robust by constantly amending it based on its experience. Consequently, the need for judicial intervention or innovation from the NCLT and NCLAT should be kept at its bare minimum and should not disturb the foundational principles of the IBC. This conscious shift in their role has been noted in the report of the Bankruptcy Law Reforms Committee (2015) in the following terms:An adjudicating authority ensures adherence to the processAt all points, the adherence to the process and compliance with all applicable laws is controlled by the adjudicating authority. The adjudicating authority gives powers to the insolvency professional to take appropriate action against the directors and management of the entity, with recommendations from the creditors committee. All material actions and events during the process are recorded at the adjudicating authority. The adjudicating authority can assess and penalise frivolous applications. The adjudicator hears allegations of violations and fraud while the process is on. The adjudicating authority will adjudicate on fraud, particularly during the process resolving bankruptcy. Appeals/actions against the behaviour of the insolvency professional are directed to the Regulator/Adjudicator.90. Once again, we must clarify that our observations here are not on the merits of the issue, which has not been challenged before us, but only limited to serve as guiding principles to the benches of NCLT and NCLAT adjudicating disputes under the IBC, going forward. | 0 | 24,282 | 8,515 | ### Instruction:
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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do not find any merit in the challenge to the validity of Regulation 2B. E Epilogue 85. In paragraph 24 of our judgment, we noted the two issues which had been framed by the NCLAT in the impugned judgment in the first of the appeals. The first issue was Whether in a liquidation proceeding under [IBC] the Scheme for Compromise and Arrangement can be made in terms of Sections 230 to 232 of the [Act of 2013]. While we noted in paragraph 25, that no challenge has been made by the appellant in regard to the finding of the NCLAT on this issue, it is imperative for us to make some remarks in relation to this issue and the larger issue of judicial intervention by the NCLT and NCLAT while adjudicating disputes under the IBC. 86. To begin with, we would like to take note of the observations made by the Insolvency Law Committee in its Report of February 2020(Available at accessed on 10 March 2021). The Committee began by acknowledging that the floating of schemes of compromise or arrangement under Sections 230 to 232 of the Act, even for companies undergoing liquidation, was not part of the framework under the IBC. This, the Committee noted, had led to a multiplicity of issues including, but not limited to, the duality of the role of the NCLT (as a supervisory Adjudicatory Authority under the IBC versus the driving Tribunal under the Act of 2013) and indeed the very question before us in this case, whether the disqualification under Section 29A and proviso to Section 35(1)(f) of the IBC also attaches to Section 230 of the Act of 2013. However, the Committee notes that judicial intervention by the NCLAT along with the IBBIs introduction of new regulations have led to some alignment in the two frameworks. 87. The Committee thereafter notes that the introduction of such schemes into the framework of the IBC may be worrisome since it will alter the incentives during the CIRP and lead to destructive delays, which often plagued the process under the Sick Industrial Companies (Special Provisions) Act, 1985.(Ibid, at para 4.5.) However, it nonetheless also acknowledges the benefits such schemes may have to offer. Even so, the Committee concludes by noting that such schemes, if at all they are to be brought in, should not be under the Act of 2013 but the IBC itself. The Report notes thus: 4.6…However, the Committee was of the view that such a process for compromise or settlement need not be effected only through the schemes mechanism under the Companies Act, 2013, and felt that the liquidator could be given the power to effect a compromise or settlement with specific creditors with respect to their claims against the corporate debtor under the Code. 4.7 Given the incompatibility of schemes of arrangement and the liquidation process, the Committee recommended that recourse to Section 230 of the Companies Act, 2013 for effecting schemes of arrangement or compromise should not be available during liquidation of the corporate debtor under the Code. However, the Committee felt that an appropriate process to allow the liquidator to effect a compromise or settlement with specific creditors should be devised under the Code. (emphasis in original) 88. Due to the ambiguity in the application of the two frameworks, it became imperative that a clarification be issued in this regard. The introduction of the proviso to Regulation 2B was a step in this direction which sought to clarify the position with respect to the applicability of the disqualifications set out in Section 29A of the IBC to Section 230 of the Act of 2013 in tandem with the legislative intendment. 89. At this juncture, it is important to remember that the explicit recognition of the schemes under Section 230 into the liquidation process under the IBC was through the judicial intervention of the NCLAT in Y Shivram Prasad (supra). Since the efficacy of this arrangement is not challenged before us in this case, we cannot comment on its merits. However, we do take this opportunity to offer a note of caution for the NCLT and NCLAT, functioning as the Adjudicatory Authority and Appellate Authority under the IBC respectively, from judicially interfering in the framework envisaged under the IBC. As we have noted earlier in the judgment, the IBC was introduced in order to overhaul the insolvency and bankruptcy regime in India. As such, it is a carefully considered and well thought out piece of legislation which sought to shed away the practices of the past. The legislature has also been working hard to ensure that the efficacy of this legislation remains robust by constantly amending it based on its experience. Consequently, the need for judicial intervention or innovation from the NCLT and NCLAT should be kept at its bare minimum and should not disturb the foundational principles of the IBC. This conscious shift in their role has been noted in the report of the Bankruptcy Law Reforms Committee (2015) in the following terms: An adjudicating authority ensures adherence to the process At all points, the adherence to the process and compliance with all applicable laws is controlled by the adjudicating authority. The adjudicating authority gives powers to the insolvency professional to take appropriate action against the directors and management of the entity, with recommendations from the creditors committee. All material actions and events during the process are recorded at the adjudicating authority. The adjudicating authority can assess and penalise frivolous applications. The adjudicator hears allegations of violations and fraud while the process is on. The adjudicating authority will adjudicate on fraud, particularly during the process resolving bankruptcy. Appeals/actions against the behaviour of the insolvency professional are directed to the Regulator/Adjudicator. 90. Once again, we must clarify that our observations here are not on the merits of the issue, which has not been challenged before us, but only limited to serve as guiding principles to the benches of NCLT and NCLAT adjudicating disputes under the IBC, going forward. F Conclusion
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permitted to propose a compromise or arrangement under Section 230 of the Act of 2013. We therefore do not find any merit in the challenge to the validity of Regulation 2B.85. In paragraph 24 of our judgment, we noted the two issues which had been framed by the NCLAT in the impugned judgment in the first of the appeals. The first issue was Whether in a liquidation proceeding under [IBC] the Scheme for Compromise and Arrangement can be made in terms of Sections 230 to 232 of the [Act of 2013]. While we noted in paragraph 25, that no challenge has been made by the appellant in regard to the finding of the NCLAT on this issue, it is imperative for us to make some remarks in relation to this issue and the larger issue of judicial intervention by the NCLT and NCLAT while adjudicating disputes under the IBC.86. To begin with, we would like to take note of the observations made by the Insolvency Law Committee in its Report of February 2020(Available at accessed on 10 March 2021). The Committee began by acknowledging that the floating of schemes of compromise or arrangement under Sections 230 to 232 of the Act, even for companies undergoing liquidation, was not part of the framework under the IBC. This, the Committee noted, had led to a multiplicity of issues including, but not limited to, the duality of the role of the NCLT (as a supervisory Adjudicatory Authority under the IBC versus the driving Tribunal under the Act of 2013) and indeed the very question before us in this case, whether the disqualification under Section 29A and proviso to Section 35(1)(f) of the IBC also attaches to Section 230 of the Act of 2013. However, the Committee notes that judicial intervention by the NCLAT along with the IBBIs introduction of new regulations have led to some alignment in the two frameworks.87. The Committee thereafter notes that the introduction of such schemes into the framework of the IBC may be worrisome since it will alter the incentives during the CIRP and lead to destructive delays, which often plagued the process under the Sick Industrial Companies (Special Provisions) Act, 1985.(Ibid, at para 4.5.) However, it nonetheless also acknowledges the benefits such schemes may have to offer. Even so, the Committee concludes by noting that such schemes, if at all they are to be brought in, should not be under the Act of 2013 but the IBC itself. The Report notes thus:4.6…However, the Committee was of the view that such a process for compromise or settlement need not be effected only through the schemes mechanism under the Companies Act, 2013, and felt that the liquidator could be given the power to effect a compromise or settlement with specific creditors with respect to their claims against the corporate debtor under the Code.4.7 Given the incompatibility of schemes of arrangement and the liquidation process, the Committee recommended that recourse to Section 230 of the Companies Act, 2013 for effecting schemes of arrangement or compromise should not be available during liquidation of the corporate debtor under the Code. However, the Committee felt that an appropriate process to allow the liquidator to effect a compromise or settlement with specific creditors should be devised under the Code.88. Due to the ambiguity in the application of the two frameworks, it became imperative that a clarification be issued in this regard. The introduction of the proviso to Regulation 2B was a step in this direction which sought to clarify the position with respect to the applicability of the disqualifications set out in Section 29A of the IBC to Section 230 of the Act of 2013 in tandem with the legislative intendment.89. At this juncture, it is important to remember that the explicit recognition of the schemes under Section 230 into the liquidation process under the IBC was through the judicial intervention of the NCLAT in Y Shivram Prasad (supra). Since the efficacy of this arrangement is not challenged before us in this case, we cannot comment on its merits. However, we do take this opportunity to offer a note of caution for the NCLT and NCLAT, functioning as the Adjudicatory Authority and Appellate Authority under the IBC respectively, from judicially interfering in the framework envisaged under the IBC. As we have noted earlier in the judgment, the IBC was introduced in order to overhaul the insolvency and bankruptcy regime in India. As such, it is a carefully considered and well thought out piece of legislation which sought to shed away the practices of the past. The legislature has also been working hard to ensure that the efficacy of this legislation remains robust by constantly amending it based on its experience. Consequently, the need for judicial intervention or innovation from the NCLT and NCLAT should be kept at its bare minimum and should not disturb the foundational principles of the IBC. This conscious shift in their role has been noted in the report of the Bankruptcy Law Reforms Committee (2015) in the following terms:An adjudicating authority ensures adherence to the processAt all points, the adherence to the process and compliance with all applicable laws is controlled by the adjudicating authority. The adjudicating authority gives powers to the insolvency professional to take appropriate action against the directors and management of the entity, with recommendations from the creditors committee. All material actions and events during the process are recorded at the adjudicating authority. The adjudicating authority can assess and penalise frivolous applications. The adjudicator hears allegations of violations and fraud while the process is on. The adjudicating authority will adjudicate on fraud, particularly during the process resolving bankruptcy. Appeals/actions against the behaviour of the insolvency professional are directed to the Regulator/Adjudicator.90. Once again, we must clarify that our observations here are not on the merits of the issue, which has not been challenged before us, but only limited to serve as guiding principles to the benches of NCLT and NCLAT adjudicating disputes under the IBC, going forward.
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PUNJAB WAKF BOARD Vs. SHAM SINGH HARIKE | afforded to represent his case by notice served on him during the course of relevant inquiry under Section 4.63. We may also notice the provision of Section 6 of sub-section (5) as it existed when suit was filed by Punjab Wakf Board against Sham Singh Harike. Section 6 sub-section (5) provided as follows: 6(5) On and from the commencement of this Act in a State, no suit or other legal proceeding shall be instituted or commence in a Court in that State in relation to any question referred to in sub-section (1).64. As per Section 6 sub-section (1) if any question arises as to whether a Wakf property in the list of Wakfs is wakf property or not,a suit can be instituted in a Tribunal for the decision of the question which decision shall be treated as final. Limitation for such suit was also provided in proviso as one year from the date of the publication of the list of Wakfs. Sub-section (5) of Section 6 contained the provision barring a suit in any Court after the commencement of the Act in relation to any question referred to in sub-section (1). In Suit No.250 dated 10.09.2001 (RBT No.84 dated 09.10.2006, Punjab Wakf Board vs. Sham Singh) the question has arisen as to whether suit property is a Wakf property or not. We have noticed pleadings in written statement filed by the defendant in the above suit where it was specifically denied that suit property is a Wakf property. Thus, within the meaning of sub-section (1) of Section 6 question that whether a suit property is a Wakf property or not has arisen. Thus, the suit wherein the above question has arisen ought to be considered by the Tribunal and the High Court clearly erred in allowing the revision filed by the defendant by its order dated 20.09.2010.65. Thus, the view of the High Court that right, title and interest of a non-Muslim to the Wakf in a property cannot be put in jeopardy is contrary to the statutory scheme as contained in Section 6 of the Act, 1995. Thus, the reason of the High Court to allow the revision petition is wholly unfounded. The defendant in written statement has pleaded that the suit property is not Wakf property. When issue in the suit is as to whether suit property is Wakf property or not it is covered by specific provision of Sections 6 and 7 of the Wakf Act, 1995, hence, it is required to be decided by the Tribunal under Section 83 and bar under Section 85 shall come into existence with regard to jurisdiction of Civil Court. In this context, in the judgment in Haryana Wakf Board vs. Mahesh Kumar, (2014) 16 SCC 45 , this Court has laid down that the question as to whether the suit property is a Wakf property is a question which has to be decided by the Tribunal. In the above case plaint was returned by the Appellate Court under Order VII Rule 10 for presentation before the Tribunal which view was upheld by this Court. In paragraph 6 of the judgment following was laid down:“6....Deciding the question of maintainability and locus standi, in respect of which Issues 2 and 4 were framed, the first appellate court held that since the claim in the suit by the petitioner which is a Wakf Board, was on the basis that suit property was wakf property and since the respondent had denied it to be the wakf property, the question had arisen as to whether suit property is wakf property or not. Such a question, in the opinion of the learned Additional District Judge, could be decided only by the Tribunal constituted under the Wakf Act. The appeal court, therefore, returned the plaint to the petitioner under Order 7 Rule 10 CPC for presentation to the court of competent jurisdiction, namely, the Tribunal. The result was that the decree passed by the trial court was set aside and the plaint returned.”66. Civil Appeal No.92 of 2019 is, thus, fully covered by the judgment of this Court in Haryana Wakf Board vs. Mahesh Kumar. The defendant having pleaded that suit property is not a Wakf property, the question has to be decided by the Tribunal. Thus, the High Court has committed error in allowing the revision petition. Thus, this appeal deserves to be allowed.67. One more question needs to be considered is as to whether a suit within the meaning of Section 6 sub-section (1) or Section 7(1) is to be filed within a period of one year of publication of list of Wakfs under Section 5.68. The provision contained in proviso to Section 6(1) that no such suit shall be entertained by the Tribunal after the expiry of one year from the date of the publication of the list of Wakfs shall be applicable to every person who though not interested in the Wakf concerned, is interested in such property and to whom a reasonable opportunity had been afforded to represent his case by notice served on him in that behalf during the course of the relevant inquiry under Section 4.69. When Section 6 sub-section (1) provides for raising a dispute regarding Wakf property in a period of one year, it applies to every person who wants to dispute the list except those who have been not served notice under Section 4(1).70. Now coming to Civil Appeal No.93 of 2019(Punjab Wakf Board vs. Teja Singh), the suit was filed by Wakf Board for possession of suit property and injunction in the Tribunal. The above suit was fully covered by the ratio laid down by this Court in Ramesh Gobindram (supra). The High court relying on Ramesh Gobindram case has allowed revision petition filed by the defendant. We do not find any error in the order of the High Court allowing the revision petition filed by the defendant directing the plaint along with documents was returned to be presented before the appropriate court i.e. Civil Court. | 0[ds]27. This Court noticed in the aforesaid judgment that there is a cleavage in the judicial opinion expressed on the question of jurisdiction of Wakf Tribunal by the different High Courts in the country. The view of the Andhra Pradesh High Court, Rajasthan High Court, Madhya Pradesh High Court, Kerala High Court and Punjab and Haryana High Court has been noticed where High Courts have taken the view that jurisdiction of the Wakf Tribunal is wide enough to entertain and adjudicate upon all kinds of disputes which relate to any Wakf Property. The contrary view of the High Court of Karnataka, High Courts of Madras, Allahabad and Bombay was also noticed.This Court noticing the provisions of Section 83 has observed that Section 83 does not deal with the exclusion of the jurisdiction of Civil Courts to entertain the civil suits generally or suit of any particular class or category. It interpreted Section 83 as a provision which does not exclude the jurisdiction of the Civil Court.46. In both the suits giving rise to these appeals the suits were filed much before the amendment of Section 83 by Act 27 of 2013. We, thus, in the present case has to interpret Section 83 as it existed prior to the above Amendment, 2013.Section 54(4) contemplates an appeal to the Tribunal by the mutawalli who is aggrieved by an order of removal. Sub-section (6) of Section 64 is again a power of the Tribunal to appoint a suitable person as receiver to manage the Wakf. On an application filed by the Board in an appeal challenging his removal order the Tribunal can appoint a receiver. These are provisions in the Act which refer to the Tribunal and refer to the subject matter which can be brought before the Tribunal by mutawalli or Board or any aggrieved person. The use of the wordunder Section 83(1) relates to the wordsthe determination of any dispute, question or other matter relating to a Wakf or Wakf. Section 83(1) provides for constitution of Tribunal. Other provisions of Section 83 deals with the procedure including bar of appeal against the order of the Tribunal except power of the High Court to revise the order of the Tribunal.52. Coming to Section 83 which relates to bar of jurisdiction of Civil Court, the relevant words aredispute, question or other matter relating to a wakf or wakfwhich is required by or under this Act to be determined by the Tribunal. Thus, bar of jurisdiction of Civil Court is confined only to those matters which are required to be determined by the Tribunal under this Act. Thus, Civil Court shall have jurisdiction to entertain suit and proceedings which are not required by or under the Act, 1995 to be determined. Thus, answering the question of jurisdiction, question has to be asked whether the issue raised in the suit or proceeding is required to be decided under the Act, 1995 by the Tribunal, under any provision or not. In the event, the answer is affirmative, the bar of jurisdiction of Civil Court shall operate.53. In the judgment in Ramesh Gobindram (supra) this Court after considering Sections 83 and 85 as noted above has explained the provisions. We now have to apply the proposition of the law as noted above in facts before us in both the appeals.In the above case the respondents were mortgagee of property which under Section 5 of 1954, Act was published for inclusion in the list of Wakfs. The writ petition was filed by the respondents challenging legality and validity of the proceedings taken which was allowed by the High Court. The High Court held that where a person claiming title is a stranger to the Wakf, the inclusion of such property in the list of Wakfs by the Board under sub-section (2) of Section 5 of the Act shall not be final and conclusive. This Court noticed the contention of the respondents who contended that they being non-Muslims they are outside the scope of sub-section (1) of Section 6 and they have no right to file the suit contemplated by that sub-section, therefore, the list of Wakfs published under sub-section (2) of Section 5 cannot be final and conclusive against them under sub-section (4) of Section 6.explanation to sub-section (1) of Section 6 makes it clear that any person interestedwho, though not interested in the Wakf concerned, is interested in such property. The above amendment of Section 6 sub-section (1) has made the interpretation of this Court in Board of Muslim Wakfs (supra) of Section 6 sub-section (1) inapplicable. Thus, the interpretation that the wordrefers to only Wakf has been consciously departed with and any person interested therein is a person who is interested in Wakf as well as in Wakf property both.The judgment of this Court in Punjab Wakf Board v. Gram Panchayat interpreting the explanation, thus, held that the notification issued under Section 5 would be binding not only on those interested in the Wakf but even strangers, claiming interest in the property in question, provided they were given notice in the inquiry under Section 4 preceding the notification under Section 5(2). The interpretation put by this Court in Punjab Wakf Board Vs. Gram Panchayat to the explanation added by Amendment Act, 1984 can equally be applied to interpretation of explanation to sub-section (1) of Section 6 of Act, 1995. Applying the above ratio to the interpretation of explanation of Section 6(1) of Act, 1995 following two conclusions can beAny person interested in the Wakf property which is specified as Wakf property in the list of Wakfs published under Section 5 can also raise the dispute regarding the Wakf property by instituting a suit in a Tribunal. Limitation for filing such suit by any person interested in the Wakf property is one year as per Section 6(1) proviso.(b) The finality of the Wakf property being included in the list of Wakfs published under Section 5(2) shall not be on a person to whom a reasonable opportunity had not been afforded to represent his case by notice served on him during the course of relevant inquiry under Section 4.We may also notice the provision of Section 6 of sub-section (5) as it existed when suit was filed by Punjab Wakf Board against Sham Singh Harike. Section 6 sub-section (5) provided as follows: 6(5) On and from the commencement of this Act in a State, no suit or other legal proceeding shall be instituted or commence in a Court in that State in relation to any question referred to in sub-section (1).64. As per Section 6 sub-section (1) if any question arises as to whether a Wakf property in the list of Wakfs is wakf property or not,a suit can be instituted in a Tribunal for the decision of the question which decision shall be treated as final. Limitation for such suit was also provided in proviso as one year from the date of the publication of the list of Wakfs. Sub-section (5) of Section 6 contained the provision barring a suit in any Court after the commencement of the Act in relation to any question referred to in sub-section (1). In Suit No.250 dated 10.09.2001 (RBT No.84 dated 09.10.2006, Punjab Wakf Board vs. Sham Singh) the question has arisen as to whether suit property is a Wakf property or not. We have noticed pleadings in written statement filed by the defendant in the above suit where it was specifically denied that suit property is a Wakf property. Thus, within the meaning of sub-section (1) of Section 6 question that whether a suit property is a Wakf property or not has arisen. Thus, the suit wherein the above question has arisen ought to be considered by the Tribunal and the High Court clearly erred in allowing the revision filed by the defendant by its order dated 20.09.2010.65. Thus, the view of the High Court that right, title and interest of a non-Muslim to the Wakf in a property cannot be put in jeopardy is contrary to the statutory scheme as contained in Section 6 of the Act, 1995. Thus, the reason of the High Court to allow the revision petition is wholly unfounded. The defendant in written statement has pleaded that the suit property is not Wakf property. When issue in the suit is as to whether suit property is Wakf property or not it is covered by specific provision of Sections 6 and 7 of the Wakf Act, 1995, hence, it is required to be decided by the Tribunal under Section 83 and bar under Section 85 shall come into existence with regard to jurisdiction of Civil Court.Civil Appeal No.92 of 2019 is, thus, fully covered by the judgment of this Court in Haryana Wakf Board vs. Mahesh Kumar. The defendant having pleaded that suit property is not a Wakf property, the question has to be decided by the Tribunal. Thus, the High Court has committed error in allowing the revision petition. Thus, this appeal deserves to be allowed.67. One more question needs to be considered is as to whether a suit within the meaning of Section 6 sub-section (1) or Section 7(1) is to be filed within a period of one year of publication of list of Wakfs under Section 5.68. The provision contained in proviso to Section 6(1) that no such suit shall be entertained by the Tribunal after the expiry of one year from the date of the publication of the list of Wakfs shall be applicable to every person who though not interested in the Wakf concerned, is interested in such property and to whom a reasonable opportunity had been afforded to represent his case by notice served on him in that behalf during the course of the relevant inquiry under Section 4.69. When Section 6 sub-section (1) provides for raising a dispute regarding Wakf property in a period of one year, it applies to every person who wants to dispute the list except those who have been not served notice under Section 4(1).70. Now coming to Civil Appeal No.93 of 2019(Punjab Wakf Board vs. Teja Singh), the suit was filed by Wakf Board for possession of suit property and injunction in the Tribunal. The above suit was fully covered by the ratio laid down by this Court in Ramesh Gobindram (supra). The High court relying on Ramesh Gobindram case has allowed revision petition filed by the defendant. We do not find any error in the order of the High Court allowing the revision petition filed by the defendant directing the plaint along with documents was returned to be presented before the appropriate court i.e. Civil Court. | 0 | 14,699 | 1,972 | ### 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:
afforded to represent his case by notice served on him during the course of relevant inquiry under Section 4.63. We may also notice the provision of Section 6 of sub-section (5) as it existed when suit was filed by Punjab Wakf Board against Sham Singh Harike. Section 6 sub-section (5) provided as follows: 6(5) On and from the commencement of this Act in a State, no suit or other legal proceeding shall be instituted or commence in a Court in that State in relation to any question referred to in sub-section (1).64. As per Section 6 sub-section (1) if any question arises as to whether a Wakf property in the list of Wakfs is wakf property or not,a suit can be instituted in a Tribunal for the decision of the question which decision shall be treated as final. Limitation for such suit was also provided in proviso as one year from the date of the publication of the list of Wakfs. Sub-section (5) of Section 6 contained the provision barring a suit in any Court after the commencement of the Act in relation to any question referred to in sub-section (1). In Suit No.250 dated 10.09.2001 (RBT No.84 dated 09.10.2006, Punjab Wakf Board vs. Sham Singh) the question has arisen as to whether suit property is a Wakf property or not. We have noticed pleadings in written statement filed by the defendant in the above suit where it was specifically denied that suit property is a Wakf property. Thus, within the meaning of sub-section (1) of Section 6 question that whether a suit property is a Wakf property or not has arisen. Thus, the suit wherein the above question has arisen ought to be considered by the Tribunal and the High Court clearly erred in allowing the revision filed by the defendant by its order dated 20.09.2010.65. Thus, the view of the High Court that right, title and interest of a non-Muslim to the Wakf in a property cannot be put in jeopardy is contrary to the statutory scheme as contained in Section 6 of the Act, 1995. Thus, the reason of the High Court to allow the revision petition is wholly unfounded. The defendant in written statement has pleaded that the suit property is not Wakf property. When issue in the suit is as to whether suit property is Wakf property or not it is covered by specific provision of Sections 6 and 7 of the Wakf Act, 1995, hence, it is required to be decided by the Tribunal under Section 83 and bar under Section 85 shall come into existence with regard to jurisdiction of Civil Court. In this context, in the judgment in Haryana Wakf Board vs. Mahesh Kumar, (2014) 16 SCC 45 , this Court has laid down that the question as to whether the suit property is a Wakf property is a question which has to be decided by the Tribunal. In the above case plaint was returned by the Appellate Court under Order VII Rule 10 for presentation before the Tribunal which view was upheld by this Court. In paragraph 6 of the judgment following was laid down:“6....Deciding the question of maintainability and locus standi, in respect of which Issues 2 and 4 were framed, the first appellate court held that since the claim in the suit by the petitioner which is a Wakf Board, was on the basis that suit property was wakf property and since the respondent had denied it to be the wakf property, the question had arisen as to whether suit property is wakf property or not. Such a question, in the opinion of the learned Additional District Judge, could be decided only by the Tribunal constituted under the Wakf Act. The appeal court, therefore, returned the plaint to the petitioner under Order 7 Rule 10 CPC for presentation to the court of competent jurisdiction, namely, the Tribunal. The result was that the decree passed by the trial court was set aside and the plaint returned.”66. Civil Appeal No.92 of 2019 is, thus, fully covered by the judgment of this Court in Haryana Wakf Board vs. Mahesh Kumar. The defendant having pleaded that suit property is not a Wakf property, the question has to be decided by the Tribunal. Thus, the High Court has committed error in allowing the revision petition. Thus, this appeal deserves to be allowed.67. One more question needs to be considered is as to whether a suit within the meaning of Section 6 sub-section (1) or Section 7(1) is to be filed within a period of one year of publication of list of Wakfs under Section 5.68. The provision contained in proviso to Section 6(1) that no such suit shall be entertained by the Tribunal after the expiry of one year from the date of the publication of the list of Wakfs shall be applicable to every person who though not interested in the Wakf concerned, is interested in such property and to whom a reasonable opportunity had been afforded to represent his case by notice served on him in that behalf during the course of the relevant inquiry under Section 4.69. When Section 6 sub-section (1) provides for raising a dispute regarding Wakf property in a period of one year, it applies to every person who wants to dispute the list except those who have been not served notice under Section 4(1).70. Now coming to Civil Appeal No.93 of 2019(Punjab Wakf Board vs. Teja Singh), the suit was filed by Wakf Board for possession of suit property and injunction in the Tribunal. The above suit was fully covered by the ratio laid down by this Court in Ramesh Gobindram (supra). The High court relying on Ramesh Gobindram case has allowed revision petition filed by the defendant. We do not find any error in the order of the High Court allowing the revision petition filed by the defendant directing the plaint along with documents was returned to be presented before the appropriate court i.e. Civil Court.
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with and any person interested therein is a person who is interested in Wakf as well as in Wakf property both.The judgment of this Court in Punjab Wakf Board v. Gram Panchayat interpreting the explanation, thus, held that the notification issued under Section 5 would be binding not only on those interested in the Wakf but even strangers, claiming interest in the property in question, provided they were given notice in the inquiry under Section 4 preceding the notification under Section 5(2). The interpretation put by this Court in Punjab Wakf Board Vs. Gram Panchayat to the explanation added by Amendment Act, 1984 can equally be applied to interpretation of explanation to sub-section (1) of Section 6 of Act, 1995. Applying the above ratio to the interpretation of explanation of Section 6(1) of Act, 1995 following two conclusions can beAny person interested in the Wakf property which is specified as Wakf property in the list of Wakfs published under Section 5 can also raise the dispute regarding the Wakf property by instituting a suit in a Tribunal. Limitation for filing such suit by any person interested in the Wakf property is one year as per Section 6(1) proviso.(b) The finality of the Wakf property being included in the list of Wakfs published under Section 5(2) shall not be on a person to whom a reasonable opportunity had not been afforded to represent his case by notice served on him during the course of relevant inquiry under Section 4.We may also notice the provision of Section 6 of sub-section (5) as it existed when suit was filed by Punjab Wakf Board against Sham Singh Harike. Section 6 sub-section (5) provided as follows: 6(5) On and from the commencement of this Act in a State, no suit or other legal proceeding shall be instituted or commence in a Court in that State in relation to any question referred to in sub-section (1).64. As per Section 6 sub-section (1) if any question arises as to whether a Wakf property in the list of Wakfs is wakf property or not,a suit can be instituted in a Tribunal for the decision of the question which decision shall be treated as final. Limitation for such suit was also provided in proviso as one year from the date of the publication of the list of Wakfs. Sub-section (5) of Section 6 contained the provision barring a suit in any Court after the commencement of the Act in relation to any question referred to in sub-section (1). In Suit No.250 dated 10.09.2001 (RBT No.84 dated 09.10.2006, Punjab Wakf Board vs. Sham Singh) the question has arisen as to whether suit property is a Wakf property or not. We have noticed pleadings in written statement filed by the defendant in the above suit where it was specifically denied that suit property is a Wakf property. Thus, within the meaning of sub-section (1) of Section 6 question that whether a suit property is a Wakf property or not has arisen. Thus, the suit wherein the above question has arisen ought to be considered by the Tribunal and the High Court clearly erred in allowing the revision filed by the defendant by its order dated 20.09.2010.65. Thus, the view of the High Court that right, title and interest of a non-Muslim to the Wakf in a property cannot be put in jeopardy is contrary to the statutory scheme as contained in Section 6 of the Act, 1995. Thus, the reason of the High Court to allow the revision petition is wholly unfounded. The defendant in written statement has pleaded that the suit property is not Wakf property. When issue in the suit is as to whether suit property is Wakf property or not it is covered by specific provision of Sections 6 and 7 of the Wakf Act, 1995, hence, it is required to be decided by the Tribunal under Section 83 and bar under Section 85 shall come into existence with regard to jurisdiction of Civil Court.Civil Appeal No.92 of 2019 is, thus, fully covered by the judgment of this Court in Haryana Wakf Board vs. Mahesh Kumar. The defendant having pleaded that suit property is not a Wakf property, the question has to be decided by the Tribunal. Thus, the High Court has committed error in allowing the revision petition. Thus, this appeal deserves to be allowed.67. One more question needs to be considered is as to whether a suit within the meaning of Section 6 sub-section (1) or Section 7(1) is to be filed within a period of one year of publication of list of Wakfs under Section 5.68. The provision contained in proviso to Section 6(1) that no such suit shall be entertained by the Tribunal after the expiry of one year from the date of the publication of the list of Wakfs shall be applicable to every person who though not interested in the Wakf concerned, is interested in such property and to whom a reasonable opportunity had been afforded to represent his case by notice served on him in that behalf during the course of the relevant inquiry under Section 4.69. When Section 6 sub-section (1) provides for raising a dispute regarding Wakf property in a period of one year, it applies to every person who wants to dispute the list except those who have been not served notice under Section 4(1).70. Now coming to Civil Appeal No.93 of 2019(Punjab Wakf Board vs. Teja Singh), the suit was filed by Wakf Board for possession of suit property and injunction in the Tribunal. The above suit was fully covered by the ratio laid down by this Court in Ramesh Gobindram (supra). The High court relying on Ramesh Gobindram case has allowed revision petition filed by the defendant. We do not find any error in the order of the High Court allowing the revision petition filed by the defendant directing the plaint along with documents was returned to be presented before the appropriate court i.e. Civil Court.
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Dhampur Sugar Mills Ltd Vs. Commissioner Of Trade Tax, U.P | may be achieved by scientific and technological advances in future. No one has argued that at present electromagnetic waves are abstractable or are capable of delivery. It would, therefore, appear that an electromagnetic wave (or radio frequency as contended by one of the counsel for the respondents), does not fulfil the parameters applied by the Supreme Court in Tata Consultancy for determining whether they are goods, right to use of which would be a sale for the purpose of Article 366 (29-A)(d). 26. The subject matter involved in the said decision of Bharat Sanchar Nigam Ltd. & Anr. (supra) primarily was held not to be within the purview of definition of goods as the contract between the telecom service provider and the subscriber was merely to receive, transmit and deliver messages of the subscriber through a complex system of fibre optics, satellite and cables. 27. This Court, it may be noticed, in a recent Constitution Bench judgment in M/s. Sunrise Associates vs. Govt. of NCT of Delhi & Ors. (pronounced on 28th April, 2006), has opined that the sale of lottery ticket or a railway ticket may not be a sale of goods. 28. In Tata Consultancy Services vs. State of A.P. [(2005) 1 SCC 308] , a CD containing software was held to be goods within the meaning of the A.P. General Sales Tax Act, 1957. 29. Devi Das Gopal Krishnan & Ors. vs. State of Punjab & Anr. [(1967) 3 SCR 557] and CIT, A.P. vs. Motor & General Stores (P) Ltd. [(1967) 3 SCR 876 : AIR 1968 SC 200 ] were relied upon by Mr. Dave for the proposition that the expression valuable consideration takes colour from the preceding expression cash or deferred payment. The said decision is not an authority for the proposition that cash or deferred payment cannot be by way of adjustment. If the parties intended to adjust their own dues, having regard to different transactions in terms whereof both the parties to the said transaction were required to pay in cash or by way of deferred payment, the same would not militate against the interpretation of the expression valuable consideration, although, the term valuable consideration in the changed context (in view of the Constitution amendment) may be viewed differently. But, having regard to the fact situation obtaining in this case, we may not have to go into the said question. 30. Molasses manufactured in the sugar mills, was the property of the appellant and it answers the description of goods. In view of the terms and conditions of the Deed of Licence, the appellant was the owner thereof. The Company was to use the molasses for the purpose of manufacture of sugar in its factory. Transfer of such molasses by the appellant to the Company, would not be a transfer by way of transfer of stock. It is transfer of the ownership in goods wherefor the Company was to pay the price to the appellant. The transaction, therefore, beyond any doubt, answers the description of sale within the meaning of the provisions of the U.P. Trade Tax Act, 1948. For each supply of molasses the appellant would be entitled to the price thereof. The amount towards the price of the goods could be paid either by way of cash or deferred payment. Instead of cash, the price of molasses was to be adjusted from the amount payable by the appellant to the owner by way of consideration for use of the mill. Such a mutual arrangement is merely one for the purpose of adjusting the accounts. The transactions between the parties are in effect and substance involve passing of monetary consideration. It would, thus, come within the purview of the expression any other valuable consideration, which expression would take colour from deferred payment being a monetary payment, but does not loose its character of some other monetary payment by way of mutual arrangement. The parties are not bartering or exchanging any goods so that the element of monetary consideration is absent. Money is a legal tender. Cash is, however, narrower than money. The words deferred payment and other valuable consideration enlarge the ambit of consideration beyond cash only. Entry 54 of List II of the Seventh Schedule to the Constitution of India provides for sale of goods. Once a sale of goods takes place, the State becomes entitled to impose tax on sale or purchase of goods. For construction of the words sale of goods, now the Court is not necessarily required to fall upon the definition of sale of goods, as contained in the Sale of Goods Act, 1930. It has to be governed by its enlarged definition under Clause (29-A) to Article 366 of the Constitution of India. Once an essential component of sale takes place, Sales tax would, indisputably, be payable. By reason of such an arrangement by the parties, the State is not creating a new taxable event nor imposing a new tax which was unknown in law. 31. In fact, the transaction entered into by the parties even does not provides for any camouflage to evade tax. They are clear and unambiguous. 32. We, therefore, are of the opinion that the High Court cannot be said to have committed any error in passing the impugned judgment. 33. In regard to the submissions of the learned counsel for the parties that as no appeal was preferred from the order dated 30.7.1991, wherein the Company was the appellant, the respondent must be held to have accepted the order, is not acceptable to us, as, admittedly, the appellant itself is liable to pay the tax. The contentions of the appellant that having regard to the transaction entered into by and between the parties and no sale having taken place, they are not liable to pay any tax, will not be correct. Non-filing of the appeal against the said order dated 30.7.1991, would not take away the effect of order of assessment passed as against the appellant by the Assessing Authority. | 0[ds]Molasses manufactured in the sugar mills, was the property of the appellant and it answers the description of goods. In view of the terms and conditions of the Deed of Licence, the appellant was the owner thereof. The Company was to use the molasses for the purpose of manufacture of sugar in its factory. Transfer of such molasses by the appellant to the Company, would not be a transfer by way of transfer of stock. It is transfer of the ownership in goods wherefor the Company was to pay the price to the appellant. The transaction, therefore, beyond any doubt, answers the description of sale within the meaning of the provisions of the U.P. Trade Tax Act, 1948. For each supply of molasses the appellant would be entitled to the price thereof. The amount towards the price of the goods could be paid either by way of cash or deferred payment. Instead of cash, the price of molasses was to be adjusted from the amount payable by the appellant to the owner by way of consideration for use of the mill. Such a mutual arrangement is merely one for the purpose of adjusting the accounts. The transactions between the parties are in effect and substance involve passing of monetary consideration. It would, thus, come within the purview of the expression any other valuable consideration, which expression would take colour from deferred payment being a monetary payment, but does not loose its character of some other monetary payment by way of mutual arrangement. The parties are not bartering or exchanging any goods so that the element of monetary consideration is absent. Money is a legal tender. Cash is, however, narrower than money. The words deferred payment and other valuable consideration enlarge the ambit of consideration beyond cash only. Entry 54 of List II of the Seventh Schedule to the Constitution of India provides for sale of goods. Once a sale of goods takes place, the State becomes entitled to impose tax on sale or purchase of goods. For construction of the words sale of goods, now the Court is not necessarily required to fall upon the definition of sale of goods, as contained in the Sale of Goods Act, 1930. It has to be governed by its enlarged definition under Clause (29-A) to Article 366 of the Constitution of India. Once an essential component of sale takes place, Sales tax would, indisputably, be payable. By reason of such an arrangement by the parties, the State is not creating a new taxable event nor imposing a new tax which was unknown in lawIn fact, the transaction entered into by the parties even does not provides for any camouflage to evade tax. They are clear and unambiguousWe, therefore, are of the opinion that the High Court cannot be said to have committed any error in passing the impugned judgmentIn regard to the submissions of the learned counsel for the parties that as no appeal was preferred from the order dated 30.7.1991, wherein the Company was the appellant, the respondent must be held to have accepted the order, is not acceptable to us, as, admittedly, the appellant itself is liable to pay the tax. The contentions of the appellant that having regard to the transaction entered into by and between the parties and no sale having taken place, they are not liable to pay any tax, will not be correct. Non-filing of the appeal against the said order dated 30.7.1991, would not take away the effect of order of assessment passed as against the appellant by the Assessing Authority. | 0 | 6,000 | 662 | ### 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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may be achieved by scientific and technological advances in future. No one has argued that at present electromagnetic waves are abstractable or are capable of delivery. It would, therefore, appear that an electromagnetic wave (or radio frequency as contended by one of the counsel for the respondents), does not fulfil the parameters applied by the Supreme Court in Tata Consultancy for determining whether they are goods, right to use of which would be a sale for the purpose of Article 366 (29-A)(d). 26. The subject matter involved in the said decision of Bharat Sanchar Nigam Ltd. & Anr. (supra) primarily was held not to be within the purview of definition of goods as the contract between the telecom service provider and the subscriber was merely to receive, transmit and deliver messages of the subscriber through a complex system of fibre optics, satellite and cables. 27. This Court, it may be noticed, in a recent Constitution Bench judgment in M/s. Sunrise Associates vs. Govt. of NCT of Delhi & Ors. (pronounced on 28th April, 2006), has opined that the sale of lottery ticket or a railway ticket may not be a sale of goods. 28. In Tata Consultancy Services vs. State of A.P. [(2005) 1 SCC 308] , a CD containing software was held to be goods within the meaning of the A.P. General Sales Tax Act, 1957. 29. Devi Das Gopal Krishnan & Ors. vs. State of Punjab & Anr. [(1967) 3 SCR 557] and CIT, A.P. vs. Motor & General Stores (P) Ltd. [(1967) 3 SCR 876 : AIR 1968 SC 200 ] were relied upon by Mr. Dave for the proposition that the expression valuable consideration takes colour from the preceding expression cash or deferred payment. The said decision is not an authority for the proposition that cash or deferred payment cannot be by way of adjustment. If the parties intended to adjust their own dues, having regard to different transactions in terms whereof both the parties to the said transaction were required to pay in cash or by way of deferred payment, the same would not militate against the interpretation of the expression valuable consideration, although, the term valuable consideration in the changed context (in view of the Constitution amendment) may be viewed differently. But, having regard to the fact situation obtaining in this case, we may not have to go into the said question. 30. Molasses manufactured in the sugar mills, was the property of the appellant and it answers the description of goods. In view of the terms and conditions of the Deed of Licence, the appellant was the owner thereof. The Company was to use the molasses for the purpose of manufacture of sugar in its factory. Transfer of such molasses by the appellant to the Company, would not be a transfer by way of transfer of stock. It is transfer of the ownership in goods wherefor the Company was to pay the price to the appellant. The transaction, therefore, beyond any doubt, answers the description of sale within the meaning of the provisions of the U.P. Trade Tax Act, 1948. For each supply of molasses the appellant would be entitled to the price thereof. The amount towards the price of the goods could be paid either by way of cash or deferred payment. Instead of cash, the price of molasses was to be adjusted from the amount payable by the appellant to the owner by way of consideration for use of the mill. Such a mutual arrangement is merely one for the purpose of adjusting the accounts. The transactions between the parties are in effect and substance involve passing of monetary consideration. It would, thus, come within the purview of the expression any other valuable consideration, which expression would take colour from deferred payment being a monetary payment, but does not loose its character of some other monetary payment by way of mutual arrangement. The parties are not bartering or exchanging any goods so that the element of monetary consideration is absent. Money is a legal tender. Cash is, however, narrower than money. The words deferred payment and other valuable consideration enlarge the ambit of consideration beyond cash only. Entry 54 of List II of the Seventh Schedule to the Constitution of India provides for sale of goods. Once a sale of goods takes place, the State becomes entitled to impose tax on sale or purchase of goods. For construction of the words sale of goods, now the Court is not necessarily required to fall upon the definition of sale of goods, as contained in the Sale of Goods Act, 1930. It has to be governed by its enlarged definition under Clause (29-A) to Article 366 of the Constitution of India. Once an essential component of sale takes place, Sales tax would, indisputably, be payable. By reason of such an arrangement by the parties, the State is not creating a new taxable event nor imposing a new tax which was unknown in law. 31. In fact, the transaction entered into by the parties even does not provides for any camouflage to evade tax. They are clear and unambiguous. 32. We, therefore, are of the opinion that the High Court cannot be said to have committed any error in passing the impugned judgment. 33. In regard to the submissions of the learned counsel for the parties that as no appeal was preferred from the order dated 30.7.1991, wherein the Company was the appellant, the respondent must be held to have accepted the order, is not acceptable to us, as, admittedly, the appellant itself is liable to pay the tax. The contentions of the appellant that having regard to the transaction entered into by and between the parties and no sale having taken place, they are not liable to pay any tax, will not be correct. Non-filing of the appeal against the said order dated 30.7.1991, would not take away the effect of order of assessment passed as against the appellant by the Assessing Authority.
### Response:
0
### Explanation:
Molasses manufactured in the sugar mills, was the property of the appellant and it answers the description of goods. In view of the terms and conditions of the Deed of Licence, the appellant was the owner thereof. The Company was to use the molasses for the purpose of manufacture of sugar in its factory. Transfer of such molasses by the appellant to the Company, would not be a transfer by way of transfer of stock. It is transfer of the ownership in goods wherefor the Company was to pay the price to the appellant. The transaction, therefore, beyond any doubt, answers the description of sale within the meaning of the provisions of the U.P. Trade Tax Act, 1948. For each supply of molasses the appellant would be entitled to the price thereof. The amount towards the price of the goods could be paid either by way of cash or deferred payment. Instead of cash, the price of molasses was to be adjusted from the amount payable by the appellant to the owner by way of consideration for use of the mill. Such a mutual arrangement is merely one for the purpose of adjusting the accounts. The transactions between the parties are in effect and substance involve passing of monetary consideration. It would, thus, come within the purview of the expression any other valuable consideration, which expression would take colour from deferred payment being a monetary payment, but does not loose its character of some other monetary payment by way of mutual arrangement. The parties are not bartering or exchanging any goods so that the element of monetary consideration is absent. Money is a legal tender. Cash is, however, narrower than money. The words deferred payment and other valuable consideration enlarge the ambit of consideration beyond cash only. Entry 54 of List II of the Seventh Schedule to the Constitution of India provides for sale of goods. Once a sale of goods takes place, the State becomes entitled to impose tax on sale or purchase of goods. For construction of the words sale of goods, now the Court is not necessarily required to fall upon the definition of sale of goods, as contained in the Sale of Goods Act, 1930. It has to be governed by its enlarged definition under Clause (29-A) to Article 366 of the Constitution of India. Once an essential component of sale takes place, Sales tax would, indisputably, be payable. By reason of such an arrangement by the parties, the State is not creating a new taxable event nor imposing a new tax which was unknown in lawIn fact, the transaction entered into by the parties even does not provides for any camouflage to evade tax. They are clear and unambiguousWe, therefore, are of the opinion that the High Court cannot be said to have committed any error in passing the impugned judgmentIn regard to the submissions of the learned counsel for the parties that as no appeal was preferred from the order dated 30.7.1991, wherein the Company was the appellant, the respondent must be held to have accepted the order, is not acceptable to us, as, admittedly, the appellant itself is liable to pay the tax. The contentions of the appellant that having regard to the transaction entered into by and between the parties and no sale having taken place, they are not liable to pay any tax, will not be correct. Non-filing of the appeal against the said order dated 30.7.1991, would not take away the effect of order of assessment passed as against the appellant by the Assessing Authority.
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Jeewan Kumar Raut & Another Vs. Central Bureau of Investigation | and Others [(1997) 8 SCC 476] and Dinesh Dalmia v. CBI [(2007) 8 SCC 770] . However, in view of our foregoing findings, the said decisions have no application in the instant case. 23. We may notice that a Division Bench of the High Court of Kerala in Moosakoya v. State of Kerala [2008 Crl. L.J. 2388] held as under: "3. A plain reading of the above provision will show that even though by Section 24 all offences under the Act are made cognizable, no Court can take cognizance of the offence except upon a written complaint made by a person authorised in this behalf by the Government of the District Collector or a Geologist of the Department of Mining and Geology. A complaint in writing by the authorised officer etc. is the only condition for taking cognizance as provided in Section 25. If a police officer is authorised by the Government, he may also file a complaint on the basis of which the Court may take cognizance. But, the Court cannot take cognizance of any offence punishable under the Sand Act on a police report filed under Section 173(2) of the Cr.P.C. after investigation by police..." We, with respect, agree with the said observations. 24. For the views we have taken, we are of the opinion that stricto sensu Sub-section (2) of Section 167 of the Code would not apply in a case of this nature. Even assuming for the sake of argument that Sub-section (2) of Section 167 of the Code requires filing of a report within 90 days and the complaint petition having filed within the said period, the requirements thereof stand satisfied. 25. Appellant No. 2 having arrested on 10.02.2008 and Appellant No. 1 having surrendered on 17.02.2008 as also the complaint petition having been filed on 29.04.2008, the requirement of Sub-section (2) of Section 167 of the Code stands satisfied. In Sanjay Dutt v. State Through C.B.I., Bombay (II) [(1994) 5 SCC 410] , this Court held: "53(2)(b) The indefeasible right of the accused to be released on bail inaccordance with Section 20(4)(bb) of the TADA Act read with Section 167(2) of the CrPC in default of completion of the investigation and filing of the challan within the time allowed, as held in Hitendra Vishnu Thakur is a right which enures to, and is enforceable by the accused only from the time of default till the filing of the challan and it does not survive or remain enforceable on the challan being filed. If the accused applies for bail under this provision on expiry of the period of 180 days or the extended period, as the case may be, then he has to be released on bail forthwith. The accused, so released on bail may be arrested and committed to custody according to the provisions of the CrPC. The right of the accused to be released on bail after filing of the challan, notwithstanding the default in filing it within the time allowed, is governed from the time of filing of the challan only by the provisions relating to the grant of bail applicable at that stage." Only because the court itself took a long time in taking cognizance of the offence, i.e., after the expiry of the period of 90 days, the same would not mean that any new right would be created in favour of the appellants thereby. 26. A distinction between a remand of an accused at pre-cognizance stage vis-`-vis the post-cognizance stage is apparent. Whereas the remand at a pre-cognizance stage is to be made in terms of Sub-section (2) of Section 167 of the Code, an order of remand of an accused at post-cognizance stage can be effected only in terms of Sub-section (2) of Section 309 thereof. This aspect of the matter has been considered by this Court recently in Mithabhai Pashabhai Patel and others v. State of Gujarat [2009 (7) SCALE 559 ]. 27. Before parting, however, we must place on record that we have not been called upon to consider the constitutionality of the provisions of TOHO and in particular Section 22 thereof. Thus, fairness in procedure as adumbrated in Article 21 of the Constitution of India as also the restrictions on liberty imposed by reason of the statute having regard to the fact situation obtaining herein has neither been argued nor is required to be determined. We have made these observations keeping in view the dichotomy in the matter of application of TOHO vis-`-vis the provisions of the Code. If a complaint petition is filed, the procedure laid down under Chapter XV of the Code can be taken recourse to despite the fact that the same has been filed after full investigation and upon obtaining the remand of the accused from time to time by reason of orders passed by a competent Magistrate.28. We are, however, not oblivious of some decisions of this Court where some special statutory authorities like authorities under the Customs Act have been granted all the powers of the investigating officer under a special statute like the NDPS Act, but, this Court has held that they cannot file chargesheet and to that extent they would not be police officers. [See Ramesh Chandra Mehta v. The State of West Bengal AIR 1970 SC 940 , Raj Kumar Karwal v. Union of India (1990) 2 SCC 409 ].29. In this case, however, the respondent having specially been empowered both under the 1946 Act as also under the Code to carry out investigation and file a chargesheet is precluded from doing so only by reason of Section 22 of TOHO. It is doubtful as to whether in the event of authorization of an officer of the department to carry out investigation on a complaint made by a third party, he would be entitled to arrest the accused and carry on investigation as if he is police officer. We hope that the Parliament would take appropriate measures to suitably amend the law in the near future. | 0[ds]24. For the views we have taken, we are of the opinion that stricto sensu Sub-section (2) of Section 167 of the Code would not apply in a case of this nature. Even assuming for the sake of argument that Sub-section (2) of Section 167 of the Code requires filing of a report within 90 days and the complaint petition having filed within the said period, the requirements thereof stand satisfied.Before parting, however, we must place on record that we have not been called upon to consider the constitutionality of the provisions of TOHO and in particular Section 22 thereof. Thus, fairness in procedure as adumbrated in Article 21 of the Constitution of India as also the restrictions on liberty imposed by reason of the statute having regard to the fact situation obtaining herein has neither been argued nor is required to be determined. We have made these observations keeping in view the dichotomy in the matter of application of TOHO vis-`-vis the provisions of the Code. If a complaint petition is filed, the procedure laid down under Chapter XV of the Code can be taken recourse to despite the fact that the same has been filed after full investigation and upon obtaining the remand of the accused from time to time by reason of orders passed by a competent Magistrate.28. We are, however, not oblivious of some decisions of this Court where some special statutory authorities like authorities under the Customs Act have been granted all the powers of the investigating officer under a special statute like the NDPS Act, but, this Court has held that they cannot file chargesheet and to that extent they would not be police officers. [See Ramesh Chandra Mehta v. The State of West Bengal AIR 1970 SC 940 , Raj Kumar Karwal v. Union of India (1990) 2 SCC 409 ].29. In this case, however, the respondent having specially been empowered both under the 1946 Act as also under the Code to carry out investigation and file a chargesheet is precluded from doing so only by reason of Section 22 of TOHO. It is doubtful as to whether in the event of authorization of an officer of the department to carry out investigation on a complaint made by a third party, he would be entitled to arrest the accused and carry on investigation as if he is police officer. We hope that the Parliament would take appropriate measures to suitably amend the law in the near future. | 0 | 6,120 | 453 | ### 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:
and Others [(1997) 8 SCC 476] and Dinesh Dalmia v. CBI [(2007) 8 SCC 770] . However, in view of our foregoing findings, the said decisions have no application in the instant case. 23. We may notice that a Division Bench of the High Court of Kerala in Moosakoya v. State of Kerala [2008 Crl. L.J. 2388] held as under: "3. A plain reading of the above provision will show that even though by Section 24 all offences under the Act are made cognizable, no Court can take cognizance of the offence except upon a written complaint made by a person authorised in this behalf by the Government of the District Collector or a Geologist of the Department of Mining and Geology. A complaint in writing by the authorised officer etc. is the only condition for taking cognizance as provided in Section 25. If a police officer is authorised by the Government, he may also file a complaint on the basis of which the Court may take cognizance. But, the Court cannot take cognizance of any offence punishable under the Sand Act on a police report filed under Section 173(2) of the Cr.P.C. after investigation by police..." We, with respect, agree with the said observations. 24. For the views we have taken, we are of the opinion that stricto sensu Sub-section (2) of Section 167 of the Code would not apply in a case of this nature. Even assuming for the sake of argument that Sub-section (2) of Section 167 of the Code requires filing of a report within 90 days and the complaint petition having filed within the said period, the requirements thereof stand satisfied. 25. Appellant No. 2 having arrested on 10.02.2008 and Appellant No. 1 having surrendered on 17.02.2008 as also the complaint petition having been filed on 29.04.2008, the requirement of Sub-section (2) of Section 167 of the Code stands satisfied. In Sanjay Dutt v. State Through C.B.I., Bombay (II) [(1994) 5 SCC 410] , this Court held: "53(2)(b) The indefeasible right of the accused to be released on bail inaccordance with Section 20(4)(bb) of the TADA Act read with Section 167(2) of the CrPC in default of completion of the investigation and filing of the challan within the time allowed, as held in Hitendra Vishnu Thakur is a right which enures to, and is enforceable by the accused only from the time of default till the filing of the challan and it does not survive or remain enforceable on the challan being filed. If the accused applies for bail under this provision on expiry of the period of 180 days or the extended period, as the case may be, then he has to be released on bail forthwith. The accused, so released on bail may be arrested and committed to custody according to the provisions of the CrPC. The right of the accused to be released on bail after filing of the challan, notwithstanding the default in filing it within the time allowed, is governed from the time of filing of the challan only by the provisions relating to the grant of bail applicable at that stage." Only because the court itself took a long time in taking cognizance of the offence, i.e., after the expiry of the period of 90 days, the same would not mean that any new right would be created in favour of the appellants thereby. 26. A distinction between a remand of an accused at pre-cognizance stage vis-`-vis the post-cognizance stage is apparent. Whereas the remand at a pre-cognizance stage is to be made in terms of Sub-section (2) of Section 167 of the Code, an order of remand of an accused at post-cognizance stage can be effected only in terms of Sub-section (2) of Section 309 thereof. This aspect of the matter has been considered by this Court recently in Mithabhai Pashabhai Patel and others v. State of Gujarat [2009 (7) SCALE 559 ]. 27. Before parting, however, we must place on record that we have not been called upon to consider the constitutionality of the provisions of TOHO and in particular Section 22 thereof. Thus, fairness in procedure as adumbrated in Article 21 of the Constitution of India as also the restrictions on liberty imposed by reason of the statute having regard to the fact situation obtaining herein has neither been argued nor is required to be determined. We have made these observations keeping in view the dichotomy in the matter of application of TOHO vis-`-vis the provisions of the Code. If a complaint petition is filed, the procedure laid down under Chapter XV of the Code can be taken recourse to despite the fact that the same has been filed after full investigation and upon obtaining the remand of the accused from time to time by reason of orders passed by a competent Magistrate.28. We are, however, not oblivious of some decisions of this Court where some special statutory authorities like authorities under the Customs Act have been granted all the powers of the investigating officer under a special statute like the NDPS Act, but, this Court has held that they cannot file chargesheet and to that extent they would not be police officers. [See Ramesh Chandra Mehta v. The State of West Bengal AIR 1970 SC 940 , Raj Kumar Karwal v. Union of India (1990) 2 SCC 409 ].29. In this case, however, the respondent having specially been empowered both under the 1946 Act as also under the Code to carry out investigation and file a chargesheet is precluded from doing so only by reason of Section 22 of TOHO. It is doubtful as to whether in the event of authorization of an officer of the department to carry out investigation on a complaint made by a third party, he would be entitled to arrest the accused and carry on investigation as if he is police officer. We hope that the Parliament would take appropriate measures to suitably amend the law in the near future.
### Response:
0
### Explanation:
24. For the views we have taken, we are of the opinion that stricto sensu Sub-section (2) of Section 167 of the Code would not apply in a case of this nature. Even assuming for the sake of argument that Sub-section (2) of Section 167 of the Code requires filing of a report within 90 days and the complaint petition having filed within the said period, the requirements thereof stand satisfied.Before parting, however, we must place on record that we have not been called upon to consider the constitutionality of the provisions of TOHO and in particular Section 22 thereof. Thus, fairness in procedure as adumbrated in Article 21 of the Constitution of India as also the restrictions on liberty imposed by reason of the statute having regard to the fact situation obtaining herein has neither been argued nor is required to be determined. We have made these observations keeping in view the dichotomy in the matter of application of TOHO vis-`-vis the provisions of the Code. If a complaint petition is filed, the procedure laid down under Chapter XV of the Code can be taken recourse to despite the fact that the same has been filed after full investigation and upon obtaining the remand of the accused from time to time by reason of orders passed by a competent Magistrate.28. We are, however, not oblivious of some decisions of this Court where some special statutory authorities like authorities under the Customs Act have been granted all the powers of the investigating officer under a special statute like the NDPS Act, but, this Court has held that they cannot file chargesheet and to that extent they would not be police officers. [See Ramesh Chandra Mehta v. The State of West Bengal AIR 1970 SC 940 , Raj Kumar Karwal v. Union of India (1990) 2 SCC 409 ].29. In this case, however, the respondent having specially been empowered both under the 1946 Act as also under the Code to carry out investigation and file a chargesheet is precluded from doing so only by reason of Section 22 of TOHO. It is doubtful as to whether in the event of authorization of an officer of the department to carry out investigation on a complaint made by a third party, he would be entitled to arrest the accused and carry on investigation as if he is police officer. We hope that the Parliament would take appropriate measures to suitably amend the law in the near future.
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Sree Meenakshi Mills Limited Vs. Their Workmen | definitely not have to be paid by them. We are, therefore, satisfied that the grievance made by the appellants against the order passed by the appellate tribunal on the ground that it suffers from a mistake apparent on the face of the record is not well-founded.15. It would now be necessary to refer briefly to the decisions of industrial Courts. to which our attention has been drawn by the learned counsel for the appellants. In Model Mills etc. Textile Mills Nagpur v. Rashtriya Mill Mazdoor Sangh, 1955-1 Lab LJ 534 (LATI - Bom) (E), the implications of the Full Bench formula for ascertainment of bonus have been explained. It is observed that"the formula did not purport to direct what a concern should do or should not do with its own moneys. In evolving the formula the rights and liabilities of the parties inter se in notional satisfaction of their legitimate claims as two co-operating units in the venture were tried to be equated. Opinions might differ as to the weightage to be attached to the various components consisting the formula. But the formula has to be taken as a whole in order that an equitable balance between the rights of capital and labour might be achieved for the ascertainment of bonus."16. It may incidentially be pointed out that this decision recognizes that income-tax calculated on the trading profits for the year must be deducted as a prior charge from the profits even though exemption under the Income-tax Act is granted for the year in question taking into consideration the past years losses. The same view has been expressed by the appellant tribunal in Mahalaxmi Woollen Mills Ltd. v. Their Workmen, 1956-1 Lab LJ 305 (LATI - Bom) (F). In this case, it has been held that "even if a concern is allowed exemption from the levy of income-tax because of prior losses or unabsorbed depreciations, etc., that by itself is no ground for preventing the concern from claiming the amount of income-tax it would have been liable to pay if the profits made in the relevant year alone had been taken into account. Hence, in calculating the amount of available surplus, the amount of income-tax payable for that trading year is to be deducted irrespective of the fact whether the company in fact pays tax for the year or not."Similarly in Bennett Coleman and Co. Ltd. v. Their Workmen, 1955-2 Lab LJ 60 (LATI - Bom) (G), the Labour Appellate Tribunal has held that"unabsorbed depreciation and loss incurred during prior years are allowed under S. 24 (2) of the Income-tax Act to be adjusted against the profits of a future year. Where the company claims either to adjust this amount against gross profits or to deduct such amount of income-tax as would be payable on the profits if the said two items are not to be adjusted, labour cannot be permitted to refuse relief resting on unabsorbed loss and depreciation and at the same time try to get benefit for itself by refusing provision for tax resting on those very items which are permitting to be adjusted by the income-tax authorities which will result in reduced income-tax or no tax at all."It would thus appear from the decisions cited before us that industrial tribunals have consistently taken the view that income-tax calculated on the trading profits for the relevant year must be deducted as a prior charge from the gross profits even though the employer may be entitled to claim exemption under the Income-tax Act in view of the fact that he had suffered losses during the previous year. Prima facie it may be said that, if the essential basis for deciding the workmens claim for bonus in a given year is the existence of the net surplus available for that year, it may not be permissible to question the propriety for the provision for income-tax made by the employer solely on the ground that in view of his previous years losses he may not be called upon to pay income-tax during the year in question. After all, in this connection the calculations are made by reference to the financial position of the employer during the particular year only and in these calculations considerations relevant under the Income-tax Act in regard to the financial losses of the employer in the previous year would not be allowed to enter. However, in the present appeals we are not called upto to consider the correctness of the view taken by the Appellate Tribunal in these cases and so we need not pursue the matter and further.17. Mr. Viswanatha Sastri has strongly on two labour decisions reported in B. E. S. T. Workers Union v. Bombay Suburban Electric Supply Ltd. 1957-2 Lab LJ 112 (LATI - Bom) (H), and Greaves Cotton and Crompton Parkinson, Ltd. v. Its Workmen, 1956-1 Lab LJ 486 (LATI - Bom) (I). These two decisions no doubt support the appellants arguments before us but, for the reasons which we have already given, we must hold that these decisions are not sound or correct.18. The last case to which our attention has been drawn by Mr. Viswanatha Sastri is the decision of the Labour Appellate Tribunal in Bengal Chemical and Pharmaceutical Works, Ltd. v. Their Workmen, (1954-55) 6 FJR 590 (LATI) (J). This case decides that "in providing for income-tax the tax payable by the concern on its income earned in the year for which bonus is claimed must be ascertained. The amount of income-tax actually paid during the year which is the tax of the income of the previous year should not be taken into account." In this case, the tribunal has observed that "for the purpose of ascertaining the income-tax which may be payable by the employer for the year in question, the figures appearing on the expenditure side of the profit and loss account of that year have to be marshalled and examined". This case is not of much help in deciding the point which we are concerned. | 0[ds]10. This question has been decided by a Full Bench of the Labour Appellate Tribunal in U. P. Electric Supply Co. Ltd. v. Their Workmen, 1955 Lab AC 659 (Bom) (C). It is true that the question of bonus had to be considered in this case in the light of the provisions of the U.P. Electricity (Supply) Act, 1948. Nevertheless the Full Bench has dealt with this matter on general considerations and has set at rest the divergence of views expressed by different Benches of the tribunal on this point. According to this decisions, the initial depreciation and additional depreciation are in a sense abnormal additions to thedepreciation and they are designed to meet particulars contingencies and for a limited period. It would, therefore, not be fair to the workmen that these two depreciations are rated as prior charges before the available surplus is ascertained. It is likely that, in many cases, if these two depreciations are allowed as prior charges no surplus would be left even though workmen have laboured during the year to the best of their ability and the concern was for all purposes prosperous.In other words, according to this decision, considerations on which the grant of additional depreciation may be justified under theAct are different from considerations of social justice and fair apportionment on which the original Full Bench formula in regard to the payment of bonus to the workmen is based. That is why, in the result, this subsequent Full Bench held that only normal depreciation including multiple shift depreciation, but not initial or additional depreciation, should rank as prior charge in applying the Full Bench formula as to the payment of bonus. If it cannot be disputed that in industrial adjudication it is not obligatory to adopt the very same procedure as prescribed by theAct for ascertaining gross profits and then determining the amount of net surplus available, it is not easy to accept the appellants argument that in respect of depreciation alone industrial tribunals must necessarily and in every case follow the relevant provisions of theAct. If that be the true position, then we see no reason why, in respect of one item of debit only the technical provisions of theAct must be followed in industrial adjudications in respect of workmens claim for bonus.On the whole the reasons given by the appellate tribunal in the case of 1955 Lab AC 659 (FB) (Bom) (C), appear to us to be satisfactory; and so we are not prepared to accept the appellants argument that the appellate tribunal in the present case has erred in law in not allowing the appellants claim for initial and additional depreciations. In our opinion, therefore, the main point urged by the appellants in Appeals Nos. 218 and 219 of 1956 cannot succeed.That takes us to the two other points raised by the appellants in Appeal No. 217 of 1956. The first point which has been raised in this appeal by the appellants is about the jurisdiction of the appellate tribunal to review its own orders in appropriate cases under Order 47 of the Code of Civil Procedure.This Court has recently had occasion to consider the question about the applicability of the Code of Civil Procedure to the proceedings before the Labour, Appellate Tribunal in M/s. Martin Burn Ltd. v. R. N. Benerjee, C. A. No. 92 of 1957 : (AIR 1958 SC 79 ) (D). Section 9(1) and S. 10 of the Industrial Disputes (Appellate Tribunal) Act, 1950 as well as the relevant rules and orders framed under the Act were considered and it was held that the Code of the Civil Procedure applies to the proceedings before the appellate tribunal with the result that the appellate tribunal can exercise its powers under O. 41, R. 21 as well as under S. 151 of the Code. It is true that in this case there was no occasion to consider the applicability of the provisions of O. 47 of the Code but that does not make any difference.If the Code of Civil Procedure applies to the proceedings before the Labour Appellate Tribunal, it is clear that the provisions of O. 47 would apply to these proceedings as much as S. 151 of the Code or the provisions of O. 41. We must accordingly hold that the appellate tribunal erred in law in coming to the conclusion that it had no jurisdiction to review its own order under the provisions of O. 47 of the Code.On the other hand, it appears from the judgment of the appellant tribunal that this point was not raised by the appellants before it in their arguments. No grievance was made and no higher amount was claimed by them to be reserved for taxation. The appellate tribunal has also observed that the point raised by the appellants in their review petition did not show that any new and important matter had been discovered which, after the exercise of due diligence, would not have been discovered by the parties at the time of the hearing of the appeal. Besides, the appellate tribunal also held that there was no mistake apparent on the face of the record. Technically there may be some force in the observations made by the appellate tribunal; but we cannot overlook the fact that a written statement had been filed before the appellate tribunal expressly and specifically raising this point. That is why we propose to deal with the merits of the argument and not to reject it on the ground that this argument had not been urged at the properthink it is not open to the appellants to contend that though for the amounts covered by the normal and additional depreciations they would not be required to paynevertheless they should be allowed to provide for the payment ofin respect of these two items merely on the ground that they are disallowed by the industrial tribunal and have thus added to the total of gross profits as determine by the tribunal.The adequacy or otherwise of the provision formust necessarily be judged in the light of theAct since it is under the said Act that the liability to pay tax would ultimately be determined.Besides, if the appellants argument is accepted and an amount nationally payable by way ofin respect of disallowed items of depreciation is added to the estimated amount ofprovided by the appellants, the very object of disallowing the two items of depreciation would be substantially defeated. On the other hand, the rejection of the appellants argument would not mean any hardship because the additional amount sought to be added by them in the provision forwould definitely not have to be paid by them. We are, therefore, satisfied that the grievance made by the appellants against the order passed by the appellate tribunal on the ground that it suffers from a mistake apparent on the face of the record is notwould thus appear from the decisions cited before us that industrial tribunals have consistently taken the view thatcalculated on the trading profits for the relevant year must be deducted as a prior charge from the gross profits even though the employer may be entitled to claim exemption under theAct in view of the fact that he had suffered losses during the previous year. Prima facie it may be said that, if the essential basis for deciding the workmens claim for bonus in a given year is the existence of the net surplus available for that year, it may not be permissible to question the propriety for the provision formade by the employer solely on the ground that in view of his previous years losses he may not be called upon to payduring the year in question. After all, in this connection the calculations are made by reference to the financial position of the employer during the particular year only and in these calculations considerations relevant under theAct in regard to the financial losses of the employer in the previous year would not be allowed to enter. However, in the present appeals we are not called upto to consider the correctness of the view taken by the Appellate Tribunal in these cases and so we need not pursue the matter and further.17.Mr. Viswanatha Sastri has strongly on two labour decisions reported in B. E. S. T. Workers Union v. Bombay Suburban Electric Supply Ltd.Lab LJ 112 (LATIBom) (H), and Greaves Cotton and Crompton Parkinson, Ltd. v. Its Workmen,Lab LJ 486 (LATIBom) (I). These two decisions no doubt support the appellants arguments before us but, for the reasons which we have already given, we must hold that these decisions are not sound or correct.The last case to which our attention has been drawn by Mr. Viswanatha Sastri is the decision of the Labour Appellate Tribunal in Bengal Chemical and Pharmaceutical Works, Ltd. v. Their Workmen,6 FJR 590 (LATI) (J).This case decides that "in providing forthe tax payable by the concern on its income earned in the year for which bonus is claimed must be ascertained. The amount ofactually paid during the year which is the tax of the income of the previous year should not be taken into account." In this case, the tribunal has observed that "for the purpose of ascertaining thewhich may be payable by the employer for the year in question, the figures appearing on the expenditure side of the profit and loss account of that year have to be marshalled and examined". This case is not of much help in deciding the point which we are concerned. | 0 | 5,419 | 1,717 | ### 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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definitely not have to be paid by them. We are, therefore, satisfied that the grievance made by the appellants against the order passed by the appellate tribunal on the ground that it suffers from a mistake apparent on the face of the record is not well-founded.15. It would now be necessary to refer briefly to the decisions of industrial Courts. to which our attention has been drawn by the learned counsel for the appellants. In Model Mills etc. Textile Mills Nagpur v. Rashtriya Mill Mazdoor Sangh, 1955-1 Lab LJ 534 (LATI - Bom) (E), the implications of the Full Bench formula for ascertainment of bonus have been explained. It is observed that"the formula did not purport to direct what a concern should do or should not do with its own moneys. In evolving the formula the rights and liabilities of the parties inter se in notional satisfaction of their legitimate claims as two co-operating units in the venture were tried to be equated. Opinions might differ as to the weightage to be attached to the various components consisting the formula. But the formula has to be taken as a whole in order that an equitable balance between the rights of capital and labour might be achieved for the ascertainment of bonus."16. It may incidentially be pointed out that this decision recognizes that income-tax calculated on the trading profits for the year must be deducted as a prior charge from the profits even though exemption under the Income-tax Act is granted for the year in question taking into consideration the past years losses. The same view has been expressed by the appellant tribunal in Mahalaxmi Woollen Mills Ltd. v. Their Workmen, 1956-1 Lab LJ 305 (LATI - Bom) (F). In this case, it has been held that "even if a concern is allowed exemption from the levy of income-tax because of prior losses or unabsorbed depreciations, etc., that by itself is no ground for preventing the concern from claiming the amount of income-tax it would have been liable to pay if the profits made in the relevant year alone had been taken into account. Hence, in calculating the amount of available surplus, the amount of income-tax payable for that trading year is to be deducted irrespective of the fact whether the company in fact pays tax for the year or not."Similarly in Bennett Coleman and Co. Ltd. v. Their Workmen, 1955-2 Lab LJ 60 (LATI - Bom) (G), the Labour Appellate Tribunal has held that"unabsorbed depreciation and loss incurred during prior years are allowed under S. 24 (2) of the Income-tax Act to be adjusted against the profits of a future year. Where the company claims either to adjust this amount against gross profits or to deduct such amount of income-tax as would be payable on the profits if the said two items are not to be adjusted, labour cannot be permitted to refuse relief resting on unabsorbed loss and depreciation and at the same time try to get benefit for itself by refusing provision for tax resting on those very items which are permitting to be adjusted by the income-tax authorities which will result in reduced income-tax or no tax at all."It would thus appear from the decisions cited before us that industrial tribunals have consistently taken the view that income-tax calculated on the trading profits for the relevant year must be deducted as a prior charge from the gross profits even though the employer may be entitled to claim exemption under the Income-tax Act in view of the fact that he had suffered losses during the previous year. Prima facie it may be said that, if the essential basis for deciding the workmens claim for bonus in a given year is the existence of the net surplus available for that year, it may not be permissible to question the propriety for the provision for income-tax made by the employer solely on the ground that in view of his previous years losses he may not be called upon to pay income-tax during the year in question. After all, in this connection the calculations are made by reference to the financial position of the employer during the particular year only and in these calculations considerations relevant under the Income-tax Act in regard to the financial losses of the employer in the previous year would not be allowed to enter. However, in the present appeals we are not called upto to consider the correctness of the view taken by the Appellate Tribunal in these cases and so we need not pursue the matter and further.17. Mr. Viswanatha Sastri has strongly on two labour decisions reported in B. E. S. T. Workers Union v. Bombay Suburban Electric Supply Ltd. 1957-2 Lab LJ 112 (LATI - Bom) (H), and Greaves Cotton and Crompton Parkinson, Ltd. v. Its Workmen, 1956-1 Lab LJ 486 (LATI - Bom) (I). These two decisions no doubt support the appellants arguments before us but, for the reasons which we have already given, we must hold that these decisions are not sound or correct.18. The last case to which our attention has been drawn by Mr. Viswanatha Sastri is the decision of the Labour Appellate Tribunal in Bengal Chemical and Pharmaceutical Works, Ltd. v. Their Workmen, (1954-55) 6 FJR 590 (LATI) (J). This case decides that "in providing for income-tax the tax payable by the concern on its income earned in the year for which bonus is claimed must be ascertained. The amount of income-tax actually paid during the year which is the tax of the income of the previous year should not be taken into account." In this case, the tribunal has observed that "for the purpose of ascertaining the income-tax which may be payable by the employer for the year in question, the figures appearing on the expenditure side of the profit and loss account of that year have to be marshalled and examined". This case is not of much help in deciding the point which we are concerned.
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and orders framed under the Act were considered and it was held that the Code of the Civil Procedure applies to the proceedings before the appellate tribunal with the result that the appellate tribunal can exercise its powers under O. 41, R. 21 as well as under S. 151 of the Code. It is true that in this case there was no occasion to consider the applicability of the provisions of O. 47 of the Code but that does not make any difference.If the Code of Civil Procedure applies to the proceedings before the Labour Appellate Tribunal, it is clear that the provisions of O. 47 would apply to these proceedings as much as S. 151 of the Code or the provisions of O. 41. We must accordingly hold that the appellate tribunal erred in law in coming to the conclusion that it had no jurisdiction to review its own order under the provisions of O. 47 of the Code.On the other hand, it appears from the judgment of the appellant tribunal that this point was not raised by the appellants before it in their arguments. No grievance was made and no higher amount was claimed by them to be reserved for taxation. The appellate tribunal has also observed that the point raised by the appellants in their review petition did not show that any new and important matter had been discovered which, after the exercise of due diligence, would not have been discovered by the parties at the time of the hearing of the appeal. Besides, the appellate tribunal also held that there was no mistake apparent on the face of the record. Technically there may be some force in the observations made by the appellate tribunal; but we cannot overlook the fact that a written statement had been filed before the appellate tribunal expressly and specifically raising this point. That is why we propose to deal with the merits of the argument and not to reject it on the ground that this argument had not been urged at the properthink it is not open to the appellants to contend that though for the amounts covered by the normal and additional depreciations they would not be required to paynevertheless they should be allowed to provide for the payment ofin respect of these two items merely on the ground that they are disallowed by the industrial tribunal and have thus added to the total of gross profits as determine by the tribunal.The adequacy or otherwise of the provision formust necessarily be judged in the light of theAct since it is under the said Act that the liability to pay tax would ultimately be determined.Besides, if the appellants argument is accepted and an amount nationally payable by way ofin respect of disallowed items of depreciation is added to the estimated amount ofprovided by the appellants, the very object of disallowing the two items of depreciation would be substantially defeated. On the other hand, the rejection of the appellants argument would not mean any hardship because the additional amount sought to be added by them in the provision forwould definitely not have to be paid by them. We are, therefore, satisfied that the grievance made by the appellants against the order passed by the appellate tribunal on the ground that it suffers from a mistake apparent on the face of the record is notwould thus appear from the decisions cited before us that industrial tribunals have consistently taken the view thatcalculated on the trading profits for the relevant year must be deducted as a prior charge from the gross profits even though the employer may be entitled to claim exemption under theAct in view of the fact that he had suffered losses during the previous year. Prima facie it may be said that, if the essential basis for deciding the workmens claim for bonus in a given year is the existence of the net surplus available for that year, it may not be permissible to question the propriety for the provision formade by the employer solely on the ground that in view of his previous years losses he may not be called upon to payduring the year in question. After all, in this connection the calculations are made by reference to the financial position of the employer during the particular year only and in these calculations considerations relevant under theAct in regard to the financial losses of the employer in the previous year would not be allowed to enter. However, in the present appeals we are not called upto to consider the correctness of the view taken by the Appellate Tribunal in these cases and so we need not pursue the matter and further.17.Mr. Viswanatha Sastri has strongly on two labour decisions reported in B. E. S. T. Workers Union v. Bombay Suburban Electric Supply Ltd.Lab LJ 112 (LATIBom) (H), and Greaves Cotton and Crompton Parkinson, Ltd. v. Its Workmen,Lab LJ 486 (LATIBom) (I). These two decisions no doubt support the appellants arguments before us but, for the reasons which we have already given, we must hold that these decisions are not sound or correct.The last case to which our attention has been drawn by Mr. Viswanatha Sastri is the decision of the Labour Appellate Tribunal in Bengal Chemical and Pharmaceutical Works, Ltd. v. Their Workmen,6 FJR 590 (LATI) (J).This case decides that "in providing forthe tax payable by the concern on its income earned in the year for which bonus is claimed must be ascertained. The amount ofactually paid during the year which is the tax of the income of the previous year should not be taken into account." In this case, the tribunal has observed that "for the purpose of ascertaining thewhich may be payable by the employer for the year in question, the figures appearing on the expenditure side of the profit and loss account of that year have to be marshalled and examined". This case is not of much help in deciding the point which we are concerned.
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Commissioner of Income Tax, Madras Vs. P. K. N. Company Limited | Malayan dollars, and expended a large sum of money thereon and later sold it for a "handsome profit. It may be mentioned that this last statement was the result of misconception of evidence, and it was corrected by the Tribunal in the statement of the case.9. But these facts found by the Tribunal do not, in our judgment, justify the inference that the acquisition of the estates was for the purpose of carrying on business in real estate. Existence of power in the memorandum of association to sell or turn into account, dispose of, or deal with the properties and rights of all kinds, has no decisive bearing on the question whether the profits arising therefrom are capital accretion or revenue income. In delivering the judgment of this Court in Karanpura Development Co. Ltd. v. Commr. of Income-tax, West Bengal, (1962) 44 ITR 362 : (AIR 1962 SC 429 ), Hidayatullah, J., observed at p. 377 (of ITR): (at p. 438 of AIR):"Ownership of property and leasing it out may be done as a part of business, or it may be done as land owner. Whether it is the one or the other must necessarily depend upon the object with which the act is done. It is not that no company can own property and enjoy it as property, whether by itself or by giving the use of it to another on rent. * * * * In deciding whether a company dealt with its properties as owner, one must see not to the form which it gave to the transaction but to the substance of the matter.10. In Kishan Prasad and Co. Ltd. v. Commr. of Income-tax, Punjab, (1955) 27 ITR 49 : ( (S) AIR 1955 SC 252 ), it was observed that the circumstance whether a transaction is or is not within the Companys power has no bearing on the nature of the transaction, or on the question whether the profits arising therefrom are capital accretion or revenue income.11. Raja J. Rameshwar Rao. V. Commr. of Income-tax, Hyderabad, (1961) 42 ITR 179 : (AIR 1963 SC 352 ), was a case on the other side of the line. In that case a person acquired land with a view to selling it later after developing it and making the plots more attractive. This Court held, having regard to the circumstances, that the venture was in the nature of trade, and the assessee was dealing with land as his stock-in-trade and carrying on business and making profits.12. In St. Aubyn Estates Ltd. v. Strick (H. M. Inspector of Taxes), (1933) 17 Tax Cas 412, the appellant Company incorporated with powers to develop and dispose of lands and other property, acquired by purchase from the life tenant of a settled estate, all the funds and properties subject to the settlement, including therein some twelve hundred acres of land adjoining a populous town. The Company proceeded to develop a part of the land as building sites and to sell of portions of the estate as opportunities arose. Certain areas were laid out as desirable sites, involving expenditure on development by the Company, and the developed sites were sold in plots to applicants. The General Commissioners decided that the profits from sales of lands were profits of a trade or business and assessable to income-tax, and the High Court declined to interfere with that conclusion. It was observed by Finlay, J.,:"When one looks at the memorandum and articles, when one looks at the inception of the Company, when one looks at what the Company in fact did, it did in fact purchase, it did in fact develop, it did in fact sell and it did in fact make profits by selling. When one looks at all those circumstances, I think it is impossible to say that they do not constitute evidence upon which a tribunal of fact might arrive at a conclusion that here there was a trade being carried on.13. These cases merely illustrate that the nature of the transaction must be determined on a consideration of all the circumstances, and the fact that a transaction is within the powers of a trading Company is relevant but has, standing alone, not much significance.14. The assessee Company did acquire two large blocks of properties between the years 1939 and 1941, but thereafter no substantial acquisitions were made. Limitation upon the admission of members to the Company and other attendant features suggest an intention of conserving the properties of the members of the P. K. N. firm. Some of the houses purchased from the P. K. N. firm were destroyed by fire and the vacant sites and outlying properties were sold on account of difficulty of management of outlying portions of the estate. Occasional sales of small and unimportant portions out of the estate acquired from the P. K. N. firm was motivated by necessity and not to realize profits. The Lee Estate was never disposed of and it was treated as a nucleus for carrying on profitable business of producing rubber and selling it on advantageous terms.15. As already observed, determination of the question whether in purchasing and selling land the taxpayer enters upon a business activity has to be determined in the light of the facts and circumstances. The purpose or the object for which it is incorporated where the taxpayer is a Company may have some bearing, but is not decisive, nor is the circumstance that a single plot of land was acquired and was thereafter sold as a whole or in plots decisive. Profit motive in entering into a transaction is also not decisive. Here, as already pointed out, the primary object of the Company was to take over the assets of the P. K. N. firm to carry on the business of planters and to earn profits by sale of rubber. The incidental sale of uneconomic or inconvenient plots of land or houses could not covert what was essentially an investment into a business transaction in real estate. | 0[ds]On an analysis of this table it is clear that there were no fresh acquisitions after July 7, 1941 till 1950. The two items mentioned in the year of account ending March 31, 1943 and March 31, 1945 are only transfer entries. 30,600 Malayan dollars entered in the last column in the year ending March 31, 1943, it is common ground represents loss by fire and does not represent loss as a result of a sale transaction. Admittedly there were sales spread over a number of years resulting in profit to the Company. These sales were affected when opportunity arose or necessity dictated. It is not, however, disputed by the Department that the primary activity of the Company was that of planters. It is disclosed by the books of account maintained at the head office in India that during the year ending March 31, 1948, the Company spent on the estates about Rs. 3,50,000 and made realisation from the stocks of rubber exceeding Rs. 5,25,000. In the next year the expenditure was Rupees 3,31,000 and the receipts from rubber were Rs. 6,70,000. In the year ending December 31, 1950 the disbursements of the estates including salaries were Rs. 5,25,000 while the receipts by way of sales of rubber and stocks came to Rs. 16,50,000. These lend support to the view that the primary object of the Company was to function as planters and dealers in rubber, and that year after year the Company was extending its planting operations. It is true that some items of property purchased in the year 1939 were sold from time to time, but these were not transactions of purchase and sale of immovable properties indicating an intention on the part of the Company to treat its investment in immovable properties as an adventure in the nature of trade.But these facts found by the Tribunal do not, in our judgment, justify the inference that the acquisition of the estates was for the purpose of carrying on business in real estate. Existence of power in the memorandum of association to sell or turn into account, dispose of, or deal with the properties and rights of all kinds, has no decisive bearing on the question whether the profits arising therefrom are capital accretion or revenue income.These cases merely illustrate that the nature of the transaction must be determined on a consideration of all the circumstances, and the fact that a transaction is within the powers of a trading Company is relevant but has, standing alone, not much significance.14. The assessee Company did acquire two large blocks of properties between the years 1939 and 1941, but thereafter no substantial acquisitions were made. Limitation upon the admission of members to the Company and other attendant features suggest an intention of conserving the properties of the members of the P. K. N. firm. Some of the houses purchased from the P. K. N. firm were destroyed by fire and the vacant sites and outlying properties were sold on account of difficulty of management of outlying portions of the estate. Occasional sales of small and unimportant portions out of the estate acquired from the P. K. N. firm was motivated by necessity and not to realize profits. The Lee Estate was never disposed of and it was treated as a nucleus for carrying on profitable business of producing rubber and selling it on advantageous terms.15. As already observed, determination of the question whether in purchasing and selling land the taxpayer enters upon a business activity has to be determined in the light of the facts and circumstances. The purpose or the object for which it is incorporated where the taxpayer is a Company may have some bearing, but is not decisive, nor is the circumstance that a single plot of land was acquired and was thereafter sold as a whole or in plots decisive. Profit motive in entering into a transaction is also not decisive. Here, as already pointed out, the primary object of the Company was to take over the assets of the P. K. N. firm to carry on the business of planters and to earn profits by sale of rubber. The incidental sale of uneconomic or inconvenient plots of land or houses could not covert what was essentially an investment into a business transaction in real estate. | 0 | 3,548 | 775 | ### Instruction:
Estimate the outcome of the case (positive (1) or negative (0) for the appellant) and then give a reasoned explanation by examining important sentences within the case documentation.
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Malayan dollars, and expended a large sum of money thereon and later sold it for a "handsome profit. It may be mentioned that this last statement was the result of misconception of evidence, and it was corrected by the Tribunal in the statement of the case.9. But these facts found by the Tribunal do not, in our judgment, justify the inference that the acquisition of the estates was for the purpose of carrying on business in real estate. Existence of power in the memorandum of association to sell or turn into account, dispose of, or deal with the properties and rights of all kinds, has no decisive bearing on the question whether the profits arising therefrom are capital accretion or revenue income. In delivering the judgment of this Court in Karanpura Development Co. Ltd. v. Commr. of Income-tax, West Bengal, (1962) 44 ITR 362 : (AIR 1962 SC 429 ), Hidayatullah, J., observed at p. 377 (of ITR): (at p. 438 of AIR):"Ownership of property and leasing it out may be done as a part of business, or it may be done as land owner. Whether it is the one or the other must necessarily depend upon the object with which the act is done. It is not that no company can own property and enjoy it as property, whether by itself or by giving the use of it to another on rent. * * * * In deciding whether a company dealt with its properties as owner, one must see not to the form which it gave to the transaction but to the substance of the matter.10. In Kishan Prasad and Co. Ltd. v. Commr. of Income-tax, Punjab, (1955) 27 ITR 49 : ( (S) AIR 1955 SC 252 ), it was observed that the circumstance whether a transaction is or is not within the Companys power has no bearing on the nature of the transaction, or on the question whether the profits arising therefrom are capital accretion or revenue income.11. Raja J. Rameshwar Rao. V. Commr. of Income-tax, Hyderabad, (1961) 42 ITR 179 : (AIR 1963 SC 352 ), was a case on the other side of the line. In that case a person acquired land with a view to selling it later after developing it and making the plots more attractive. This Court held, having regard to the circumstances, that the venture was in the nature of trade, and the assessee was dealing with land as his stock-in-trade and carrying on business and making profits.12. In St. Aubyn Estates Ltd. v. Strick (H. M. Inspector of Taxes), (1933) 17 Tax Cas 412, the appellant Company incorporated with powers to develop and dispose of lands and other property, acquired by purchase from the life tenant of a settled estate, all the funds and properties subject to the settlement, including therein some twelve hundred acres of land adjoining a populous town. The Company proceeded to develop a part of the land as building sites and to sell of portions of the estate as opportunities arose. Certain areas were laid out as desirable sites, involving expenditure on development by the Company, and the developed sites were sold in plots to applicants. The General Commissioners decided that the profits from sales of lands were profits of a trade or business and assessable to income-tax, and the High Court declined to interfere with that conclusion. It was observed by Finlay, J.,:"When one looks at the memorandum and articles, when one looks at the inception of the Company, when one looks at what the Company in fact did, it did in fact purchase, it did in fact develop, it did in fact sell and it did in fact make profits by selling. When one looks at all those circumstances, I think it is impossible to say that they do not constitute evidence upon which a tribunal of fact might arrive at a conclusion that here there was a trade being carried on.13. These cases merely illustrate that the nature of the transaction must be determined on a consideration of all the circumstances, and the fact that a transaction is within the powers of a trading Company is relevant but has, standing alone, not much significance.14. The assessee Company did acquire two large blocks of properties between the years 1939 and 1941, but thereafter no substantial acquisitions were made. Limitation upon the admission of members to the Company and other attendant features suggest an intention of conserving the properties of the members of the P. K. N. firm. Some of the houses purchased from the P. K. N. firm were destroyed by fire and the vacant sites and outlying properties were sold on account of difficulty of management of outlying portions of the estate. Occasional sales of small and unimportant portions out of the estate acquired from the P. K. N. firm was motivated by necessity and not to realize profits. The Lee Estate was never disposed of and it was treated as a nucleus for carrying on profitable business of producing rubber and selling it on advantageous terms.15. As already observed, determination of the question whether in purchasing and selling land the taxpayer enters upon a business activity has to be determined in the light of the facts and circumstances. The purpose or the object for which it is incorporated where the taxpayer is a Company may have some bearing, but is not decisive, nor is the circumstance that a single plot of land was acquired and was thereafter sold as a whole or in plots decisive. Profit motive in entering into a transaction is also not decisive. Here, as already pointed out, the primary object of the Company was to take over the assets of the P. K. N. firm to carry on the business of planters and to earn profits by sale of rubber. The incidental sale of uneconomic or inconvenient plots of land or houses could not covert what was essentially an investment into a business transaction in real estate.
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On an analysis of this table it is clear that there were no fresh acquisitions after July 7, 1941 till 1950. The two items mentioned in the year of account ending March 31, 1943 and March 31, 1945 are only transfer entries. 30,600 Malayan dollars entered in the last column in the year ending March 31, 1943, it is common ground represents loss by fire and does not represent loss as a result of a sale transaction. Admittedly there were sales spread over a number of years resulting in profit to the Company. These sales were affected when opportunity arose or necessity dictated. It is not, however, disputed by the Department that the primary activity of the Company was that of planters. It is disclosed by the books of account maintained at the head office in India that during the year ending March 31, 1948, the Company spent on the estates about Rs. 3,50,000 and made realisation from the stocks of rubber exceeding Rs. 5,25,000. In the next year the expenditure was Rupees 3,31,000 and the receipts from rubber were Rs. 6,70,000. In the year ending December 31, 1950 the disbursements of the estates including salaries were Rs. 5,25,000 while the receipts by way of sales of rubber and stocks came to Rs. 16,50,000. These lend support to the view that the primary object of the Company was to function as planters and dealers in rubber, and that year after year the Company was extending its planting operations. It is true that some items of property purchased in the year 1939 were sold from time to time, but these were not transactions of purchase and sale of immovable properties indicating an intention on the part of the Company to treat its investment in immovable properties as an adventure in the nature of trade.But these facts found by the Tribunal do not, in our judgment, justify the inference that the acquisition of the estates was for the purpose of carrying on business in real estate. Existence of power in the memorandum of association to sell or turn into account, dispose of, or deal with the properties and rights of all kinds, has no decisive bearing on the question whether the profits arising therefrom are capital accretion or revenue income.These cases merely illustrate that the nature of the transaction must be determined on a consideration of all the circumstances, and the fact that a transaction is within the powers of a trading Company is relevant but has, standing alone, not much significance.14. The assessee Company did acquire two large blocks of properties between the years 1939 and 1941, but thereafter no substantial acquisitions were made. Limitation upon the admission of members to the Company and other attendant features suggest an intention of conserving the properties of the members of the P. K. N. firm. Some of the houses purchased from the P. K. N. firm were destroyed by fire and the vacant sites and outlying properties were sold on account of difficulty of management of outlying portions of the estate. Occasional sales of small and unimportant portions out of the estate acquired from the P. K. N. firm was motivated by necessity and not to realize profits. The Lee Estate was never disposed of and it was treated as a nucleus for carrying on profitable business of producing rubber and selling it on advantageous terms.15. As already observed, determination of the question whether in purchasing and selling land the taxpayer enters upon a business activity has to be determined in the light of the facts and circumstances. The purpose or the object for which it is incorporated where the taxpayer is a Company may have some bearing, but is not decisive, nor is the circumstance that a single plot of land was acquired and was thereafter sold as a whole or in plots decisive. Profit motive in entering into a transaction is also not decisive. Here, as already pointed out, the primary object of the Company was to take over the assets of the P. K. N. firm to carry on the business of planters and to earn profits by sale of rubber. The incidental sale of uneconomic or inconvenient plots of land or houses could not covert what was essentially an investment into a business transaction in real estate.
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Shri Ashok Chopra & Others Vs. Union of India & Others | the appellants. 7. On perusal of the record, it also appears that about the transaction, based on the invoice No.548/94 dated 14.6.1994, firstly the notice was issued under Section 40 of FERA on 21.8.1996 and thereafter several notices were issued and opportunity was given to the appellants to explain the difference between the two invoices and finally the show cause notice was issued to all the appellants under Section 9(1) on 17.1.2002 and thus action was initiated by the adjudicating authority. It is material to note that FERA was repealed as per Section 49 by FEMA, 1999. Fema came into force on 1.6.2000. As per provisions of Section 49(3) of FEMA, no Court shall take cognizance of an offence under the repealed Act and no adjudicating officer shall take notice of any contravention under section 51 of the repealed Act after the expiry of a period of two years from the date of commencement of FEMA. In view of this provision, no cognizance of offence could be taken and no notice of any contravention under Section 51 of the FEMA could be taken after the expiry of to years from 1.6.2000 when FERA came into force. In the present case, as indicated above, the notices were issued since 21.8.1996 and as the appellants could not satisfy the adjudicating about the difference in the two invoices carrying the same number and date, the adjudicating authority issued the show cause notice on 17.1.2002 and initiated action. Thus, the action was taken by the adjudicating authority within a period of two years after the FERA was repealed. In view of this, we do not find any question of law of law in respect of both these points. 8. On hearing the learned Counsel for the parties and perusal of the record, we find that in FERA Appeal Nos. 6 and No.7 of 2009, filed by Ashok Chopra and Suresh Chopra respectively, the following question of law arises:- Whether the appellants - Ashok Chopra and Suresh Chopra could be individually penalized once M/s. Natural Granite Exports, proprietorship concern was penalized for contravention of Section 9(1)(c) of FERA 9. On perusal of the record, it appears that M/s. Natural Granite Exports is a proprietorship concern and the appellant Ashok Chopra is its proprietor. This fact is clear from a number of documents, particularly Income-tax returns which were submitted by Ashok Chopra as well as the notices issued to M/s. Natural Granite Exports by the officers of the Sales Tax from the year 1994-95 wherein Ashok Chopra was shown to be the proprietor. There is no material to show that M/s. Natural Granite Exports is a partnership firm. From para 20 of the Judgment of the appellate Tribunal it appears that it was argued on behalf of the appellants that both the proprietorship concern and the proprietor cannot be charged separately and cannot be held liable for separate penalty. However, this argument as rejected by the Tribunal observing that the Explanation appended to Section 68 of FERA clearly provides that "company" means any body corporate and includes a firm or other association of individuals and though the proprietorship concern and proprietor both are same, the Tribunal lost sight of the provisions of the FERA, factual matrix including the amount involved in the contravention. 10. Section 68 of FERA provides for offences by companies and for punishment and penalty for the contravention of the provisions of FERA by the companies. Section 68(1) provides that where a person committing a contravention of any of the provisions of the Act and the rules, directions and orders made under the said Act is by company, every person who, at the time the contravention was committed, was in charge of, and was responsible to the company for the conduct of business as well as the company shall be deemed to be guilty of the contravention and shall be liable to be proceeded against and punished accordingly. The Explanation to Section 68 provides that "company" means any body corporate and includes a firm or association of individuals and "director" in relation to a firm, means a partner in the firm. In the present case, Natural Granite Exports is not a company nor it is a partnership firm nor Hindu Joint Family (HUF), but it is a proprietorship concern of which Ashok Chopra alone is a proprietor. Therefore, neither it can be treated as a company nor as a firm nor an association of individuals. Ashok Chopra was carrying on the business in the assumed name and style of M/s. Natural Granite Exports and if any contravention of any provisions of law or rules is committed by the said concern, that contravention shall be presumed to have been committed by its proprietor i.e. Ashok Chopra. In view of this, M/s. Natural Granite Exports as the concern and its proprietor Ashok Chopra could not be held guilty separately and penalty could not be imposed on each of them. Imposing penalty on the proprietorship concern as well as on the proprietor would amount to punishing the same person twice for the same contravention. Therefore, when the proprietorship concern is found guilty and penalty is imposed on it, that penalty should be presumed to have been imposed on its proprietor and, therefore, no separate penalty could be imposed on the proprietor as has been done in the present case. 11. It may also be noted that Suresh Chopra is neither a partner nor a proprietor of the said proprietorship concern. However, the concurrent finding of both the Authorities below is that Suresh Chopra was the authorized signatory on behalf of the proprietorship concern and, therefore, besides the proprietorship concern, he, as an authorized signatory, has also contravened the provisions of law. It can be said that he also abetted the contravention of the provisions of FERA by the said proprietorship concern and therefore, the contravention is proved, he can be rightly held guilty for abetment of the same and penalty can be imposed on him separately. | 1[ds]6. On perusal of the orders passed by the adjudicating authority as well as the appellate Tribunal, it appears that the appellants had initially objected to the said invoice on the ground that it did not bear the name of COGEMAR. However, it was found that it actually bears name of COGEMAR and both the invoices were similar except the contents of the same about quality, quantity and price of the goods. The adjudicating authority noted that the Advocate for the appellants had contended that the source of invoice received from the DRI was not disclosed. The adjudicating authority observed that it is not necessary to disclose the source and it is definitely issued by M/s. COGEMAR, Italy, as is clear from the face of the invoice. He also noted that it is not the case of the defence that it is a fabricated document. Once the genuineness of the document is not disputed, merely because the officer, who collected the document is not examined or that the document is not authenticated makes no difference. There is nothing on record to show that the officer of the DRI had any reason to create any false document against the appellants.On perusal of the record, it also appears that about the transaction, based on the invoice No.548/94 dated 14.6.1994, firstly the notice was issued under Section 40 of FERA on 21.8.1996 and thereafter several notices were issued and opportunity was given to the appellants to explain the difference between the two invoices and finally the show cause notice was issued to all the appellants under Section 9(1) on 17.1.2002 and thus action was initiated by the adjudicating authority. It is material to note that FERA was repealed as per Section 49 by FEMA, 1999. Fema came into force on 1.6.2000. As per provisions of Section 49(3) of FEMA, no Court shall take cognizance of an offence under the repealed Act and no adjudicating officer shall take notice of any contravention under section 51 of the repealed Act after the expiry of a period of two years from the date of commencement of FEMA. In view of this provision, no cognizance of offence could be taken and no notice of any contravention under Section 51 of the FEMA could be taken after the expiry of to years from 1.6.2000 when FERA came into force. In the present case, as indicated above, the notices were issued since 21.8.1996 and as the appellants could not satisfy the adjudicating about the difference in the two invoices carrying the same number and date, the adjudicating authority issued the show cause notice on 17.1.2002 and initiated action. Thus, the action was taken by the adjudicating authority within a period of two years after the FERA was repealed. In view of this, we do not find any question of law of law in respect of both these points.On hearing the learned Counsel for the parties and perusal of the record, we find that in FERA Appeal Nos. 6 and No.7 of 2009, filed by Ashok Chopra and Suresh Chopra respectively, the following question of lawhok Chopra and Suresh Chopra could be individually penalized once M/s. Natural Granite Exports, proprietorship concern was penalized for contravention of Section 9(1)(c) ofOn perusal of the record, it appears that M/s. Natural Granite Exports is a proprietorship concern and the appellant Ashok Chopra is its proprietor. This fact is clear from a number of documents, particularlyreturns which were submitted by Ashok Chopra as well as the notices issued to M/s. Natural Granite Exports by the officers of the Sales Tax from the yearwherein Ashok Chopra was shown to be the proprietor. There is no material to show that M/s. Natural Granite Exports is a partnership firm. From para 20 of the Judgment of the appellate Tribunal it appears that it was argued on behalf of the appellants that both the proprietorship concern and the proprietor cannot be charged separately and cannot be held liable for separate penalty. However, this argument as rejected by the Tribunal observing that the Explanation appended to Section 68 of FERA clearly provides that "company" means any body corporate and includes a firm or other association of individuals and though the proprietorship concern and proprietor both are same, the Tribunal lost sight of the provisions of the FERA, factual matrix including the amount involved in the contravention.Section 68 of FERA provides for offences by companies and for punishment and penalty for the contravention of the provisions of FERA by the companies. Section 68(1) provides that where a person committing a contravention of any of the provisions of the Act and the rules, directions and orders made under the said Act is by company, every person who, at the time the contravention was committed, was in charge of, and was responsible to the company for the conduct of business as well as the company shall be deemed to be guilty of the contravention and shall be liable to be proceeded against and punished accordingly. The Explanation to Section 68 provides that "company" means any body corporate and includes a firm or association of individuals and "director" in relation to a firm, means a partner in the firm. In the present case, Natural Granite Exports is not a company nor it is a partnership firm nor Hindu Joint Family (HUF), but it is a proprietorship concern of which Ashok Chopra alone is a proprietor. Therefore, neither it can be treated as a company nor as a firm nor an association of individuals. Ashok Chopra was carrying on the business in the assumed name and style of M/s. Natural Granite Exports and if any contravention of any provisions of law or rules is committed by the said concern, that contravention shall be presumed to have been committed by its proprietor i.e. Ashok Chopra. In view of this, M/s. Natural Granite Exports as the concern and its proprietor Ashok Chopra could not be held guilty separately and penalty could not be imposed on each of them. Imposing penalty on the proprietorship concern as well as on the proprietor would amount to punishing the same person twice for the same contravention. Therefore, when the proprietorship concern is found guilty and penalty is imposed on it, that penalty should be presumed to have been imposed on its proprietor and, therefore, no separate penalty could be imposed on the proprietor as has been done in the present case.It may also be noted that Suresh Chopra is neither a partner nor a proprietor of the said proprietorship concern. However, the concurrent finding of both the Authorities below is that Suresh Chopra was the authorized signatory on behalf of the proprietorship concern and, therefore, besides the proprietorship concern, he, as an authorized signatory, has also contravened the provisions of law. It can be said that he also abetted the contravention of the provisions of FERA by the said proprietorship concern and therefore, the contravention is proved, he can be rightly held guilty for abetment of the same and penalty can be imposed on him separately. | 1 | 2,487 | 1,293 | ### Instruction:
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the appellants. 7. On perusal of the record, it also appears that about the transaction, based on the invoice No.548/94 dated 14.6.1994, firstly the notice was issued under Section 40 of FERA on 21.8.1996 and thereafter several notices were issued and opportunity was given to the appellants to explain the difference between the two invoices and finally the show cause notice was issued to all the appellants under Section 9(1) on 17.1.2002 and thus action was initiated by the adjudicating authority. It is material to note that FERA was repealed as per Section 49 by FEMA, 1999. Fema came into force on 1.6.2000. As per provisions of Section 49(3) of FEMA, no Court shall take cognizance of an offence under the repealed Act and no adjudicating officer shall take notice of any contravention under section 51 of the repealed Act after the expiry of a period of two years from the date of commencement of FEMA. In view of this provision, no cognizance of offence could be taken and no notice of any contravention under Section 51 of the FEMA could be taken after the expiry of to years from 1.6.2000 when FERA came into force. In the present case, as indicated above, the notices were issued since 21.8.1996 and as the appellants could not satisfy the adjudicating about the difference in the two invoices carrying the same number and date, the adjudicating authority issued the show cause notice on 17.1.2002 and initiated action. Thus, the action was taken by the adjudicating authority within a period of two years after the FERA was repealed. In view of this, we do not find any question of law of law in respect of both these points. 8. On hearing the learned Counsel for the parties and perusal of the record, we find that in FERA Appeal Nos. 6 and No.7 of 2009, filed by Ashok Chopra and Suresh Chopra respectively, the following question of law arises:- Whether the appellants - Ashok Chopra and Suresh Chopra could be individually penalized once M/s. Natural Granite Exports, proprietorship concern was penalized for contravention of Section 9(1)(c) of FERA 9. On perusal of the record, it appears that M/s. Natural Granite Exports is a proprietorship concern and the appellant Ashok Chopra is its proprietor. This fact is clear from a number of documents, particularly Income-tax returns which were submitted by Ashok Chopra as well as the notices issued to M/s. Natural Granite Exports by the officers of the Sales Tax from the year 1994-95 wherein Ashok Chopra was shown to be the proprietor. There is no material to show that M/s. Natural Granite Exports is a partnership firm. From para 20 of the Judgment of the appellate Tribunal it appears that it was argued on behalf of the appellants that both the proprietorship concern and the proprietor cannot be charged separately and cannot be held liable for separate penalty. However, this argument as rejected by the Tribunal observing that the Explanation appended to Section 68 of FERA clearly provides that "company" means any body corporate and includes a firm or other association of individuals and though the proprietorship concern and proprietor both are same, the Tribunal lost sight of the provisions of the FERA, factual matrix including the amount involved in the contravention. 10. Section 68 of FERA provides for offences by companies and for punishment and penalty for the contravention of the provisions of FERA by the companies. Section 68(1) provides that where a person committing a contravention of any of the provisions of the Act and the rules, directions and orders made under the said Act is by company, every person who, at the time the contravention was committed, was in charge of, and was responsible to the company for the conduct of business as well as the company shall be deemed to be guilty of the contravention and shall be liable to be proceeded against and punished accordingly. The Explanation to Section 68 provides that "company" means any body corporate and includes a firm or association of individuals and "director" in relation to a firm, means a partner in the firm. In the present case, Natural Granite Exports is not a company nor it is a partnership firm nor Hindu Joint Family (HUF), but it is a proprietorship concern of which Ashok Chopra alone is a proprietor. Therefore, neither it can be treated as a company nor as a firm nor an association of individuals. Ashok Chopra was carrying on the business in the assumed name and style of M/s. Natural Granite Exports and if any contravention of any provisions of law or rules is committed by the said concern, that contravention shall be presumed to have been committed by its proprietor i.e. Ashok Chopra. In view of this, M/s. Natural Granite Exports as the concern and its proprietor Ashok Chopra could not be held guilty separately and penalty could not be imposed on each of them. Imposing penalty on the proprietorship concern as well as on the proprietor would amount to punishing the same person twice for the same contravention. Therefore, when the proprietorship concern is found guilty and penalty is imposed on it, that penalty should be presumed to have been imposed on its proprietor and, therefore, no separate penalty could be imposed on the proprietor as has been done in the present case. 11. It may also be noted that Suresh Chopra is neither a partner nor a proprietor of the said proprietorship concern. However, the concurrent finding of both the Authorities below is that Suresh Chopra was the authorized signatory on behalf of the proprietorship concern and, therefore, besides the proprietorship concern, he, as an authorized signatory, has also contravened the provisions of law. It can be said that he also abetted the contravention of the provisions of FERA by the said proprietorship concern and therefore, the contravention is proved, he can be rightly held guilty for abetment of the same and penalty can be imposed on him separately.
### Response:
1
### Explanation:
is nothing on record to show that the officer of the DRI had any reason to create any false document against the appellants.On perusal of the record, it also appears that about the transaction, based on the invoice No.548/94 dated 14.6.1994, firstly the notice was issued under Section 40 of FERA on 21.8.1996 and thereafter several notices were issued and opportunity was given to the appellants to explain the difference between the two invoices and finally the show cause notice was issued to all the appellants under Section 9(1) on 17.1.2002 and thus action was initiated by the adjudicating authority. It is material to note that FERA was repealed as per Section 49 by FEMA, 1999. Fema came into force on 1.6.2000. As per provisions of Section 49(3) of FEMA, no Court shall take cognizance of an offence under the repealed Act and no adjudicating officer shall take notice of any contravention under section 51 of the repealed Act after the expiry of a period of two years from the date of commencement of FEMA. In view of this provision, no cognizance of offence could be taken and no notice of any contravention under Section 51 of the FEMA could be taken after the expiry of to years from 1.6.2000 when FERA came into force. In the present case, as indicated above, the notices were issued since 21.8.1996 and as the appellants could not satisfy the adjudicating about the difference in the two invoices carrying the same number and date, the adjudicating authority issued the show cause notice on 17.1.2002 and initiated action. Thus, the action was taken by the adjudicating authority within a period of two years after the FERA was repealed. In view of this, we do not find any question of law of law in respect of both these points.On hearing the learned Counsel for the parties and perusal of the record, we find that in FERA Appeal Nos. 6 and No.7 of 2009, filed by Ashok Chopra and Suresh Chopra respectively, the following question of lawhok Chopra and Suresh Chopra could be individually penalized once M/s. Natural Granite Exports, proprietorship concern was penalized for contravention of Section 9(1)(c) ofOn perusal of the record, it appears that M/s. Natural Granite Exports is a proprietorship concern and the appellant Ashok Chopra is its proprietor. This fact is clear from a number of documents, particularlyreturns which were submitted by Ashok Chopra as well as the notices issued to M/s. Natural Granite Exports by the officers of the Sales Tax from the yearwherein Ashok Chopra was shown to be the proprietor. There is no material to show that M/s. Natural Granite Exports is a partnership firm. From para 20 of the Judgment of the appellate Tribunal it appears that it was argued on behalf of the appellants that both the proprietorship concern and the proprietor cannot be charged separately and cannot be held liable for separate penalty. However, this argument as rejected by the Tribunal observing that the Explanation appended to Section 68 of FERA clearly provides that "company" means any body corporate and includes a firm or other association of individuals and though the proprietorship concern and proprietor both are same, the Tribunal lost sight of the provisions of the FERA, factual matrix including the amount involved in the contravention.Section 68 of FERA provides for offences by companies and for punishment and penalty for the contravention of the provisions of FERA by the companies. Section 68(1) provides that where a person committing a contravention of any of the provisions of the Act and the rules, directions and orders made under the said Act is by company, every person who, at the time the contravention was committed, was in charge of, and was responsible to the company for the conduct of business as well as the company shall be deemed to be guilty of the contravention and shall be liable to be proceeded against and punished accordingly. The Explanation to Section 68 provides that "company" means any body corporate and includes a firm or association of individuals and "director" in relation to a firm, means a partner in the firm. In the present case, Natural Granite Exports is not a company nor it is a partnership firm nor Hindu Joint Family (HUF), but it is a proprietorship concern of which Ashok Chopra alone is a proprietor. Therefore, neither it can be treated as a company nor as a firm nor an association of individuals. Ashok Chopra was carrying on the business in the assumed name and style of M/s. Natural Granite Exports and if any contravention of any provisions of law or rules is committed by the said concern, that contravention shall be presumed to have been committed by its proprietor i.e. Ashok Chopra. In view of this, M/s. Natural Granite Exports as the concern and its proprietor Ashok Chopra could not be held guilty separately and penalty could not be imposed on each of them. Imposing penalty on the proprietorship concern as well as on the proprietor would amount to punishing the same person twice for the same contravention. Therefore, when the proprietorship concern is found guilty and penalty is imposed on it, that penalty should be presumed to have been imposed on its proprietor and, therefore, no separate penalty could be imposed on the proprietor as has been done in the present case.It may also be noted that Suresh Chopra is neither a partner nor a proprietor of the said proprietorship concern. However, the concurrent finding of both the Authorities below is that Suresh Chopra was the authorized signatory on behalf of the proprietorship concern and, therefore, besides the proprietorship concern, he, as an authorized signatory, has also contravened the provisions of law. It can be said that he also abetted the contravention of the provisions of FERA by the said proprietorship concern and therefore, the contravention is proved, he can be rightly held guilty for abetment of the same and penalty can be imposed on him separately.
|
Balaji Vs. The State of Maharashtra | accused, prosecution has examined in all nine (9) witnesses and has heavily relied upon Exh.No.28 post-mortem report and Exh.No.20 inquest panchnama.6. In the present case at hand, since we are concerned with the conviction of the appellant (original accused) in respect of offence punishable U/Section 302 of the I.P.Code, we shall discuss the evidence of prosecution witnesses to that extent only.7. In the present case there are no eye witnesses. The deceased, wife of the appellant was throughout in the home of the appellant, and the appellant was present in his house. It appears that, PW No.1 Somnath was called by his uncle Maruti, who is original accused No.2. Accordingly, he went to his house. Ranjana was put into one auto rickshaw and was taken to the hospital of Dr. Bhalekar at village Talegaon. Doctor examined Ranjana and declared her dead. Thereafter, her dead body was brought to the village.8. Dr.RanideviKadam (P.W.No.2) performed autopsy on the dead body of Ranjana. Post mortem report is at Exh.No. 28. Dr.Ranidevi Kadam found following injuries on the dead body of Ranjana:-(i) contusion below Rt. ear, size 2 x 1 c.m.(ii) Contusion on Lt. lateral side of neck, size 5 x 1 c.m.(iii) Fracture of hyvoidbone.According to the Doctor, injuries were anti mortem and in the opinion of the Doctor, probable cause of death was asphyxia due to throttling. In very categorical words, PW No.2 Dr.Ranidevi Kadam deposed before the court that, injuries mentioned in the post mortem report are not possible by self throttling.On the said aspect it will be very useful to quote a passage from the Medical Jurisprudence and Toxicology, authored by Modi in its latest edition, which reads as under:-It is not possible for anyone to continue a firm grasp of the throat after unconsciousness supervenes, hence throttling by the fingers cannot possibly be suicidal.9. Thus, it is abundantly clear that, death of Ranjana was not natural. From the evidence of Dr.Ranidevi Kadam (P.W.No.2), it is very clear that, fracture of hyvoidbone and injuries around the neck cannot be self inflicted. In that view of the matter, it is absolutely clear that, Ranjana died homicidal death.10. On examining the post mortem report Exh.No.28 a very disturbing fact appears at column No.21 of the said post mortem report under the head Organs of generation : E/o female fetus in uterus as at 28-36 weeks. Further in the same head under sub head mucus Cavity, teeth, tongue and pharyax : Blood stained froth present. Thus it clearly shows that at the time of death, deceased Ranjana was carrying pregnancy of 28-36 weeks and the said fetus was of female foetus. It has come in the evidence of PW 3 Ramkisan, brother of deceased Ranjana that her first issue was female child.11. Now question is whether the appellant is the author of the same or not.. Since there are no eye witness to the incident the case of the prosecution is solely based on circumstantial evidence. From the evidence, it is clear that, dead body of Ranjana was carried to the hospital for post mortem from her matrimonial home. Even there is no dispute that, Ranjana was found dead in her matrimonial home. From the entire evidence available on record, it is not defence version that, prior to Ranjana being found dead in the house of the appellant / accused, she was not available in his house. There is nothing available on record that, Ranjana was not in company with the appellant. On the contrary, the appellant, being her husband, Ranjana, in the company of the appellant in the night, is most natural. In such situation, it was for the appellant to point out and/or even suggest that the deceased was not in his company. No doubt true, burden to prove the guilt against the accused is firmly rests on the prosecution however, it was open for the accused to prove either by attending circumstances available on record or through the examination of the prosecution witnesses about the fact that Ranjana was not in his company.12. Interestingly, the appellant / accused in his statement recorded U/Section 313 of the Code of Criminal Procedure, 1973 has not explained anything about the company of Ranjana with him and/or has not given any explanation as to how injuries appeared on the person of deceased Ranjana. Therefore, his silence, when the custody of deceased was with him is established on record, it is only the appellant can be held responsible for causing the death of Ranjana. In that behalf, through the evidence of Dr.Ranidevi Kadam (P.W.No.2) it has been brought on record that, hyvoidbone may be fractured due to external pressure. Therefore, it is only the appellant, who can be held guilty of causing death of Ranjana.13. In the light of the provisions of section 106 of Indian Evidence Act, it was for the appellant to give plausible explanation about the injuries appearing on the person of Ranjana. Onus in cases where facts which are proved by evidence give rise to the reasonable inference of guilt unless the same is rebutted and such inference can be negitived by proof of some facts which in its nature can be negatived by proof of some fact which in its nature can only be within the special knowledge of the accused that the burden of proving the fact is on the accused.14. In the light of the fact that, Ranjana was having female child and at the time of her death, she was carrying pregnancy of 28 36 weeks and she was carrying female foetus, will be one of the circumstance in the case of the prosecution to point out finger of guilt towards the appellant. Moreso, blood stained froth is present in the mucal Cavity, teeth, tongue and pharyax clearly shows that, she must have received hard hitting somewhere on the vital part of her body.15. In that view of the matter, we find no infirmity in the Judgment and Order of conviction passed by the learned court below. | 0[ds]7. In the present case there are no eye witnesses. The deceased, wife of the appellant was throughout in the home of the appellant, and the appellant was present in his house. It appears that, PW No.1 Somnath was called by his uncle Maruti, who is original accused No.2. Accordingly, he went to his house. Ranjana was put into one auto rickshaw and was taken to the hospital of Dr. Bhalekar at village Talegaon. Doctor examined Ranjana and declared her dead. Thereafter, her dead body was brought to the village.Thus, it is abundantly clear that, death of Ranjana was not natural. From the evidence of Dr.Ranidevi Kadam (P.W.No.2), it is very clear that, fracture of hyvoidbone and injuries around the neck cannot be self inflicted. In that view of the matter, it is absolutely clear that, Ranjana died homicidal death.Interestingly, the appellant / accused in his statement recorded U/Section 313 of the Code of Criminal Procedure, 1973 has not explained anything about the company of Ranjana with him and/or has not given any explanation as to how injuries appeared on the person of deceased Ranjana. Therefore, his silence, when the custody of deceased was with him is established on record, it is only the appellant can be held responsible for causing the death of Ranjana. In that behalf, through the evidence of Dr.Ranidevi Kadam (P.W.No.2) it has been brought on record that, hyvoidbone may be fractured due to external pressure. Therefore, it is only the appellant, who can be held guilty of causing death of Ranjana.13. In the light of the provisions of section 106 of Indian Evidence Act, it was for the appellant to give plausible explanation about the injuries appearing on the person of Ranjana. Onus in cases where facts which are proved by evidence give rise to the reasonable inference of guilt unless the same is rebutted and such inference can be negitived by proof of some facts which in its nature can be negatived by proof of some fact which in its nature can only be within the special knowledge of the accused that the burden of proving the fact is on the accused.14. In the light of the fact that, Ranjana was having female child and at the time of her death, she was carrying pregnancy of 2836 weeks and she was carrying female foetus, will be one of the circumstance in the case of the prosecution to point out finger of guilt towards the appellant. Moreso, blood stained froth is present in the mucal Cavity, teeth, tongue and pharyax clearly shows that, she must have received hard hitting somewhere on the vital part of her body.15. In that view of the matter, we find no infirmity in the Judgment and Order of conviction passed by the learned court below. | 0 | 2,049 | 522 | ### Instruction:
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accused, prosecution has examined in all nine (9) witnesses and has heavily relied upon Exh.No.28 post-mortem report and Exh.No.20 inquest panchnama.6. In the present case at hand, since we are concerned with the conviction of the appellant (original accused) in respect of offence punishable U/Section 302 of the I.P.Code, we shall discuss the evidence of prosecution witnesses to that extent only.7. In the present case there are no eye witnesses. The deceased, wife of the appellant was throughout in the home of the appellant, and the appellant was present in his house. It appears that, PW No.1 Somnath was called by his uncle Maruti, who is original accused No.2. Accordingly, he went to his house. Ranjana was put into one auto rickshaw and was taken to the hospital of Dr. Bhalekar at village Talegaon. Doctor examined Ranjana and declared her dead. Thereafter, her dead body was brought to the village.8. Dr.RanideviKadam (P.W.No.2) performed autopsy on the dead body of Ranjana. Post mortem report is at Exh.No. 28. Dr.Ranidevi Kadam found following injuries on the dead body of Ranjana:-(i) contusion below Rt. ear, size 2 x 1 c.m.(ii) Contusion on Lt. lateral side of neck, size 5 x 1 c.m.(iii) Fracture of hyvoidbone.According to the Doctor, injuries were anti mortem and in the opinion of the Doctor, probable cause of death was asphyxia due to throttling. In very categorical words, PW No.2 Dr.Ranidevi Kadam deposed before the court that, injuries mentioned in the post mortem report are not possible by self throttling.On the said aspect it will be very useful to quote a passage from the Medical Jurisprudence and Toxicology, authored by Modi in its latest edition, which reads as under:-It is not possible for anyone to continue a firm grasp of the throat after unconsciousness supervenes, hence throttling by the fingers cannot possibly be suicidal.9. Thus, it is abundantly clear that, death of Ranjana was not natural. From the evidence of Dr.Ranidevi Kadam (P.W.No.2), it is very clear that, fracture of hyvoidbone and injuries around the neck cannot be self inflicted. In that view of the matter, it is absolutely clear that, Ranjana died homicidal death.10. On examining the post mortem report Exh.No.28 a very disturbing fact appears at column No.21 of the said post mortem report under the head Organs of generation : E/o female fetus in uterus as at 28-36 weeks. Further in the same head under sub head mucus Cavity, teeth, tongue and pharyax : Blood stained froth present. Thus it clearly shows that at the time of death, deceased Ranjana was carrying pregnancy of 28-36 weeks and the said fetus was of female foetus. It has come in the evidence of PW 3 Ramkisan, brother of deceased Ranjana that her first issue was female child.11. Now question is whether the appellant is the author of the same or not.. Since there are no eye witness to the incident the case of the prosecution is solely based on circumstantial evidence. From the evidence, it is clear that, dead body of Ranjana was carried to the hospital for post mortem from her matrimonial home. Even there is no dispute that, Ranjana was found dead in her matrimonial home. From the entire evidence available on record, it is not defence version that, prior to Ranjana being found dead in the house of the appellant / accused, she was not available in his house. There is nothing available on record that, Ranjana was not in company with the appellant. On the contrary, the appellant, being her husband, Ranjana, in the company of the appellant in the night, is most natural. In such situation, it was for the appellant to point out and/or even suggest that the deceased was not in his company. No doubt true, burden to prove the guilt against the accused is firmly rests on the prosecution however, it was open for the accused to prove either by attending circumstances available on record or through the examination of the prosecution witnesses about the fact that Ranjana was not in his company.12. Interestingly, the appellant / accused in his statement recorded U/Section 313 of the Code of Criminal Procedure, 1973 has not explained anything about the company of Ranjana with him and/or has not given any explanation as to how injuries appeared on the person of deceased Ranjana. Therefore, his silence, when the custody of deceased was with him is established on record, it is only the appellant can be held responsible for causing the death of Ranjana. In that behalf, through the evidence of Dr.Ranidevi Kadam (P.W.No.2) it has been brought on record that, hyvoidbone may be fractured due to external pressure. Therefore, it is only the appellant, who can be held guilty of causing death of Ranjana.13. In the light of the provisions of section 106 of Indian Evidence Act, it was for the appellant to give plausible explanation about the injuries appearing on the person of Ranjana. Onus in cases where facts which are proved by evidence give rise to the reasonable inference of guilt unless the same is rebutted and such inference can be negitived by proof of some facts which in its nature can be negatived by proof of some fact which in its nature can only be within the special knowledge of the accused that the burden of proving the fact is on the accused.14. In the light of the fact that, Ranjana was having female child and at the time of her death, she was carrying pregnancy of 28 36 weeks and she was carrying female foetus, will be one of the circumstance in the case of the prosecution to point out finger of guilt towards the appellant. Moreso, blood stained froth is present in the mucal Cavity, teeth, tongue and pharyax clearly shows that, she must have received hard hitting somewhere on the vital part of her body.15. In that view of the matter, we find no infirmity in the Judgment and Order of conviction passed by the learned court below.
### Response:
0
### Explanation:
7. In the present case there are no eye witnesses. The deceased, wife of the appellant was throughout in the home of the appellant, and the appellant was present in his house. It appears that, PW No.1 Somnath was called by his uncle Maruti, who is original accused No.2. Accordingly, he went to his house. Ranjana was put into one auto rickshaw and was taken to the hospital of Dr. Bhalekar at village Talegaon. Doctor examined Ranjana and declared her dead. Thereafter, her dead body was brought to the village.Thus, it is abundantly clear that, death of Ranjana was not natural. From the evidence of Dr.Ranidevi Kadam (P.W.No.2), it is very clear that, fracture of hyvoidbone and injuries around the neck cannot be self inflicted. In that view of the matter, it is absolutely clear that, Ranjana died homicidal death.Interestingly, the appellant / accused in his statement recorded U/Section 313 of the Code of Criminal Procedure, 1973 has not explained anything about the company of Ranjana with him and/or has not given any explanation as to how injuries appeared on the person of deceased Ranjana. Therefore, his silence, when the custody of deceased was with him is established on record, it is only the appellant can be held responsible for causing the death of Ranjana. In that behalf, through the evidence of Dr.Ranidevi Kadam (P.W.No.2) it has been brought on record that, hyvoidbone may be fractured due to external pressure. Therefore, it is only the appellant, who can be held guilty of causing death of Ranjana.13. In the light of the provisions of section 106 of Indian Evidence Act, it was for the appellant to give plausible explanation about the injuries appearing on the person of Ranjana. Onus in cases where facts which are proved by evidence give rise to the reasonable inference of guilt unless the same is rebutted and such inference can be negitived by proof of some facts which in its nature can be negatived by proof of some fact which in its nature can only be within the special knowledge of the accused that the burden of proving the fact is on the accused.14. In the light of the fact that, Ranjana was having female child and at the time of her death, she was carrying pregnancy of 2836 weeks and she was carrying female foetus, will be one of the circumstance in the case of the prosecution to point out finger of guilt towards the appellant. Moreso, blood stained froth is present in the mucal Cavity, teeth, tongue and pharyax clearly shows that, she must have received hard hitting somewhere on the vital part of her body.15. In that view of the matter, we find no infirmity in the Judgment and Order of conviction passed by the learned court below.
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Energy Watchdog Vs. Central Electricity Regulatory Commission And Ors. Etc | of increased cost of power due to import of coal/e-auction and its impact on the tariff of concluded PPAs were also discussed and CERCs advice sought. 2. After considering all aspects and the advice of CERC in this regard, Government has decided the following in June 2013: i) taking into account the overall domestic availability and actual requirements, FSAs to be signed for domestic coal component for the levy of disincentive at the quantity of 65%, 65%, 67% and 75% of Annual Contracted Quantity (ACQ) for the remaining four years of the 12th Plan. ii) to meet its balance FSA obligations, CIL may import coal and supply the same to the willing TPPs on cost plus basis. TPPs may also import coal themselves if they so opt. iii) higher cost of imported coal to be considered for pass through as per modalities suggested by CERC. 3. Ministry of Coal vide letter dated 26th July 2013 has notified the changes in the New Coal Distribution Policy (NCDP) as approved by the CCEA in relation to be coal supply for the next four years of the 12th Plan (copy enclosed). 4. As per decision of the Government, the higher cost of import/market based e-auction coal be considered for being made a pass through on a case to case basis by CERC/SERC to the extent of shortfall in the quantity indicated in the LoA/FSA and the CIL supply of domestic coal which would be minimum of 65%, 65%, 67% and 75% of LOA for the remaining four years of the 12th Plan for the already concluded PPAs based on tariff based competitive bidding. 5. The ERCs are advised to consider the request of individual power producers in this regard as per due process on a case to case basis in public interest. The Appropriate Commissions are requested to take immediate steps for the implementation of the above decision of the Government. This issues with the approval of MOS(P)I/C. Encl: as above Yours faithfully, Sd/- (V.Apparao) Director This is further reflected in the revised tariff policy dated 28th January, 2016, which in paragraph 1.1 states as under : 1.1 In compliance with Section 3 of the Electricity Act 2003, the Central Government notified the Tariff Policy on 6th January, 2006. Further amendments to the Tariff Policy were notified on 31st March, 2008, 20th January, 2011 and 8th July, 2011. In exercise of powers conferred under Section 3(3) of Electricity Act, 2003, the Central Government hereby notifies the revised Tariff Policy to be effective from the date of publication of the resolution in the Gazette of India. Notwithstanding anything done or any action taken or purported to have been done or taken under the provisions of the Tariff Policy notified on 6th January, 2006 and amendments made thereunder, shall, in so far as it is not inconsistent with this Policy, be deemed to have been done or taken under provisions of this revised policy. Clause 6.1 states: 6.1 Procurement of Power As stipulated in para 5.1, power procurement for future requirements should be through a transparent competitive bidding mechanism using the guidelines issued by the Central Government from time to time. These guidelines provide for procurement of electricity separately for base load requirements and for peak load requirements. This would facilitate setting up of generation capacities specifically for meeting such requirements. However, some of the competitively bid projects as per the guidelines dated 19th January, 2005 have experienced difficulties in getting the required quantity of coal from Coal India Limited (CIL). In case of reduced quantity of domestic coal supplied by CIL, vis-a-vis the assured quantity or quantity indicated in Letter of Assurance/FSA the cost of imported/market based e-auction coal procured for making up the shortfall, shall be considered for being made a pass through by Appropriate Commission on a case to case basis, as per advisory issued by Ministry of Power vide OM NO.FU-12/2011-IPC (Vol-III) dated 31.7.2013. Both the letter dated 31st July, 2013 and the revised tariff policy are statutory documents being issued under Section 3 of the Act and have the force of law. This being so, it is clear that so far as the procurement of Indian coal is concerned, to the extent that the supply from Coal India and other Indian sources is cut down, the PPA read with these documents provides in clause 13.2 that while determining the consequences of change in law, parties shall have due regard to the principle that the purpose of compensating the party affected by such change in law is to restore, through monthly tariff payments, the affected party to the economic position as if such change in law has not occurred. Further, for the operation period of the PPA, compensation for any increase/decrease in cost to the seller shall be determined and be effective from such date as decided by the Central Electricity Regulation Commission. This being the case, we are of the view that though change in Indonesian law would not qualify as a change in law under the guidelines read with the PPA, change in Indian law certainly would. 54. However, Shri Ramachandran, learned senior counsel for the appellants, argued that the policy dated 18th October, 2007 was announced even before the effective date of the PPAs, and made it clear to all generators that coal may not be given to the extent of the entire quantity allocated. We are afraid that we cannot accede to this argument for the reason that the change in law has only taken place only in 2013, which modifies the 2007 policy and to the extent that it does so, relief is available under the PPA itself to persons who source supply of coal from indigenous sources. It is to this limited extent that change in law is held in favour of the respondents. Certain other minor contentions that are raised on behalf of both sides are not being addressed by us for the reason that we find it unnecessary to go into the same. | 1[ds]20. The appellants have argued before us that the expression "composite scheme" mentioned in Section 79(1) must necessarily be a scheme in which there is uniformity of tariff under a PPA where there is generation and sale of electricity in more than one State. It is not enough that generation and sale of electricity in more than one State be the subject matter of one or more PPAs, but that something more is necessary, namely, that there must be a composite scheme for the same.22. The scheme that emerges from these Sections is that whenever there ise generation or supply of electricity, it is the Central Government that is involved, and whenever there ise generation or supply of electricity, the State Government or the State Commission is involved. This is the precise scheme of the entire Act, including Sections 79 and 86. It will be seen that Section 79(1) itself ins (c), (d) and (e) speaks ofe transmission ande operations. This is to be contrasted with Section 86 which deals with functions of the State Commission which uses the expression "within the State"; ins (a), (b), and (d), and; ine (c). This being the case, it is clear that the PPA, which deals with generation and supply of electricity, will either have to be governed by the State Commission or the Central Commission. The State Commissions jurisdiction is only where generation and supply takes place within the State. On the other hand, the moment generation and sale takes place in more than one State, the Central Commission becomes the appropriate Commission under the Act. What is important to remember is that if we were to accept the argument on behalf of the appellant, and we were to hold in the Adani case that there is no composite scheme for generation and sale, as argued by the appellant, it would be clear that neither Commission would have jurisdiction, something which would lead to absurdity. Since generation and sale of electricity is in more than one State obviously Section 86 does not get attracted. This being the case, we are constrained to observe that the expression "composite scheme" does not mean anything more than a scheme for generation and sale of electricity in more than one State25. We must also hasten to add that the appellants argument that there must be commonality and uniformity in tariff for a "composite scheme" does not follow from the Section27. That this definition is an important aid to the construction of Section 79(1)(b) cannot be doubted and, according to us, correctly brings out the meaning of this expression as meaning nothing more than a scheme by a generating company for generation and sale of electricity in more than one State. Section 64(5) has been relied upon by the Appellant as an indicator that the State Commission has jurisdiction even in cases where tariff fore supply is involved. This provision begins with ae clause which would indicate that in all cases involvinge supply, transmission, or wheeling of electricity, the Central Commission alone has jurisdiction. In fact this further supports the case of the Respondents. Section 64(5) can only apply if, the jurisdiction otherwise being with the Central Commission alone, by application of the parties concerned, jurisdiction is to be given to the State Commission having jurisdiction in respect of the licensee who intends to distribute and make payment for electricity. We, therefore, hold that the Central Commission had the necessary jurisdiction to embark upon the issues raised in the present casesSince the appellant was not desirous of seeking a declaration that the appellant is relieved of the obligation of performing the contract in question, the appellant is entitled to argue force majeure or change of law in support of the Commissions order of 21st February, 2014, which quantified compensatory tariff, the correctness of which is under challenge in Appeal Nos.98 and 116 of 2014. This being the case, it is clear that this Court did not give any truncated right to argue force majeure or change of law. This Court explicitly stated that both force majeure and change of law can be argued in all its plenitude to support an order quantifying compensatory tariff so long as the appellants do not claim that they are relieved of performance of the PPAs altogether. This being the case, we are of the view that the preliminary submission of the appellant before us is without any force. Accordingly, the Appellate Tribunal rightly went into force majeure and change of law40. It is clear from the above that the doctrine of frustration cannot apply to these cases as the fundamental basis of the PPAs remains unaltered. Nowhere do the PPAs state that coal is to be procured only from Indonesia at a particular price. In fact, it is clear on a reading of the PPA as a whole that the price payable for the supply of coal is entirely for the person who sets up the power plant to bear. The fact that the fuel supply agreement has to be appended to the PPA is only to indicate that the raw material for the working of the plant is there and is in order. It is clear that an unexpected rise in the price of coal will not absolve the generating companies from performing their part of the contract for the very good reason that when they submitted their bids, this was a risk they knowingly took. We are of the view that the mere fact that the bid may bee does not mean that the respondents are precluded from raising the plea of frustration, if otherwise it is available in law and can be pleaded by them. But the fact that ae tariff has been paid for, for example, in the Adani case, is a factor which may be taken into account only to show that the risk of supplying electricity at the tariff indicated was upon the generating company43. First and foremost, the respondents are correct in stating that the force majeure clause does not exhaust the possibility of unforeseen events occurring outside natural and/orl events. But the thrust of their argument was really that so long as their performance is hindered by an unforeseen event, the clause applies45. We are, therefore, of the view that neither was the fundamental basis of the contract dislodged nor was any frustrating event, except for a rise in the price of coal, excluded by clause 12.4, pointed out. Alternative modes of performance were available, albeit at a higher price. This does not lead to the contract, as a whole, being frustrated. Consequently, we are of the view that neither clause 12.3 nor 12.7, referable to Section 32 of the Contract Act, will apply so as to enable the grant of compensatory tariff to the respondents. Dr. Singhvi, however, argued that even if clause 12 is held inapplicable, the law laid down on frustration under Section 56 will apply so as to give the respondents the necessary relief on the ground of force majeure. Having once held that clause 12.4 applies as a result of which rise in the price of fuel cannot be regarded as a force majeure event contractually, it is difficult to appreciate a submission that in the alternative Section 56 will apply. As has been held in particular, in the Satyabrata Ghose case, when a contract contains a force majeure clause which on construction by the Court is held attracted to the facts of the case, Section 56 can have no application. On this short ground, this alternative submission stands disposed ofFrom a reading of the above, it is clear that if otherwise the expression "anylaw"in clause 13when read with the definition of; and"Electricity Laws" leads unequivocally to the conclusion that it refers only to the law of India, it would be unsafe to rely upon the other clauses of the agreement where Indian law is specifically mentioned to negate this conclusionWe are afraid, we cannot agree with this argument. There are many PPAs entered into with different generators. Some generators may source fuel only from India. Others, as is the case in the Adani Haryana matter, would source fuel to the extent of 70% from India and 30% from abroad, whereas other generators, as in the case of Gujarat Adani and the Coastal case, would source coal wholly from abroad. The meaning of the expression "change inlaw"in clause 13cannot depend upon whether coal is sourced in a particular PPA from outside India or within India. The meaning will have to remain the same whether coal is sourced wholly in India, partly in India and partly from outside, or wholly from outside. This being the case, the meaning of the expression "anylaw"in clause 13cannot possibly be interpreted in the manner suggested by the respondents. English judgments and authorities were cited for the proposition that if performance of a contract is to be done in a foreign country, what would be relevant would be foreign law. This would be true as a general statement of law, but for the reason given above, would not apply to the PPAs in the present caseBoth the letter dated 31st July, 2013 and the revised tariff policy are statutory documents being issued under Section 3 of the Act and have the force of law. This being so, it is clear that so far as the procurement of Indian coal is concerned, to the extent that the supply from Coal India and other Indian sources is cut down, the PPA read with these documents providesin clause13.2that while determining the consequences of change in law, parties shall have due regard to the principle that the purpose of compensating the party affected by such change in law is to restore, through monthly tariff payments, the affected party to the economic position as if such change in law has not occurred. Further, for the operation period of the PPA, compensation for any increase/decrease in cost to the seller shall be determined and be effective from such date as decided by the Central Electricity Regulation Commission. This being the case, we are of the view that though change in Indonesian law would not qualify as a change in law under the guidelines read with the PPA, change in Indian law certainly wouldWe are afraid that we cannot accede to this argument for the reason that the change in law has only taken place only in 2013, which modifies the 2007 policy and to the extent that it does so, relief is available under the PPA itself to persons who source supply of coal from indigenous sources. It is to this limited extent that change in law is held in favour of the respondents. Certain other minor contentions that are raised on behalf of both sides are not being addressed by us for the reason that we find it unnecessary to go into the samesame.32. "Force majeure" is governed by the Indian Contract Act, 1872. In so far as it is relatable to an express or implied clause in a contract, such as the PPAs before us, it is governed by Chapter III dealing with the contingent contracts, and more particularly, Section 32 thereof. In so far as a force majeure event occurs de hors the contract, it is dealt with by a rule of positive law under Section 56 of the Contract. | 1 | 20,957 | 2,116 | ### Instruction:
Hypothesize the court's verdict (affirmation (1) or negation (0) of the appeal), and then clarify this hypothesis by interpreting significant sentences from the case proceeding.
### Input:
of increased cost of power due to import of coal/e-auction and its impact on the tariff of concluded PPAs were also discussed and CERCs advice sought. 2. After considering all aspects and the advice of CERC in this regard, Government has decided the following in June 2013: i) taking into account the overall domestic availability and actual requirements, FSAs to be signed for domestic coal component for the levy of disincentive at the quantity of 65%, 65%, 67% and 75% of Annual Contracted Quantity (ACQ) for the remaining four years of the 12th Plan. ii) to meet its balance FSA obligations, CIL may import coal and supply the same to the willing TPPs on cost plus basis. TPPs may also import coal themselves if they so opt. iii) higher cost of imported coal to be considered for pass through as per modalities suggested by CERC. 3. Ministry of Coal vide letter dated 26th July 2013 has notified the changes in the New Coal Distribution Policy (NCDP) as approved by the CCEA in relation to be coal supply for the next four years of the 12th Plan (copy enclosed). 4. As per decision of the Government, the higher cost of import/market based e-auction coal be considered for being made a pass through on a case to case basis by CERC/SERC to the extent of shortfall in the quantity indicated in the LoA/FSA and the CIL supply of domestic coal which would be minimum of 65%, 65%, 67% and 75% of LOA for the remaining four years of the 12th Plan for the already concluded PPAs based on tariff based competitive bidding. 5. The ERCs are advised to consider the request of individual power producers in this regard as per due process on a case to case basis in public interest. The Appropriate Commissions are requested to take immediate steps for the implementation of the above decision of the Government. This issues with the approval of MOS(P)I/C. Encl: as above Yours faithfully, Sd/- (V.Apparao) Director This is further reflected in the revised tariff policy dated 28th January, 2016, which in paragraph 1.1 states as under : 1.1 In compliance with Section 3 of the Electricity Act 2003, the Central Government notified the Tariff Policy on 6th January, 2006. Further amendments to the Tariff Policy were notified on 31st March, 2008, 20th January, 2011 and 8th July, 2011. In exercise of powers conferred under Section 3(3) of Electricity Act, 2003, the Central Government hereby notifies the revised Tariff Policy to be effective from the date of publication of the resolution in the Gazette of India. Notwithstanding anything done or any action taken or purported to have been done or taken under the provisions of the Tariff Policy notified on 6th January, 2006 and amendments made thereunder, shall, in so far as it is not inconsistent with this Policy, be deemed to have been done or taken under provisions of this revised policy. Clause 6.1 states: 6.1 Procurement of Power As stipulated in para 5.1, power procurement for future requirements should be through a transparent competitive bidding mechanism using the guidelines issued by the Central Government from time to time. These guidelines provide for procurement of electricity separately for base load requirements and for peak load requirements. This would facilitate setting up of generation capacities specifically for meeting such requirements. However, some of the competitively bid projects as per the guidelines dated 19th January, 2005 have experienced difficulties in getting the required quantity of coal from Coal India Limited (CIL). In case of reduced quantity of domestic coal supplied by CIL, vis-a-vis the assured quantity or quantity indicated in Letter of Assurance/FSA the cost of imported/market based e-auction coal procured for making up the shortfall, shall be considered for being made a pass through by Appropriate Commission on a case to case basis, as per advisory issued by Ministry of Power vide OM NO.FU-12/2011-IPC (Vol-III) dated 31.7.2013. Both the letter dated 31st July, 2013 and the revised tariff policy are statutory documents being issued under Section 3 of the Act and have the force of law. This being so, it is clear that so far as the procurement of Indian coal is concerned, to the extent that the supply from Coal India and other Indian sources is cut down, the PPA read with these documents provides in clause 13.2 that while determining the consequences of change in law, parties shall have due regard to the principle that the purpose of compensating the party affected by such change in law is to restore, through monthly tariff payments, the affected party to the economic position as if such change in law has not occurred. Further, for the operation period of the PPA, compensation for any increase/decrease in cost to the seller shall be determined and be effective from such date as decided by the Central Electricity Regulation Commission. This being the case, we are of the view that though change in Indonesian law would not qualify as a change in law under the guidelines read with the PPA, change in Indian law certainly would. 54. However, Shri Ramachandran, learned senior counsel for the appellants, argued that the policy dated 18th October, 2007 was announced even before the effective date of the PPAs, and made it clear to all generators that coal may not be given to the extent of the entire quantity allocated. We are afraid that we cannot accede to this argument for the reason that the change in law has only taken place only in 2013, which modifies the 2007 policy and to the extent that it does so, relief is available under the PPA itself to persons who source supply of coal from indigenous sources. It is to this limited extent that change in law is held in favour of the respondents. Certain other minor contentions that are raised on behalf of both sides are not being addressed by us for the reason that we find it unnecessary to go into the same.
### Response:
1
### Explanation:
that when they submitted their bids, this was a risk they knowingly took. We are of the view that the mere fact that the bid may bee does not mean that the respondents are precluded from raising the plea of frustration, if otherwise it is available in law and can be pleaded by them. But the fact that ae tariff has been paid for, for example, in the Adani case, is a factor which may be taken into account only to show that the risk of supplying electricity at the tariff indicated was upon the generating company43. First and foremost, the respondents are correct in stating that the force majeure clause does not exhaust the possibility of unforeseen events occurring outside natural and/orl events. But the thrust of their argument was really that so long as their performance is hindered by an unforeseen event, the clause applies45. We are, therefore, of the view that neither was the fundamental basis of the contract dislodged nor was any frustrating event, except for a rise in the price of coal, excluded by clause 12.4, pointed out. Alternative modes of performance were available, albeit at a higher price. This does not lead to the contract, as a whole, being frustrated. Consequently, we are of the view that neither clause 12.3 nor 12.7, referable to Section 32 of the Contract Act, will apply so as to enable the grant of compensatory tariff to the respondents. Dr. Singhvi, however, argued that even if clause 12 is held inapplicable, the law laid down on frustration under Section 56 will apply so as to give the respondents the necessary relief on the ground of force majeure. Having once held that clause 12.4 applies as a result of which rise in the price of fuel cannot be regarded as a force majeure event contractually, it is difficult to appreciate a submission that in the alternative Section 56 will apply. As has been held in particular, in the Satyabrata Ghose case, when a contract contains a force majeure clause which on construction by the Court is held attracted to the facts of the case, Section 56 can have no application. On this short ground, this alternative submission stands disposed ofFrom a reading of the above, it is clear that if otherwise the expression "anylaw"in clause 13when read with the definition of; and"Electricity Laws" leads unequivocally to the conclusion that it refers only to the law of India, it would be unsafe to rely upon the other clauses of the agreement where Indian law is specifically mentioned to negate this conclusionWe are afraid, we cannot agree with this argument. There are many PPAs entered into with different generators. Some generators may source fuel only from India. Others, as is the case in the Adani Haryana matter, would source fuel to the extent of 70% from India and 30% from abroad, whereas other generators, as in the case of Gujarat Adani and the Coastal case, would source coal wholly from abroad. The meaning of the expression "change inlaw"in clause 13cannot depend upon whether coal is sourced in a particular PPA from outside India or within India. The meaning will have to remain the same whether coal is sourced wholly in India, partly in India and partly from outside, or wholly from outside. This being the case, the meaning of the expression "anylaw"in clause 13cannot possibly be interpreted in the manner suggested by the respondents. English judgments and authorities were cited for the proposition that if performance of a contract is to be done in a foreign country, what would be relevant would be foreign law. This would be true as a general statement of law, but for the reason given above, would not apply to the PPAs in the present caseBoth the letter dated 31st July, 2013 and the revised tariff policy are statutory documents being issued under Section 3 of the Act and have the force of law. This being so, it is clear that so far as the procurement of Indian coal is concerned, to the extent that the supply from Coal India and other Indian sources is cut down, the PPA read with these documents providesin clause13.2that while determining the consequences of change in law, parties shall have due regard to the principle that the purpose of compensating the party affected by such change in law is to restore, through monthly tariff payments, the affected party to the economic position as if such change in law has not occurred. Further, for the operation period of the PPA, compensation for any increase/decrease in cost to the seller shall be determined and be effective from such date as decided by the Central Electricity Regulation Commission. This being the case, we are of the view that though change in Indonesian law would not qualify as a change in law under the guidelines read with the PPA, change in Indian law certainly wouldWe are afraid that we cannot accede to this argument for the reason that the change in law has only taken place only in 2013, which modifies the 2007 policy and to the extent that it does so, relief is available under the PPA itself to persons who source supply of coal from indigenous sources. It is to this limited extent that change in law is held in favour of the respondents. Certain other minor contentions that are raised on behalf of both sides are not being addressed by us for the reason that we find it unnecessary to go into the samesame.32. "Force majeure" is governed by the Indian Contract Act, 1872. In so far as it is relatable to an express or implied clause in a contract, such as the PPAs before us, it is governed by Chapter III dealing with the contingent contracts, and more particularly, Section 32 thereof. In so far as a force majeure event occurs de hors the contract, it is dealt with by a rule of positive law under Section 56 of the Contract.
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New India Assurance Company Limited Vs. Rajni Harshwardhan Sharma & Others | to prove the same. Thus, the statement of the employer Manoj Trivedi, that the statutory deduction of professional tax and TDS were deducted at the end of the year", has gone unchallenged. There is nothing on record to disbelieve the said statement, which has come in the cross-examination itself. It thus appears that the income of the deceased from salary was Rs.35,000/- per month. In light of the evidence of Manoj Trivedi that the TDS and Professional Tax were deducted at the end of the year and keeping in mind the ratio laid down in Vimal Kanwars case by the Apex Court, we do not find any merit in the submission of the learned counsel for the appellant, that the Tribunal has erred in not deducting the TDS and the Professional Tax, whilst quantifying the compensation. Even assuming that deduction of Income Tax ought to have been made from Rs.35,000/-for the purpose of calculating multiplicand, we must note here that the Tribunal has granted only 15% increase on account of further prospects of increase in earnings. Considering the fact that the deceased was a graduate from IIT, the said increase ought to have been more than 15%. Hence, taking overall view of the case, the Tribunal rightly held that the income of the deceased was Rs.35,000/- per month.19. The law regarding award of compensation in applications under Section 166 of the Motor Vehicles Act in fatal accident cases is well settled. The Apex Court in the case of Sarla Verma (Smt) and Others v/s Delhi Transport Corporation and Another, (2009) 6 SCC 121. has laid down the formula for Tribunals to calculate the compensation. It has also held that in cases of salaried persons additions have to be made depending upon the age of the deceased to the actual income of the deceased while computing future prospects. In Rajesh and Others v/s Rajbir Singh and Others, (2013) 9 SCC 54 , the Apex Court held that the formula set out in Sarla Vermas case, would also apply to cases, where the deceased was either self employed or on fixed wages, while computing future prospects.20. The Tribunal has rightly applied the said formula in arriving at the compensation. It has awarded 15% towards future prospects and after making the necessary deductions and applying the appropriate multiplicand; concluded that the respondent - claimants are entitled to compensation. The Tribunal has also rightly awarded compensation to the first and second respondents for loss of consortium and loss of love respectively and funeral expenses. We do not find any error or infirmity in the compensation awarded.21. The second submission of the learned counsel for the appellant is that the interest of 7.5% per annum which was granted on the said compensation was on the higher side and that the interest ought not to have exceeded 6% per annum, considering the interest rates prevalent now. The respondent - claimants although have not filed any cross appeal/cross objection, have filed an affidavit of the first respondent - claimant praying for dismissal of the appeal. The first respondent has stated in the affidavit that they are not in a position to file a cross appeal/objection, the same because of the huge debts and hardships that they have had to suffer. The respondents have prayed that this Court can by taking recourse to Order 41, Rule 33 of the Code of Civil Procedure, 1908 enhance the interest component, by directing the appellant to pay interest @ 9% p.a. from the date of the application, as the rate of the domestic term deposits at the time of the Award was 9% p.a. The first respondent has enclosed to her affidavit, a copy of the Circular issued by the Oriental Bank of Commerce in support of the same.22. We have perused the judgments of the Apex Court in this regard. The Apex Court in the case of Kaushnuma Begum (Smt) and Others v/s New India Assurance Company Limited and Others, (2001) 2 SCC 9 , noticed that the nationalised banks are granting interest @9% on fixed deposits for one year and held as follows :-"24. Now, we have to fix up the rate of interest. Section 171 of the MV Act empowers the Tribunal to direct that "in addition to the amount of compensation simple interest shall also be paid at such rate and from such date not earlier than the date of making the claim as may be specified in this behalf". Earlier, 12% was found to be the reasonable rate of simple interest. With a change in economy and the policy of Reserve Bank of India the interest rate has been lowered. The nationalised banks are now granting interest at the rate of 9% on fixed deposits for one year. We, therefore, direct that the compensation amount fixed hereinbefore shall bear interest at the rate of 9% per annum from the date of the claim made by the appellants. The amount of Rs.50,000 paid by the Insurance Company under Section 140 shall be deducted from the principal amount as on the date of its payment, and interest would be recalculated on the balance amount of the principal sum from such date."23. The Apex Court in Abati Bezbaruah v. Deputy Director General, Geological Survey of India & Another, (2003) 3 SCC 148 , noticed the varying rate of interest being awarded by the Tribunals, High Courts and Apex Court itself. In the said case, the Apex Court held that the rate of interest must be just and reasonable depending on the facts and circumstances of the case and should be decided after taking into consideration the relevant factors like inflation, change in economy, policy being adopted by the Reserve Bank of India from time to time, how long the case is pending, loss of enjoyment of life etc.24. In Supe Dei (Smt) and Others v. National Insurance Company Limited & Another, (2009) 4 SCC 513 , the Apex Court held that the proper interest would be 9% per annum. | 1[ds]18. Keeping in mind the aforesaid principle, the evidence and the salary certificate in the present case, show that the deceased was drawing a salary of Rs.35,000/per month. Manoj Trivedi, Proprietor of Tricon International in his cross examination has categorically stated that "the payments are made by cheques. The statutory deduction of professional tax and TDS is deducted at the end of the year". There is no further cross on this statement. There is no suggestion that the said statement is false nor is there any suggestion that no records have been produced by him to substantiate the said statement. Infact, in the absence of any suggestion challenging the veracity of the said statement, there was no occasion for the respondentclaimants to bring on record the documents to prove the same. Thus, the statement of the employer Manoj Trivedi, that the statutory deduction of professional tax and TDS were deducted at the end of the year", has gone unchallenged. There is nothing on record to disbelieve the said statement, which has come in theitself. It thus appears that the income of the deceased from salary was Rs.35,000/per month. In light of the evidence of Manoj Trivedi that the TDS and Professional Tax were deducted at the end of the year and keeping in mind the ratio laid down in Vimal Kanwars case by the Apex Court, we do not find any merit in the submission of the learned counsel for the appellant, that the Tribunal has erred in not deducting the TDS and the Professional Tax, whilst quantifying the compensation. Even assuming that deduction of Income Tax ought to have been made fromthe purpose of calculating multiplicand, we must note here that the Tribunal has granted only 15% increase on account of further prospects of increase in earnings. Considering the fact that the deceased was a graduate from IIT, the said increase ought to have been more than 15%. Hence, taking overall view of the case, the Tribunal rightly held that the income of the deceased was Rs.35,000/per month.19. The law regarding award of compensation in applications under Section 166 of the Motor Vehicles Act in fatal accident cases is well settled. The Apex Court in the case of Sarla Verma (Smt) and Others v/s Delhi Transport Corporation and Another, (2009) 6 SCC 121. has laid down the formula for Tribunals to calculate the compensation. It has also held that in cases of salaried persons additions have to be made depending upon the age of the deceased to the actual income of the deceased while computing future prospects. In Rajesh and Others v/s Rajbir Singh and Others, (2013) 9 SCC 54 , the Apex Court held that the formula set out in Sarla Vermas case, would also apply to cases, where the deceased was either self employed or on fixed wages, while computing future prospects.20. The Tribunal has rightly applied the said formula in arriving at the compensation. It has awarded 15% towards future prospects and after making the necessary deductions and applying the appropriate multiplicand; concluded that the respondentclaimants are entitled to compensation. The Tribunal has also rightly awarded compensation to the first and second respondents for loss of consortium and loss of love respectively and funeral expenses. We do not find any error or infirmity in the compensation awarded.The Apex Court in Abati Bezbaruah v. Deputy Director General, Geological Survey of IndiaAnother, (2003) 3 SCC 148 , noticed the varying rate of interest being awarded by the Tribunals, High Courts and Apex Court itself. In the said case, the Apex Court held that the rate of interest must be just and reasonable depending on the facts and circumstances of the case and should be decided after taking into consideration the relevant factors like inflation, change in economy, policy being adopted by the Reserve Bank of India from time to time, how long the case is pending, loss of enjoyment of life etc.24. In Supe Dei (Smt) and Others v. National Insurance Company LimitedAnother, (2009) 4 SCC 513 , the Apex Court held that the proper interest would be 9% per annum. | 1 | 4,006 | 761 | ### 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:
to prove the same. Thus, the statement of the employer Manoj Trivedi, that the statutory deduction of professional tax and TDS were deducted at the end of the year", has gone unchallenged. There is nothing on record to disbelieve the said statement, which has come in the cross-examination itself. It thus appears that the income of the deceased from salary was Rs.35,000/- per month. In light of the evidence of Manoj Trivedi that the TDS and Professional Tax were deducted at the end of the year and keeping in mind the ratio laid down in Vimal Kanwars case by the Apex Court, we do not find any merit in the submission of the learned counsel for the appellant, that the Tribunal has erred in not deducting the TDS and the Professional Tax, whilst quantifying the compensation. Even assuming that deduction of Income Tax ought to have been made from Rs.35,000/-for the purpose of calculating multiplicand, we must note here that the Tribunal has granted only 15% increase on account of further prospects of increase in earnings. Considering the fact that the deceased was a graduate from IIT, the said increase ought to have been more than 15%. Hence, taking overall view of the case, the Tribunal rightly held that the income of the deceased was Rs.35,000/- per month.19. The law regarding award of compensation in applications under Section 166 of the Motor Vehicles Act in fatal accident cases is well settled. The Apex Court in the case of Sarla Verma (Smt) and Others v/s Delhi Transport Corporation and Another, (2009) 6 SCC 121. has laid down the formula for Tribunals to calculate the compensation. It has also held that in cases of salaried persons additions have to be made depending upon the age of the deceased to the actual income of the deceased while computing future prospects. In Rajesh and Others v/s Rajbir Singh and Others, (2013) 9 SCC 54 , the Apex Court held that the formula set out in Sarla Vermas case, would also apply to cases, where the deceased was either self employed or on fixed wages, while computing future prospects.20. The Tribunal has rightly applied the said formula in arriving at the compensation. It has awarded 15% towards future prospects and after making the necessary deductions and applying the appropriate multiplicand; concluded that the respondent - claimants are entitled to compensation. The Tribunal has also rightly awarded compensation to the first and second respondents for loss of consortium and loss of love respectively and funeral expenses. We do not find any error or infirmity in the compensation awarded.21. The second submission of the learned counsel for the appellant is that the interest of 7.5% per annum which was granted on the said compensation was on the higher side and that the interest ought not to have exceeded 6% per annum, considering the interest rates prevalent now. The respondent - claimants although have not filed any cross appeal/cross objection, have filed an affidavit of the first respondent - claimant praying for dismissal of the appeal. The first respondent has stated in the affidavit that they are not in a position to file a cross appeal/objection, the same because of the huge debts and hardships that they have had to suffer. The respondents have prayed that this Court can by taking recourse to Order 41, Rule 33 of the Code of Civil Procedure, 1908 enhance the interest component, by directing the appellant to pay interest @ 9% p.a. from the date of the application, as the rate of the domestic term deposits at the time of the Award was 9% p.a. The first respondent has enclosed to her affidavit, a copy of the Circular issued by the Oriental Bank of Commerce in support of the same.22. We have perused the judgments of the Apex Court in this regard. The Apex Court in the case of Kaushnuma Begum (Smt) and Others v/s New India Assurance Company Limited and Others, (2001) 2 SCC 9 , noticed that the nationalised banks are granting interest @9% on fixed deposits for one year and held as follows :-"24. Now, we have to fix up the rate of interest. Section 171 of the MV Act empowers the Tribunal to direct that "in addition to the amount of compensation simple interest shall also be paid at such rate and from such date not earlier than the date of making the claim as may be specified in this behalf". Earlier, 12% was found to be the reasonable rate of simple interest. With a change in economy and the policy of Reserve Bank of India the interest rate has been lowered. The nationalised banks are now granting interest at the rate of 9% on fixed deposits for one year. We, therefore, direct that the compensation amount fixed hereinbefore shall bear interest at the rate of 9% per annum from the date of the claim made by the appellants. The amount of Rs.50,000 paid by the Insurance Company under Section 140 shall be deducted from the principal amount as on the date of its payment, and interest would be recalculated on the balance amount of the principal sum from such date."23. The Apex Court in Abati Bezbaruah v. Deputy Director General, Geological Survey of India & Another, (2003) 3 SCC 148 , noticed the varying rate of interest being awarded by the Tribunals, High Courts and Apex Court itself. In the said case, the Apex Court held that the rate of interest must be just and reasonable depending on the facts and circumstances of the case and should be decided after taking into consideration the relevant factors like inflation, change in economy, policy being adopted by the Reserve Bank of India from time to time, how long the case is pending, loss of enjoyment of life etc.24. In Supe Dei (Smt) and Others v. National Insurance Company Limited & Another, (2009) 4 SCC 513 , the Apex Court held that the proper interest would be 9% per annum.
### Response:
1
### Explanation:
18. Keeping in mind the aforesaid principle, the evidence and the salary certificate in the present case, show that the deceased was drawing a salary of Rs.35,000/per month. Manoj Trivedi, Proprietor of Tricon International in his cross examination has categorically stated that "the payments are made by cheques. The statutory deduction of professional tax and TDS is deducted at the end of the year". There is no further cross on this statement. There is no suggestion that the said statement is false nor is there any suggestion that no records have been produced by him to substantiate the said statement. Infact, in the absence of any suggestion challenging the veracity of the said statement, there was no occasion for the respondentclaimants to bring on record the documents to prove the same. Thus, the statement of the employer Manoj Trivedi, that the statutory deduction of professional tax and TDS were deducted at the end of the year", has gone unchallenged. There is nothing on record to disbelieve the said statement, which has come in theitself. It thus appears that the income of the deceased from salary was Rs.35,000/per month. In light of the evidence of Manoj Trivedi that the TDS and Professional Tax were deducted at the end of the year and keeping in mind the ratio laid down in Vimal Kanwars case by the Apex Court, we do not find any merit in the submission of the learned counsel for the appellant, that the Tribunal has erred in not deducting the TDS and the Professional Tax, whilst quantifying the compensation. Even assuming that deduction of Income Tax ought to have been made fromthe purpose of calculating multiplicand, we must note here that the Tribunal has granted only 15% increase on account of further prospects of increase in earnings. Considering the fact that the deceased was a graduate from IIT, the said increase ought to have been more than 15%. Hence, taking overall view of the case, the Tribunal rightly held that the income of the deceased was Rs.35,000/per month.19. The law regarding award of compensation in applications under Section 166 of the Motor Vehicles Act in fatal accident cases is well settled. The Apex Court in the case of Sarla Verma (Smt) and Others v/s Delhi Transport Corporation and Another, (2009) 6 SCC 121. has laid down the formula for Tribunals to calculate the compensation. It has also held that in cases of salaried persons additions have to be made depending upon the age of the deceased to the actual income of the deceased while computing future prospects. In Rajesh and Others v/s Rajbir Singh and Others, (2013) 9 SCC 54 , the Apex Court held that the formula set out in Sarla Vermas case, would also apply to cases, where the deceased was either self employed or on fixed wages, while computing future prospects.20. The Tribunal has rightly applied the said formula in arriving at the compensation. It has awarded 15% towards future prospects and after making the necessary deductions and applying the appropriate multiplicand; concluded that the respondentclaimants are entitled to compensation. The Tribunal has also rightly awarded compensation to the first and second respondents for loss of consortium and loss of love respectively and funeral expenses. We do not find any error or infirmity in the compensation awarded.The Apex Court in Abati Bezbaruah v. Deputy Director General, Geological Survey of IndiaAnother, (2003) 3 SCC 148 , noticed the varying rate of interest being awarded by the Tribunals, High Courts and Apex Court itself. In the said case, the Apex Court held that the rate of interest must be just and reasonable depending on the facts and circumstances of the case and should be decided after taking into consideration the relevant factors like inflation, change in economy, policy being adopted by the Reserve Bank of India from time to time, how long the case is pending, loss of enjoyment of life etc.24. In Supe Dei (Smt) and Others v. National Insurance Company LimitedAnother, (2009) 4 SCC 513 , the Apex Court held that the proper interest would be 9% per annum.
|
Brundaban Nayak Vs. Election Commission Of India And Another | leave it to the Election Commission to decide the matter, though the decision as such would formally be pronounced in the name of the Governor. When the Governor pronounces his decision under Article 192(1), he is not required to consult his Council of Ministers; he is not even required to consider and decide the matter himself, he has merely to forward the question to the Election Commission for its opinion, and as soon as the opinion is received, "he shall act according to such opinion". In regard to complaints made against the election of members to the legislative Assembly, the jurisdiction, to decide such complaints is left with the Election Tribunal under the relevant provisions of the Act. That means that all allegations made challenging the validity of the election of any member, have to be tried by the Election Tribunals constituted by the Election Commission. 17. Similarly, all complaints in respect of disqualifications subsequently incurred by members who have been validly elected, have, in substance, to be tried by the Election Commission, though the decision in form has to be pronounced by the Governor. If this scheme of Art. 192(1) and (2) is borne in mind, there would be no difficulty in rejecting Mr. Setalvads contention that the enquiry must be held by the Governor. It is the opinion of the Election Commission which is in substance decisive; and it is legitimate to assume that when the complaint is received by the Governor, and he forwards it to the Election Commission, and the Election Commission should proceed to try the complaint before it gives its opinion. Therefore, we are satisfied that respondent No. 1 acted within its jurisdiction when it served a notice on the appellant calling upon him to file his statement and produce his evidence in support thereof. 18. Mr. Setalvad faintly attempted to argue that the failure of respondent No. 1 to furnish the appellant with a copy of the complaint made by respondent No. 2 before the Governor and of the order of reference passed by the Governor forwarding the said complaint to respondent No. 1, rendered the proceedings before respondent No. 1 illegal. This contention is plainly misconceived. As soon as respondent No. 1 received the complaint and the order of reference which was communicated to it by the Chief Secretary to the Government of Orissa, it was seized of the matter and it was plainly acting within its jurisdiction under Art. 192(2) when it served the notice on the appellant. As we have already indicated, it was through oversight that the two documents were not forwarded to the appellant along with the notice, but that cannot in any sense affect the jurisdiction of respondent No. 1 to hold the enquiry. In fact, as respondent No. 2 has pointed out in his affidavit, the fact that a reference had been made by the Governor to respondent No. 1 was known all over the State, and it is futile for the appellant to suggest that when he received the notice from respondent No. 1, he did not know that a complaint had been made against him to the Governor alleging that subsequent to his election, he had incurred a disqualification as contemplated by Art. 191(1)(e) of the Constitution read with S. 7(d) of the Act. It would have been better if the appellant had not raised such a plea in the present proceedings. 19. In this connection, we ought to point out that so far the practice followed in respect. of such complaints has consistently recognised that the enquiry is to be held by the Election Commission both under Art,192(2) and Art.103(2). In fact, the learned Attorney General for respondent No.1 stated before us that though on several occasions, the Election Commission has held enquiries before communicating its opinion either to the President under Art,103(2) or to the Governor under Art. 192(2), no one ever thought of raising the contention that the enquiry must be held by the President or the Governor respectively under Art.103(1) and Art.192(1). He suggested that the main object of the appellant in taking such a plea was to prolong the proceedings before respondent No. 1. In the first instance, the appellant asked for a long adjournment and when that request was refused by respondent No. 1, he adopted the present proceedings solely with the object of avoiding an early decision by the Governor on the complaint made against the appellant by respondent No. 2. We cannot say that there is no substance in this suggestion. 20. There is one more point to which we may refer before we part with this appeal. Our attention was drawn by the learned Attorney-General to the observations made by the Chief Election Commissioner when he rendered his opinion to the Governor on May. 30, 1964, on a similar question under Art, 192(2) in respect of the alleged disqualification of Mr. Biren Mitra, a member of the Orissa Legislative Assembly. "Where, as in the present cases", observed the Chief Elction Commissioner, the relevant facts are in dispute and can only be ascertained after a proper enquiry, the Commission finds itself in the unsatisfactory position of having to give a decisive opinion on the basis of such affidavits and documents as may be produced before it by interested parties. It is desirable that the Election Commission should be vested with the powers of a commission under the Commissions of Enquiry Act, 1952, such as the power to summon witnesses and examine them on oath, the power to compel the production of documents, and the power to issue commissions for the examination of witnesses". 21. We would like, to invite the attention of Parliament to these observations, because we think that the difficulty experienced by the Election Commission in rendering its opinion under Art,103(2) or Art,192(2) appears to be genuine, and so, Parliament may well consider whether the suggestion made by the Chief Election Commissioner should not be accepted and appropriate legislation adopted in that behalf. 22. | 0[ds]It is well settled that the disqualification to which Art. 191(1) refers, must be incurred subsequent to the election of the member. This conclusion follows from the provisions of Art. 190(3)(a). This Article refers to the vacation of seats by members duly elected, Sub-article (3)(a) provides that if a member of a House of the Legislature of a State becomes subject to any of the disqualifications mentioned in clause (1) of Art.191, his seat shall thereupon become vacant12. We are not impressed by these arguments. It is significant that the first clause of Art. 192(1) does not permit of any limitations such as Mr. Setalvad suggests. What the said clause requires is that a question should arise; how it arises, by whom it is raised, in what circumstances it is raised, are not relevant for the purpose of the application of this clause. All that is relevant is that a question of the type mentioned by the clause should arise; and so, the limitation which Mr. Setalvad seeks to introduce in the construction of the first part of Art. 192(1) is plainly inconsistent with the words used in the said clause14. It is true that Art.192(2) requires that whenever a question arises as to the subsequent disqualification of a member of the Legislative Assembly, it has to be forwarded by the Governor to the Election Commission for its opinion. It is conceivable that in some cases, compliants made to the Governor may be frivolous or fantastic; but if they are of such a character, the Election Commission will find no difficulty in expressing its opinion that they should be rejected straightaway. The object of Art. 192 is plain. No person who has incurred any of the disqualifications specified by Art. 191(1), is entitled to continue to be a member of the Legislative Assembly of a State, and since the obligation to vacate his seat as a result of his subsequent disqualification has been imposed by the Constitution itself by Art. 190 (3) (a), there should be no difficulty in holding that any citizen is entitled to make a complaint to the Governor alleging that any member of the Legislative Assembly has incurred one of the disqualifications mentioned in Art.191(1) and should, therefore, vacate his seat. The whole object of democratic elections is to constitute legislative chambers composed of members who are entitled to that status, and if any member forfeits that status by reason of a subsequent disqualification, it is in the interests of the constituency which such a member represents that the matter should be brought to the notice of the Governor and decided by him in accordance with the provisions of Art. 192(2). Therefore, we must reject Mr. Setalvads argument that a question has not arisen in the present proceedings as required by Art. 192(1)the scheme of Article 192(1) and (2) is absolutely clear. The decision on the question raised under Art. 192(1) has no doubt to be pronounced by the Governor, but that decision has to be in accordance with the opinion of the Election Commission. The object of this provision clearly is to leave it to the Election Commission to decide the matter, though the decision as such would formally be pronounced in the name of the Governor. When the Governor pronounces his decision under Article 192(1), he is not required to consult his Council of Ministers; he is not even required to consider and decide the matter himself, he has merely to forward the question to the Election Commission for its opinion, and as soon as the opinion is received, "he shall act according to such opinion". In regard to complaints made against the election of members to the legislative Assembly, the jurisdiction, to decide such complaints is left with the Election Tribunal under the relevant provisions of the Act. That means that all allegations made challenging the validity of the election of any member, have to be tried by the Election Tribunals constituted by the ElectionCommission.Similarly, all complaints in respect of disqualifications subsequently incurred by members who have been validly elected, have, in substance, to be tried by the Election Commission, though the decision in form has to be pronounced by the Governor. If this scheme of Art. 192(1) and (2) is borne in mind, there would be no difficulty in rejecting Mr. Setalvads contention that the enquiry must be held by the Governor. It is the opinion of the Election Commission which is in substance decisive; and it is legitimate to assume that when the complaint is received by the Governor, and he forwards it to the Election Commission, and the Election Commission should proceed to try the complaint before it gives its opinion. Therefore, we are satisfied that respondent No. 1 acted within its jurisdiction when it served a notice on the appellant calling upon him to file his statement and produce his evidence in support thereofIt is desirable that the Election Commission should be vested with the powers of a commission underthe Commissions of Enquiry Act, 1952, such as the power to summon witnesses and examine them on oath, the power to compel the production of documents, and the power to issue commissions for the examination of witnesses".We would like, to invite the attention of Parliament to these observations, because we think that the difficulty experienced by the Election Commission in rendering its opinion under Art,103(2) or Art,192(2) appears to be genuine, and so, Parliament may well consider whether the suggestion made by the Chief Election Commissioner should not be accepted and appropriate legislation adopted in that behalf. | 0 | 4,573 | 1,081 | ### 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:
leave it to the Election Commission to decide the matter, though the decision as such would formally be pronounced in the name of the Governor. When the Governor pronounces his decision under Article 192(1), he is not required to consult his Council of Ministers; he is not even required to consider and decide the matter himself, he has merely to forward the question to the Election Commission for its opinion, and as soon as the opinion is received, "he shall act according to such opinion". In regard to complaints made against the election of members to the legislative Assembly, the jurisdiction, to decide such complaints is left with the Election Tribunal under the relevant provisions of the Act. That means that all allegations made challenging the validity of the election of any member, have to be tried by the Election Tribunals constituted by the Election Commission. 17. Similarly, all complaints in respect of disqualifications subsequently incurred by members who have been validly elected, have, in substance, to be tried by the Election Commission, though the decision in form has to be pronounced by the Governor. If this scheme of Art. 192(1) and (2) is borne in mind, there would be no difficulty in rejecting Mr. Setalvads contention that the enquiry must be held by the Governor. It is the opinion of the Election Commission which is in substance decisive; and it is legitimate to assume that when the complaint is received by the Governor, and he forwards it to the Election Commission, and the Election Commission should proceed to try the complaint before it gives its opinion. Therefore, we are satisfied that respondent No. 1 acted within its jurisdiction when it served a notice on the appellant calling upon him to file his statement and produce his evidence in support thereof. 18. Mr. Setalvad faintly attempted to argue that the failure of respondent No. 1 to furnish the appellant with a copy of the complaint made by respondent No. 2 before the Governor and of the order of reference passed by the Governor forwarding the said complaint to respondent No. 1, rendered the proceedings before respondent No. 1 illegal. This contention is plainly misconceived. As soon as respondent No. 1 received the complaint and the order of reference which was communicated to it by the Chief Secretary to the Government of Orissa, it was seized of the matter and it was plainly acting within its jurisdiction under Art. 192(2) when it served the notice on the appellant. As we have already indicated, it was through oversight that the two documents were not forwarded to the appellant along with the notice, but that cannot in any sense affect the jurisdiction of respondent No. 1 to hold the enquiry. In fact, as respondent No. 2 has pointed out in his affidavit, the fact that a reference had been made by the Governor to respondent No. 1 was known all over the State, and it is futile for the appellant to suggest that when he received the notice from respondent No. 1, he did not know that a complaint had been made against him to the Governor alleging that subsequent to his election, he had incurred a disqualification as contemplated by Art. 191(1)(e) of the Constitution read with S. 7(d) of the Act. It would have been better if the appellant had not raised such a plea in the present proceedings. 19. In this connection, we ought to point out that so far the practice followed in respect. of such complaints has consistently recognised that the enquiry is to be held by the Election Commission both under Art,192(2) and Art.103(2). In fact, the learned Attorney General for respondent No.1 stated before us that though on several occasions, the Election Commission has held enquiries before communicating its opinion either to the President under Art,103(2) or to the Governor under Art. 192(2), no one ever thought of raising the contention that the enquiry must be held by the President or the Governor respectively under Art.103(1) and Art.192(1). He suggested that the main object of the appellant in taking such a plea was to prolong the proceedings before respondent No. 1. In the first instance, the appellant asked for a long adjournment and when that request was refused by respondent No. 1, he adopted the present proceedings solely with the object of avoiding an early decision by the Governor on the complaint made against the appellant by respondent No. 2. We cannot say that there is no substance in this suggestion. 20. There is one more point to which we may refer before we part with this appeal. Our attention was drawn by the learned Attorney-General to the observations made by the Chief Election Commissioner when he rendered his opinion to the Governor on May. 30, 1964, on a similar question under Art, 192(2) in respect of the alleged disqualification of Mr. Biren Mitra, a member of the Orissa Legislative Assembly. "Where, as in the present cases", observed the Chief Elction Commissioner, the relevant facts are in dispute and can only be ascertained after a proper enquiry, the Commission finds itself in the unsatisfactory position of having to give a decisive opinion on the basis of such affidavits and documents as may be produced before it by interested parties. It is desirable that the Election Commission should be vested with the powers of a commission under the Commissions of Enquiry Act, 1952, such as the power to summon witnesses and examine them on oath, the power to compel the production of documents, and the power to issue commissions for the examination of witnesses". 21. We would like, to invite the attention of Parliament to these observations, because we think that the difficulty experienced by the Election Commission in rendering its opinion under Art,103(2) or Art,192(2) appears to be genuine, and so, Parliament may well consider whether the suggestion made by the Chief Election Commissioner should not be accepted and appropriate legislation adopted in that behalf. 22.
### Response:
0
### Explanation:
It is well settled that the disqualification to which Art. 191(1) refers, must be incurred subsequent to the election of the member. This conclusion follows from the provisions of Art. 190(3)(a). This Article refers to the vacation of seats by members duly elected, Sub-article (3)(a) provides that if a member of a House of the Legislature of a State becomes subject to any of the disqualifications mentioned in clause (1) of Art.191, his seat shall thereupon become vacant12. We are not impressed by these arguments. It is significant that the first clause of Art. 192(1) does not permit of any limitations such as Mr. Setalvad suggests. What the said clause requires is that a question should arise; how it arises, by whom it is raised, in what circumstances it is raised, are not relevant for the purpose of the application of this clause. All that is relevant is that a question of the type mentioned by the clause should arise; and so, the limitation which Mr. Setalvad seeks to introduce in the construction of the first part of Art. 192(1) is plainly inconsistent with the words used in the said clause14. It is true that Art.192(2) requires that whenever a question arises as to the subsequent disqualification of a member of the Legislative Assembly, it has to be forwarded by the Governor to the Election Commission for its opinion. It is conceivable that in some cases, compliants made to the Governor may be frivolous or fantastic; but if they are of such a character, the Election Commission will find no difficulty in expressing its opinion that they should be rejected straightaway. The object of Art. 192 is plain. No person who has incurred any of the disqualifications specified by Art. 191(1), is entitled to continue to be a member of the Legislative Assembly of a State, and since the obligation to vacate his seat as a result of his subsequent disqualification has been imposed by the Constitution itself by Art. 190 (3) (a), there should be no difficulty in holding that any citizen is entitled to make a complaint to the Governor alleging that any member of the Legislative Assembly has incurred one of the disqualifications mentioned in Art.191(1) and should, therefore, vacate his seat. The whole object of democratic elections is to constitute legislative chambers composed of members who are entitled to that status, and if any member forfeits that status by reason of a subsequent disqualification, it is in the interests of the constituency which such a member represents that the matter should be brought to the notice of the Governor and decided by him in accordance with the provisions of Art. 192(2). Therefore, we must reject Mr. Setalvads argument that a question has not arisen in the present proceedings as required by Art. 192(1)the scheme of Article 192(1) and (2) is absolutely clear. The decision on the question raised under Art. 192(1) has no doubt to be pronounced by the Governor, but that decision has to be in accordance with the opinion of the Election Commission. The object of this provision clearly is to leave it to the Election Commission to decide the matter, though the decision as such would formally be pronounced in the name of the Governor. When the Governor pronounces his decision under Article 192(1), he is not required to consult his Council of Ministers; he is not even required to consider and decide the matter himself, he has merely to forward the question to the Election Commission for its opinion, and as soon as the opinion is received, "he shall act according to such opinion". In regard to complaints made against the election of members to the legislative Assembly, the jurisdiction, to decide such complaints is left with the Election Tribunal under the relevant provisions of the Act. That means that all allegations made challenging the validity of the election of any member, have to be tried by the Election Tribunals constituted by the ElectionCommission.Similarly, all complaints in respect of disqualifications subsequently incurred by members who have been validly elected, have, in substance, to be tried by the Election Commission, though the decision in form has to be pronounced by the Governor. If this scheme of Art. 192(1) and (2) is borne in mind, there would be no difficulty in rejecting Mr. Setalvads contention that the enquiry must be held by the Governor. It is the opinion of the Election Commission which is in substance decisive; and it is legitimate to assume that when the complaint is received by the Governor, and he forwards it to the Election Commission, and the Election Commission should proceed to try the complaint before it gives its opinion. Therefore, we are satisfied that respondent No. 1 acted within its jurisdiction when it served a notice on the appellant calling upon him to file his statement and produce his evidence in support thereofIt is desirable that the Election Commission should be vested with the powers of a commission underthe Commissions of Enquiry Act, 1952, such as the power to summon witnesses and examine them on oath, the power to compel the production of documents, and the power to issue commissions for the examination of witnesses".We would like, to invite the attention of Parliament to these observations, because we think that the difficulty experienced by the Election Commission in rendering its opinion under Art,103(2) or Art,192(2) appears to be genuine, and so, Parliament may well consider whether the suggestion made by the Chief Election Commissioner should not be accepted and appropriate legislation adopted in that behalf.
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TRANSMISSION CORPORATION OF ANDHRA PRADESH LIMITED Vs. EQUIPMENT CONDUCTORS AND CABLES LIMITED | of the aforesaid conditions is lacking, the application would have to be rejected. Apart from the above, the adjudicating authority must follow the mandate of Section 9, as outlined above, and in particular the mandate of Section 9(5) of the Act, and admit or reject the application, as the case may be, depending upon the factors mentioned in Section 9(5) of the Act. xx xx xx 37. It is now important to construe Section 8 of the Code. The operational creditors are those creditors to whom an operational debt is owed, and an operational debt, in turn, means a claim in respect of the provision of goods or services, including employment, or a debt in respect of repayment of dues arising under any law for the time being in force and payable to the Government or to a local authority. This has to be contrasted with financial debts that may be owed to financial creditors, which was the subject- matter of the judgment delivered by this Court on 31-8- 2017 in Innoventive Industries Ltd. v. ICICI Bank (Civil Appeals Nos. 8337-38 of 2017). In this judgment, we had held that the adjudicating authority under Section 7 of the Code has to ascertain the existence of a default from the records of the information utility or on the basis of evidence furnished by the financial creditor within 14 days. The corporate debtor is entitled to point out to the adjudicating authority that a default has not occurred; in the sense that a debt, which may also include a disputed claim, is not due i.e. it is not payable in law or in fact. This Court then went on to state: (SCC p. 440, paras 29-30) 29. The scheme of Section 7 stands in contrast with the scheme under Section 8 where an operational creditor is, on the occurrence of a default, to first deliver a demand notice of the unpaid debt to the operational debtor in the manner provided in Section 8(1) of the Code. Under Section 8(2), the corporate debtor can, within a period of 10 days of receipt of the demand notice or copy of the invoice mentioned in sub-section (1), bring to the notice of the operational creditor the existence of a dispute or the record of the pendency of a suit or arbitration proceedings, which is pre-existing — i.e. before such notice or invoice was received by the corporate debtor. The moment there is existence of such a dispute, the operational creditor gets out of the clutches of the Code. 30. On the other hand, as we have seen, in the case of a corporate debtor who commits a default of a financial debt, the adjudicating authority has merely to see the records of the information utility or other evidence produced by the financial creditor to satisfy itself that a default has occurred. It is of no matter that the debt is disputed so long as the debt is due i.e. payable unless interdicted by some law or has not yet become due in the sense that it is payable at some future date. It is only when this is proved to the satisfaction of the adjudicating authority that the adjudicating authority may reject an application and not otherwise. xx xx xx 42. This being the case, is it not open to the adjudicating authority to then go into whether a dispute does or does not exist? 43. It is important to notice that Section 255 read with the Eleventh Schedule of the Code has amended Section 271 of the Companies Act, 2013 so that a company being unable to pay its debts is no longer a ground for winding up a company. The old law contained inMadhusudan has, therefore, disappeared with the disappearance of this ground in Section 271 of the Companies Act. 44. We have already noticed that in the first Insolvency and Bankruptcy Bill, 2015 that was annexed to the Bankruptcy Law Reforms Committee Report, Section 5(4) defined dispute as meaning a bona fide suit or arbitration proceedings…. In its present avatar, Section 5(6) excludes the expression bona fide which is of significance. Therefore, it is difficult to import the expression bona fide into Section 8(2)(a) in order to judge whether a dispute exists or not. 45. The expression existence has been understood as follows: Shorter Oxford English Dictionary gives the following meaning of the word existence: (a) Reality, as opp. to appearance. (b) The fact or state of existing; actual possession of being. Continued being as a living creature, life, esp. under adverse conditions. Something that exists; an entity, a being. All that exists. (P. 894, Oxford English Dictionary) xx xx xx 51. It is clear, therefore, that once the operational creditor has filed an application, which is otherwise complete, the adjudicating authority must reject the application under Section 9(5)(2)(d) if notice of dispute has been received by the operational creditor or there is a record of dispute in the information utility. It is clear that such notice must bring to the notice of the operational creditor the existence of a dispute or the fact that a suit or arbitration proceeding relating to a dispute is pending between the parties. Therefore, all that the adjudicating authority is to see at this stage is whether there is a plausible contention which requires further investigation and that the dispute is not a patently feeble legal argument or an assertion of fact unsupported by evidence. It is important to separate the grain from the chaff and to reject a spurious defence which is mere bluster. However, in doing so, the Court does not need to be satisfied that the defence is likely to succeed. The Court does not at this stage examine the merits of the dispute except to the extent indicated above. So long as a dispute truly exists in fact and is not spurious, hypothetical or illusory, the adjudicating authority has to reject the application. The aforesaid principle squarely applied to the present case. | 1[ds]13. The NCLAT has not discussed the merits of the case and also not stated how the amount is payable to the respondent in spite of the aforesaid events which were noted by the NCLT as well. Notwithstanding, it has given wielded threat to the appellant by giving a one chance, to settle the claim with the appellant (respondent herein), failing which this Appellate Tribunal may pass appropriate orders on merit. It has also stated that though the matter is posted for admission on the next date, the appeal would be disposed of at the stage of admission itself. There is a clear message in the aforesaid order directing the appellant to pay the amount to the respondent, failing which CIRP shall be initiated against the appellant14. The only argument advanced by learned counsel for the respondent before this Court was that the High Court of Punjab and Haryana while setting aside the remand order passed by the Additional District Judge did not hold that Invoice Nos.7 are time barred. Therefore, the respondent had a valid claim under those invoices. This argument cannot be countenanced. As of today, there is no award of the Arbitral Council with respect to invoices at Sl. Nos.. There is no order of any other court as well qua these invoices. In fact, Arbitral Council specifically rejected the claim of the respondent as time barred. It is pertinent to mention that respondent had moved an application before the Arbitral Council for determination of amount to be paid by the appellant. However, this application was specifically dismissed by the Arbitral Council as not maintainable15. In a recent judgment of this Court in Mobilox Innovations Private Limited vs. Kirusa Software Private Limited(2018) 1 SCC 353 , this Court has categorically laid down that IBC is not intended to be substitute to a recovery forum. It is also laid down that whenever there is existence of real dispute, the IBC provisions cannot beinvoked. We would like to reproduce the following discussion from the said judgment:33. The scheme under Sections 8 and 9 of the Code, appears to be that an operational creditor, as defined, may, on the occurrence of a default (i.e. ont of a debt, any part whereof has become due and payable and has not been repaid), deliver a demand notice of such unpaid operational debt or deliver the copy of an invoice demanding payment of such amount to the corporate debtor in the form set out in Rule 5 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 read with Form 3 or 4, as the case may be [Section 8(1)]. Within a period of 10 days of the receipt of such demand notice or copy of invoice, the corporate debtor must bring to the notice of the operational creditor the existence of a dispute and/or the record of the pendency of a suit or arbitration proceeding filed before the receipt of such notice or invoice in relation to such dispute [Section 8(2)(a)]. What is important is that the existence of the dispute and/or the suit or arbitration proceeding must beg i.e. it must exist before the receipt of the demand notice or invoice, as the case may be. In case the unpaid operational debt has been repaid, the corporate debtor shall within a period of thee 10 days send an attested copy of the record of the electronic transfer of the unpaid amount from the bank account of the corporate debtor or send an attested copy of the record that the operational creditor has encashed a cheque or otherwise received payment from the corporate debtor [Section 8(2) (b)]. It is only if, after the expiry of the period of the said 10 days, the operational creditor does not either receive payment from the corporate debtor or notice of dispute, that the operational creditor may trigger the insolvency process by filing an application before the adjudicating authority under Sections 9(1) and 9(2). This application is to be filed under Rule 6 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 in Form 5, accompanied with documents and records that are required under the said form. Under Rule 6(2), the applicant is to dispatch by registered post or speed post, a copy of the application to the registered office of the corporate debtor. Under Section 9(3), along with the application, the statutory requirement is to furnish a copy of the invoice or demand notice, an affidavit to the effect that there is no notice given by the corporate debtor relating to a dispute of the unpaid operational debt and a copy of the certificate from the financial institution maintaining accounts of the operational creditor confirming that there is no payment of an unpaid operational debt by the corporate debtor. Apart from this information, the other information required under Form 5 is also to be given. Once this is done, the adjudicating authority may either admit the application or reject it. If the application made under subsection (2) is incomplete, the adjudicating authority, under the proviso ton (5), may give a notice to the applicant to rectify defects within 7 days of the receipt of the notice from the adjudicating authority to make the application complete. Once this is done, and the adjudicating authority finds that either there is no repayment of the unpaid operational debt after the invoice [Section 9(5)(i)(b)] or the invoice or notice of payment to the corporate debtor has been delivered by the operational creditor [Section 9(5)(i)(c)], or that no notice of dispute has been received by the operational creditor from the corporate debtor or that there is no record of such dispute in the information utility [Section 9(5)(i)(d)], or that there is no disciplinary proceeding pending against any resolution professional proposed by the operational creditor [Section 9(5)(i)(e)], it shall admit the application within 14 days of the receipt of the application, after which the corporate insolvency resolution process gets triggered. On the other hand, the adjudicating authority shall, within 14 days of the receipt of an application by the operational creditor, reject such application if the application is incomplete and has not been completed within the period of 7 days granted by the proviso [Section 9(5)(ii)(a)]. It may also reject the application where there has been repayment of the operational debt [Section 9(5)(ii)(b)], or the creditor has not delivered the invoice or notice for payment to the corporate debtor [Section 9(5)(ii)(c)]. It may also reject the application if the notice of dispute has been received by the operational creditor or there is a record of dispute in the information utility [Section 9(5)(ii)(d)]. Section 9(5)(ii)(d) refers to the notice of an existing dispute that has so been received, as it must be read with Section 8(2)(a). Also, if any disciplinary proceeding is pending against any proposed resolution professional, the application may be rejected [Section 9(5)(ii)(e)]34. Therefore, the adjudicating authority, when examining an application under Section 9 of the Act will have to determine:(i) Whether there is an operational debt as defined exceeding Rs 1 lakh? (See Section 4 of the Act)(ii) Whether the documentary evidence furnished with the application shows that the aforesaid debt is due and payable and has not yet been paid? and(iii) Whether there is existence of a dispute between the parties or the record of the pendency of a suit or arbitration proceeding filed before the receipt of the demand notice of the unpaid operational debt in relation to such dispute?If any one of the aforesaid conditions is lacking, the application would have to be rejected. Apart from the above, the adjudicating authority must follow the mandate of Section 9, as outlined above, and in particular the mandate of Section 9(5) of the Act, and admit or reject the application, as the case may be, depending upon the factors mentioned in Section 9(5) of the Act37. It is now important to construe Section 8 of the Code. The operational creditors are those creditors to whom an operational debt is owed, and an operational debt, in turn, means a claim in respect of the provision of goods or services, including employment, or a debt in respect of repayment of dues arising under any law for the time being in force and payable to the Government or to a local authority. This has to be contrasted with financial debts that may be owed to financial creditors, which was the subjectmatter of the judgment delivered by this Court on2017 in Innoventive Industries Ltd. v. ICICI Bank (Civil Appeals Nos.29. The scheme of Section 7 stands in contrast with the scheme under Section 8 where an operational creditor is, on the occurrence of a default, to first deliver a demand notice of the unpaid debt to the operational debtor in the manner provided in Section 8(1) of the Code. Under Section 8(2), the corporate debtor can, within a period of 10 days of receipt of the demand notice or copy of the invoice mentioned inn (1), bring to the notice of the operational creditor the existence of a dispute or the record of the pendency of a suit or arbitration proceedings, which isg — i.e. before such notice or invoice was received by the corporate debtor. The moment there is existence of such a dispute, the operational creditor gets out of the clutches of the Code30. On the other hand, as we have seen, in the case of a corporate debtor who commits a default of a financial debt, the adjudicating authority has merely to see the records of the information utility or other evidence produced by the financial creditor to satisfy itself that a default has occurred. It is of no matter that the debt is disputed so long as the debt is due i.e. payable unless interdicted by some law or has not yet become due in the sense that it is payable at some future date. It is only when this is proved to the satisfaction of the adjudicating authority that the adjudicating authority may reject an application and not otherwise42. This being the case, is it not open to the adjudicating authority to then go into whether a dispute does or does not exist?43. It is important to notice that Section 255 read with the Eleventh Schedule of the Code has amended Section 271 of the Companies Act, 2013 so that a company being unable to pay its debts is no longer a ground for winding up a company. The old law contained inMadhusudan has, therefore, disappeared with the disappearance of this ground in Section 271 of the Companies Act44. We have already noticed that in the first Insolvency and Bankruptcy Bill, 2015 that was annexed to the Bankruptcy Law Reforms Committee Report, Section 5(4) defined dispute as meaning a bona fide suit or arbitration proceedings…. In its present avatar, Section 5(6) excludes the expression bona fide which is of significance. Therefore, it is difficult to import the expression bona fide into Section 8(2)(a) in order to judge whether a dispute exists or not45. The expression existence has been understood as follows:Shorter Oxford English Dictionary gives the following meaning of the word existence:(a) Reality, as opp. to appearance(b) The fact or state of existing; actual possession of being. Continued being as a living creature, life, esp. under adverse conditionsSomething that exists; an entity, a being. All that exists. (P. 894, Oxford English Dictionary)51. It is clear, therefore, that once the operational creditor has filed an application, which is otherwise complete, the adjudicating authority must reject the application under Section 9(5)(2)(d) if notice of dispute has been received by the operational creditor or there is a record of dispute in the information utility. It is clear that such notice must bring to the notice of the operational creditor the existence of a dispute or the fact that a suit or arbitration proceeding relating to a dispute is pending between the parties. Therefore, all that the adjudicating authority is to see at this stage is whether there is a plausible contention which requires further investigation and that the dispute is not a patently feeble legal argument or an assertion of fact unsupported by evidence. It is important to separate the grain from the chaff and to reject a spurious defence which is mere bluster. However, in doing so, the Court does not need to be satisfied that the defence is likely to succeed. The Court does not at this stage examine the merits of the dispute except to the extent indicated above. So long as a dispute truly exists in fact and is not spurious, hypothetical or illusory, the adjudicating authority has to reject the applicationThe aforesaid principle squarely applied to the present case. | 1 | 5,675 | 2,516 | ### Instruction:
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of the aforesaid conditions is lacking, the application would have to be rejected. Apart from the above, the adjudicating authority must follow the mandate of Section 9, as outlined above, and in particular the mandate of Section 9(5) of the Act, and admit or reject the application, as the case may be, depending upon the factors mentioned in Section 9(5) of the Act. xx xx xx 37. It is now important to construe Section 8 of the Code. The operational creditors are those creditors to whom an operational debt is owed, and an operational debt, in turn, means a claim in respect of the provision of goods or services, including employment, or a debt in respect of repayment of dues arising under any law for the time being in force and payable to the Government or to a local authority. This has to be contrasted with financial debts that may be owed to financial creditors, which was the subject- matter of the judgment delivered by this Court on 31-8- 2017 in Innoventive Industries Ltd. v. ICICI Bank (Civil Appeals Nos. 8337-38 of 2017). In this judgment, we had held that the adjudicating authority under Section 7 of the Code has to ascertain the existence of a default from the records of the information utility or on the basis of evidence furnished by the financial creditor within 14 days. The corporate debtor is entitled to point out to the adjudicating authority that a default has not occurred; in the sense that a debt, which may also include a disputed claim, is not due i.e. it is not payable in law or in fact. This Court then went on to state: (SCC p. 440, paras 29-30) 29. The scheme of Section 7 stands in contrast with the scheme under Section 8 where an operational creditor is, on the occurrence of a default, to first deliver a demand notice of the unpaid debt to the operational debtor in the manner provided in Section 8(1) of the Code. Under Section 8(2), the corporate debtor can, within a period of 10 days of receipt of the demand notice or copy of the invoice mentioned in sub-section (1), bring to the notice of the operational creditor the existence of a dispute or the record of the pendency of a suit or arbitration proceedings, which is pre-existing — i.e. before such notice or invoice was received by the corporate debtor. The moment there is existence of such a dispute, the operational creditor gets out of the clutches of the Code. 30. On the other hand, as we have seen, in the case of a corporate debtor who commits a default of a financial debt, the adjudicating authority has merely to see the records of the information utility or other evidence produced by the financial creditor to satisfy itself that a default has occurred. It is of no matter that the debt is disputed so long as the debt is due i.e. payable unless interdicted by some law or has not yet become due in the sense that it is payable at some future date. It is only when this is proved to the satisfaction of the adjudicating authority that the adjudicating authority may reject an application and not otherwise. xx xx xx 42. This being the case, is it not open to the adjudicating authority to then go into whether a dispute does or does not exist? 43. It is important to notice that Section 255 read with the Eleventh Schedule of the Code has amended Section 271 of the Companies Act, 2013 so that a company being unable to pay its debts is no longer a ground for winding up a company. The old law contained inMadhusudan has, therefore, disappeared with the disappearance of this ground in Section 271 of the Companies Act. 44. We have already noticed that in the first Insolvency and Bankruptcy Bill, 2015 that was annexed to the Bankruptcy Law Reforms Committee Report, Section 5(4) defined dispute as meaning a bona fide suit or arbitration proceedings…. In its present avatar, Section 5(6) excludes the expression bona fide which is of significance. Therefore, it is difficult to import the expression bona fide into Section 8(2)(a) in order to judge whether a dispute exists or not. 45. The expression existence has been understood as follows: Shorter Oxford English Dictionary gives the following meaning of the word existence: (a) Reality, as opp. to appearance. (b) The fact or state of existing; actual possession of being. Continued being as a living creature, life, esp. under adverse conditions. Something that exists; an entity, a being. All that exists. (P. 894, Oxford English Dictionary) xx xx xx 51. It is clear, therefore, that once the operational creditor has filed an application, which is otherwise complete, the adjudicating authority must reject the application under Section 9(5)(2)(d) if notice of dispute has been received by the operational creditor or there is a record of dispute in the information utility. It is clear that such notice must bring to the notice of the operational creditor the existence of a dispute or the fact that a suit or arbitration proceeding relating to a dispute is pending between the parties. Therefore, all that the adjudicating authority is to see at this stage is whether there is a plausible contention which requires further investigation and that the dispute is not a patently feeble legal argument or an assertion of fact unsupported by evidence. It is important to separate the grain from the chaff and to reject a spurious defence which is mere bluster. However, in doing so, the Court does not need to be satisfied that the defence is likely to succeed. The Court does not at this stage examine the merits of the dispute except to the extent indicated above. So long as a dispute truly exists in fact and is not spurious, hypothetical or illusory, the adjudicating authority has to reject the application. The aforesaid principle squarely applied to the present case.
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been received, as it must be read with Section 8(2)(a). Also, if any disciplinary proceeding is pending against any proposed resolution professional, the application may be rejected [Section 9(5)(ii)(e)]34. Therefore, the adjudicating authority, when examining an application under Section 9 of the Act will have to determine:(i) Whether there is an operational debt as defined exceeding Rs 1 lakh? (See Section 4 of the Act)(ii) Whether the documentary evidence furnished with the application shows that the aforesaid debt is due and payable and has not yet been paid? and(iii) Whether there is existence of a dispute between the parties or the record of the pendency of a suit or arbitration proceeding filed before the receipt of the demand notice of the unpaid operational debt in relation to such dispute?If any one of the aforesaid conditions is lacking, the application would have to be rejected. Apart from the above, the adjudicating authority must follow the mandate of Section 9, as outlined above, and in particular the mandate of Section 9(5) of the Act, and admit or reject the application, as the case may be, depending upon the factors mentioned in Section 9(5) of the Act37. It is now important to construe Section 8 of the Code. The operational creditors are those creditors to whom an operational debt is owed, and an operational debt, in turn, means a claim in respect of the provision of goods or services, including employment, or a debt in respect of repayment of dues arising under any law for the time being in force and payable to the Government or to a local authority. This has to be contrasted with financial debts that may be owed to financial creditors, which was the subjectmatter of the judgment delivered by this Court on2017 in Innoventive Industries Ltd. v. ICICI Bank (Civil Appeals Nos.29. The scheme of Section 7 stands in contrast with the scheme under Section 8 where an operational creditor is, on the occurrence of a default, to first deliver a demand notice of the unpaid debt to the operational debtor in the manner provided in Section 8(1) of the Code. Under Section 8(2), the corporate debtor can, within a period of 10 days of receipt of the demand notice or copy of the invoice mentioned inn (1), bring to the notice of the operational creditor the existence of a dispute or the record of the pendency of a suit or arbitration proceedings, which isg — i.e. before such notice or invoice was received by the corporate debtor. The moment there is existence of such a dispute, the operational creditor gets out of the clutches of the Code30. On the other hand, as we have seen, in the case of a corporate debtor who commits a default of a financial debt, the adjudicating authority has merely to see the records of the information utility or other evidence produced by the financial creditor to satisfy itself that a default has occurred. It is of no matter that the debt is disputed so long as the debt is due i.e. payable unless interdicted by some law or has not yet become due in the sense that it is payable at some future date. It is only when this is proved to the satisfaction of the adjudicating authority that the adjudicating authority may reject an application and not otherwise42. This being the case, is it not open to the adjudicating authority to then go into whether a dispute does or does not exist?43. It is important to notice that Section 255 read with the Eleventh Schedule of the Code has amended Section 271 of the Companies Act, 2013 so that a company being unable to pay its debts is no longer a ground for winding up a company. The old law contained inMadhusudan has, therefore, disappeared with the disappearance of this ground in Section 271 of the Companies Act44. We have already noticed that in the first Insolvency and Bankruptcy Bill, 2015 that was annexed to the Bankruptcy Law Reforms Committee Report, Section 5(4) defined dispute as meaning a bona fide suit or arbitration proceedings…. In its present avatar, Section 5(6) excludes the expression bona fide which is of significance. Therefore, it is difficult to import the expression bona fide into Section 8(2)(a) in order to judge whether a dispute exists or not45. The expression existence has been understood as follows:Shorter Oxford English Dictionary gives the following meaning of the word existence:(a) Reality, as opp. to appearance(b) The fact or state of existing; actual possession of being. Continued being as a living creature, life, esp. under adverse conditionsSomething that exists; an entity, a being. All that exists. (P. 894, Oxford English Dictionary)51. It is clear, therefore, that once the operational creditor has filed an application, which is otherwise complete, the adjudicating authority must reject the application under Section 9(5)(2)(d) if notice of dispute has been received by the operational creditor or there is a record of dispute in the information utility. It is clear that such notice must bring to the notice of the operational creditor the existence of a dispute or the fact that a suit or arbitration proceeding relating to a dispute is pending between the parties. Therefore, all that the adjudicating authority is to see at this stage is whether there is a plausible contention which requires further investigation and that the dispute is not a patently feeble legal argument or an assertion of fact unsupported by evidence. It is important to separate the grain from the chaff and to reject a spurious defence which is mere bluster. However, in doing so, the Court does not need to be satisfied that the defence is likely to succeed. The Court does not at this stage examine the merits of the dispute except to the extent indicated above. So long as a dispute truly exists in fact and is not spurious, hypothetical or illusory, the adjudicating authority has to reject the applicationThe aforesaid principle squarely applied to the present case.
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S.G.P.Committee, Amritsar Vs. Shri Som Nath Dass | gazetted. 30. It was also submitted that it was not known whether this Farman-I-Shahi was administrative in nature or was issued as a sovereign. If it was administrative it could not have the same force of law. 31. We have examined this Farmani-I-Shahi. It does not direct the authorities to mutate the name of `Guru Granth Sahib. It merely directed, the revenue authority that till Mahants appointment is approved by Deors Mulla, no property or Muafi received by a Mahant should be entered in his name, in the revenue papers. Further the land of any Dera should not be considered to be that of Mahant. This was only a directive which is protective in nature. In other words it only directed that they should be done after ascertaining the fact and if the land was of the Dera it should not be put in the name of Mahant. In other words, it stated - enquire, find out the facts and do the needful. The mutation in the case before us was not on account of this Farman-i-Shahi but was made because of the application made by one Rulia Singh and others of village Bilaspur to the Patwari, and mutation was done only after a detailed enquiry, after examining witnesses and other evidence on the record, which resulted into Ex.8 and Ex.9. In the said proceedings number of witnesses appeared before the Revenue Officer and stated that their ancestors gifted this disputed land for charity (Punnarth) for the benefit of public, who were the proprietors and was merely entrusted to the ancestors of the respondents for management. The claimants had no rights over it. Admittedly they did not receive this land for any payment nor for any service rendered by them to such donors. Their statement was that this land was given to them with clear direction that they should use it for providing food and comfort to the travellers (Musafran) passing through the village. They further gave evidence that their forefathers gave it in the name of `Guru Granth Sahib Birajman Dharamshala Deh. In spite of this, Atma Ram and others and their predecessors did not perform their obligations. On the contrary, with oblique motives they got this disputed land entered in their name in the revenue records which was an attempt to usurp the property. The Revenue Officer after enquiry held that Atma Ram and other ancestors of respondents admitted that this land was given without making any payment and was specifically meant for providing food and shelter to the travellers which function they were not performing. It was only after such an enquiry, he ordered the mutation by ordering delecting of the name of Atma Ram and others. With reference to the question of appointment of a manager, he recorded that this had to be decided by Deori Mualla, where such a case about this was pending. Similar was the position in the other mutation proceedings about which an application was also made to the Revenue Officer, where the names of Narain Dass. Bhagat Ram sons of Gopi Ram were deleted and aforesaid name was mutated resulting into Ex.9. So, the mutation of name was not because of direction issued by the Farman-i-Shahi. So no error could be said to have been committed, when Ex.8 and Ex.9, viz., mutations were recorded. Farman-I-Shahi if at all may be said to have led to the enquiry but it was not the basis. 32. This takes us to the last point for our consideration. After the said difference of opinion between two learned Judges, Mr. Justice M.M. Punchhi did not decide the case on merits though the other Judge Mr. Justice Tiwana, held on merits in favour of the appellants, i.e., that the property belonged to Gurdwara. When the case again returned to the same bench for decision on merits there was again difference of opinion. It was again referred to the third judge who concurred with Mr. Justice Punchhi. Against this the appellants filed special leave petition in this court which was dismissed for default as aforesaid. However, we find that the third Judge who concurred with Mr. Justice Punchhi based his finding on the ground that `Guru Granth Sahib was not a juristic person hence entry Ex.8 and 9 was invalid. But once the very foundation falls, and Guru Granth Sahib is held to be a juristic person, the said finding cannot stand. Thus, in our considered opinion, there would not be any useful purpose to remand the case. That apart since this litigation stood for a long time, we think it proper to examine it ourselves. 33. Learned senior counsel for the respondents who argued with ability and fairness said that in fact the only question which arises in this case is whether Guru Granth Sahib is a juristic person. Examining the merits we find that the mutation in the revenue papers in the name of Guru Granth Sahib was made as far back as in the year 1928, in the presence of the ancestors of respondents and no objection was raised by anybody till the filing of the present objection by the respondents as aforesaid under Section 810 of the 1925 Act. This is after a long gap of about forty years. Further, this property was given in trust to the ancestors of respondents for a specified purpose but they did not perform their obligation. It is also settled, once an endowment, it never reverts even to the donor. Then no part of these rights could be claimed or usurped by the respondents ancestors who in fact were trustees. Hence for these reasons and for the reasons recorded by Mr. Justice Tiwana, even on merits, any claim to the disputed land by the respondents has no merit. Thus any claim over this disputed property by the respondents fails and is hereby rejected. We uphold the findings and orders passed by the Tribunal against which FAO No. 449 of 1978 and FAO No. 2 of 1980 was filed. | 1[ds]If we trace the history of a Person in the various countries we find surprisingly it has projected differently at different times. In some countries even human beings were not treated to be as persons in law. Under the Roman Law a slave was not a person. He had no right to a family. He was treated like an animal or chattal. In French Colonies also, before slavery was abolished, the slaves were not treated to be legal persons. They were later given recognition as legal persons only through a statute. Similarly, in the U.S. thes had no legal rights though they were not treated as chattel. In Roscoe Pounds Jurisprudence Part IV, 1959 Ed. at pages, it is stated as follows : In civilized lands even in the modern world it has happened that all human beings were not legal persons. In Roman law down to the constitution of Antoninus Pius the salve was not a person. He enjoyed neither rights of family nor rights of patrimony. He was a thing, and as such, like animals, could be the object of rights of property. .... In the French colonies, before slavery was there abolished, slaves were put in the class of legal persons by the statute of April 23, 1833 and obtained a somewhat extended juridical capacity by a statute of 1845. In the United States down to the Civil War, the free Negroes in many of the States were free human beings with no legal rightsIf, however, we take account of other systems than our own, we find that the conception of legal personality is not so limited in its application, and that there are several distinct varieties, of which three may be selected for special mention ..... 1. The first class of legal persons consists of corporations, as already defined, namely, those which are constituted by the personification of groups or series of individuals. The individuals who thus form the corpus of the legal person are termed its members... 2. The second class is that in which the corpus, or object selected for personification, is not a group or series of persons, but an institution. The law may, if it pleases, regard a church or a hospital, or a university, or a library, as a person. That is to say, it may attribute personality, not to any group of persons connected with the institution, but to the institution itself... 3. The third kind of legal person is that in which the corpus is some fund or estate devoted to special usesa charitable fund, for example or a trust estate... Jurisprudence by Paton, 3rd Edn., pages 349 and 350 says : It has already been asserted that legal personality is an artificial creation of the law. Legal persons are all entities capable of beingall entities recognised by the law as capable of being parties to a legal relationship. Salmond said : So far as legal theory is concerned, a person is any being whom the law regards as capable of rights and duties.... ......Legal personality may be granted to entities other than individual human beings, e.g. a group of human beings, a fund, an idol. Twenty men may form a corporation which may sue and be sued in the corporate name. An idol may be regarded as a legal persona in itself, or a particular fund may be incorporated. It is clear that neither the idol nor the fund can carry out the activities incidental to litigation or other activities incidental to the carrying on of legal relationships, e.g., the signing of a contract; and, of necessity, the law recognises certain human agents as representatives of the idol or of the fund. The acts of such agents, however (within limits set by the law and when they are acting as such), are imputed to the legal persona of the idol and are not the juristic acts of the human agents themselves. This is no more academic distinction, for it is the legal persona of the idol that is bound to the legal relationships created, not that of the agent. Legal personality then refers to the particular device by which the law creates or recognizes units to which it ascribes certain powers and capacities. Analytical and Historical Jurisprudence, 3rd Edn. At page 357 describes person: We may, therefore, define a person for the purpose of jurisprudence as any entity (not necessarily a human being) to which rights or duties may be attributed21. Now returning to the question, whether Guru Granth Sahib could be a Juristic Person or not, or whether it could be placed on the same pedestal, we may first have a glance at the Sikh religion. To comprehend any religion fully may indeed by beyond the comprehension of any one and also beyond any judicial scrutiny for it has its own limitations. But its silver linning could easily be picked up. In the Sikh religion, Guru is revered as the highest reverential person. The first of such most revered Gurus was Guru was Guru Nank Dev, followed by succeeding Gurus, the Tenth being the last living, viz., Guru Gobind Singh Ji. It is said that Adi Granth or Guru Granth Sahib was compiled by the Fifth Guru Arjun and it is this book that is worshipped in all the gurudwaras. While it is being read, people go down their knees to make reverential obeisance and place their offerings of cash and kind on it, as it is treated and equated to a living Guru. In the Book A History of the Sikhs by Kushwant Singh, Vol. I, page 307 : The compositions of the gurus were always considered sacred by their followers. Guru Nanak said that in his hymns the turn Guru manifested himself, because they were composed at His orders and heard by Him (Var Asa). The fourth guru, Ram Das said: Look upon the words of the True Guru as the supreme truth, for God and the Creator hath made him utter the words (Var Gauri). When Arjun formally installed the Granth in the Harimandir, he ordered his followers to treat it with the same reverence as they treated their gurus. By the time of Guru Gobind Singh, copies of the Granth had been installed in most Gurdwaras. Quite naturally, when he declared the line of succession of gurus ended, he asked his followers to turn to the Granth for guidance and look upon it as the symbolic representation of the ten gurus. The Granth Sahib is the central object of worship in all Gurdwaras. It is usually draped in silks and placed on a cot. It has an awning over it and, while it is being read, one of the congregations stands behind and waves a flywhisk made of Yaks hair. Worshippers go down on their knees to make obeisance and place offerings of cash or kind before it as they would before a king for the Granth is to them what the gurus were to their ancestorsthe Saca (Sacha ?) Padash (the true Emperor). The very first verse of the Guru Granth Sahib reveals the infinite wisdom and wealth that it contains as to its legitimacy for being revered as guru : The First verse states : The creator of all is One, the only One. Truth is his name. He is doer of everything. He is without fear and without enmity. His form is immortal. He is unborn and. He is realized by Gurus grace22. The last living guru, Guru Gobind Singh, expressed in no uncertain terms that henceforth there would not be any living guru. The Guru Granth Sahib would be the vibrating Guru. He declared that henceforth it would be your Guru from which you will get all your guidance and answer. It is with this faith that it is worshipped like a living guru. It is with this faith and conviction, when it is installed in any gurudwara it becomes a sacred place of worship. Sacredness of Gurudwara is only because of placement of Guru Granth Sahib in it. This reverential recognition of Guru Granth Sahib also opens the hearts of its followers to pour their money and wealth for it. It is not that it needs it, but when it is installed, it grows for its followers, who through their obeisance to it, sanctify themselves and also for running the langar which is an inherent part of a Gurdwara23. In this background, and on over all considerations, we have no hesitation to hold that `Guru Granth Sahib is a Juristic Person. It cannot be equated with an `Idol as idol worship is contrary to Sikhism. As a concept or a visionary for obeisance, the two religions are different. Yet, for its legal recognition as a juristic person, the followers of both the religions give them respectively the same reverential value. Thus the Guru Granth Sahib it has all the qualities to be recognised as such. Holding otherwise would mean giving too restrictive a meaning of a `juristic person, and that would erase the very jurisprudence which gave birth to it24. Now, we proceed to examine the judgment of the High Court which had held to the contrary. There was difference of opinion between the two Judges and finally the third Judge agreed with one of the differing Judges, who held Guru Granth Sahib to be not a Juristic Person. Now, we proceed to examine the reasonings for their holding so. They first erred, in holding that such an endowment is void as there could not be such a juristic person without appointment of a Manager. In other words, they held that a juristic person could only act through some one, a human agency and as in the case of an Idol, the Guru Granth Sahib also could not act without a manager. In our view, no endowment or a juristic person depends on the appointment of a Manager. It may be proper or advisable to appoint such a manager while making any endowment but in its absence, it may be done either by the trustees or courts in accordance with law. Mere absence of a manager negative the existence of juristic person. As pointed out in Manohar Ganesh v. Lakshmiram, ILR 12 Bom 247 (approved in Yogendra Nath Naskars case, 1969(1) SCC 555) referred to above, if no manager is appointed by the founder, the ruler would give effect to the bounty. As pointed in Vidyapurna Tirtha Swami v. Vidyanidhi Tirtha Swami & others, ILR 27 Mad. 435 (at 457), by Bhashyam Ayyangar, J. (approved in Yogendra Nath Naskars case, 1969(1) SCC 555) the property given in trust becomes irrevocable and if none was appointed to manage, it will be managed by the court as representing the sovereign. This can be done by the Court in several ways under Section 92, CPC or by handing over management to any specific body recognised by law. But the trust will not be allowed by the Court to fail. Endowment is when donor parts with his property for it being used for a public purpose and its entrustment is to a person or group of persons in trust for carrying out the objective of such entrustment. Once endowment is made, it is final and it is irrevocable. It is the onerous duty of the persons entrusted with such endowment, to carry out the object of this entrustment. They may appoint a manager in the absence of any indication in the trust or get it appointed through Court. So if entrustment is to any juristic person, mere absence of manager would not negate the existence a juristic person. We, therefore, disagree with the High Court on this crucial aspect. In Words and Phrases, Permanent Edition, Vol. 14A at page 167 :Endowment means property or pecuniary means bestowed as a permanent fund, as endowment of a college, hospital or library, and is understood in common acceptance as a fund yielding income for support of an institution. As we have said above, Guru Granth Sahib is revered in gurdwara, like a `Guru which projects a different perception. It is the very heart and spirit of gurudwara. The reverence of Guru Granth on the one hand and other sacred books on the other hand is based on different conceptual faith, belief and application28. One other reason given by the High Court is that Sikh religion does not accept idolatry and hence Guru Granth Sahib cannot be a juristic person. It is true that the Sikh religion does not accept idolary but, at the same time when the tenth guru declared that after him, the Guru Granth will be the Guru, that does not amount to idolatry. The Granth replaces the guru henceforward, after the tenth Guru. For all these reasons, we do not find any strength in the reasoning of High Court in recording a finding that the `Guru Granth Sahib not a Juristic Person. The said finding is not sustainable both on fact and law. Thus, we unhesitantly hold `Guru Granth Sahib to be a Juristic Person29. Next challenge is that the basis for mutating of the name of Guru Granth Sahib Birajman Dharamshala Deh, by deleting the name of the ancestors of the respondents, based oni issued by the then ruler of the Patiala stated dated 18.4.1921 is liable to be set aside, as thisi did not direct the recording of the name of `Guru Granth Sahib30. It was also submitted that it was not known whether thisi was administrative in nature or was issued as a sovereign. If it was administrative it could not have the same force of law31. We have examined this. It does not direct the authorities to mutate the name of `Guru Granth Sahib. It merely directed, the revenue authority that till Mahants appointment is approved by Deors Mulla, no property or Muafi received by a Mahant should be entered in his name, in the revenue papers. Further the land of any Dera should not be considered to be that of Mahant. This was only a directive which is protective in nature. In other words it only directed that they should be done after ascertaining the fact and if the land was of the Dera it should not be put in the name of Mahant. In other words, it statedenquire, find out the facts and do the needful. The mutation in the case before us was not on account of thisi but was made because of the application made by one Rulia Singh and others of village Bilaspur to the Patwari, and mutation was done only after a detailed enquiry, after examining witnesses and other evidence on the record, which resulted into Ex.8 and Ex.9. In the said proceedings number of witnesses appeared before the Revenue Officer and stated that their ancestors gifted this disputed land for charity (Punnarth) for the benefit of public, who were the proprietors and was merely entrusted to the ancestors of the respondents for management. The claimants had no rights over it. Admittedly they did not receive this land for any payment nor for any service rendered by them to such donors. Their statement was that this land was given to them with clear direction that they should use it for providing food and comfort to the travellers (Musafran) passing through the village. They further gave evidence that their forefathers gave it in the name of `Guru Granth Sahib Birajman Dharamshala Deh. In spite of this, Atma Ram and others and their predecessors did not perform their obligations. On the contrary, with oblique motives they got this disputed land entered in their name in the revenue records which was an attempt to usurp the property. The Revenue Officer after enquiry held that Atma Ram and other ancestors of respondents admitted that this land was given without making any payment and was specifically meant for providing food and shelter to the travellers which function they were not performing. It was only after such an enquiry, he ordered the mutation by ordering delecting of the name of Atma Ram and others. With reference to the question of appointment of a manager, he recorded that this had to be decided by Deori Mualla, where such a case about this was pending. Similar was the position in the other mutation proceedings about which an application was also made to the Revenue Officer, where the names of Narain Dass. Bhagat Ram sons of Gopi Ram were deleted and aforesaid name was mutated resulting into Ex.9. So, the mutation of name was not because of direction issued by the. So no error could be said to have been committed, when Ex.8 and Ex.9, viz., mutations were recorded.i if at all may be said to have led to the enquiry but it was not the basis32. This takes us to the last point for our consideration. After the said difference of opinion between two learned Judges, Mr. Justice M.M. Punchhi did not decide the case on merits though the other Judge Mr. Justice Tiwana, held on merits in favour of the appellants, i.e., that the property belonged to Gurdwara. When the case again returned to the same bench for decision on merits there was again difference of opinion. It was again referred to the third judge who concurred with Mr. Justice Punchhi. Against this the appellants filed special leave petition in this court which was dismissed for default as aforesaid. However, we find that the third Judge who concurred with Mr. Justice Punchhi based his finding on the ground that `Guru Granth Sahib was not a juristic person hence entry Ex.8 and 9 was invalid. But once the very foundation falls, and Guru Granth Sahib is held to be a juristic person, the said finding cannot stand. Thus, in our considered opinion, there would not be any useful purpose to remand the case. That apart since this litigation stood for a long time, we think it proper to examine it ourselvesd senior counsel for the respondents who argued with ability and fairness said that in fact the only question which arises in this case is whether Guru Granth Sahib is a juristic person.Examining the merits we find that the mutation in the revenue papers in the name of Guru Granth Sahib was made as far back as in the year 1928, in the presence of the ancestors of respondents and no objection was raised by anybody till the filing of the present objection by the respondents as aforesaid under Section 810 of the 1925 Act. This is after a long gap of about forty years. Further, this property was given in trust to the ancestors of respondents for a specified purpose but they did not perform their obligation. It is also settled, once an endowment, it never reverts even to the donor. Then no part of these rights could be claimed or usurped by the respondents ancestors who in fact were trustees. Hence for these reasons and for the reasons recorded by Mr. Justice Tiwana, even on merits, any claim to the disputed land by the respondents has no merit. Thus any claim over this disputed property by the respondents fails and is hereby rejected. We uphold the findings and orders passed by the Tribunal against which FAO No. 449 of 1978 and FAO No. 2 of 1980 was filed. | 1 | 10,693 | 3,581 | ### Instruction:
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gazetted. 30. It was also submitted that it was not known whether this Farman-I-Shahi was administrative in nature or was issued as a sovereign. If it was administrative it could not have the same force of law. 31. We have examined this Farmani-I-Shahi. It does not direct the authorities to mutate the name of `Guru Granth Sahib. It merely directed, the revenue authority that till Mahants appointment is approved by Deors Mulla, no property or Muafi received by a Mahant should be entered in his name, in the revenue papers. Further the land of any Dera should not be considered to be that of Mahant. This was only a directive which is protective in nature. In other words it only directed that they should be done after ascertaining the fact and if the land was of the Dera it should not be put in the name of Mahant. In other words, it stated - enquire, find out the facts and do the needful. The mutation in the case before us was not on account of this Farman-i-Shahi but was made because of the application made by one Rulia Singh and others of village Bilaspur to the Patwari, and mutation was done only after a detailed enquiry, after examining witnesses and other evidence on the record, which resulted into Ex.8 and Ex.9. In the said proceedings number of witnesses appeared before the Revenue Officer and stated that their ancestors gifted this disputed land for charity (Punnarth) for the benefit of public, who were the proprietors and was merely entrusted to the ancestors of the respondents for management. The claimants had no rights over it. Admittedly they did not receive this land for any payment nor for any service rendered by them to such donors. Their statement was that this land was given to them with clear direction that they should use it for providing food and comfort to the travellers (Musafran) passing through the village. They further gave evidence that their forefathers gave it in the name of `Guru Granth Sahib Birajman Dharamshala Deh. In spite of this, Atma Ram and others and their predecessors did not perform their obligations. On the contrary, with oblique motives they got this disputed land entered in their name in the revenue records which was an attempt to usurp the property. The Revenue Officer after enquiry held that Atma Ram and other ancestors of respondents admitted that this land was given without making any payment and was specifically meant for providing food and shelter to the travellers which function they were not performing. It was only after such an enquiry, he ordered the mutation by ordering delecting of the name of Atma Ram and others. With reference to the question of appointment of a manager, he recorded that this had to be decided by Deori Mualla, where such a case about this was pending. Similar was the position in the other mutation proceedings about which an application was also made to the Revenue Officer, where the names of Narain Dass. Bhagat Ram sons of Gopi Ram were deleted and aforesaid name was mutated resulting into Ex.9. So, the mutation of name was not because of direction issued by the Farman-i-Shahi. So no error could be said to have been committed, when Ex.8 and Ex.9, viz., mutations were recorded. Farman-I-Shahi if at all may be said to have led to the enquiry but it was not the basis. 32. This takes us to the last point for our consideration. After the said difference of opinion between two learned Judges, Mr. Justice M.M. Punchhi did not decide the case on merits though the other Judge Mr. Justice Tiwana, held on merits in favour of the appellants, i.e., that the property belonged to Gurdwara. When the case again returned to the same bench for decision on merits there was again difference of opinion. It was again referred to the third judge who concurred with Mr. Justice Punchhi. Against this the appellants filed special leave petition in this court which was dismissed for default as aforesaid. However, we find that the third Judge who concurred with Mr. Justice Punchhi based his finding on the ground that `Guru Granth Sahib was not a juristic person hence entry Ex.8 and 9 was invalid. But once the very foundation falls, and Guru Granth Sahib is held to be a juristic person, the said finding cannot stand. Thus, in our considered opinion, there would not be any useful purpose to remand the case. That apart since this litigation stood for a long time, we think it proper to examine it ourselves. 33. Learned senior counsel for the respondents who argued with ability and fairness said that in fact the only question which arises in this case is whether Guru Granth Sahib is a juristic person. Examining the merits we find that the mutation in the revenue papers in the name of Guru Granth Sahib was made as far back as in the year 1928, in the presence of the ancestors of respondents and no objection was raised by anybody till the filing of the present objection by the respondents as aforesaid under Section 810 of the 1925 Act. This is after a long gap of about forty years. Further, this property was given in trust to the ancestors of respondents for a specified purpose but they did not perform their obligation. It is also settled, once an endowment, it never reverts even to the donor. Then no part of these rights could be claimed or usurped by the respondents ancestors who in fact were trustees. Hence for these reasons and for the reasons recorded by Mr. Justice Tiwana, even on merits, any claim to the disputed land by the respondents has no merit. Thus any claim over this disputed property by the respondents fails and is hereby rejected. We uphold the findings and orders passed by the Tribunal against which FAO No. 449 of 1978 and FAO No. 2 of 1980 was filed.
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as thisi did not direct the recording of the name of `Guru Granth Sahib30. It was also submitted that it was not known whether thisi was administrative in nature or was issued as a sovereign. If it was administrative it could not have the same force of law31. We have examined this. It does not direct the authorities to mutate the name of `Guru Granth Sahib. It merely directed, the revenue authority that till Mahants appointment is approved by Deors Mulla, no property or Muafi received by a Mahant should be entered in his name, in the revenue papers. Further the land of any Dera should not be considered to be that of Mahant. This was only a directive which is protective in nature. In other words it only directed that they should be done after ascertaining the fact and if the land was of the Dera it should not be put in the name of Mahant. In other words, it statedenquire, find out the facts and do the needful. The mutation in the case before us was not on account of thisi but was made because of the application made by one Rulia Singh and others of village Bilaspur to the Patwari, and mutation was done only after a detailed enquiry, after examining witnesses and other evidence on the record, which resulted into Ex.8 and Ex.9. In the said proceedings number of witnesses appeared before the Revenue Officer and stated that their ancestors gifted this disputed land for charity (Punnarth) for the benefit of public, who were the proprietors and was merely entrusted to the ancestors of the respondents for management. The claimants had no rights over it. Admittedly they did not receive this land for any payment nor for any service rendered by them to such donors. Their statement was that this land was given to them with clear direction that they should use it for providing food and comfort to the travellers (Musafran) passing through the village. They further gave evidence that their forefathers gave it in the name of `Guru Granth Sahib Birajman Dharamshala Deh. In spite of this, Atma Ram and others and their predecessors did not perform their obligations. On the contrary, with oblique motives they got this disputed land entered in their name in the revenue records which was an attempt to usurp the property. The Revenue Officer after enquiry held that Atma Ram and other ancestors of respondents admitted that this land was given without making any payment and was specifically meant for providing food and shelter to the travellers which function they were not performing. It was only after such an enquiry, he ordered the mutation by ordering delecting of the name of Atma Ram and others. With reference to the question of appointment of a manager, he recorded that this had to be decided by Deori Mualla, where such a case about this was pending. Similar was the position in the other mutation proceedings about which an application was also made to the Revenue Officer, where the names of Narain Dass. Bhagat Ram sons of Gopi Ram were deleted and aforesaid name was mutated resulting into Ex.9. So, the mutation of name was not because of direction issued by the. So no error could be said to have been committed, when Ex.8 and Ex.9, viz., mutations were recorded.i if at all may be said to have led to the enquiry but it was not the basis32. This takes us to the last point for our consideration. After the said difference of opinion between two learned Judges, Mr. Justice M.M. Punchhi did not decide the case on merits though the other Judge Mr. Justice Tiwana, held on merits in favour of the appellants, i.e., that the property belonged to Gurdwara. When the case again returned to the same bench for decision on merits there was again difference of opinion. It was again referred to the third judge who concurred with Mr. Justice Punchhi. Against this the appellants filed special leave petition in this court which was dismissed for default as aforesaid. However, we find that the third Judge who concurred with Mr. Justice Punchhi based his finding on the ground that `Guru Granth Sahib was not a juristic person hence entry Ex.8 and 9 was invalid. But once the very foundation falls, and Guru Granth Sahib is held to be a juristic person, the said finding cannot stand. Thus, in our considered opinion, there would not be any useful purpose to remand the case. That apart since this litigation stood for a long time, we think it proper to examine it ourselvesd senior counsel for the respondents who argued with ability and fairness said that in fact the only question which arises in this case is whether Guru Granth Sahib is a juristic person.Examining the merits we find that the mutation in the revenue papers in the name of Guru Granth Sahib was made as far back as in the year 1928, in the presence of the ancestors of respondents and no objection was raised by anybody till the filing of the present objection by the respondents as aforesaid under Section 810 of the 1925 Act. This is after a long gap of about forty years. Further, this property was given in trust to the ancestors of respondents for a specified purpose but they did not perform their obligation. It is also settled, once an endowment, it never reverts even to the donor. Then no part of these rights could be claimed or usurped by the respondents ancestors who in fact were trustees. Hence for these reasons and for the reasons recorded by Mr. Justice Tiwana, even on merits, any claim to the disputed land by the respondents has no merit. Thus any claim over this disputed property by the respondents fails and is hereby rejected. We uphold the findings and orders passed by the Tribunal against which FAO No. 449 of 1978 and FAO No. 2 of 1980 was filed.
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Commissioner Of Income Tax, Bombay Vs. Mysore Spinning & Mfg. Co. Ltd | by his employee. The transfer of the fund contemplated under Section 58K was a voluntary transfer by an employer of the Provident Fund maintained by him to the trustees to hold it in trust for the benefit of his employees. The High Court, however, proceeded to consider the matter even on the assumption that the transfer of the fund contemplated by Section 58K (1) would also include involuntary transfer. According to the High Court the position that emerged on a consideration of the material provisions of the Provident Funds Act and the Scheme framed thereunder was as follows :4. For the administration of the statutory Provident Fund which came into existence and stood constituted on the framing of the Scheme a Board of trustees called the Central Board of Trustees was constituted. On the framing of the Scheme and the constitution of the statutory Provident Fund the employer in the industries to which the Provident Funds Act applied were required to transfer the accumulated balances of the Provident Fund, if any, which had been maintained by them. Similarly, trustees of the private Provident Fund constituted by an employer were also required to transfer the accumulated balances to the statutory Provident Fund. Such employers were further required to make their own annual contributions according to the prescribed limit to that fund. The Board of trustees and the Officers administering the fund were required to open a Provident Fund account and in that account a separate account was maintained of each member showing the balance to his credit containing the contributions of the employer. The High Court was of the view that a trust in its true sense had not been constituted by the Provident Funds Act or the Scheme and that the transfer was not to the trustees but to the fund. The first question was answered in the negative and in favour of the assessee. The answer to the second question was given in the affirmative. It being held that the deduction claimed was allowable under Section 10 (2) (xv) and that the provisions of Section 10 (4) (c) did not operate as a bar to the claim made by the assessee for deduction of the amount in question.5. Section 58K of the Act was in these terms :"58K.Treatment of Fund Transferred by Employer to Trustee:(1) Where an employer who maintains a provident fund (whether recognised or not) for the benefit of his employees and has not transferred the fund or any portion of it, transfers such fund or portion to trustees in trust for the employees participating in the fund, the amount so transferred shall be deemed to be of the nature of capital expenditure;(2) When an employee participating in such fund is paid the accumulated balance due to him therefrom, any portion of such balance as represents his share in the amount so transferred to the trustee (without addition of interest, and exclusive of the employees contributions and interest thereon) shall, (if the employer has made effective arrangements to secure that tax shall be deducted at source from the amount of such share when paid to the employee,) be deemed to be an expenditure by the employer within the meaning of (clause (xv) ) of sub-section (2) of Section 10, incurred in the year in which the accumulated balance due to the employee is paid:6. For the application of sub-section (1) the following conditions must be satisfied:(1)The employer should have maintained a Provident Fund for the benefit of his employees;(2)There should have been a transfer of such fund or portion thereof to trustees;(3)Such transfer should have been in trust for the employees participating in the fund.7. It has not been shown that the view taken by the High Court that the transfer in the present case was not made to any trustees is unfounded. But we need express no opinion on the point because in our judgment the third condition could not be regarded as having been satisfied.The transfer was not made to trustees in trust for the employees participating in the fund. The common statutory fund created under the Provident Funds Act is meant not for the employees of the assessee only but it is meant for employees of hundreds of other employers who are covered by that Act. In other words the employees of the assessee alone did not participate in that fund.It is very doubtful whether Provident Funds Act and the Scheme thereunder can be said to create a trust in the sense in which that word is used in S. 58K (1) merely because the Board managing the Scheme was called the Board of Trustees. The members of the Board did not become trustees in the legal sense. They were appointed to administer the fund which vested in them only for the purpose of administration. It could well be said that the essential ingredient of a trust, namely, reposing of confidence by the author of the trust in the trustees for the purpose of carrying out his desires, wishes and directions and the acceptance of those obligations by the trustees was absent in the present case. It is, however, not necessary to examine in detail this aspect of the matter because as observed before the fund under the Provident Funds Act, was not restricted to the employees of the assessee only and it could never be said that they alone participated in that fund. In such a situation Section 58K could not be made applicable.8. Hardly any argument was addressed on the decision of the High Court on the second question. The expenditure was incurred in the relevant accounting year. It was something which had gone irretrievably. The amount in question had been spent and paid out in the relevant year of accounting, and was therefore allowable as expenditure incurred exclusively for the purpose of the business. It is not suggested that it was incurred for any other purpose. The conditions of Section 10 (2) (xv) had been fully satisfied in the present case. | 0[ds]7. It has not been shown that the view taken by the High Court that the transfer in the present case was not made to any trustees is unfounded. But we need express no opinion on the point because in our judgment the third condition could not be regarded as having been satisfied.The transfer was not made to trustees in trust for the employees participating in the fund. The common statutory fund created under the Provident Funds Act is meant not for the employees of the assessee only but it is meant for employees of hundreds of other employers who are covered by that Act. In other words the employees of the assessee alone did not participate in that fund.It is very doubtful whether Provident Funds Act and the Scheme thereunder can be said to create a trust in the sense in which that word is used in S. 58K (1) merely because the Board managing the Scheme was called the Board of Trustees. The members of the Board did not become trustees in the legal sense. They were appointed to administer the fund which vested in them only for the purpose of administration. It could well be said that the essential ingredient of a trust, namely, reposing of confidence by the author of the trust in the trustees for the purpose of carrying out his desires, wishes and directions and the acceptance of those obligations by the trustees was absent in the present case. It is, however, not necessary to examine in detail this aspect of the matter because as observed before the fund under the Provident Funds Act, was not restricted to the employees of the assessee only and it could never be said that they alone participated in that fund. In such a situation Section 58K could not be made applicable.8. Hardly any argument was addressed on the decision of the High Court on the second question. The expenditure was incurred in the relevant accounting year. It was something which had gone irretrievably. The amount in question had been spent and paid out in the relevant year of accounting, and was therefore allowable as expenditure incurred exclusively for the purpose of the business. It is not suggested that it was incurred for any other purpose. The conditions of Section 10 (2) (xv) had been fully satisfied in the present case. | 0 | 1,845 | 426 | ### 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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by his employee. The transfer of the fund contemplated under Section 58K was a voluntary transfer by an employer of the Provident Fund maintained by him to the trustees to hold it in trust for the benefit of his employees. The High Court, however, proceeded to consider the matter even on the assumption that the transfer of the fund contemplated by Section 58K (1) would also include involuntary transfer. According to the High Court the position that emerged on a consideration of the material provisions of the Provident Funds Act and the Scheme framed thereunder was as follows :4. For the administration of the statutory Provident Fund which came into existence and stood constituted on the framing of the Scheme a Board of trustees called the Central Board of Trustees was constituted. On the framing of the Scheme and the constitution of the statutory Provident Fund the employer in the industries to which the Provident Funds Act applied were required to transfer the accumulated balances of the Provident Fund, if any, which had been maintained by them. Similarly, trustees of the private Provident Fund constituted by an employer were also required to transfer the accumulated balances to the statutory Provident Fund. Such employers were further required to make their own annual contributions according to the prescribed limit to that fund. The Board of trustees and the Officers administering the fund were required to open a Provident Fund account and in that account a separate account was maintained of each member showing the balance to his credit containing the contributions of the employer. The High Court was of the view that a trust in its true sense had not been constituted by the Provident Funds Act or the Scheme and that the transfer was not to the trustees but to the fund. The first question was answered in the negative and in favour of the assessee. The answer to the second question was given in the affirmative. It being held that the deduction claimed was allowable under Section 10 (2) (xv) and that the provisions of Section 10 (4) (c) did not operate as a bar to the claim made by the assessee for deduction of the amount in question.5. Section 58K of the Act was in these terms :"58K.Treatment of Fund Transferred by Employer to Trustee:(1) Where an employer who maintains a provident fund (whether recognised or not) for the benefit of his employees and has not transferred the fund or any portion of it, transfers such fund or portion to trustees in trust for the employees participating in the fund, the amount so transferred shall be deemed to be of the nature of capital expenditure;(2) When an employee participating in such fund is paid the accumulated balance due to him therefrom, any portion of such balance as represents his share in the amount so transferred to the trustee (without addition of interest, and exclusive of the employees contributions and interest thereon) shall, (if the employer has made effective arrangements to secure that tax shall be deducted at source from the amount of such share when paid to the employee,) be deemed to be an expenditure by the employer within the meaning of (clause (xv) ) of sub-section (2) of Section 10, incurred in the year in which the accumulated balance due to the employee is paid:6. For the application of sub-section (1) the following conditions must be satisfied:(1)The employer should have maintained a Provident Fund for the benefit of his employees;(2)There should have been a transfer of such fund or portion thereof to trustees;(3)Such transfer should have been in trust for the employees participating in the fund.7. It has not been shown that the view taken by the High Court that the transfer in the present case was not made to any trustees is unfounded. But we need express no opinion on the point because in our judgment the third condition could not be regarded as having been satisfied.The transfer was not made to trustees in trust for the employees participating in the fund. The common statutory fund created under the Provident Funds Act is meant not for the employees of the assessee only but it is meant for employees of hundreds of other employers who are covered by that Act. In other words the employees of the assessee alone did not participate in that fund.It is very doubtful whether Provident Funds Act and the Scheme thereunder can be said to create a trust in the sense in which that word is used in S. 58K (1) merely because the Board managing the Scheme was called the Board of Trustees. The members of the Board did not become trustees in the legal sense. They were appointed to administer the fund which vested in them only for the purpose of administration. It could well be said that the essential ingredient of a trust, namely, reposing of confidence by the author of the trust in the trustees for the purpose of carrying out his desires, wishes and directions and the acceptance of those obligations by the trustees was absent in the present case. It is, however, not necessary to examine in detail this aspect of the matter because as observed before the fund under the Provident Funds Act, was not restricted to the employees of the assessee only and it could never be said that they alone participated in that fund. In such a situation Section 58K could not be made applicable.8. Hardly any argument was addressed on the decision of the High Court on the second question. The expenditure was incurred in the relevant accounting year. It was something which had gone irretrievably. The amount in question had been spent and paid out in the relevant year of accounting, and was therefore allowable as expenditure incurred exclusively for the purpose of the business. It is not suggested that it was incurred for any other purpose. The conditions of Section 10 (2) (xv) had been fully satisfied in the present case.
### Response:
0
### Explanation:
7. It has not been shown that the view taken by the High Court that the transfer in the present case was not made to any trustees is unfounded. But we need express no opinion on the point because in our judgment the third condition could not be regarded as having been satisfied.The transfer was not made to trustees in trust for the employees participating in the fund. The common statutory fund created under the Provident Funds Act is meant not for the employees of the assessee only but it is meant for employees of hundreds of other employers who are covered by that Act. In other words the employees of the assessee alone did not participate in that fund.It is very doubtful whether Provident Funds Act and the Scheme thereunder can be said to create a trust in the sense in which that word is used in S. 58K (1) merely because the Board managing the Scheme was called the Board of Trustees. The members of the Board did not become trustees in the legal sense. They were appointed to administer the fund which vested in them only for the purpose of administration. It could well be said that the essential ingredient of a trust, namely, reposing of confidence by the author of the trust in the trustees for the purpose of carrying out his desires, wishes and directions and the acceptance of those obligations by the trustees was absent in the present case. It is, however, not necessary to examine in detail this aspect of the matter because as observed before the fund under the Provident Funds Act, was not restricted to the employees of the assessee only and it could never be said that they alone participated in that fund. In such a situation Section 58K could not be made applicable.8. Hardly any argument was addressed on the decision of the High Court on the second question. The expenditure was incurred in the relevant accounting year. It was something which had gone irretrievably. The amount in question had been spent and paid out in the relevant year of accounting, and was therefore allowable as expenditure incurred exclusively for the purpose of the business. It is not suggested that it was incurred for any other purpose. The conditions of Section 10 (2) (xv) had been fully satisfied in the present case.
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Director of Enforcement Vs. M.C.T.M. Corporation Private Limited and Others | Section 23(1)(a) of FERA, 1947. The opening phrase of sub-section (2) viz. : "where a person has failed to comply with the requirements of sub-section (1)..." shows that the directions under sub-section (2) may be given only after a person has contravened the provisions of Section 10(1). Thus, sub-section (2) is attracted after the contravention of sub-section (1) is established meaning thereby that contravention of sub-section (1) is a distinct offence, independent of the breach which may be committed subsequently by disobedience of any order or direction issued under sub-section (2) and the violation of the directions issued under sub-section (2) is not necessary to complete the commission of an offence under sub-section (1) of Section 10. 16. Sub-sections (1) and (2) of Section 10 take care of two distinct situations. There is therefore no warrant to hold that the contravention under Section 10(1) is not possible unless there has been violation of the direction issued under Section 10(2). Both sub-sections operate in different spheres and the issuance of directions under sub-section (2) and the breach of those directions is not the sine qua non for establishing the contravention contemplated by sub-section (1) of Section 10 whereas failure to comply with the requirements of sub-section (1) of Section 10 is necessary to enable the Reserve Bank of India to issue specific or general directions under sub-section (2) of Section 10. The obligation to repatriate the foreign exchange, receivable in India, is a statutory obligation and is not dependent upon any specific direction to be issued by the Reserve Bank of India in that behalf under sub-section (2) of Section 10. The object of enactment of clause (2) of Section 10 appears to be that the defaulter, may after having been penalised for contravention of Section 10(1) be still directed to repatriate the foreign exchange, in whole or in part, by the Reserve Bank of India and his failure to comply with those direction by itself would also invite penalty under Section 23(1)(a) of the Act, notwithstanding the imposition of penalty upon him for the breach of Section 10(1)(a) of FERA, 1947. Notwithstanding the imposition of penalty under sub-section (1) of Section 10, the Reserve Bank of India retains the authority to issue directions for repatriation etc. of the foreign exchange held by the defaulter abroad as the power to regulate dealings in foreign exchange do not get extinguished by imposition of some penalty on the defaulter during adjudicatory proceedings. 17. Section 23 of FERA, 1947 prescribes penalties for contravention of the provisions of Section 4, Section 5, Section 9, Section 10, sub-section (2) of Section 12, Section 17, Section 18-A or Section 18-B or of any rule, direction or order made thereunder. On its plain reading, Section 23(1)(a) does not restrict its application to only one of the sub-sections of Section 10. Contraventions envisaged by both the sub-sections of Section 10 attract penalty under Section 23(1)(a), unlike Section 12, of which only sub-section (2) invites the imposition of penalty under Section 23(1)(a). Had the Legislature intended to restrict the applicability of the provisions of Section 23(1)(a) to only one of the two sub-sections of section 10, it would have manifested its intention in the section itself by mentioning the specific sub-section. We are, therefore, of the opinion that contravention of sub-section (1) of Section 10 would invite penalty under Section 23(1)(a) and penalty shall also be leviable for contravention of any of the directions which may be issued by the Reserve Bank of India to such a person under sub-section (2) of Section 10 after his failure to comply with sub-section (1) of Section 10, notwithstanding the imposition of penalty for contravention of Section 10(1)(a) of FERA upon that person. The High Court was in error, if we may say so with respect, to construe that the contravention under sub-section (1) of Section 10 is not complete unless there is also a violation of the directions issued by the Reserve Bank of India under sub-section (2) of Section 10 of FERA, 1947. That interpretation does violence to the language of sub-section (2) of Section 10 and defeats the very object of the Act and renders the statutory obligation to repatriate the foreign exchange receivable in India as non-statutory, dependant upon issuance of specific or general directions by the Reserve Bank of India. Our answer to the second question, formulated in the earlier part of this judgment, therefore is in affirmative and we hold that for establishing contravention of sub-section (1) of Section 10 it is not necessary to establish that the defaulter has disobeyed any directions issued by the Reserve Bank of India under Section 10(2) with regard to the repatriation of the foreign exchange receivable by him in India. The contrary view taken by the High Court is not sustainable. 18. In view of our answer to both the questions above the judgment of the High Court, impugned in this appeal, cannot be sustained and we accordingly set it aside19. So far as the amount of penalty is concerned, the Appellate Board, as already noticed, has modified the amount of penalty as imposed by the Directorate of Enforcement. The learned Additional Solicitor General, Mr Tulsi, submitted that the appellant has no objection to the waiving of the entire amount of penalty insofar as each one of the Directors is concerned, some of whom are reported to have died during the pendency of the proceedings in this Court but that the penalty imposed upon the Company on both the charges does not call for any interference, because of the inordinate delay in repatriation of the foreign exchange, which according to him has not been repatriated even till date as that failure on the part of the Company has deprived this country to use the foreign exchange to subserve the common good, all these years. Learned counsel for the respondents does not controvert that the foreign exchange which was receivable in India from Malaysia has not been repatriated even till date. | 1[ds]6. The High Court, while dealing with the first question opined that Section 23 is a "penal provision" and, the proceedings under Section 23(1)(a) arein nature and therefore, unless criminality is established, the penalty provided under Section 23(1)(a) of the Act cannot be imposed on any person. The High Court thus held the existence of "mens rea" as a necessary ingredient for the commission of an offence under Section 10 the Act and in the absence of a finding about the presence of "mens rea" on the part of the offenders, no punishment under Section 23(1)(a) of FERA, 1947 could be imposed. For what follows, we cannotWe are in agreement with the aforesaid view and in our opinion, what applies to "tax delinquency" equally holds good for the blameworthy conduct for contravention of the provisions of FERA, 1947. We, therefore, hold that mens rea (as is understood in criminal law) is not an essential ingredient for holding a delinquent liable to pay penalty under Section 23(1)(a) of FERA, 1947 for contravention of the provisions of Section 10 of FERA, 1947 and that penalty is attracted under Section 23(1)(a) as soon as contravention of the statutory obligation contemplated by Section 10(1)(a) is established. The High Court apparently fell in error in treating the "blameworthy conduct" under the Act as equivalent to the commission of a "criminal offence", overlooking the position that the "blameworthy conduct" in the adjudicatory proceedings is established by proof only of the breach of a civil obligation under the Act, for which the defaulter is obliged to make amends by payment of the penalty imposed under Section 23(1)(a) of the Act irrespective of the fact whether he committed the breach with or without any guilty intention. Our answer to the first question formulated by us above is, therefore in theThe scheme of clause (1) of Section 10, in our opinion, unambiguously indicates that any person who has a right to receive foreign exchange or its payment in rupees in India shall not do or refrain from doing anything nor take or refrain from taking any action, which has the effect of either delaying or making the receipt of the whole part of that foreign exchange or its payment in rupees totally cease except, where he is expressly or by some general direction authorised or permitted by the Reserve Bank of India to doanswer to the second question, formulated in the earlier part of this judgment, therefore is in affirmative and we hold that for establishing contravention of(1) of Section 10 it is not necessary to establish that the defaulter has disobeyed any directions issued by the Reserve Bank of India under Section 10(2) with regard to the repatriation of the foreign exchange receivable by him in India. The contrary view taken by the High Court is notIn view of our answer to both the questions above the judgment of the High Court, impugned in this appeal, cannot be sustained and we accordingly set it aside19. So far as the amount of penalty is concerned, the Appellate Board, as already noticed, has modified the amount of penalty as imposed by the Directorate of Enforcement. The learned Additional Solicitor General, Mr Tulsi, submitted that the appellant has no objection to the waiving of the entire amount of penalty insofar as each one of the Directors is concerned, some of whom are reported to have died during the pendency of the proceedings in this Court but that the penalty imposed upon the Company on both the charges does not call for any interference, because of the inordinate delay in repatriation of the foreign exchange, which according to him has not been repatriated even till date as that failure on the part of the Company has deprived this country to use the foreign exchange to subserve the common good, all these years. Learned counsel for the respondents does not controvert that the foreign exchange which was receivable in India from Malaysia has not been repatriated even till date. | 1 | 5,914 | 782 | ### Instruction:
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Section 23(1)(a) of FERA, 1947. The opening phrase of sub-section (2) viz. : "where a person has failed to comply with the requirements of sub-section (1)..." shows that the directions under sub-section (2) may be given only after a person has contravened the provisions of Section 10(1). Thus, sub-section (2) is attracted after the contravention of sub-section (1) is established meaning thereby that contravention of sub-section (1) is a distinct offence, independent of the breach which may be committed subsequently by disobedience of any order or direction issued under sub-section (2) and the violation of the directions issued under sub-section (2) is not necessary to complete the commission of an offence under sub-section (1) of Section 10. 16. Sub-sections (1) and (2) of Section 10 take care of two distinct situations. There is therefore no warrant to hold that the contravention under Section 10(1) is not possible unless there has been violation of the direction issued under Section 10(2). Both sub-sections operate in different spheres and the issuance of directions under sub-section (2) and the breach of those directions is not the sine qua non for establishing the contravention contemplated by sub-section (1) of Section 10 whereas failure to comply with the requirements of sub-section (1) of Section 10 is necessary to enable the Reserve Bank of India to issue specific or general directions under sub-section (2) of Section 10. The obligation to repatriate the foreign exchange, receivable in India, is a statutory obligation and is not dependent upon any specific direction to be issued by the Reserve Bank of India in that behalf under sub-section (2) of Section 10. The object of enactment of clause (2) of Section 10 appears to be that the defaulter, may after having been penalised for contravention of Section 10(1) be still directed to repatriate the foreign exchange, in whole or in part, by the Reserve Bank of India and his failure to comply with those direction by itself would also invite penalty under Section 23(1)(a) of the Act, notwithstanding the imposition of penalty upon him for the breach of Section 10(1)(a) of FERA, 1947. Notwithstanding the imposition of penalty under sub-section (1) of Section 10, the Reserve Bank of India retains the authority to issue directions for repatriation etc. of the foreign exchange held by the defaulter abroad as the power to regulate dealings in foreign exchange do not get extinguished by imposition of some penalty on the defaulter during adjudicatory proceedings. 17. Section 23 of FERA, 1947 prescribes penalties for contravention of the provisions of Section 4, Section 5, Section 9, Section 10, sub-section (2) of Section 12, Section 17, Section 18-A or Section 18-B or of any rule, direction or order made thereunder. On its plain reading, Section 23(1)(a) does not restrict its application to only one of the sub-sections of Section 10. Contraventions envisaged by both the sub-sections of Section 10 attract penalty under Section 23(1)(a), unlike Section 12, of which only sub-section (2) invites the imposition of penalty under Section 23(1)(a). Had the Legislature intended to restrict the applicability of the provisions of Section 23(1)(a) to only one of the two sub-sections of section 10, it would have manifested its intention in the section itself by mentioning the specific sub-section. We are, therefore, of the opinion that contravention of sub-section (1) of Section 10 would invite penalty under Section 23(1)(a) and penalty shall also be leviable for contravention of any of the directions which may be issued by the Reserve Bank of India to such a person under sub-section (2) of Section 10 after his failure to comply with sub-section (1) of Section 10, notwithstanding the imposition of penalty for contravention of Section 10(1)(a) of FERA upon that person. The High Court was in error, if we may say so with respect, to construe that the contravention under sub-section (1) of Section 10 is not complete unless there is also a violation of the directions issued by the Reserve Bank of India under sub-section (2) of Section 10 of FERA, 1947. That interpretation does violence to the language of sub-section (2) of Section 10 and defeats the very object of the Act and renders the statutory obligation to repatriate the foreign exchange receivable in India as non-statutory, dependant upon issuance of specific or general directions by the Reserve Bank of India. Our answer to the second question, formulated in the earlier part of this judgment, therefore is in affirmative and we hold that for establishing contravention of sub-section (1) of Section 10 it is not necessary to establish that the defaulter has disobeyed any directions issued by the Reserve Bank of India under Section 10(2) with regard to the repatriation of the foreign exchange receivable by him in India. The contrary view taken by the High Court is not sustainable. 18. In view of our answer to both the questions above the judgment of the High Court, impugned in this appeal, cannot be sustained and we accordingly set it aside19. So far as the amount of penalty is concerned, the Appellate Board, as already noticed, has modified the amount of penalty as imposed by the Directorate of Enforcement. The learned Additional Solicitor General, Mr Tulsi, submitted that the appellant has no objection to the waiving of the entire amount of penalty insofar as each one of the Directors is concerned, some of whom are reported to have died during the pendency of the proceedings in this Court but that the penalty imposed upon the Company on both the charges does not call for any interference, because of the inordinate delay in repatriation of the foreign exchange, which according to him has not been repatriated even till date as that failure on the part of the Company has deprived this country to use the foreign exchange to subserve the common good, all these years. Learned counsel for the respondents does not controvert that the foreign exchange which was receivable in India from Malaysia has not been repatriated even till date.
### Response:
1
### Explanation:
6. The High Court, while dealing with the first question opined that Section 23 is a "penal provision" and, the proceedings under Section 23(1)(a) arein nature and therefore, unless criminality is established, the penalty provided under Section 23(1)(a) of the Act cannot be imposed on any person. The High Court thus held the existence of "mens rea" as a necessary ingredient for the commission of an offence under Section 10 the Act and in the absence of a finding about the presence of "mens rea" on the part of the offenders, no punishment under Section 23(1)(a) of FERA, 1947 could be imposed. For what follows, we cannotWe are in agreement with the aforesaid view and in our opinion, what applies to "tax delinquency" equally holds good for the blameworthy conduct for contravention of the provisions of FERA, 1947. We, therefore, hold that mens rea (as is understood in criminal law) is not an essential ingredient for holding a delinquent liable to pay penalty under Section 23(1)(a) of FERA, 1947 for contravention of the provisions of Section 10 of FERA, 1947 and that penalty is attracted under Section 23(1)(a) as soon as contravention of the statutory obligation contemplated by Section 10(1)(a) is established. The High Court apparently fell in error in treating the "blameworthy conduct" under the Act as equivalent to the commission of a "criminal offence", overlooking the position that the "blameworthy conduct" in the adjudicatory proceedings is established by proof only of the breach of a civil obligation under the Act, for which the defaulter is obliged to make amends by payment of the penalty imposed under Section 23(1)(a) of the Act irrespective of the fact whether he committed the breach with or without any guilty intention. Our answer to the first question formulated by us above is, therefore in theThe scheme of clause (1) of Section 10, in our opinion, unambiguously indicates that any person who has a right to receive foreign exchange or its payment in rupees in India shall not do or refrain from doing anything nor take or refrain from taking any action, which has the effect of either delaying or making the receipt of the whole part of that foreign exchange or its payment in rupees totally cease except, where he is expressly or by some general direction authorised or permitted by the Reserve Bank of India to doanswer to the second question, formulated in the earlier part of this judgment, therefore is in affirmative and we hold that for establishing contravention of(1) of Section 10 it is not necessary to establish that the defaulter has disobeyed any directions issued by the Reserve Bank of India under Section 10(2) with regard to the repatriation of the foreign exchange receivable by him in India. The contrary view taken by the High Court is notIn view of our answer to both the questions above the judgment of the High Court, impugned in this appeal, cannot be sustained and we accordingly set it aside19. So far as the amount of penalty is concerned, the Appellate Board, as already noticed, has modified the amount of penalty as imposed by the Directorate of Enforcement. The learned Additional Solicitor General, Mr Tulsi, submitted that the appellant has no objection to the waiving of the entire amount of penalty insofar as each one of the Directors is concerned, some of whom are reported to have died during the pendency of the proceedings in this Court but that the penalty imposed upon the Company on both the charges does not call for any interference, because of the inordinate delay in repatriation of the foreign exchange, which according to him has not been repatriated even till date as that failure on the part of the Company has deprived this country to use the foreign exchange to subserve the common good, all these years. Learned counsel for the respondents does not controvert that the foreign exchange which was receivable in India from Malaysia has not been repatriated even till date.
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Birla VXL Ltd. Vs. State of Punjab and Ors. | S.P. Bharucha, J. Special leave granted. 2. On 16.4.1982, the third respondent was appointed as a Fitter on probation up to 30.9.1982. He was appointed, on 1.1.1983, as a Fitter on temporary basis for a period of two years, up to 31.12.1984. This appointment order stated : This is purely a temporary appointment for a period of two years upto 31.12.1984. During or at the expiry of this period if your work or conduct is not found satisfactory or your services are no longer required by the Company these would be terminated as per clause 8 above. The third respondent put his signature to the appointment order accepting the employment on the terms and conditions therein stated. 3. On 14.12.1984, the appellant wrote to the third respondent warning him of action for misconduct because he had been assembling and addressing workers inside the factory premises for trade union or political purposes. On 21.12.1984, the third respondent wrote to the appellant saying that he had been educating the workers on Hindu-Sikh unity during the lunch break and this did not amount to interference with the working of the factory. He also stated that he was a trade union leader and office-bearer. On 28.12.1984, the appellant wrote to the third respondent recording that he had been appointed on temporary basis for a period of two years ending 31.12.1984. The letter stated : The above temporary appointment ends on 31.12.1984 by efflux of time automatically and, therefore, you cease to be in service of factory thereafter. Although your ceasing to be in service does not constitute any action on our part, yet as abundant caution, the following dues are remitted to you by Bank Draft No. 284426 dated 28.12.1984 in full and final settlement of your account. 4. The third respondent sought a reference for adjudication under the Industrial Disputes Act, 1947 of the question : Whether termination of the services of a workman is justified and in order ? If not, to what relief/exact amount of compensation is he entitled ? The Labour court decided the dispute in favour of the third respondent. The appellant thereupon moved the High Court of Punjab and Haryana in a writ petition. The writ petition was dismissed. The High Court found that it was true that there was a condition in the appointment order that the third respondent was appointed on temporary basis for a period of two years and that it was stipulated in the appointment order that if his work and conduct were not found satisfactory during this period or his services were not required by the appellant the same would be terminated. There was, the High Court said, nothing wrong in specifying the duration of the appointment. The High Court went on to hold that the termination of the services of the third respondent was not a termination simpliciter in terms of his appointment order, but was retrenchment brought about as a punishment, inflicted without any enquiry into the alleged misconduct that he had been assembling workers and addressing them inside the factory premises. 5. The appeal by special leave is directed against the judgment and order of the High Court. 6. Learned counsel for the appellant drew our attention to the fact that the High Court had accepted that the appellant was entitled to terminate the employment of the third respondent if his services were not found satisfactory. The letter of termination simply said that the period of temporary appointment ended on 31.12.1984 by efflux of time whereafter the third respondent ceased to be in the appellants service. There was no hint in that letter of any stigma cast upon the third respondent. Learned counsel for the third respondent drew our attention to the letter of 14.12.1983 and the third respondents reply thereto. He also referred to the letter of termination. He submitted that the services of the third respondent had been terminated without an enquiry because of his trade union activities. 7. The real question is whether the third respondent had a claim to employment beyond 31.12.1984. Having regard to the clear terms of his appointment order, which he accepted by signing at the foot thereof, the appellant was entitled to bring his employment to an end at the conclusion of the period of temporary employment. The letter stating that the third respondents services would come to an end on 31.12.1984 did not say that the services were being terminated because of any misconduct. There was no stigma whatsoever cast by that letter. The High Court was not, in the circumstances, justified in concluding that the services had been terminated because of the third respondents misconduct and upholding his reinstatement with full back wages. | 1[ds]Having regard to the clear terms of his appointment order, which he accepted by signing at the foot thereof, the appellant was entitled to bring his employment to an end at the conclusion of the period of temporary employment. The letter stating that the third respondents services would come to an end on 31.12.1984 did not say that the services were being terminated because of any misconduct. There was no stigma whatsoever cast by that letter. The High Court was not, in the circumstances, justified in concluding that the services had been terminated because of the third respondents misconduct and upholding his reinstatement with full back wages. | 1 | 844 | 119 | ### Instruction:
Decide if the appeal in the case proceeding is more likely to be successful (1) or unsuccessful (0), and then justify your decision by focusing on essential sentences in the document.
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S.P. Bharucha, J. Special leave granted. 2. On 16.4.1982, the third respondent was appointed as a Fitter on probation up to 30.9.1982. He was appointed, on 1.1.1983, as a Fitter on temporary basis for a period of two years, up to 31.12.1984. This appointment order stated : This is purely a temporary appointment for a period of two years upto 31.12.1984. During or at the expiry of this period if your work or conduct is not found satisfactory or your services are no longer required by the Company these would be terminated as per clause 8 above. The third respondent put his signature to the appointment order accepting the employment on the terms and conditions therein stated. 3. On 14.12.1984, the appellant wrote to the third respondent warning him of action for misconduct because he had been assembling and addressing workers inside the factory premises for trade union or political purposes. On 21.12.1984, the third respondent wrote to the appellant saying that he had been educating the workers on Hindu-Sikh unity during the lunch break and this did not amount to interference with the working of the factory. He also stated that he was a trade union leader and office-bearer. On 28.12.1984, the appellant wrote to the third respondent recording that he had been appointed on temporary basis for a period of two years ending 31.12.1984. The letter stated : The above temporary appointment ends on 31.12.1984 by efflux of time automatically and, therefore, you cease to be in service of factory thereafter. Although your ceasing to be in service does not constitute any action on our part, yet as abundant caution, the following dues are remitted to you by Bank Draft No. 284426 dated 28.12.1984 in full and final settlement of your account. 4. The third respondent sought a reference for adjudication under the Industrial Disputes Act, 1947 of the question : Whether termination of the services of a workman is justified and in order ? If not, to what relief/exact amount of compensation is he entitled ? The Labour court decided the dispute in favour of the third respondent. The appellant thereupon moved the High Court of Punjab and Haryana in a writ petition. The writ petition was dismissed. The High Court found that it was true that there was a condition in the appointment order that the third respondent was appointed on temporary basis for a period of two years and that it was stipulated in the appointment order that if his work and conduct were not found satisfactory during this period or his services were not required by the appellant the same would be terminated. There was, the High Court said, nothing wrong in specifying the duration of the appointment. The High Court went on to hold that the termination of the services of the third respondent was not a termination simpliciter in terms of his appointment order, but was retrenchment brought about as a punishment, inflicted without any enquiry into the alleged misconduct that he had been assembling workers and addressing them inside the factory premises. 5. The appeal by special leave is directed against the judgment and order of the High Court. 6. Learned counsel for the appellant drew our attention to the fact that the High Court had accepted that the appellant was entitled to terminate the employment of the third respondent if his services were not found satisfactory. The letter of termination simply said that the period of temporary appointment ended on 31.12.1984 by efflux of time whereafter the third respondent ceased to be in the appellants service. There was no hint in that letter of any stigma cast upon the third respondent. Learned counsel for the third respondent drew our attention to the letter of 14.12.1983 and the third respondents reply thereto. He also referred to the letter of termination. He submitted that the services of the third respondent had been terminated without an enquiry because of his trade union activities. 7. The real question is whether the third respondent had a claim to employment beyond 31.12.1984. Having regard to the clear terms of his appointment order, which he accepted by signing at the foot thereof, the appellant was entitled to bring his employment to an end at the conclusion of the period of temporary employment. The letter stating that the third respondents services would come to an end on 31.12.1984 did not say that the services were being terminated because of any misconduct. There was no stigma whatsoever cast by that letter. The High Court was not, in the circumstances, justified in concluding that the services had been terminated because of the third respondents misconduct and upholding his reinstatement with full back wages.
### Response:
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Having regard to the clear terms of his appointment order, which he accepted by signing at the foot thereof, the appellant was entitled to bring his employment to an end at the conclusion of the period of temporary employment. The letter stating that the third respondents services would come to an end on 31.12.1984 did not say that the services were being terminated because of any misconduct. There was no stigma whatsoever cast by that letter. The High Court was not, in the circumstances, justified in concluding that the services had been terminated because of the third respondents misconduct and upholding his reinstatement with full back wages.
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BASALINGAPPA Vs. MUDIBASAPPA | in December, 2009. Thus, there was evidence on record to indicate that in December, 2009, he gave Rs.7 lakhs in sale agreement, in 2010, he made payment of Rs.4,50,000/- towards sale consideration and further he gave a loan of Rs.50,000/- for which complaint was filed in 2012 and further loan of Rs.6 lakhs in November, 2011. Thus, during the period from 2009 to November, 2011, amount of Rs.18 lakhs was given by the complainant to different persons including the accused, which put a heavy burden to prove the financial capacity when it was questioned on behalf of the accused, the accused being a retired employee of State Transport Corporation, who retired in 1997 and total retirement benefits, which were encashed were Rs.8 lakhs only. The High Court observed that though the complainant is retired employee, the accused did not even suggest that pension is the only means for survival of the complainant. Following observations were made in Paragraph 16 of the judgment of the High Court:- 16. Though the complainant is retired employee, the accused did not even suggest that pension is the only means for survival of the complainant. Under these circumstances, the Trial Courts finding that the complainant failed to discharge his initial burden of proof of lending capacity is perverse. 26. There is one more aspect of the matter which also needs to be noticed. In the complaint filed by the complainant as well as in examination-in-chief the complainant has not mentioned as to on which date, the loan of Rs.6 lakhs was given to the accused. It was during cross-examination, he gave the date as November, 2011. Under Section 118(b), a presumption shall be made as to date that every negotiable instrument was made or drawn on such date. Admittedly, the cheque is dated 27.02.2012, there is not even a suggestion by the complainant that a post dated cheque was given to him in November, 2011 bearing dated 27.02.2012. Giving of a cheque on 27.02.2012, which was deposited on 01.03.2012 is not compatible with the case of the complainant when we read the complaint submitted by the complainant especially Para 1 of the complaint, which is extracted as below:- 1. The accused is a very good friend of the complainant. The accused requested the Complainant a hand loan to meet out urgent and family necessary a sum of Rs.6,00,000/- (Rupees Six Lakh) and on account of long standing friendship and knowing the difficulties, which is being faced by the accused the complainant agreed to lend hand loan to meet out the financial difficulties of the accused and accordingly the Complainant lend hand loan Rs.6,00,000/- (Rupees Six Lakh) dated 27.02.2012 in favour of the Complainant stating that on its presentation it will be honored. But to the surprise of the Complainant on presentation of the same for collection through his Bank the Cheque was returned by the Bank with an endorsement Funds Insufficient on 01-03- 2012. 27. Thus, there is a contradiction in what was initially stated by the complainant in the complaint and in his examination-in-chief regarding date on which loan was given on one side and what was said in cross-examination in other side, which has not been satisfactorily explained. The High Court was unduly influenced by the fact that the accused did not reply the notice denying the execution of cheque or legal liability. Even before the trial court, appellant- accused has not denied his signature on the cheque. 28. We are of the view that when evidence was led before the Court to indicate that apart from loan of Rs.6 lakhs given to the accused, within 02 years, amount of Rs.18 lakhs have been given out by the complainant and his financial capacity being questioned, it was incumbent on the complainant to have explained his financial capacity. Court cannot insist on a person to lead negative evidence. The observation of the High Court that trial courts finding that the complainant failed to prove his financial capacity of lending money is perverse cannot be supported. We fail to see that how the trial courts findings can be termed as perverse by the High Court when it was based on consideration of the evidence, which was led on behalf of the defence. This Court had occasion to consider the expression perverse in Gamini Bala Koteswara Rao and others Vs. State of Andhra Pradesh through Secretary, (2009) 10 SCC 636 , this Court held that although High Court can reappraise the evidence and conclusions drawn by the trial court but judgment of acquittal can be interfered with only judgment is against the weight of evidence. In Paragraph No.14 following has been held:- 14. We have considered the arguments advanced and heard the matter at great length. It is true, as contended by Mr Rao, that interference in an appeal against an acquittal recorded by the trial court should be rare and in exceptional circumstances. It is, however, well settled by now that it is open to the High Court to reappraise the evidence and conclusions drawn by the trial court but only in a case when the judgment of the trial court is stated to be perverse. The word perverse in terms as understood in law has been defined to mean against the weight of evidence. We have to see accordingly as to whether the judgment of the trial court which has been found perverse by the High Court was in fact so. 29. High Court without discarding the evidence, which was led by defence could not have held that finding of trial court regarding financial capacity of the complainant is perverse. We are, thus, satisfied that accused has raised a probable defence and the findings of the trial court that complainant failed to prove his financial capacity are based on evidence led by the defence. The observations of the High Court that findings of the trial court are perverse are unsustainable. We, thus, are of the view that judgment of the High Court is unsustainable. | 1[ds]10. The complainant being holder of cheque and the signature on the cheque having not been denied by the accused, presumption shall be drawn that cheque was issued for the discharge of any debt or other liability. The presumption under Section 139 is a rebuttable presumption. Before we refer to judgments of this Court considering Sections 118 and 139, it is relevant to notice the general principles pertaining to burden of proof on an accused especially in a case where some statutory presumption regarding guilt of the accused has to be drawn.14. This Court held that what is needed is to raise a probable defence, for which it is not necessary for the accused to disprove the existence of consideration by way of direct evidence and even the evidence adduced on behalf of the complainant can be relied upon.16. This Court again reiterated that whereas prosecution must prove the guilt of an accused beyond all reasonable doubt, the standard of proof so as to prove a defence on the part of an accused is preponderance of probabilities.19. After referring to various other judgments of this Court, this Court in that case held that the presumption mandated by Section 139 of the Act does indeed include the existence of a legally enforceable debt or liability, which, of course, is in the nature of a rebuttable presumption.20. Elaborating further, this Court held that Section 139 of the Act is an example of a reverse onus and the test of proportionality should guide the construction and interpretation of reverse onus clauses on the defendant-accused and the defendant- accused cannot be expected to discharge an unduly high standard of proof.22. The above case was a case where this Court did not find the defence raised by the accused probable. The only defence raised was that cheque was stolen having been rejected by the trial court and no contrary opinion having been expressed by the High Court, this Court reversed the judgment of the High Court restoring the conviction. The respondent cannot take any benefit of the said judgment, which was on its own facts23. We having noticed the ratio laid down by this Court in above cases on Sections 118(a) and 139, we now summarise the principles enumerated by this Court in following manner:-(i) Once the execution of cheque is admitted Section 139 of the Act mandates a presumption that the cheque was for the discharge of any debt or other liability(ii) The presumption under Section 139 is a rebuttable presumption and the onus is on the accused to raise the probable defence. The standard of proof for rebutting the presumption is that of preponderance of probabilities(iii) To rebut the presumption, it is open for the accused to rely on evidence led by him or accused can also rely on the materials submitted by the complainant in order to raise a probable defence. Inference of preponderance of probabilities can be drawn not only from the materials brought on record by the parties but also by reference to the circumstances upon which they rely(iv) That it is not necessary for the accused to come in the witness box in support of his defence, Section 139 imposed an evidentiary burden and not a persuasive burden(v) It is not necessary for the accused to come in the witness box to support his defence24. Applying the preposition of law as noted above, in facts of the present case, it is clear that signature on cheque having been admitted, a presumption shall be raised under Section 139 that cheque was issued in discharge of debt or liability. The question to be looked into is as to whether any probable defence was raised by the accused. In cross-examination of the PW1, when the specific question was put that cheque was issued in relation to loan of Rs.25,000/- taken by the accused, the PW1 said that he does not remember. PW1 in his evidence admitted that he retired in 1997 on which date he received monetary benefit of Rs. 8 lakhs, which was encashed by the complainant. It was also brought in the evidence that in the year 2010, the complainant entered into a sale agreement for which he paid an amount of Rs.4,50,000/- to Balana Gouda towards sale consideration. Payment of Rs.4,50,000/- being admitted in the year 2010 and further payment of loan of Rs.50,000/- with regard to which complaint No.119 of 2012 was filed by the complainant, copy of which complaint was also filed as Ex.D2, there was burden on the complainant to prove his financial capacity. In the year 2010-2011, as per own case of the complainant, he made payment of Rs.18 lakhs. During his cross-examination, when financial capacity to pay Rs.6 lakhs to the accused was questioned, there was no satisfactory reply given by the complainant. The evidence on record, thus, is a probable defence on behalf of the accused, which shifted the burden on the complainant to prove his financial capacity and other facts25. There was another evidence on the record, i.e., copy of plaint in O.S. No. 148 of 2011 filed by the complainant for recovery of loan of Rs. 7 lakhs given to one Balana Gouda in December, 2009. Thus, there was evidence on record to indicate that in December, 2009, he gave Rs.7 lakhs in sale agreement, in 2010, he made payment of Rs.4,50,000/- towards sale consideration and further he gave a loan of Rs.50,000/- for which complaint was filed in 2012 and further loan of Rs.6 lakhs in November, 2011. Thus, during the period from 2009 to November, 2011, amount of Rs.18 lakhs was given by the complainant to different persons including the accused, which put a heavy burden to prove the financial capacity when it was questioned on behalf of the accused, the accused being a retired employee of State Transport Corporation, who retired in 1997 and total retirement benefits, which were encashed were Rs.8 lakhs only. The High Court observed that though the complainant is retired employee, the accused did not even suggest that pension is the only means for survival of the complainant.26. There is one more aspect of the matter which also needs to be noticed. In the complaint filed by the complainant as well as in examination-in-chief the complainant has not mentioned as to on which date, the loan of Rs.6 lakhs was given to the accused. It was during cross-examination, he gave the date as November, 2011. Under Section 118(b), a presumption shall be made as to date that every negotiable instrument was made or drawn on such date. Admittedly, the cheque is dated 27.02.2012, there is not even a suggestion by the complainant that a post dated cheque was given to him in November, 2011 bearing dated 27.02.2012. Giving of a cheque on 27.02.2012, which was deposited on 01.03.2012 is not compatible with the case of the complainant when we read the complaint submitted by the complainant especially Para 1 of the complaint, which is extracted as below:-1. The accused is a very good friend of the complainant. The accused requested the Complainant a hand loan to meet out urgent and family necessary a sum of Rs.6,00,000/- (Rupees Six Lakh) and on account of long standing friendship and knowing the difficulties, which is being faced by the accused the complainant agreed to lend hand loan to meet out the financial difficulties of the accused and accordingly the Complainant lend hand loan Rs.6,00,000/- (Rupees Six Lakh) dated 27.02.2012 in favour of the Complainant stating that on its presentation it will be honored. But to the surprise of the Complainant on presentation of the same for collection through his Bank the Cheque was returned by the Bank with an endorsement Funds Insufficient on 01-03- 201227. Thus, there is a contradiction in what was initially stated by the complainant in the complaint and in his examination-in-chief regarding date on which loan was given on one side and what was said in cross-examination in other side, which has not been satisfactorily explained. The High Court was unduly influenced by the fact that the accused did not reply the notice denying the execution of cheque or legal liability. Even before the trial court, appellant- accused has not denied his signature on the cheque28. We are of the view that when evidence was led before the Court to indicate that apart from loan of Rs.6 lakhs given to the accused, within 02 years, amount of Rs.18 lakhs have been given out by the complainant and his financial capacity being questioned, it was incumbent on the complainant to have explained his financial capacity. Court cannot insist on a person to lead negative evidence. The observation of the High Court that trial courts finding that the complainant failed to prove his financial capacity of lending money is perverse cannot be supported. We fail to see that how the trial courts findings can be termed as perverse by the High Court when it was based on consideration of the evidence, which was led on behalf of the defence. This Court had occasion to consider the expression perverse in Gamini Bala Koteswara Rao and others Vs. State of Andhra Pradesh through Secretary, (2009) 10 SCC 636 , this Court held that although High Court can reappraise the evidence and conclusions drawn by the trial court but judgment of acquittal can be interfered with only judgment is against the weight of evidence.29. High Court without discarding the evidence, which was led by defence could not have held that finding of trial court regarding financial capacity of the complainant is perverse. We are, thus, satisfied that accused has raised a probable defence and the findings of the trial court that complainant failed to prove his financial capacity are based on evidence led by the defence. The observations of the High Court that findings of the trial court are perverse are unsustainable. We, thus, are of the view that judgment of the High Court is unsustainable. | 1 | 7,644 | 1,819 | ### 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:
in December, 2009. Thus, there was evidence on record to indicate that in December, 2009, he gave Rs.7 lakhs in sale agreement, in 2010, he made payment of Rs.4,50,000/- towards sale consideration and further he gave a loan of Rs.50,000/- for which complaint was filed in 2012 and further loan of Rs.6 lakhs in November, 2011. Thus, during the period from 2009 to November, 2011, amount of Rs.18 lakhs was given by the complainant to different persons including the accused, which put a heavy burden to prove the financial capacity when it was questioned on behalf of the accused, the accused being a retired employee of State Transport Corporation, who retired in 1997 and total retirement benefits, which were encashed were Rs.8 lakhs only. The High Court observed that though the complainant is retired employee, the accused did not even suggest that pension is the only means for survival of the complainant. Following observations were made in Paragraph 16 of the judgment of the High Court:- 16. Though the complainant is retired employee, the accused did not even suggest that pension is the only means for survival of the complainant. Under these circumstances, the Trial Courts finding that the complainant failed to discharge his initial burden of proof of lending capacity is perverse. 26. There is one more aspect of the matter which also needs to be noticed. In the complaint filed by the complainant as well as in examination-in-chief the complainant has not mentioned as to on which date, the loan of Rs.6 lakhs was given to the accused. It was during cross-examination, he gave the date as November, 2011. Under Section 118(b), a presumption shall be made as to date that every negotiable instrument was made or drawn on such date. Admittedly, the cheque is dated 27.02.2012, there is not even a suggestion by the complainant that a post dated cheque was given to him in November, 2011 bearing dated 27.02.2012. Giving of a cheque on 27.02.2012, which was deposited on 01.03.2012 is not compatible with the case of the complainant when we read the complaint submitted by the complainant especially Para 1 of the complaint, which is extracted as below:- 1. The accused is a very good friend of the complainant. The accused requested the Complainant a hand loan to meet out urgent and family necessary a sum of Rs.6,00,000/- (Rupees Six Lakh) and on account of long standing friendship and knowing the difficulties, which is being faced by the accused the complainant agreed to lend hand loan to meet out the financial difficulties of the accused and accordingly the Complainant lend hand loan Rs.6,00,000/- (Rupees Six Lakh) dated 27.02.2012 in favour of the Complainant stating that on its presentation it will be honored. But to the surprise of the Complainant on presentation of the same for collection through his Bank the Cheque was returned by the Bank with an endorsement Funds Insufficient on 01-03- 2012. 27. Thus, there is a contradiction in what was initially stated by the complainant in the complaint and in his examination-in-chief regarding date on which loan was given on one side and what was said in cross-examination in other side, which has not been satisfactorily explained. The High Court was unduly influenced by the fact that the accused did not reply the notice denying the execution of cheque or legal liability. Even before the trial court, appellant- accused has not denied his signature on the cheque. 28. We are of the view that when evidence was led before the Court to indicate that apart from loan of Rs.6 lakhs given to the accused, within 02 years, amount of Rs.18 lakhs have been given out by the complainant and his financial capacity being questioned, it was incumbent on the complainant to have explained his financial capacity. Court cannot insist on a person to lead negative evidence. The observation of the High Court that trial courts finding that the complainant failed to prove his financial capacity of lending money is perverse cannot be supported. We fail to see that how the trial courts findings can be termed as perverse by the High Court when it was based on consideration of the evidence, which was led on behalf of the defence. This Court had occasion to consider the expression perverse in Gamini Bala Koteswara Rao and others Vs. State of Andhra Pradesh through Secretary, (2009) 10 SCC 636 , this Court held that although High Court can reappraise the evidence and conclusions drawn by the trial court but judgment of acquittal can be interfered with only judgment is against the weight of evidence. In Paragraph No.14 following has been held:- 14. We have considered the arguments advanced and heard the matter at great length. It is true, as contended by Mr Rao, that interference in an appeal against an acquittal recorded by the trial court should be rare and in exceptional circumstances. It is, however, well settled by now that it is open to the High Court to reappraise the evidence and conclusions drawn by the trial court but only in a case when the judgment of the trial court is stated to be perverse. The word perverse in terms as understood in law has been defined to mean against the weight of evidence. We have to see accordingly as to whether the judgment of the trial court which has been found perverse by the High Court was in fact so. 29. High Court without discarding the evidence, which was led by defence could not have held that finding of trial court regarding financial capacity of the complainant is perverse. We are, thus, satisfied that accused has raised a probable defence and the findings of the trial court that complainant failed to prove his financial capacity are based on evidence led by the defence. The observations of the High Court that findings of the trial court are perverse are unsustainable. We, thus, are of the view that judgment of the High Court is unsustainable.
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### Explanation:
on which date he received monetary benefit of Rs. 8 lakhs, which was encashed by the complainant. It was also brought in the evidence that in the year 2010, the complainant entered into a sale agreement for which he paid an amount of Rs.4,50,000/- to Balana Gouda towards sale consideration. Payment of Rs.4,50,000/- being admitted in the year 2010 and further payment of loan of Rs.50,000/- with regard to which complaint No.119 of 2012 was filed by the complainant, copy of which complaint was also filed as Ex.D2, there was burden on the complainant to prove his financial capacity. In the year 2010-2011, as per own case of the complainant, he made payment of Rs.18 lakhs. During his cross-examination, when financial capacity to pay Rs.6 lakhs to the accused was questioned, there was no satisfactory reply given by the complainant. The evidence on record, thus, is a probable defence on behalf of the accused, which shifted the burden on the complainant to prove his financial capacity and other facts25. There was another evidence on the record, i.e., copy of plaint in O.S. No. 148 of 2011 filed by the complainant for recovery of loan of Rs. 7 lakhs given to one Balana Gouda in December, 2009. Thus, there was evidence on record to indicate that in December, 2009, he gave Rs.7 lakhs in sale agreement, in 2010, he made payment of Rs.4,50,000/- towards sale consideration and further he gave a loan of Rs.50,000/- for which complaint was filed in 2012 and further loan of Rs.6 lakhs in November, 2011. Thus, during the period from 2009 to November, 2011, amount of Rs.18 lakhs was given by the complainant to different persons including the accused, which put a heavy burden to prove the financial capacity when it was questioned on behalf of the accused, the accused being a retired employee of State Transport Corporation, who retired in 1997 and total retirement benefits, which were encashed were Rs.8 lakhs only. The High Court observed that though the complainant is retired employee, the accused did not even suggest that pension is the only means for survival of the complainant.26. There is one more aspect of the matter which also needs to be noticed. In the complaint filed by the complainant as well as in examination-in-chief the complainant has not mentioned as to on which date, the loan of Rs.6 lakhs was given to the accused. It was during cross-examination, he gave the date as November, 2011. Under Section 118(b), a presumption shall be made as to date that every negotiable instrument was made or drawn on such date. Admittedly, the cheque is dated 27.02.2012, there is not even a suggestion by the complainant that a post dated cheque was given to him in November, 2011 bearing dated 27.02.2012. Giving of a cheque on 27.02.2012, which was deposited on 01.03.2012 is not compatible with the case of the complainant when we read the complaint submitted by the complainant especially Para 1 of the complaint, which is extracted as below:-1. The accused is a very good friend of the complainant. The accused requested the Complainant a hand loan to meet out urgent and family necessary a sum of Rs.6,00,000/- (Rupees Six Lakh) and on account of long standing friendship and knowing the difficulties, which is being faced by the accused the complainant agreed to lend hand loan to meet out the financial difficulties of the accused and accordingly the Complainant lend hand loan Rs.6,00,000/- (Rupees Six Lakh) dated 27.02.2012 in favour of the Complainant stating that on its presentation it will be honored. But to the surprise of the Complainant on presentation of the same for collection through his Bank the Cheque was returned by the Bank with an endorsement Funds Insufficient on 01-03- 201227. Thus, there is a contradiction in what was initially stated by the complainant in the complaint and in his examination-in-chief regarding date on which loan was given on one side and what was said in cross-examination in other side, which has not been satisfactorily explained. The High Court was unduly influenced by the fact that the accused did not reply the notice denying the execution of cheque or legal liability. Even before the trial court, appellant- accused has not denied his signature on the cheque28. We are of the view that when evidence was led before the Court to indicate that apart from loan of Rs.6 lakhs given to the accused, within 02 years, amount of Rs.18 lakhs have been given out by the complainant and his financial capacity being questioned, it was incumbent on the complainant to have explained his financial capacity. Court cannot insist on a person to lead negative evidence. The observation of the High Court that trial courts finding that the complainant failed to prove his financial capacity of lending money is perverse cannot be supported. We fail to see that how the trial courts findings can be termed as perverse by the High Court when it was based on consideration of the evidence, which was led on behalf of the defence. This Court had occasion to consider the expression perverse in Gamini Bala Koteswara Rao and others Vs. State of Andhra Pradesh through Secretary, (2009) 10 SCC 636 , this Court held that although High Court can reappraise the evidence and conclusions drawn by the trial court but judgment of acquittal can be interfered with only judgment is against the weight of evidence.29. High Court without discarding the evidence, which was led by defence could not have held that finding of trial court regarding financial capacity of the complainant is perverse. We are, thus, satisfied that accused has raised a probable defence and the findings of the trial court that complainant failed to prove his financial capacity are based on evidence led by the defence. The observations of the High Court that findings of the trial court are perverse are unsustainable. We, thus, are of the view that judgment of the High Court is unsustainable.
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Kamla Prasad Vs. District Magistrate, Saran & Others | Mathew, J.1. The petitioner challenges the validity of an order of detention passed under S. 3 (3) of the Maintenance of Internal Security Act, 1971, by the District Magistrate, Saran, on 10-6-1974 and prays for issue of a writ of habeas corpus.2. The ground of detention served on the Petitioner on 15-6-1974 states:"On a surprise inspection by the District Supply Officer, Chapra, on 10-6-1974, it was found that he had hoarded and concealed the following stock of essential commodities in his shop:(1) Match boxes sankh brand - 7 bundles - 15 dozen - (one bundle - 60 dozen)(2) Match boxes Tank brand - 2 bundles - 32 dozen.(3) Match boxes Sanpagam flower -52 dozen(4) Match boxes Delux - 2 dozen(5) Soap - 501 brand - 33 (1/2 bars)(6) Soap - Nirmal - 3 (1/2 bars)In addition, the following stock was also found hidden under chauki in his residential house separate from the business premises:(1) Match boxes - 65 gross (9360 pieces)(2) Ashoka Soap - 5 cartons (360 pieces)All these articles were unaccounted for. He did not display the stock and kept it concealed. When some customers, namely, Dhrubdeo Kumar, Sri Madan Kumar and Rajendra Singh wanted to buy match boxes, and soap earlier on 10-6-1974, the dealer refused to sell to them saying that he has no stock.Thus at a time when soap and match boxes have become acute scarce, this dealer tried to conceal and hoard the stock of these commodities with the obvious intention of black marketing and profiteering and creating further artificial scarcity of these articles in the market."3. Counsel for the petitioner submitted that since there was no law fixing the limit up to which a dealer could stock match boxes and soaps, it could not be said that the petitioner had hoarded the scheduled commodities in question and therefore, the ground of detention was bad.4. To answer this contention, it is necessary to have regard to the provisions of the Bihar Essential Commodities other than Food Grains - Prices and Stocks (Display and Control) Order, 1967. This is an order passed by the Governor of Bihar in the exercise of powers conferred by S. 3 of the Essential Commodities Act, 1955 read with the Order of the Government of India in the Ministry of Commerce published under notification No. S.O. 1844, dated 18-6-1966, with the concurrence of the Government of India. Clause 2 of the Order defines schedule commodity as one or more commodities specified in schedules I and II annexed to the order and dealer as a person carrying on business for the purchase, sale or storage or distribution of scheduled commodity, whether wholesale or retail and whether or not in conjunction with any other business. Clause 4 states that every dealer shall display-at a conspicuous pert of the premises where he carries on his business the price list and stock position of the scheduled commodities specified in Schedules I and II annexed to the order, held in stock by him for sale m a manner so as to be easily accessible for consultation by any customer. Clause 5 provides that no dealer, unless previously authorised in this behalf by the District Magistrate, Additional Collector, Special Officer Incharge Rationing, Patna, or the Subdivisional Magistrate, or any other officer authorised by the Government in this behalf shall withhold from sale or refuse to sell to any person any scheduled commodity specified in Schedule II ordinarily kept by him for sale. Clause 7 provides for powers of entry, inspection, search and seizure.5. The ground in effect stated that the petitioner had hoarded and concealed the essential commodities, namely, match boxes and soaps (which are specified in Schedule I) in his business premises and also in his residential house which is separate from the business premises, that he did not display the stock position at both the places of these commodities in his business premises, that when the customers wanted to purchase soaps and match boxes on 10-6-1974 he refused to sell to them saying that he had no stock and that he concealed and hoarded the stock with the intention of selling them in black market with a view to make undue profit.6. The petitioner was bound under clause 4 of the Order to display in his business premises the stock of match boxes and soaps held by him. From the fact that he did not display the stock of match boxes and soaps, in his business premises the only possible conclusion was that the petitioner was hoarding the stock for the purpose of sale in black market and thus make undue profit, The word hoard in the context means to amass and deposit in secret. As we said, the reason why the petitioner did not display the stock position in respect of these scheduled commodities in his business premises was that he wanted to hoard and conceal them. This would create scarcity of the commodities in the market and vitally affect the maintenance of services and supplies essential to the community.7. It is, no doubt, true that clause 5 of the Order only provides that a dealer shall not refuse to sell to any person any scheduled commodities specified in Schedule 11 except with the permission of the authorities specified therein and, match boxes are not included in that schedule. But that would not in any way affect the validity of the order of detention. The refusal to sell match boxes to the customers mentioned in the ground was not an independent ground of detention. The fact that the petitioner refused to sell match boxes and soaps to those customers was stated in the ground only to show that the petitioner was hoarding match boxes and soaps with a view to sell them in black market as otherwise there was no reason why he should refuse to sell them to those customers. | 0[ds]4. To answer this contention, it is necessary to have regard to the provisions of the Bihar Essential Commodities other than Food GrainsPrices and Stocks (Display and Control) Order, 1967. This is an order passed by the Governor of Bihar in the exercise of powers conferred by S. 3 of the Essential Commodities Act, 1955 read with the Order of the Government of India in the Ministry of Commerce published under notification No. S.O. 1844, datedwith the concurrence of the Government of India. Clause 2 of the Order defines schedule commodity as one or more commodities specified in schedules I and II annexed to the order and dealer as a person carrying on business for the purchase, sale or storage or distribution of scheduled commodity, whether wholesale or retail and whether or not in conjunction with any other business. Clause 4 states that every dealer shalla conspicuous pert of the premises where he carries on his business the price list and stock position of the scheduled commodities specified in Schedules I and II annexed to the order, held in stock by him for sale m a manner so as to be easily accessible for consultation by any customer. Clause 5 provides that no dealer, unless previously authorised in this behalf by the District Magistrate, Additional Collector, Special Officer Incharge Rationing, Patna, or the Subdivisional Magistrate, or any other officer authorised by the Government in this behalf shall withhold from sale or refuse to sell to any person any scheduled commodity specified in Schedule II ordinarily kept by him for sale. Clause 7 provides for powers of entry, inspection, search and seizure.5. The ground in effect stated that the petitioner had hoarded and concealed the essential commodities, namely, match boxes and soaps (which are specified in Schedule I) in his business premises and also in his residential house which is separate from the business premises, that he did not display the stock position at both the places of these commodities in his business premises, that when the customers wanted to purchase soaps and match boxes onhe refused to sell to them saying that he had no stock and that he concealed and hoarded the stock with the intention of selling them in black market with a view to make undue profit.6. The petitioner was bound under clause 4 of the Order to display in his business premises the stock of match boxes and soaps held by him. From the fact that he did not display the stock of match boxes and soaps, in his business premises the only possible conclusion was that the petitioner was hoarding the stock for the purpose of sale in black market and thus make undue profit, The word hoard in the context means to amass and deposit in secret. As we said, the reason why the petitioner did not display the stock position in respect of these scheduled commodities in his business premises was that he wanted to hoard and conceal them. This would create scarcity of the commodities in the market and vitally affect the maintenance of services and supplies essential to the community.7. It is, no doubt, true that clause 5 of the Order only provides that a dealer shall not refuse to sell to any person any scheduled commodities specified in Schedule 11 except with the permission of the authorities specified therein and, match boxes are not included in that schedule. But that would not in any way affect the validity of the order of detention. The refusal to sell match boxes to the customers mentioned in the ground was not an independent ground of detention. The fact that the petitioner refused to sell match boxes and soaps to those customers was stated in the ground only to show that the petitioner was hoarding match boxes and soaps with a view to sell them in black market as otherwise there was no reason why he should refuse to sell them to those customers. | 0 | 1,093 | 711 | ### Instruction:
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### Input:
Mathew, J.1. The petitioner challenges the validity of an order of detention passed under S. 3 (3) of the Maintenance of Internal Security Act, 1971, by the District Magistrate, Saran, on 10-6-1974 and prays for issue of a writ of habeas corpus.2. The ground of detention served on the Petitioner on 15-6-1974 states:"On a surprise inspection by the District Supply Officer, Chapra, on 10-6-1974, it was found that he had hoarded and concealed the following stock of essential commodities in his shop:(1) Match boxes sankh brand - 7 bundles - 15 dozen - (one bundle - 60 dozen)(2) Match boxes Tank brand - 2 bundles - 32 dozen.(3) Match boxes Sanpagam flower -52 dozen(4) Match boxes Delux - 2 dozen(5) Soap - 501 brand - 33 (1/2 bars)(6) Soap - Nirmal - 3 (1/2 bars)In addition, the following stock was also found hidden under chauki in his residential house separate from the business premises:(1) Match boxes - 65 gross (9360 pieces)(2) Ashoka Soap - 5 cartons (360 pieces)All these articles were unaccounted for. He did not display the stock and kept it concealed. When some customers, namely, Dhrubdeo Kumar, Sri Madan Kumar and Rajendra Singh wanted to buy match boxes, and soap earlier on 10-6-1974, the dealer refused to sell to them saying that he has no stock.Thus at a time when soap and match boxes have become acute scarce, this dealer tried to conceal and hoard the stock of these commodities with the obvious intention of black marketing and profiteering and creating further artificial scarcity of these articles in the market."3. Counsel for the petitioner submitted that since there was no law fixing the limit up to which a dealer could stock match boxes and soaps, it could not be said that the petitioner had hoarded the scheduled commodities in question and therefore, the ground of detention was bad.4. To answer this contention, it is necessary to have regard to the provisions of the Bihar Essential Commodities other than Food Grains - Prices and Stocks (Display and Control) Order, 1967. This is an order passed by the Governor of Bihar in the exercise of powers conferred by S. 3 of the Essential Commodities Act, 1955 read with the Order of the Government of India in the Ministry of Commerce published under notification No. S.O. 1844, dated 18-6-1966, with the concurrence of the Government of India. Clause 2 of the Order defines schedule commodity as one or more commodities specified in schedules I and II annexed to the order and dealer as a person carrying on business for the purchase, sale or storage or distribution of scheduled commodity, whether wholesale or retail and whether or not in conjunction with any other business. Clause 4 states that every dealer shall display-at a conspicuous pert of the premises where he carries on his business the price list and stock position of the scheduled commodities specified in Schedules I and II annexed to the order, held in stock by him for sale m a manner so as to be easily accessible for consultation by any customer. Clause 5 provides that no dealer, unless previously authorised in this behalf by the District Magistrate, Additional Collector, Special Officer Incharge Rationing, Patna, or the Subdivisional Magistrate, or any other officer authorised by the Government in this behalf shall withhold from sale or refuse to sell to any person any scheduled commodity specified in Schedule II ordinarily kept by him for sale. Clause 7 provides for powers of entry, inspection, search and seizure.5. The ground in effect stated that the petitioner had hoarded and concealed the essential commodities, namely, match boxes and soaps (which are specified in Schedule I) in his business premises and also in his residential house which is separate from the business premises, that he did not display the stock position at both the places of these commodities in his business premises, that when the customers wanted to purchase soaps and match boxes on 10-6-1974 he refused to sell to them saying that he had no stock and that he concealed and hoarded the stock with the intention of selling them in black market with a view to make undue profit.6. The petitioner was bound under clause 4 of the Order to display in his business premises the stock of match boxes and soaps held by him. From the fact that he did not display the stock of match boxes and soaps, in his business premises the only possible conclusion was that the petitioner was hoarding the stock for the purpose of sale in black market and thus make undue profit, The word hoard in the context means to amass and deposit in secret. As we said, the reason why the petitioner did not display the stock position in respect of these scheduled commodities in his business premises was that he wanted to hoard and conceal them. This would create scarcity of the commodities in the market and vitally affect the maintenance of services and supplies essential to the community.7. It is, no doubt, true that clause 5 of the Order only provides that a dealer shall not refuse to sell to any person any scheduled commodities specified in Schedule 11 except with the permission of the authorities specified therein and, match boxes are not included in that schedule. But that would not in any way affect the validity of the order of detention. The refusal to sell match boxes to the customers mentioned in the ground was not an independent ground of detention. The fact that the petitioner refused to sell match boxes and soaps to those customers was stated in the ground only to show that the petitioner was hoarding match boxes and soaps with a view to sell them in black market as otherwise there was no reason why he should refuse to sell them to those customers.
### Response:
0
### Explanation:
4. To answer this contention, it is necessary to have regard to the provisions of the Bihar Essential Commodities other than Food GrainsPrices and Stocks (Display and Control) Order, 1967. This is an order passed by the Governor of Bihar in the exercise of powers conferred by S. 3 of the Essential Commodities Act, 1955 read with the Order of the Government of India in the Ministry of Commerce published under notification No. S.O. 1844, datedwith the concurrence of the Government of India. Clause 2 of the Order defines schedule commodity as one or more commodities specified in schedules I and II annexed to the order and dealer as a person carrying on business for the purchase, sale or storage or distribution of scheduled commodity, whether wholesale or retail and whether or not in conjunction with any other business. Clause 4 states that every dealer shalla conspicuous pert of the premises where he carries on his business the price list and stock position of the scheduled commodities specified in Schedules I and II annexed to the order, held in stock by him for sale m a manner so as to be easily accessible for consultation by any customer. Clause 5 provides that no dealer, unless previously authorised in this behalf by the District Magistrate, Additional Collector, Special Officer Incharge Rationing, Patna, or the Subdivisional Magistrate, or any other officer authorised by the Government in this behalf shall withhold from sale or refuse to sell to any person any scheduled commodity specified in Schedule II ordinarily kept by him for sale. Clause 7 provides for powers of entry, inspection, search and seizure.5. The ground in effect stated that the petitioner had hoarded and concealed the essential commodities, namely, match boxes and soaps (which are specified in Schedule I) in his business premises and also in his residential house which is separate from the business premises, that he did not display the stock position at both the places of these commodities in his business premises, that when the customers wanted to purchase soaps and match boxes onhe refused to sell to them saying that he had no stock and that he concealed and hoarded the stock with the intention of selling them in black market with a view to make undue profit.6. The petitioner was bound under clause 4 of the Order to display in his business premises the stock of match boxes and soaps held by him. From the fact that he did not display the stock of match boxes and soaps, in his business premises the only possible conclusion was that the petitioner was hoarding the stock for the purpose of sale in black market and thus make undue profit, The word hoard in the context means to amass and deposit in secret. As we said, the reason why the petitioner did not display the stock position in respect of these scheduled commodities in his business premises was that he wanted to hoard and conceal them. This would create scarcity of the commodities in the market and vitally affect the maintenance of services and supplies essential to the community.7. It is, no doubt, true that clause 5 of the Order only provides that a dealer shall not refuse to sell to any person any scheduled commodities specified in Schedule 11 except with the permission of the authorities specified therein and, match boxes are not included in that schedule. But that would not in any way affect the validity of the order of detention. The refusal to sell match boxes to the customers mentioned in the ground was not an independent ground of detention. The fact that the petitioner refused to sell match boxes and soaps to those customers was stated in the ground only to show that the petitioner was hoarding match boxes and soaps with a view to sell them in black market as otherwise there was no reason why he should refuse to sell them to those customers.
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Tata Engineering And Locomotive Companyltd Vs. Assistant Commissioner Of Commercial Taxes& Anr | law sale took place only at the stockyard where the vehicle was appropriated to a particular contract and that the sale did not occasion inter-state movement of the vehicle. (f) Respondent No. 1 has relied on Section 84 of the Contract Act even though the same was repealed in 1930 and thereby erred in applying a wrong provision of law. (g) * * * * *" The petition came up for hearing before Narasimham C. J. and Ahmad J. on April 20, 1966 and was dismissed at the threshold. The order of the High Court was:"The petitioner has not exhausted the internal remedies provided in the Sales Tax Act by way of appeal, revision or reference and statement of a case to this Court. We are not satisfied that this is a fit case for this Court to exercise its extraordinary jurisdiction at this stage. The petition dismissed summarily. Sd/- R. L. NARASIMHAM Sd. /- ANWAR AHMED". A request for certificate to appeal to this Court was then made The- High Court pointed out that an appeal against the order of assessment was possible on payment of 20 per cent of the assessed tax. As this came to Rs. 40,00,000 and odd only and Rs. 33,97,000 had already been paid, the High Court held that the Company ought to appeal first since the payment of the balance (Rs. 6,00,000) was well within the capacity of the appellant Company and was not so onerous as to merit interference by way of extraordinary powers of the High Court. The application for certificate was accordingly dismissed. The appellant Company, however, obtained special leave from this Court and this appeal was filed. 6. The learned Additional Solicitor General, who appeared for the Assistant Commissioner, raised a preliminary objection that the appellant it Company could not be heard as it had not exhausted the remedies available under the taxing statutes which gave right of appeal and revision and finally for invoking the advisory jurisdiction of the High Court. He also relied upon Than Singh v. Supdt. of Taxes, AIR 1964 SC 1419 in support of the order of the High Court. 7. The preliminary objection really does no more than try to cheek in advance the points which the appellant Company is seeking to raise in this appeal. Whether one looks at the matter from the point of view of the appeal proper or from the point of view of the preliminary objection raised before us, the question is the same, namely, whether the High Court ought in this case to have exercised jurisdiction and if it took jurisdiction whether any settled principle governing Art. 226 would have been departed from. 8. The power and jurisdiction of the High Court under Art. 226 of the Constitution has been the subject of exposition from this Court. That it is extraordinary and to be used sparingly goes without saying.In spite of the very wide terms in which this jurisdiction is conferred, the High Courts have rightly recognised certain limitations on this power. The jurisdiction is not appellate and it is obvious that it cannot be a substitute for the ordinary remedies at law. Nor is its exercise desirable if facts have to be found on evidence The High Court, therefore, leaves the party aggrieved to take recourse to the remedies available under the ordinary law if they are equally efficacious and declines to assume jurisdiction to enable such remedies to be by-passed. To these there are certain exceptions. One such exception is where action is being taken under an invalid law or arbitrarily without the sanction of law. In such a case, the High Court may interfere to avoid hardship to a party which will be unavoidable if the quick and more efficacious remedy envisaged by Article 226 were not allowed to be invoked. In our judgment the present is an example of the exceptional situation above contemplated just as Himmat-Lal v. State of M. P., 1954 SCR 1122 : (AIR 1954 SC 403 ) was another instance which came before this Court. 9. The power and jurisdiction of the Assistant Commissioner, Jamshedpur were exercisable in respect of sales to consumers in Bihar State and to transactions of sales in the course of inter-state trade and commerce. They could not be utilised to tax sales outside the. State of Bihar. The appellant Company claimed exemption in respect of sales effected from their stockyards in the various States, no doubt fed from Bihar but run by the Company locally. The Company asserted that the goods in the stockyards were still those of the appellant Company and neither the property in them had passed to any one nor had they been appropriated to a contract of sale. The question was whether in law such sales could be regarded as in the course of interstate trade or commerce or outside sales, subject of course to the claim of the Company being found on record to be good. There is nothing to show that any further evidence beyond documents produced to illustrate sample sales was necessary. Nor did the learned Additional Solicitor General suggest that this was going to be an issue of fact rather than of law. It would certainly have avoided circuitry of action and proved altogether more satisfactory if the High Court had considered whether the sample transaction as illustrated by the documents, disclosed a transaction of sale outside the State of Bihar and not in the course of inter-state trade or commerce. On that depended the payment of tax of the order of Rs. 1,73,00,000 and odd for two quarters alone. We are clearly of opinion that the High Court ought to have taken jurisdiction in this case at least to issue a rule nisi to see what the Assistant Commissioner had to say. The High Court could always decline to decide the case if disputed questions of fact requiring finding thereon, arose but so far as we can see, no such question was likely to arise. | 1[ds]In spite of the very wide terms in which this jurisdiction is conferred, the High Courts have rightly recognised certain limitations on this power. The jurisdiction is not appellate and it is obvious that it cannot be a substitute for the ordinary remedies at law. Nor is its exercise desirable if facts have to be found on evidence The High Court, therefore, leaves the party aggrieved to take recourse to the remedies available under the ordinary law if they are equally efficacious and declines to assume jurisdiction to enable such remedies to be by-passed. To these there are certain exceptions. One such exception is where action is being taken under an invalid law or arbitrarily without the sanction of law. In such a case, the High Court may interfere to avoid hardship to a party which will be unavoidable if the quick and more efficacious remedy envisaged by Article 226 were not allowed to be invoked9. The power and jurisdiction of the Assistant Commissioner, Jamshedpur were exercisable in respect of sales to consumers in Bihar State and to transactions of sales in the course of inter-state trade and commerce. They could not be utilised to tax sales outside the. State of Bihar. The appellant Company claimed exemption in respect of sales effected from their stockyards in the various States, no doubt fed from Bihar but run by the Company locally. The Company asserted that the goods in the stockyards were still those of the appellant Company and neither the property in them had passed to any one nor had they been appropriated to a contract of sale. The question was whether in law such sales could be regarded as in the course of interstate trade or commerce or outside sales, subject of course to the claim of the Company being found on record to be good. There is nothing to show that any further evidence beyond documents produced to illustrate sample sales was necessary. Nor did the learned Additional Solicitor General suggest that this was going to be an issue of fact rather than of law. It would certainly have avoided circuitry of action and proved altogether more satisfactory if the High Court had considered whether the sample transaction as illustrated by the documents, disclosed a transaction of sale outside the State of Bihar and not in the course of inter-state trade or commerce. On that depended the payment of tax of the order of Rs. 1,73,00,000 and odd for two quarters alone. We are clearly of opinion that the High Court ought to have taken jurisdiction in this case at least to issue a rule nisi to see what the Assistant Commissioner had to say. The High Court could always decline to decide the case if disputed questions of fact requiring finding thereon, arose but so far as we can see, no such question was likely to arise8. The power and jurisdiction of the High Court under Art. 226 of the Constitution has been the subject of exposition from this Court. That it is extraordinary and to be used sparingly goes without saying. | 1 | 2,177 | 551 | ### 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:
law sale took place only at the stockyard where the vehicle was appropriated to a particular contract and that the sale did not occasion inter-state movement of the vehicle. (f) Respondent No. 1 has relied on Section 84 of the Contract Act even though the same was repealed in 1930 and thereby erred in applying a wrong provision of law. (g) * * * * *" The petition came up for hearing before Narasimham C. J. and Ahmad J. on April 20, 1966 and was dismissed at the threshold. The order of the High Court was:"The petitioner has not exhausted the internal remedies provided in the Sales Tax Act by way of appeal, revision or reference and statement of a case to this Court. We are not satisfied that this is a fit case for this Court to exercise its extraordinary jurisdiction at this stage. The petition dismissed summarily. Sd/- R. L. NARASIMHAM Sd. /- ANWAR AHMED". A request for certificate to appeal to this Court was then made The- High Court pointed out that an appeal against the order of assessment was possible on payment of 20 per cent of the assessed tax. As this came to Rs. 40,00,000 and odd only and Rs. 33,97,000 had already been paid, the High Court held that the Company ought to appeal first since the payment of the balance (Rs. 6,00,000) was well within the capacity of the appellant Company and was not so onerous as to merit interference by way of extraordinary powers of the High Court. The application for certificate was accordingly dismissed. The appellant Company, however, obtained special leave from this Court and this appeal was filed. 6. The learned Additional Solicitor General, who appeared for the Assistant Commissioner, raised a preliminary objection that the appellant it Company could not be heard as it had not exhausted the remedies available under the taxing statutes which gave right of appeal and revision and finally for invoking the advisory jurisdiction of the High Court. He also relied upon Than Singh v. Supdt. of Taxes, AIR 1964 SC 1419 in support of the order of the High Court. 7. The preliminary objection really does no more than try to cheek in advance the points which the appellant Company is seeking to raise in this appeal. Whether one looks at the matter from the point of view of the appeal proper or from the point of view of the preliminary objection raised before us, the question is the same, namely, whether the High Court ought in this case to have exercised jurisdiction and if it took jurisdiction whether any settled principle governing Art. 226 would have been departed from. 8. The power and jurisdiction of the High Court under Art. 226 of the Constitution has been the subject of exposition from this Court. That it is extraordinary and to be used sparingly goes without saying.In spite of the very wide terms in which this jurisdiction is conferred, the High Courts have rightly recognised certain limitations on this power. The jurisdiction is not appellate and it is obvious that it cannot be a substitute for the ordinary remedies at law. Nor is its exercise desirable if facts have to be found on evidence The High Court, therefore, leaves the party aggrieved to take recourse to the remedies available under the ordinary law if they are equally efficacious and declines to assume jurisdiction to enable such remedies to be by-passed. To these there are certain exceptions. One such exception is where action is being taken under an invalid law or arbitrarily without the sanction of law. In such a case, the High Court may interfere to avoid hardship to a party which will be unavoidable if the quick and more efficacious remedy envisaged by Article 226 were not allowed to be invoked. In our judgment the present is an example of the exceptional situation above contemplated just as Himmat-Lal v. State of M. P., 1954 SCR 1122 : (AIR 1954 SC 403 ) was another instance which came before this Court. 9. The power and jurisdiction of the Assistant Commissioner, Jamshedpur were exercisable in respect of sales to consumers in Bihar State and to transactions of sales in the course of inter-state trade and commerce. They could not be utilised to tax sales outside the. State of Bihar. The appellant Company claimed exemption in respect of sales effected from their stockyards in the various States, no doubt fed from Bihar but run by the Company locally. The Company asserted that the goods in the stockyards were still those of the appellant Company and neither the property in them had passed to any one nor had they been appropriated to a contract of sale. The question was whether in law such sales could be regarded as in the course of interstate trade or commerce or outside sales, subject of course to the claim of the Company being found on record to be good. There is nothing to show that any further evidence beyond documents produced to illustrate sample sales was necessary. Nor did the learned Additional Solicitor General suggest that this was going to be an issue of fact rather than of law. It would certainly have avoided circuitry of action and proved altogether more satisfactory if the High Court had considered whether the sample transaction as illustrated by the documents, disclosed a transaction of sale outside the State of Bihar and not in the course of inter-state trade or commerce. On that depended the payment of tax of the order of Rs. 1,73,00,000 and odd for two quarters alone. We are clearly of opinion that the High Court ought to have taken jurisdiction in this case at least to issue a rule nisi to see what the Assistant Commissioner had to say. The High Court could always decline to decide the case if disputed questions of fact requiring finding thereon, arose but so far as we can see, no such question was likely to arise.
### Response:
1
### Explanation:
In spite of the very wide terms in which this jurisdiction is conferred, the High Courts have rightly recognised certain limitations on this power. The jurisdiction is not appellate and it is obvious that it cannot be a substitute for the ordinary remedies at law. Nor is its exercise desirable if facts have to be found on evidence The High Court, therefore, leaves the party aggrieved to take recourse to the remedies available under the ordinary law if they are equally efficacious and declines to assume jurisdiction to enable such remedies to be by-passed. To these there are certain exceptions. One such exception is where action is being taken under an invalid law or arbitrarily without the sanction of law. In such a case, the High Court may interfere to avoid hardship to a party which will be unavoidable if the quick and more efficacious remedy envisaged by Article 226 were not allowed to be invoked9. The power and jurisdiction of the Assistant Commissioner, Jamshedpur were exercisable in respect of sales to consumers in Bihar State and to transactions of sales in the course of inter-state trade and commerce. They could not be utilised to tax sales outside the. State of Bihar. The appellant Company claimed exemption in respect of sales effected from their stockyards in the various States, no doubt fed from Bihar but run by the Company locally. The Company asserted that the goods in the stockyards were still those of the appellant Company and neither the property in them had passed to any one nor had they been appropriated to a contract of sale. The question was whether in law such sales could be regarded as in the course of interstate trade or commerce or outside sales, subject of course to the claim of the Company being found on record to be good. There is nothing to show that any further evidence beyond documents produced to illustrate sample sales was necessary. Nor did the learned Additional Solicitor General suggest that this was going to be an issue of fact rather than of law. It would certainly have avoided circuitry of action and proved altogether more satisfactory if the High Court had considered whether the sample transaction as illustrated by the documents, disclosed a transaction of sale outside the State of Bihar and not in the course of inter-state trade or commerce. On that depended the payment of tax of the order of Rs. 1,73,00,000 and odd for two quarters alone. We are clearly of opinion that the High Court ought to have taken jurisdiction in this case at least to issue a rule nisi to see what the Assistant Commissioner had to say. The High Court could always decline to decide the case if disputed questions of fact requiring finding thereon, arose but so far as we can see, no such question was likely to arise8. The power and jurisdiction of the High Court under Art. 226 of the Constitution has been the subject of exposition from this Court. That it is extraordinary and to be used sparingly goes without saying.
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Oil & Natural Gas Commission Vs. The Workmen | for the office staff to keep them occupied for more than 61/2 hours per day. It was only when the factory was completed and the administrative staff attached to it shifted to its own building at the factory site, that the management apparently on an overall assessment of its requirements fixed 8 working hours per day. This, in our opinion, was within the competence of the management. The Tribunal was also, in our view, not right when it observed that the work in the factory would not suffer by reducing the working hours of the clerical staff in the Baroda workshop from 8 hours to 61/2 hours a day. According to the Tribunal itself Shri Hasan had stated that he did not think that working of the factory would be adversely affected if the timings of the general staff and the office staff are changed with the number of working hours remaining the same and that change of half an hour this way or that way is done at times when required. In other words the Tribunal itself did not understand Shri Hasan to refer to the regular reduction of working hours by an hour and a half on a permanent basis. We may now turn to the actual statement of Shri Hasan (M. W. 1). He has stated:"The Baroda workshop differs from the other workshop of the Commission as it is a Central Workshop and takes up major repairs and controls all other shops in the Western Region. There are 8 to 9 departments in the office of the workshop. They are; (1) office Administration, (2) Technical Administration, (3) Stores, (4) Accounts, (5) Transport (6) Security, (7) Works Manager (i) (8) Works Manager (ii), (9) Planning and Designing. All these Departments have different controlling heads. If the hours of the staff working in the office of the workshop are reduced, it will adversely affect the working because the whole work is connected. It would certainly affect other workshops of the Commission because there will be agitations and dissatisfaction in other workshops. Transfers from the office of the main workshop to other workshops offices are quite frequent. The staff may be transferred to any part of India. Similarly the staff from other parts of India may be transferred to the office of the Baroda workshops." The passage on which the Tribunal has relied on for its view is :"I do not think that the working of the factory would be adversely affected if the timings of the general shift and the office staff are changed with the number of working hours remaining the same. Change of half an hour this way or that way is done at times when required. If a change is made of one hour in the timings with the number of working hours remaining the same, it is likely to affect adversely the working." This passage does not in any way detract from the categorical, statement made earlier that if the hours of the staff, working in the office of the workshop, are reduced, it will adversely affect the working because the whole work is connected. The Tribunal does not seem to have correctly read Shri Hasans statement. The view of the Tribunal that reduction in the hours of work of the office staff from 8 to 61/2 hours would not adversely affect the working is in our opinion, not only not supported by the evidence on the record but appears to be contrary to the statement of Shri Hasan. 13. The Tribunal was also not right in saying that in other projects the working hours of administrative office are 61/2 hours. Working hours in these offices according to the material on the record, vary and there is no uniform practice. But the fact that in some of the other offices, the working hours are 61/2 hours per day, cannot be the determining factor. The office at Baroda being the controlling office its requirements and exigencies of work are such that fixing of 8 hours work a day is, in our opinion, fully justified, and the Tribunal was wrong in reducing its working hours to 61/2 hours a day. The mere fact that the staff at Baroda is liable to transfer to other projects is, in our view, of little importance. Assuming that by transfer to some other projects the employee concerned would have to work for 61/2 hours a day, that would not render the fixation of 8 hours a dayd for the administrative office at Baroda objectionable or open to interference by the Tribunal. The Tribunal has itself already observed that in the other projects the working hours in the administrative offices vary. If that is so then this could not be a cogent ground for reducing the working hours from 8 to 61/2 in the Central Office at Baroda. Once it is found that 8 hours a day has been properly fixed for work in the administrative office there can be no question of payment of any compensation, for working for 8 hours a day in the past. 14. The respondents learned counsel, Shri Bhandare, has submitted that this Court should not interfere with the conclusions of the Tribunal under Article 136 of the Constitution as those conclusions are based on appreciation of evidence. However erroneous they may be, according to Shri Bhandare, it is not the practice of this Court to interfere with such conclusions. In our view the Tribunal has not only made some contradictory observations about the practice prevailing in the other projects of the Oil and Natural Gas Commission but has also misread the statement of Shri Hasan (M. W. 1). It has indeed wrongly interfered with the appellants decision in fixing the hours of work which was fully within its competence and was not open to any valid objection. The conclusions of the Tribunal are, therefore, tainted with serious infirmity justifying re-appraisal of the evidence by this Court for coming to its own independent conclusion on such re-appraisal. | 1[ds]8. In our opinion, on the facts and circumstances of this case it cannot be said that 61/2 working hours a day was a term of service, for the simple reason that it was only during a period of the first six months. when the factory was being constructed at the site of the workshop that due to shortage of accommodation, the administrative office was, as an interim arrangement, temporarily located in tents at a place about 2 k.m. away, that the staff in this office was not required to work for more than 61/2 hours per day. There is no evidence that 61/2 hours per day was a condition of service : neither is there any such term of service in their letters of appointment, nor is such a term of service otherwise discernible from other materials on the record. As soon as the construction at the site of the factory was complete and the workshop was ready to start its normal and regular working, the administrative office was shifted to its permanent abode at the site of the factory. It was then that the proper regular working of the administrative office and its staff started at the site of the factory with working hours being appropriately fixed at 8 hours per day so as to facilitate efficient functioning of the workshop to the expected capacity12. In our opinion, there is merit in the learned Attorney Generals submission. The management must in our opinion, have full power and discretion in fixing the working hours of the administrative staff within the limits prescribed by the statute. When the change in the working hours is covered by Section 9-A read with the First Schedule of the Act, compliance with the said section would undoubtedly be necessary for its sustenance. In the present case, as already observed. Section 9-A is not attracted. When the administrative office at Baroda was temporarily located about a couple of kilometres away awaiting completion of its permanent abode, the factory was in the process of being constructed and there was no question of fixing the working hours of the administrative office on a permanent basis. Perhaps there was not even enough work for the office staff to keep them occupied for more than 61/2 hours per day. It was only when the factory was completed and the administrative staff attached to it shifted to its own building at the factory site, that the management apparently on an overall assessment of its requirements fixed 8 working hours per day. This, in our opinion, was within the competence of the management. The Tribunal was also, in our view, not right when it observed that the work in the factory would not suffer by reducing the working hours of the clerical staff in the Baroda workshop from 8 hours to 61/2 hours a day. According to the Tribunal itself Shri Hasan had stated that he did not think that working of the factory would be adversely affected if the timings of the general staff and the office staff are changed with the number of working hours remaining the same and that change of half an hour this way or that way is done at times when required. In other words the Tribunal itself did not understand Shri Hasan to refer to the regular reduction of working hours by an hour and a half on a permanent basis13. The Tribunal was also not right in saying that in other projects the working hours of administrative office are 61/2 hours. Working hours in these offices according to the material on the record, vary and there is no uniform practice. But the fact that in some of the other offices, the working hours are 61/2 hours per day, cannot be the determining factor. The office at Baroda being the controlling office its requirements and exigencies of work are such that fixing of 8 hours work a day is, in our opinion, fully justified, and the Tribunal was wrong in reducing its working hours to 61/2 hours a day. The mere fact that the staff at Baroda is liable to transfer to other projects is, in our view, of little importance. Assuming that by transfer to some other projects the employee concerned would have to work for 61/2 hours a day, that would not render the fixation of 8 hours a dayd for the administrative office at Baroda objectionable or open to interference by the Tribunal. The Tribunal has itself already observed that in the other projects the working hours in the administrative offices vary. If that is so then this could not be a cogent ground for reducing the working hours from 8 to 61/2 in the Central Office at Baroda. Once it is found that 8 hours a day has been properly fixed for work in the administrative office there can be no question of payment of any compensation, for working for 8 hours a day in the past14. The respondents learned counsel, Shri Bhandare, has submitted that this Court should not interfere with the conclusions of the Tribunal under Article 136 of the Constitution as those conclusions are based on appreciation of evidence. However erroneous they may be, according to Shri Bhandare, it is not the practice of this Court to interfere with such conclusions.In our view the Tribunal has not only made some contradictory observations about the practice prevailing in the other projects of the Oil and Natural Gas Commission but has also misread the statement of Shri Hasan (M. W. 1). It has indeed wrongly interfered with the appellants decision in fixing the hours of work which was fully within its competence and was not open to any valid objection. The conclusions of the Tribunal are, therefore, tainted with serious infirmity justifying re-appraisal of the evidence by this Court for coming to its own independent conclusion on such re-appraisal. | 1 | 5,007 | 1,054 | ### 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:
for the office staff to keep them occupied for more than 61/2 hours per day. It was only when the factory was completed and the administrative staff attached to it shifted to its own building at the factory site, that the management apparently on an overall assessment of its requirements fixed 8 working hours per day. This, in our opinion, was within the competence of the management. The Tribunal was also, in our view, not right when it observed that the work in the factory would not suffer by reducing the working hours of the clerical staff in the Baroda workshop from 8 hours to 61/2 hours a day. According to the Tribunal itself Shri Hasan had stated that he did not think that working of the factory would be adversely affected if the timings of the general staff and the office staff are changed with the number of working hours remaining the same and that change of half an hour this way or that way is done at times when required. In other words the Tribunal itself did not understand Shri Hasan to refer to the regular reduction of working hours by an hour and a half on a permanent basis. We may now turn to the actual statement of Shri Hasan (M. W. 1). He has stated:"The Baroda workshop differs from the other workshop of the Commission as it is a Central Workshop and takes up major repairs and controls all other shops in the Western Region. There are 8 to 9 departments in the office of the workshop. They are; (1) office Administration, (2) Technical Administration, (3) Stores, (4) Accounts, (5) Transport (6) Security, (7) Works Manager (i) (8) Works Manager (ii), (9) Planning and Designing. All these Departments have different controlling heads. If the hours of the staff working in the office of the workshop are reduced, it will adversely affect the working because the whole work is connected. It would certainly affect other workshops of the Commission because there will be agitations and dissatisfaction in other workshops. Transfers from the office of the main workshop to other workshops offices are quite frequent. The staff may be transferred to any part of India. Similarly the staff from other parts of India may be transferred to the office of the Baroda workshops." The passage on which the Tribunal has relied on for its view is :"I do not think that the working of the factory would be adversely affected if the timings of the general shift and the office staff are changed with the number of working hours remaining the same. Change of half an hour this way or that way is done at times when required. If a change is made of one hour in the timings with the number of working hours remaining the same, it is likely to affect adversely the working." This passage does not in any way detract from the categorical, statement made earlier that if the hours of the staff, working in the office of the workshop, are reduced, it will adversely affect the working because the whole work is connected. The Tribunal does not seem to have correctly read Shri Hasans statement. The view of the Tribunal that reduction in the hours of work of the office staff from 8 to 61/2 hours would not adversely affect the working is in our opinion, not only not supported by the evidence on the record but appears to be contrary to the statement of Shri Hasan. 13. The Tribunal was also not right in saying that in other projects the working hours of administrative office are 61/2 hours. Working hours in these offices according to the material on the record, vary and there is no uniform practice. But the fact that in some of the other offices, the working hours are 61/2 hours per day, cannot be the determining factor. The office at Baroda being the controlling office its requirements and exigencies of work are such that fixing of 8 hours work a day is, in our opinion, fully justified, and the Tribunal was wrong in reducing its working hours to 61/2 hours a day. The mere fact that the staff at Baroda is liable to transfer to other projects is, in our view, of little importance. Assuming that by transfer to some other projects the employee concerned would have to work for 61/2 hours a day, that would not render the fixation of 8 hours a dayd for the administrative office at Baroda objectionable or open to interference by the Tribunal. The Tribunal has itself already observed that in the other projects the working hours in the administrative offices vary. If that is so then this could not be a cogent ground for reducing the working hours from 8 to 61/2 in the Central Office at Baroda. Once it is found that 8 hours a day has been properly fixed for work in the administrative office there can be no question of payment of any compensation, for working for 8 hours a day in the past. 14. The respondents learned counsel, Shri Bhandare, has submitted that this Court should not interfere with the conclusions of the Tribunal under Article 136 of the Constitution as those conclusions are based on appreciation of evidence. However erroneous they may be, according to Shri Bhandare, it is not the practice of this Court to interfere with such conclusions. In our view the Tribunal has not only made some contradictory observations about the practice prevailing in the other projects of the Oil and Natural Gas Commission but has also misread the statement of Shri Hasan (M. W. 1). It has indeed wrongly interfered with the appellants decision in fixing the hours of work which was fully within its competence and was not open to any valid objection. The conclusions of the Tribunal are, therefore, tainted with serious infirmity justifying re-appraisal of the evidence by this Court for coming to its own independent conclusion on such re-appraisal.
### Response:
1
### Explanation:
8. In our opinion, on the facts and circumstances of this case it cannot be said that 61/2 working hours a day was a term of service, for the simple reason that it was only during a period of the first six months. when the factory was being constructed at the site of the workshop that due to shortage of accommodation, the administrative office was, as an interim arrangement, temporarily located in tents at a place about 2 k.m. away, that the staff in this office was not required to work for more than 61/2 hours per day. There is no evidence that 61/2 hours per day was a condition of service : neither is there any such term of service in their letters of appointment, nor is such a term of service otherwise discernible from other materials on the record. As soon as the construction at the site of the factory was complete and the workshop was ready to start its normal and regular working, the administrative office was shifted to its permanent abode at the site of the factory. It was then that the proper regular working of the administrative office and its staff started at the site of the factory with working hours being appropriately fixed at 8 hours per day so as to facilitate efficient functioning of the workshop to the expected capacity12. In our opinion, there is merit in the learned Attorney Generals submission. The management must in our opinion, have full power and discretion in fixing the working hours of the administrative staff within the limits prescribed by the statute. When the change in the working hours is covered by Section 9-A read with the First Schedule of the Act, compliance with the said section would undoubtedly be necessary for its sustenance. In the present case, as already observed. Section 9-A is not attracted. When the administrative office at Baroda was temporarily located about a couple of kilometres away awaiting completion of its permanent abode, the factory was in the process of being constructed and there was no question of fixing the working hours of the administrative office on a permanent basis. Perhaps there was not even enough work for the office staff to keep them occupied for more than 61/2 hours per day. It was only when the factory was completed and the administrative staff attached to it shifted to its own building at the factory site, that the management apparently on an overall assessment of its requirements fixed 8 working hours per day. This, in our opinion, was within the competence of the management. The Tribunal was also, in our view, not right when it observed that the work in the factory would not suffer by reducing the working hours of the clerical staff in the Baroda workshop from 8 hours to 61/2 hours a day. According to the Tribunal itself Shri Hasan had stated that he did not think that working of the factory would be adversely affected if the timings of the general staff and the office staff are changed with the number of working hours remaining the same and that change of half an hour this way or that way is done at times when required. In other words the Tribunal itself did not understand Shri Hasan to refer to the regular reduction of working hours by an hour and a half on a permanent basis13. The Tribunal was also not right in saying that in other projects the working hours of administrative office are 61/2 hours. Working hours in these offices according to the material on the record, vary and there is no uniform practice. But the fact that in some of the other offices, the working hours are 61/2 hours per day, cannot be the determining factor. The office at Baroda being the controlling office its requirements and exigencies of work are such that fixing of 8 hours work a day is, in our opinion, fully justified, and the Tribunal was wrong in reducing its working hours to 61/2 hours a day. The mere fact that the staff at Baroda is liable to transfer to other projects is, in our view, of little importance. Assuming that by transfer to some other projects the employee concerned would have to work for 61/2 hours a day, that would not render the fixation of 8 hours a dayd for the administrative office at Baroda objectionable or open to interference by the Tribunal. The Tribunal has itself already observed that in the other projects the working hours in the administrative offices vary. If that is so then this could not be a cogent ground for reducing the working hours from 8 to 61/2 in the Central Office at Baroda. Once it is found that 8 hours a day has been properly fixed for work in the administrative office there can be no question of payment of any compensation, for working for 8 hours a day in the past14. The respondents learned counsel, Shri Bhandare, has submitted that this Court should not interfere with the conclusions of the Tribunal under Article 136 of the Constitution as those conclusions are based on appreciation of evidence. However erroneous they may be, according to Shri Bhandare, it is not the practice of this Court to interfere with such conclusions.In our view the Tribunal has not only made some contradictory observations about the practice prevailing in the other projects of the Oil and Natural Gas Commission but has also misread the statement of Shri Hasan (M. W. 1). It has indeed wrongly interfered with the appellants decision in fixing the hours of work which was fully within its competence and was not open to any valid objection. The conclusions of the Tribunal are, therefore, tainted with serious infirmity justifying re-appraisal of the evidence by this Court for coming to its own independent conclusion on such re-appraisal.
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Today Merchandise Pvt Ltd & Another Vs. Anil Kumar Luthra | Dr. Dhananjaya Y Chandrachud, J 1. Leave granted. 2. This appeal arises from a judgment of the National Consumer Disputes Redressal Commission (NCDRC) dated 28 November 2018 in the course of its revisional jurisdiction. The appellant advertised a holiday voucher scheme through its website. In September 2012, an employee of the appellant communicated the scheme to the respondent who expressed his willingness to purchase holiday scheme vouchers. The terms on which the vouchers were available were indicated on the website of the appellant. The scheme envisaged that free gifts would be made available to the purchaser against further referrals. The gifts were contingent on the number of referrals made by the subscriber. The relevant part of the scheme is reproduced below: table 3. The respondent purchased three vouchers each of Rs 5998 and thus paid a total sum of Rs 17,994. On 18 September 2012, the appellant addressed an e-mail to the respondent specifically adverting to the referral scheme. The respondent was informed that, by making referrals of his friends and associates, he could avail of the gifts which were on offer, in the terms noted above. 4. The respondent moved the District Consumer Redressal Forum (District Forum) , Sikar claiming that he was entitled to three free gifts, namely, (i) a lap top; (ii) a mobile phone; and (iii) a 42 LED television. The District Forum allowed the claim. The order of the District Forum was confirmed by the State Consumer Disputes Redressal Forum (SCDRC) and in revision by the NCDRC. Monetary compensation has also been awarded in the amount of Rs 5,000 for mental torture, together with costs of Rs 2000. 5. Mr Manish Goswami, learned counsel appearing on behalf of the appellant submitted that the offer which was made by the appellant for free gifts to a subscriber was conditional on referrals. The respondent did not make any referrals. Moreover, it was urged that the order of the District Forum would result in a manifest absurdity since in terms of its direction, a subscriber who had paid an amount of Rs 17,994, would be entitled to a cell phone, a lap top and a television set of a value far in excess of the amount which has been contributed. Learned counsel also urged that the appellant had a serious objection to the jurisdiction of the District Forum. 6. On the other hand, it was urged by Mr Shivam Sharma, learned counsel on behalf of the respondent that the e-mail dated 18 September 2012 which has been produced in the counter affidavit was not a part of the record of the District Forum. It was urged that an employee of the appellant had, in fact, made a representation to the respondent assuring that free gifts would be handed over. Learned counsel urged that as a consequence of the dispute, the services of the employee were terminated which goes to establish the case of the respondent that such a representation was indeed made. 7. Under the scheme which was propagated by the appellant, the free gifts were contingent on the subscriber making referrals. Though the learned counsel appearing on behalf of the respondent submitted that the e-mail dated 18 September 2012 was not a part of the record of the District Forum, learned counsel appearing on behalf of the appellant has controverted this by adverting to the reply filed on behalf of the appellant before the District Forum in which there is a clear reference to the e-mail. Significantly, the e-mail is of 18 September 2012, a day after the respondent is alleged to have received a communication from the representative of the appellant. Both from the scheme as well as from the e-mail dated 18 September 2012, it is evident that a subscriber was not entitled, as a matter of right, to the free gifts merely on purchasing the holiday vouchers. The free gifts were contingent upon making referrals which, admittedly, were not made by the respondent. The directions of the District Forum, which were affirmed by the SCDRC and NCDRC will result in a manifestly absurd outcome. The order of the District Forum was manifestly contrary to the terms of the agreement between the parties. Both the SCDRC and the NCDRC have erred in confirming the order of the District Forum. | 1[ds]7. Under the scheme which was propagated by the appellant, the free gifts were contingent on the subscriber making referrals.Though the learned counsel appearing on behalf of the respondent submitted that the e-mail dated 18 September 2012 was not a part of the record of the District Forum,learned counsel appearing on behalf of the appellant has controverted this by adverting to the reply filed on behalf of the appellant before the District Forum in which there is a clear reference to the e-mail.Significantly, the e-mail is of 18 September 2012, a day after the respondent is alleged to have received a communication from the representative of the appellant. Both from the scheme as well as from the e-mail dated 18 September 2012, it is evident that a subscriber was not entitled, as a matter of right, to the free gifts merely on purchasing the holiday vouchers. The free gifts were contingent upon making referrals which, admittedly, were not made by the respondent. The directions of the District Forum, which were affirmed by the SCDRC and NCDRC will result in a manifestly absurd outcome. The order of the District Forum was manifestly contrary to the terms of the agreement between the parties. Both the SCDRC and the NCDRC have erred in confirming the order of the District Forum. | 1 | 794 | 239 | ### Instruction:
Project the court's decision (favor (1) or against (0) the appeal) based on the case proceeding, and subsequently give an in-depth explanation by analyzing relevant sentences from the document.
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Dr. Dhananjaya Y Chandrachud, J 1. Leave granted. 2. This appeal arises from a judgment of the National Consumer Disputes Redressal Commission (NCDRC) dated 28 November 2018 in the course of its revisional jurisdiction. The appellant advertised a holiday voucher scheme through its website. In September 2012, an employee of the appellant communicated the scheme to the respondent who expressed his willingness to purchase holiday scheme vouchers. The terms on which the vouchers were available were indicated on the website of the appellant. The scheme envisaged that free gifts would be made available to the purchaser against further referrals. The gifts were contingent on the number of referrals made by the subscriber. The relevant part of the scheme is reproduced below: table 3. The respondent purchased three vouchers each of Rs 5998 and thus paid a total sum of Rs 17,994. On 18 September 2012, the appellant addressed an e-mail to the respondent specifically adverting to the referral scheme. The respondent was informed that, by making referrals of his friends and associates, he could avail of the gifts which were on offer, in the terms noted above. 4. The respondent moved the District Consumer Redressal Forum (District Forum) , Sikar claiming that he was entitled to three free gifts, namely, (i) a lap top; (ii) a mobile phone; and (iii) a 42 LED television. The District Forum allowed the claim. The order of the District Forum was confirmed by the State Consumer Disputes Redressal Forum (SCDRC) and in revision by the NCDRC. Monetary compensation has also been awarded in the amount of Rs 5,000 for mental torture, together with costs of Rs 2000. 5. Mr Manish Goswami, learned counsel appearing on behalf of the appellant submitted that the offer which was made by the appellant for free gifts to a subscriber was conditional on referrals. The respondent did not make any referrals. Moreover, it was urged that the order of the District Forum would result in a manifest absurdity since in terms of its direction, a subscriber who had paid an amount of Rs 17,994, would be entitled to a cell phone, a lap top and a television set of a value far in excess of the amount which has been contributed. Learned counsel also urged that the appellant had a serious objection to the jurisdiction of the District Forum. 6. On the other hand, it was urged by Mr Shivam Sharma, learned counsel on behalf of the respondent that the e-mail dated 18 September 2012 which has been produced in the counter affidavit was not a part of the record of the District Forum. It was urged that an employee of the appellant had, in fact, made a representation to the respondent assuring that free gifts would be handed over. Learned counsel urged that as a consequence of the dispute, the services of the employee were terminated which goes to establish the case of the respondent that such a representation was indeed made. 7. Under the scheme which was propagated by the appellant, the free gifts were contingent on the subscriber making referrals. Though the learned counsel appearing on behalf of the respondent submitted that the e-mail dated 18 September 2012 was not a part of the record of the District Forum, learned counsel appearing on behalf of the appellant has controverted this by adverting to the reply filed on behalf of the appellant before the District Forum in which there is a clear reference to the e-mail. Significantly, the e-mail is of 18 September 2012, a day after the respondent is alleged to have received a communication from the representative of the appellant. Both from the scheme as well as from the e-mail dated 18 September 2012, it is evident that a subscriber was not entitled, as a matter of right, to the free gifts merely on purchasing the holiday vouchers. The free gifts were contingent upon making referrals which, admittedly, were not made by the respondent. The directions of the District Forum, which were affirmed by the SCDRC and NCDRC will result in a manifestly absurd outcome. The order of the District Forum was manifestly contrary to the terms of the agreement between the parties. Both the SCDRC and the NCDRC have erred in confirming the order of the District Forum.
### Response:
1
### Explanation:
7. Under the scheme which was propagated by the appellant, the free gifts were contingent on the subscriber making referrals.Though the learned counsel appearing on behalf of the respondent submitted that the e-mail dated 18 September 2012 was not a part of the record of the District Forum,learned counsel appearing on behalf of the appellant has controverted this by adverting to the reply filed on behalf of the appellant before the District Forum in which there is a clear reference to the e-mail.Significantly, the e-mail is of 18 September 2012, a day after the respondent is alleged to have received a communication from the representative of the appellant. Both from the scheme as well as from the e-mail dated 18 September 2012, it is evident that a subscriber was not entitled, as a matter of right, to the free gifts merely on purchasing the holiday vouchers. The free gifts were contingent upon making referrals which, admittedly, were not made by the respondent. The directions of the District Forum, which were affirmed by the SCDRC and NCDRC will result in a manifestly absurd outcome. The order of the District Forum was manifestly contrary to the terms of the agreement between the parties. Both the SCDRC and the NCDRC have erred in confirming the order of the District Forum.
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Kerala State Beverages Corporation Limited and Ors Vs. P.P. Suresh and Ors | and the administrative authority are, however, given an area of discretion or a range of choices but as to whether the choice made infringes the rights excessively or not, is for the Court. That is what is meant by proportionality. In this case, M. Jagannadha Rao, J. examined the development of principles of proportionality for review of administrative decision in England and in India. After referring to several judgments, it was held that the proportionality test is applied by the Court as a primary reviewing authority in cases where there is a violation of Articles 19 and 21. The proportionality test can also be applied by the Court in reviewing a decision where the challenge to administrative action is on the ground that it was discriminatory and therefore violative of Article 14. It was clarified that the principles of Wednesbury have to be followed when an administrative action is challenged as being arbitrary and therefore violative of Article 14 of the Constitution of India. In such a case, the Court would be doing a secondary review. 27. While exercising primary review, the Court is entitled to ask the State to justify the policy and whether there was an imminent need for restricting the fundamental rights of the claimants. In secondary review, the Court shows deference to the decision of the executive. 28. Proportionality involves balancing test and necessity test Coimbatore District Central Co-operative Bank v. Coimbatore District Central Co- operative Bank Employees Association & Anr. (2007) 4 SCC 669 Whereas the balancing test permits scrutiny of excessive and onerous penalties or infringement of rights or interests and a manifest imbalance of relevant considerations, the necessity test requires infringement of human rights to be through the least restrictive alternatives. Judicial Review of Administrative Action (1955) and Wade & Forsyth: Administrative Law (2005) (2007) 4 SCC 669 26 29. An administrative decision can be said to be proportionate if: (a) The objective with which a decision is made to curtail fundamental rights is important; (b) The measures taken to achieve the objective have a rational connection with the objective; and (c) The means that impair the rights of individuals are no more than necessary. 30. In the instant case, the Respondents challenged the order dated 07.08.2004, as being violative of Articles 14, 19 and 21. The High Court accepted the submissions made by the Respondents and held that the Order dated 07.08.2004 is vitiated as it suffers from the vice of arbitrariness and unreasonableness. However, in view of the challenge to the decision of the Government being on the ground of violation of Articles 14, 19 and 21, the test of proportionality should be applied to review the impugned decision of the Government. 31. The contention of the Respondents was firstly, that their fundamental rights have been violated by modification/alteration of the earlier assurance by the Government. Secondly, that the Respondents lost an opportunity of being employed which resulted in deprivation of their life and livelihood in violation of Article 21 of the Constitution. It was further submitted that the decision is arbitrary and hence violative of Article 14 of the Constitution. The contention of the Government was that modification of the assurance given for employment to the displaced Abkari workers was unavoidable. It was contended on behalf of the State that there is a rational connection between the measures taken to modify and the objective with which the policy was altered. The Government justified the decision by submitting that the means adopted for impairment of the rights of the Respondents were not excessive. 32. The promise held out by the Government to provide employment to the displaced Abkari workers had become an impossible task in view of the non-availability of vacancies in the Corporation. The decision taken by the Government in overriding public interest was a measure to strike a balance between the competing interest of the displaced Abkari workers and unemployed youth in the State of Kerala. The impairment of the fundamental rights of the Respondents due to the change in policy cannot be said to be excessive. Hence, it cannot be said that the change in policy regarding re-employment of displaced abkari workers is disproportionate. 33. Another contention of Respondents which found favour with the High Court was that the Order dated 07.08.2004 was found illegal in Writ Petition (C) No.26878 of 2007 and that the said judgment has become final. Aggrieved by their non- appointment in spite of inclusion in the list of 265 dependent sons of the deceased displaced workers, they filed a Writ Petition seeking a direction to the Government to appoint them. The High Court directed the Government to appoint those persons who were included in the list, pursuant to the Order dated 07.08.2004 within a period of six weeks. The High Court further observed that the Order dated 20.02.2002 should not have been altered and directed the Government to reconsider the order dated 07.08.2004. The Government complied with the direction of the High Court in the Writ Petition above and issued a Government Order dated 30.04.2009 by which employment was provided to 265 dependent sons of deceased Abkari workers. Therefore, it cannot be said that the validity of the order dated 07.08.2004 has been finally decided in Writ Petition (C) No.26878 of 2007. 34. We are not in agreement with the findings recorded by the High Court that a right of appointment accrued to the Respondents and it matured into a Right to Life as provided in Article 21 of the Constitution. We disapprove the opinion of the High Court that the Order dated 07.08.2004 is in continuation of the Order dated 20.02.2002 in view of the Order dated 20.02.2002 not being superceded. The Order dated 07.08.2004 was issued in modification of the Order dated 20.02.2002. A close scrutiny of both the Orders would indicate that the Order dated 07.08.2004 replaces the Order dated 20.02.2002 in view of a fresh decision taken to provide employment only to the dependent sons of deceased Abkari workers. | 1[ds]12. The assurance given to the abkari workers that they would be considered for employment in 25% of the daily wage vacancies that would arise in the Corporation, according to the Government, had to be altered due to administrative exigencies. The implementation of the decision to provide employment to displaced abkari workers was not possible in view of the fact that the number of vacancies of daily wage employees after the year 2002 were very less whereas there was a large number of displaced abkari workers to be accommodated. In view of the difficulties faced by the Government in implementation of the Government Order dated 20.02.2002, the Government found it fit to modify the policy decision by a Government Order dated 07.08.2004. It came to the notice of the Government that several displaced abkari workers perished after 1996. Their families had to be provided immediate succur. T o give priority to the families in immediate need, the Government decided that dependent sons of the deceased abkari workers who died after the year 1996 would be provided employment against the 25% daily wage vacancies in the Corporation. The said decision cannot be termed as unreasonable or arbitrary as it was taken in light of overriding public interest. Relevant considerations were taken into account by the Government to alter the Government Order dated 20.02.2002A. Vested Right of Employment19. The assurance given to the Respondents that they would be considered for appointment in the future vacancies of daily wage workers, according to the Respondents, gives rise to a claim of legitimate expectation. The Respondents contend that there is no valid reason for the Government to resile from the promise made to them. We are in agreement with the explanation given by the State Government that the change in policy due was to the difficulty in implementation of the Government order dated 20.02.2002. Due deference has to be given to the discretion exercised by the State Government. As the decision of the Government to the change policy was to balance the interests of the displaced Abkari workers and a large number of unemployed youth in the State of Kerala, the decision taken on 07.08.2004 cannot be said to be contrary to public interest. We are convinced that the overriding public interest which was the reason for change in policy has to be given due weight while considering the claim of the Respondents regarding legitimate expectation. We hold that the expectation of the Respondents for consideration against the 25 per cent of the future vacancies in daily wage workers in the Corporation is not legitimate. Procedural Legitimate Expectation20. The other contention of the Respondents which found favour with the High Court was that they were entitled for an opportunity before the assurance of rehabilitation given to them was withdrawn. There is no dispute that each of the displaced abkari workers was not given an opportunity before the assurance was altered. However, the Government contended that the displaced abkari workers were consulted through their representatives before passing the Government Order dated 07.08.2004. The requirement of an opportunity to be given before altering the policy by which an assurance is given to a large number of individuals has to be examined21. In case of a complaint that an administrative authority has reneged from a promise without giving an opportunity of hearing which was the past practice, a claim of legitimate expectation can be raised. In other words, if the policy or practice was to give an opportunity before the benefit is withdrawn, the non-compliance of such a practice would result in defeating the legitimate expectation of an individual or group of individuals. In Attorney General of Hong Kong v. Ng Yuen Shiu[1983] 2 All ER 346 , the Privy Council was concerned with a dispute relating to an assertion of legitimate expectation of hearing, by an illegal immigrant. The Respondent in that case entered Hong Kong illegally and remained for a long period of time without being detected. He became part owner of a factory which employed several workers. A change in immigration policy was announced whereby illegal immigrants would be interviewed in due course, but no guarantee was given that they would not be removed from Hong Kong. The Respondent approached the immigration authorities for interview and after being interviewed he was detained until a removal order was made by the Director of Immigration. His appeal was dismissed by the Immigration Tribunal. The Court of Appeal of Hong Kong granted the Respondent an order of prohibition till an opportunity was given to him to explain the circumstances of his case before the Director. The Appeal filed by the Attorney General of Hong Kong was dismissed by the Privy Council. The only question raised by the Respondent in the Appeal was whether he was entitled to have a fair inquiry under common law, before a removal order was made against him. Without expressing any opinion on violation of principles of natural justice, the right of hearing of the Respondent in the peculiar facts of the case was adjudicated upon. It was held that the Respondent had a legitimate expectation of being accorded a hearing before an order of removal was passed22. We have referred to the above judgment to demonstrate that there can be situation where the very claim made can be with regard to an opportunity not being given before withdrawing a promise which results in defeating the legitimate expectation23. The principle of procedural legitimate expectation would apply to cases where a promise is made and is withdrawn without affording an opportunity to the person affected. The imminent requirement of fairness in administrative action is to give an opportunity to the person who is deprived of a past benefit. In our opinion, there is an exception to the said rule. If an announcement is made by the Government of a policy conferring benefit on a large number of people, but subsequently, due to overriding public interest, the benefits that were announced earlier are withdrawn, it is not expedient to provide individual opportunities to such innominate number of persons. In other words, in such cases, an opportunity to each individual to explain the circumstances of his case need not be given. In Union of India v. Hindustan Development Corporation and Ors. (supra) it was held that in cases involving an interest based on legitimate expectation, the Court will not interfere on grounds of procedural fairness and natural justice, if the deciding authority has been allotted a full range of choice and the decision is taken fairly and objectively.Judicial Review and Proportionality24. The challenge to the order dated 07.08.2004 by which the Respondents were deprived of an opportunity of being considered for employment is on the ground of violation of Articles 14, 19 and 21 of the Constitution of India. Lord Diplock in Council of Civil Service Unions and Ors. v. Minister for the Civil Services , held that the interference with an administrative action could be on the grounds of illegality, irrationality and procedural impropriety. He was of the opinion that proportionality could be an additional ground of review in the future. Interference with an administrative decision by applying the Wednesburys principles is restricted only to decisions which are outrageous in its defiance of logic or of accepted moral standards that no sensible person who applied his mind to the question to be decided could have arrived at it.25. Traditionally, the principle of proportionality has been applied for protection of rights guaranteed under the European Convention for the Protection of Human Rights and Fundamental Freedoms, 195027. While exercising primary review, the Court is entitled to ask the State to justify the policy and whether there was an imminent need for restricting the fundamental rights of the claimants. In secondary review, the Court shows deference to the decision of the executive29. An administrative decision can be said to be proportionate if: (a) The objective with which a decision is made to curtail fundamental rights is important; (b) The measures taken to achieve the objective have a rational connection with the objective; and (c) The means that impair the rights of individuals are no more than necessary30. In the instant case, the Respondents challenged the order dated 07.08.2004, as being violative of Articles 14, 19 and 21. The High Court accepted the submissions made by the Respondents and held that the Order dated 07.08.2004 is vitiated as it suffers from the vice of arbitrariness and unreasonableness. However, in view of the challenge to the decision of the Government being on the ground of violation of Articles 14, 19 and 21, the test of proportionality should be applied to review the impugned decision of the Government32. The promise held out by the Government to provide employment to the displaced Abkari workers had become an impossible task in view of the non-availability of vacancies in the Corporation. The decision taken by the Government in overriding public interest was a measure to strike a balance between the competing interest of the displaced Abkari workers and unemployed youth in the State of Kerala. The impairment of the fundamental rights of the Respondents due to the change in policy cannot be said to be excessive. Hence, it cannot be said that the change in policy regarding re-employment of displaced abkari workers is disproportionate33. Another contention of Respondents which found favour with the High Court was that the Order dated 07.08.2004 was found illegal in Writ Petition (C) No.26878 of 2007 and that the said judgment has become final. Aggrieved by their non- appointment in spite of inclusion in the list of 265 dependent sons of the deceased displaced workers, they filed a Writ Petition seeking a direction to the Government to appoint them. The High Court directed the Government to appoint those persons who were included in the list, pursuant to the Order dated 07.08.2004 within a period of six weeks. The High Court further observed that the Order dated 20.02.2002 should not have been altered and directed the Government to reconsider the order dated 07.08.2004. The Government complied with the direction of the High Court in the Writ Petition above and issued a Government Order dated 30.04.2009 by which employment was provided to 265 dependent sons of deceased Abkari workers. Therefore, it cannot be said that the validity of the order dated 07.08.2004 has been finally decided in Writ Petition (C) No.26878 of 200734. We are not in agreement with the findings recorded by the High Court that a right of appointment accrued to the Respondents and it matured into a Right to Life as provided in Article 21 of the Constitution. We disapprove the opinion of the High Court that the Order dated 07.08.2004 is in continuation of the Order dated 20.02.2002 in view of the Order dated 20.02.2002 not being superceded. The Order dated 07.08.2004 was issued in modification of the Order dated 20.02.2002. A close scrutiny of both the Orders would indicate that the Order dated 07.08.2004 replaces the Order dated 20.02.2002 in view of a fresh decision taken to provide employment only to the dependent sons of deceased Abkari workersJudicial Review and ProportionalityJudicial Review and ProportionalityA. Vested Right of Employment | 1 | 5,492 | 1,999 | ### Instruction:
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and the administrative authority are, however, given an area of discretion or a range of choices but as to whether the choice made infringes the rights excessively or not, is for the Court. That is what is meant by proportionality. In this case, M. Jagannadha Rao, J. examined the development of principles of proportionality for review of administrative decision in England and in India. After referring to several judgments, it was held that the proportionality test is applied by the Court as a primary reviewing authority in cases where there is a violation of Articles 19 and 21. The proportionality test can also be applied by the Court in reviewing a decision where the challenge to administrative action is on the ground that it was discriminatory and therefore violative of Article 14. It was clarified that the principles of Wednesbury have to be followed when an administrative action is challenged as being arbitrary and therefore violative of Article 14 of the Constitution of India. In such a case, the Court would be doing a secondary review. 27. While exercising primary review, the Court is entitled to ask the State to justify the policy and whether there was an imminent need for restricting the fundamental rights of the claimants. In secondary review, the Court shows deference to the decision of the executive. 28. Proportionality involves balancing test and necessity test Coimbatore District Central Co-operative Bank v. Coimbatore District Central Co- operative Bank Employees Association & Anr. (2007) 4 SCC 669 Whereas the balancing test permits scrutiny of excessive and onerous penalties or infringement of rights or interests and a manifest imbalance of relevant considerations, the necessity test requires infringement of human rights to be through the least restrictive alternatives. Judicial Review of Administrative Action (1955) and Wade & Forsyth: Administrative Law (2005) (2007) 4 SCC 669 26 29. An administrative decision can be said to be proportionate if: (a) The objective with which a decision is made to curtail fundamental rights is important; (b) The measures taken to achieve the objective have a rational connection with the objective; and (c) The means that impair the rights of individuals are no more than necessary. 30. In the instant case, the Respondents challenged the order dated 07.08.2004, as being violative of Articles 14, 19 and 21. The High Court accepted the submissions made by the Respondents and held that the Order dated 07.08.2004 is vitiated as it suffers from the vice of arbitrariness and unreasonableness. However, in view of the challenge to the decision of the Government being on the ground of violation of Articles 14, 19 and 21, the test of proportionality should be applied to review the impugned decision of the Government. 31. The contention of the Respondents was firstly, that their fundamental rights have been violated by modification/alteration of the earlier assurance by the Government. Secondly, that the Respondents lost an opportunity of being employed which resulted in deprivation of their life and livelihood in violation of Article 21 of the Constitution. It was further submitted that the decision is arbitrary and hence violative of Article 14 of the Constitution. The contention of the Government was that modification of the assurance given for employment to the displaced Abkari workers was unavoidable. It was contended on behalf of the State that there is a rational connection between the measures taken to modify and the objective with which the policy was altered. The Government justified the decision by submitting that the means adopted for impairment of the rights of the Respondents were not excessive. 32. The promise held out by the Government to provide employment to the displaced Abkari workers had become an impossible task in view of the non-availability of vacancies in the Corporation. The decision taken by the Government in overriding public interest was a measure to strike a balance between the competing interest of the displaced Abkari workers and unemployed youth in the State of Kerala. The impairment of the fundamental rights of the Respondents due to the change in policy cannot be said to be excessive. Hence, it cannot be said that the change in policy regarding re-employment of displaced abkari workers is disproportionate. 33. Another contention of Respondents which found favour with the High Court was that the Order dated 07.08.2004 was found illegal in Writ Petition (C) No.26878 of 2007 and that the said judgment has become final. Aggrieved by their non- appointment in spite of inclusion in the list of 265 dependent sons of the deceased displaced workers, they filed a Writ Petition seeking a direction to the Government to appoint them. The High Court directed the Government to appoint those persons who were included in the list, pursuant to the Order dated 07.08.2004 within a period of six weeks. The High Court further observed that the Order dated 20.02.2002 should not have been altered and directed the Government to reconsider the order dated 07.08.2004. The Government complied with the direction of the High Court in the Writ Petition above and issued a Government Order dated 30.04.2009 by which employment was provided to 265 dependent sons of deceased Abkari workers. Therefore, it cannot be said that the validity of the order dated 07.08.2004 has been finally decided in Writ Petition (C) No.26878 of 2007. 34. We are not in agreement with the findings recorded by the High Court that a right of appointment accrued to the Respondents and it matured into a Right to Life as provided in Article 21 of the Constitution. We disapprove the opinion of the High Court that the Order dated 07.08.2004 is in continuation of the Order dated 20.02.2002 in view of the Order dated 20.02.2002 not being superceded. The Order dated 07.08.2004 was issued in modification of the Order dated 20.02.2002. A close scrutiny of both the Orders would indicate that the Order dated 07.08.2004 replaces the Order dated 20.02.2002 in view of a fresh decision taken to provide employment only to the dependent sons of deceased Abkari workers.
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removal was passed22. We have referred to the above judgment to demonstrate that there can be situation where the very claim made can be with regard to an opportunity not being given before withdrawing a promise which results in defeating the legitimate expectation23. The principle of procedural legitimate expectation would apply to cases where a promise is made and is withdrawn without affording an opportunity to the person affected. The imminent requirement of fairness in administrative action is to give an opportunity to the person who is deprived of a past benefit. In our opinion, there is an exception to the said rule. If an announcement is made by the Government of a policy conferring benefit on a large number of people, but subsequently, due to overriding public interest, the benefits that were announced earlier are withdrawn, it is not expedient to provide individual opportunities to such innominate number of persons. In other words, in such cases, an opportunity to each individual to explain the circumstances of his case need not be given. In Union of India v. Hindustan Development Corporation and Ors. (supra) it was held that in cases involving an interest based on legitimate expectation, the Court will not interfere on grounds of procedural fairness and natural justice, if the deciding authority has been allotted a full range of choice and the decision is taken fairly and objectively.Judicial Review and Proportionality24. The challenge to the order dated 07.08.2004 by which the Respondents were deprived of an opportunity of being considered for employment is on the ground of violation of Articles 14, 19 and 21 of the Constitution of India. Lord Diplock in Council of Civil Service Unions and Ors. v. Minister for the Civil Services , held that the interference with an administrative action could be on the grounds of illegality, irrationality and procedural impropriety. He was of the opinion that proportionality could be an additional ground of review in the future. Interference with an administrative decision by applying the Wednesburys principles is restricted only to decisions which are outrageous in its defiance of logic or of accepted moral standards that no sensible person who applied his mind to the question to be decided could have arrived at it.25. Traditionally, the principle of proportionality has been applied for protection of rights guaranteed under the European Convention for the Protection of Human Rights and Fundamental Freedoms, 195027. While exercising primary review, the Court is entitled to ask the State to justify the policy and whether there was an imminent need for restricting the fundamental rights of the claimants. In secondary review, the Court shows deference to the decision of the executive29. An administrative decision can be said to be proportionate if: (a) The objective with which a decision is made to curtail fundamental rights is important; (b) The measures taken to achieve the objective have a rational connection with the objective; and (c) The means that impair the rights of individuals are no more than necessary30. In the instant case, the Respondents challenged the order dated 07.08.2004, as being violative of Articles 14, 19 and 21. The High Court accepted the submissions made by the Respondents and held that the Order dated 07.08.2004 is vitiated as it suffers from the vice of arbitrariness and unreasonableness. However, in view of the challenge to the decision of the Government being on the ground of violation of Articles 14, 19 and 21, the test of proportionality should be applied to review the impugned decision of the Government32. The promise held out by the Government to provide employment to the displaced Abkari workers had become an impossible task in view of the non-availability of vacancies in the Corporation. The decision taken by the Government in overriding public interest was a measure to strike a balance between the competing interest of the displaced Abkari workers and unemployed youth in the State of Kerala. The impairment of the fundamental rights of the Respondents due to the change in policy cannot be said to be excessive. Hence, it cannot be said that the change in policy regarding re-employment of displaced abkari workers is disproportionate33. Another contention of Respondents which found favour with the High Court was that the Order dated 07.08.2004 was found illegal in Writ Petition (C) No.26878 of 2007 and that the said judgment has become final. Aggrieved by their non- appointment in spite of inclusion in the list of 265 dependent sons of the deceased displaced workers, they filed a Writ Petition seeking a direction to the Government to appoint them. The High Court directed the Government to appoint those persons who were included in the list, pursuant to the Order dated 07.08.2004 within a period of six weeks. The High Court further observed that the Order dated 20.02.2002 should not have been altered and directed the Government to reconsider the order dated 07.08.2004. The Government complied with the direction of the High Court in the Writ Petition above and issued a Government Order dated 30.04.2009 by which employment was provided to 265 dependent sons of deceased Abkari workers. Therefore, it cannot be said that the validity of the order dated 07.08.2004 has been finally decided in Writ Petition (C) No.26878 of 200734. We are not in agreement with the findings recorded by the High Court that a right of appointment accrued to the Respondents and it matured into a Right to Life as provided in Article 21 of the Constitution. We disapprove the opinion of the High Court that the Order dated 07.08.2004 is in continuation of the Order dated 20.02.2002 in view of the Order dated 20.02.2002 not being superceded. The Order dated 07.08.2004 was issued in modification of the Order dated 20.02.2002. A close scrutiny of both the Orders would indicate that the Order dated 07.08.2004 replaces the Order dated 20.02.2002 in view of a fresh decision taken to provide employment only to the dependent sons of deceased Abkari workersJudicial Review and ProportionalityJudicial Review and ProportionalityA. Vested Right of Employment
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JABBAR Vs. MAHARASHTRA STATE ROAD TRANSPORT CORPORATION | right hand was amputated after the accident. In the claim petition, the claimant, at page 24 in para 4, has claimed that he is entitled for compensation of Rs. 9,05,000/- from the Respondents jointly and severally and the claimant is suffering from financial crisis, therefore, he is unable to pay court fees on the said amount. Therefore, he had restricted his claim to the tune of Rs. 3,00,000/-. The Tribunal accepted the case setup by the Appellant and allowed the claim to Rs. 1.50 lacs. 3. Aggrieved by the said order, the appeal was filed in the High Court. The High Court found substance in the appeal and allowed the appeal by enhancing compensation from Rs. 1.50 lacs to Rs. 2.50 lacs. The High Court has observed that the said amount shall be just and fair compensation payable to the Appellant for the injuries suffered. 4. Learned Counsel for the Appellant submits that the mere fact that the Appellant has confined his claim to Rs. 3 lacs cannot be a factor in Appellant being not granted the fair and reasonable compensation for injuries suffered by him. The High Court having noticed that the Appellant was carrying business of fruits on a hand-cart, the amputation of right hand has made the business of the Appellant non-functional. The amount of Rs. 2.5 lacs awarded by the High Court is neither fair nor just compensation. It is further submitted by learned Counsel for the Appellant that this Court in exercise of its jurisdiction Under Article 142 of the Constitution can award just and reasonable compensation to the Appellant. 5. Learned Counsel for the Respondent submits that the Appellant having confined his claim to Rs. 3 lacs before the High Court cannot be allowed to contend that he is entitled for any higher compensation. 6. We have considered submission of learned Counsel for the parties and perused the record. 7. There is no dispute between the parties that in the bus accident, right hand of the Appellant was crushed which had to be amputated. The Appellant was carrying on the business of selling fruits on a hand-cart which fact has also been noticed by the High Court. In para 4 of the claim petition, although the claimant has computed the compensation to Rs. 9,05,000/- on different heads but he confined his claim to Rs. 3 lacs due to the reason he was unable to deposit the court fee on Rs. 9,05,000/-. Para 4 of the claim petition reads as follows: That due to the amputation of right hand the claimant has became permanently disabled person, he has lost his earning capacity. The claimant is unable to do any type of work and is leading a pity miserable life and therefore, the claimant is claiming compensation under following heads. Thus, the claimant is entitled for compensation of Rs. 9,05,00/- from the Respondents jointly and severally because the claimant has sustained the above loss, expenses because of the accident. However, the claimant is suffering from financial crises therefore, he is unable to deposit the court fees upon the said amount therefore, he has restricted his claim to the tune of Rs. 3,00,000/- and upon which court fees stamp of Rs. 2,372-50 ps. is paid herewith which is sufficient. If this Honble Court comes to the conclusion the claimant is entitled to get more than Rs. 3,00,000/- towards compensation in that eventuality, the claimant is ready to deposit deficit court fees. 8. This Court in large number of cases has laid down that it is permissible to grant compensation of any amount in excess to that one which has been claimed. This Court in exercise of jurisdiction Under Article 142 of the Constitution has awarded just and reasonable compensation. 9. It is sufficient to refer a recent judgment in Ramla and Ors. vs. National Insurance Company Limited and Ors. I (2019) SLT 428 : I (2019) ACC 346 (SC) : (2019) 2 SCC 192 , where this Court in para 5 has laid down: Though the claimants had claimed a total compensation of Rs. 25,00,000/- in their claim petition filed before the Tribunal, we feel that the compensation which the claimants are entitled to is higher than the same as mentioned supra. There is no restriction that the Court cannot award compensation exceeding the claimed amount, since the function of the Tribunal or court Under Section 168 of the Motor Vehicles Act, 1988 is to award just compensation. The Motor Vehicles Act is a beneficial and welfare legislation. A just compensation is one which is reasonable on the basis of evidence produced on record. It cannot be said to have become time barred. Further, there is no need for a new cause of action to claim an enhanced amount. The courts are duty bound to award just compensation. 10. Looking to the facts that the Appellant who was fruit seller on a handcart, his right hand having amputated, injury has caused him permanent disability substantially affecting his business. The award of Rs. 2.5 lacs cannot be held to be a just and reasonable compensation. The Appellant in his computation has claimed Rs. 8,10,000/- towards loss of future income. 11. We have no doubt that the amputation of right hand has caused great loss of future income. There is one more reason due to which the limiting of claim of the Appellant to Rs. 3 lacs cannot come into way in awarding higher compensation. In the last line of para 4 of the claim petition, the Appellant has stated: If this Honble Court comes to the conclusion the claimant is entitled to get more than Rs. 3,00,000/- towards compensation in that eventuality, the claimant is ready to deposit deficit court fees. 12. The Appellant has expressly stated that if it is entitled to get more than Rs. 3 lacs the claimant is ready to deposit deficient court fee. This clearly means that neither the Tribunal nor the High Court was precluded from awarding higher than Rs. 3 lacs. | 1[ds]7. There is no dispute between the parties that in the bus accident, right hand of the Appellant was crushed which had to be amputated. The Appellant was carrying on the business of selling fruits on a hand-cart which fact has also been noticed by the High Court. In para 4 of the claim petition, although the claimant has computed the compensation to Rs. 9,05,000/- on different heads but he confined his claim to Rs. 3 lacs due to the reason he was unable to deposit the court fee on Rs. 9,05,000/-.Para 4 of the claim petition reads as follows:That due to the amputation of right hand the claimant has became permanently disabled person, he has lost his earning capacity. The claimant is unable to do any type of work and is leading a pity miserable life and therefore, the claimant is claiming compensation under following heads.Thus, the claimant is entitled for compensation of Rs. 9,05,00/- from the Respondents jointly and severally because the claimant has sustained the above loss, expenses because of the accident. However, the claimant is suffering from financial crises therefore, he is unable to deposit the court fees upon the said amount therefore, he has restricted his claim to the tune of Rs. 3,00,000/- and upon which court fees stamp of Rs. 2,372-50 ps. is paid herewith which is sufficient. If this Honble Court comes to the conclusion the claimant is entitled to get more than Rs. 3,00,000/- towards compensation in that eventuality, the claimant is ready to deposit deficit court fees.8. This Court in large number of cases has laid down that it is permissible to grant compensation of any amount in excess to that one which has been claimed. This Court in exercise of jurisdiction Under Article 142 of the Constitution has awarded just and reasonable compensation.9. It is sufficient to refer a recent judgment in Ramla and Ors. vs. National Insurance Company Limited and Ors. I (2019) SLT 428 : I (2019) ACC 346 (SC) : (2019) 2 SCC 192 , where this Court in para 5 has laid down:Though the claimants had claimed a total compensation of Rs. 25,00,000/- in their claim petition filed before the Tribunal, we feel that the compensation which the claimants are entitled to is higher than the same as mentioned supra. There is no restriction that the Court cannot award compensation exceeding the claimed amount, since the function of the Tribunal or court Under Section 168 of the Motor Vehicles Act, 1988 is to award just compensation. The Motor Vehicles Act is a beneficial and welfare legislation. A just compensation is one which is reasonable on the basis of evidence produced on record. It cannot be said to have become time barred.Further, there is no need for a new cause of action to claim an enhanced amount. The courts are duty bound to award just compensation.10. Looking to the facts that the Appellant who was fruit seller on a handcart, his right hand having amputated, injury has caused him permanent disability substantially affecting his business. The award of Rs. 2.5 lacs cannot be held to be a just and reasonable compensation. The Appellant in his computation has claimed Rs. 8,10,000/- towards loss of future income.11. We have no doubt that the amputation of right hand has caused great loss of future income. There is one more reason due to which the limiting of claim of the Appellant to Rs. 3 lacs cannot come into way in awarding higher compensation. In the last line of para 4 of the claim petition, the Appellant has stated:If this Honble Court comes to the conclusion the claimant is entitled to get more than Rs. 3,00,000/- towards compensation in that eventuality, the claimant is ready to deposit deficit court fees.12. The Appellant has expressly stated that if it is entitled to get more than Rs. 3 lacs the claimant is ready to deposit deficient court fee. This clearly means that neither the Tribunal nor the High Court was precluded from awarding higher than Rs. 3 lacs. | 1 | 1,173 | 754 | ### 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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right hand was amputated after the accident. In the claim petition, the claimant, at page 24 in para 4, has claimed that he is entitled for compensation of Rs. 9,05,000/- from the Respondents jointly and severally and the claimant is suffering from financial crisis, therefore, he is unable to pay court fees on the said amount. Therefore, he had restricted his claim to the tune of Rs. 3,00,000/-. The Tribunal accepted the case setup by the Appellant and allowed the claim to Rs. 1.50 lacs. 3. Aggrieved by the said order, the appeal was filed in the High Court. The High Court found substance in the appeal and allowed the appeal by enhancing compensation from Rs. 1.50 lacs to Rs. 2.50 lacs. The High Court has observed that the said amount shall be just and fair compensation payable to the Appellant for the injuries suffered. 4. Learned Counsel for the Appellant submits that the mere fact that the Appellant has confined his claim to Rs. 3 lacs cannot be a factor in Appellant being not granted the fair and reasonable compensation for injuries suffered by him. The High Court having noticed that the Appellant was carrying business of fruits on a hand-cart, the amputation of right hand has made the business of the Appellant non-functional. The amount of Rs. 2.5 lacs awarded by the High Court is neither fair nor just compensation. It is further submitted by learned Counsel for the Appellant that this Court in exercise of its jurisdiction Under Article 142 of the Constitution can award just and reasonable compensation to the Appellant. 5. Learned Counsel for the Respondent submits that the Appellant having confined his claim to Rs. 3 lacs before the High Court cannot be allowed to contend that he is entitled for any higher compensation. 6. We have considered submission of learned Counsel for the parties and perused the record. 7. There is no dispute between the parties that in the bus accident, right hand of the Appellant was crushed which had to be amputated. The Appellant was carrying on the business of selling fruits on a hand-cart which fact has also been noticed by the High Court. In para 4 of the claim petition, although the claimant has computed the compensation to Rs. 9,05,000/- on different heads but he confined his claim to Rs. 3 lacs due to the reason he was unable to deposit the court fee on Rs. 9,05,000/-. Para 4 of the claim petition reads as follows: That due to the amputation of right hand the claimant has became permanently disabled person, he has lost his earning capacity. The claimant is unable to do any type of work and is leading a pity miserable life and therefore, the claimant is claiming compensation under following heads. Thus, the claimant is entitled for compensation of Rs. 9,05,00/- from the Respondents jointly and severally because the claimant has sustained the above loss, expenses because of the accident. However, the claimant is suffering from financial crises therefore, he is unable to deposit the court fees upon the said amount therefore, he has restricted his claim to the tune of Rs. 3,00,000/- and upon which court fees stamp of Rs. 2,372-50 ps. is paid herewith which is sufficient. If this Honble Court comes to the conclusion the claimant is entitled to get more than Rs. 3,00,000/- towards compensation in that eventuality, the claimant is ready to deposit deficit court fees. 8. This Court in large number of cases has laid down that it is permissible to grant compensation of any amount in excess to that one which has been claimed. This Court in exercise of jurisdiction Under Article 142 of the Constitution has awarded just and reasonable compensation. 9. It is sufficient to refer a recent judgment in Ramla and Ors. vs. National Insurance Company Limited and Ors. I (2019) SLT 428 : I (2019) ACC 346 (SC) : (2019) 2 SCC 192 , where this Court in para 5 has laid down: Though the claimants had claimed a total compensation of Rs. 25,00,000/- in their claim petition filed before the Tribunal, we feel that the compensation which the claimants are entitled to is higher than the same as mentioned supra. There is no restriction that the Court cannot award compensation exceeding the claimed amount, since the function of the Tribunal or court Under Section 168 of the Motor Vehicles Act, 1988 is to award just compensation. The Motor Vehicles Act is a beneficial and welfare legislation. A just compensation is one which is reasonable on the basis of evidence produced on record. It cannot be said to have become time barred. Further, there is no need for a new cause of action to claim an enhanced amount. The courts are duty bound to award just compensation. 10. Looking to the facts that the Appellant who was fruit seller on a handcart, his right hand having amputated, injury has caused him permanent disability substantially affecting his business. The award of Rs. 2.5 lacs cannot be held to be a just and reasonable compensation. The Appellant in his computation has claimed Rs. 8,10,000/- towards loss of future income. 11. We have no doubt that the amputation of right hand has caused great loss of future income. There is one more reason due to which the limiting of claim of the Appellant to Rs. 3 lacs cannot come into way in awarding higher compensation. In the last line of para 4 of the claim petition, the Appellant has stated: If this Honble Court comes to the conclusion the claimant is entitled to get more than Rs. 3,00,000/- towards compensation in that eventuality, the claimant is ready to deposit deficit court fees. 12. The Appellant has expressly stated that if it is entitled to get more than Rs. 3 lacs the claimant is ready to deposit deficient court fee. This clearly means that neither the Tribunal nor the High Court was precluded from awarding higher than Rs. 3 lacs.
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7. There is no dispute between the parties that in the bus accident, right hand of the Appellant was crushed which had to be amputated. The Appellant was carrying on the business of selling fruits on a hand-cart which fact has also been noticed by the High Court. In para 4 of the claim petition, although the claimant has computed the compensation to Rs. 9,05,000/- on different heads but he confined his claim to Rs. 3 lacs due to the reason he was unable to deposit the court fee on Rs. 9,05,000/-.Para 4 of the claim petition reads as follows:That due to the amputation of right hand the claimant has became permanently disabled person, he has lost his earning capacity. The claimant is unable to do any type of work and is leading a pity miserable life and therefore, the claimant is claiming compensation under following heads.Thus, the claimant is entitled for compensation of Rs. 9,05,00/- from the Respondents jointly and severally because the claimant has sustained the above loss, expenses because of the accident. However, the claimant is suffering from financial crises therefore, he is unable to deposit the court fees upon the said amount therefore, he has restricted his claim to the tune of Rs. 3,00,000/- and upon which court fees stamp of Rs. 2,372-50 ps. is paid herewith which is sufficient. If this Honble Court comes to the conclusion the claimant is entitled to get more than Rs. 3,00,000/- towards compensation in that eventuality, the claimant is ready to deposit deficit court fees.8. This Court in large number of cases has laid down that it is permissible to grant compensation of any amount in excess to that one which has been claimed. This Court in exercise of jurisdiction Under Article 142 of the Constitution has awarded just and reasonable compensation.9. It is sufficient to refer a recent judgment in Ramla and Ors. vs. National Insurance Company Limited and Ors. I (2019) SLT 428 : I (2019) ACC 346 (SC) : (2019) 2 SCC 192 , where this Court in para 5 has laid down:Though the claimants had claimed a total compensation of Rs. 25,00,000/- in their claim petition filed before the Tribunal, we feel that the compensation which the claimants are entitled to is higher than the same as mentioned supra. There is no restriction that the Court cannot award compensation exceeding the claimed amount, since the function of the Tribunal or court Under Section 168 of the Motor Vehicles Act, 1988 is to award just compensation. The Motor Vehicles Act is a beneficial and welfare legislation. A just compensation is one which is reasonable on the basis of evidence produced on record. It cannot be said to have become time barred.Further, there is no need for a new cause of action to claim an enhanced amount. The courts are duty bound to award just compensation.10. Looking to the facts that the Appellant who was fruit seller on a handcart, his right hand having amputated, injury has caused him permanent disability substantially affecting his business. The award of Rs. 2.5 lacs cannot be held to be a just and reasonable compensation. The Appellant in his computation has claimed Rs. 8,10,000/- towards loss of future income.11. We have no doubt that the amputation of right hand has caused great loss of future income. There is one more reason due to which the limiting of claim of the Appellant to Rs. 3 lacs cannot come into way in awarding higher compensation. In the last line of para 4 of the claim petition, the Appellant has stated:If this Honble Court comes to the conclusion the claimant is entitled to get more than Rs. 3,00,000/- towards compensation in that eventuality, the claimant is ready to deposit deficit court fees.12. The Appellant has expressly stated that if it is entitled to get more than Rs. 3 lacs the claimant is ready to deposit deficient court fee. This clearly means that neither the Tribunal nor the High Court was precluded from awarding higher than Rs. 3 lacs.
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K. Balakrishna Rao and Others Vs. Hazi Abdulla Sait and Others | The learned trial Judge does not state in the course of its judgment the date from which the proceeding was treated as a fresh suit. In the instant case, the suit itself was originally flied on March 2, 1964. The original defendant died on January 15, 1968. Even if the proceeding was treated as a fresh suit against defendants Nos. 2 to 10, it could be treated as such only from a date subsequent to January 15, 968 on which date the original defendant did since the contention of the plaintiff which found favour with the learned single judge and the Division Bench of the High Court was that defendants Nos. 2 to 10 who were legal representatives of the original defendant could not succeed to the tenancy right of the original defendant. In the instant case, since the plaintiff based his claim on the above contention in the year 1973 when he made the application for 1 amendment of the plaint, the date of the institution of the fresh suit could not be earlier than the date on which the application for amendment was made even if it was permissible to do so. By his judgment the learned single Judge passed a decree for possession against defendants Nos. 2 to 10 and for damages to be determined under order 20 Rule 12 of the Code of Civil Procedure without specifying the date from which damages would be payable. In the absence of such - specification, the plaintiff became entitled to claim damages under order 20, Rule 12 of the Code of Civil Procedure even from the date of the suit i.e. March 2, 1964. The Division Bench by its judgment affirmed that part of the decree of the trial court. The direction for payment, of mesne profits given in the decree of the trial court without specify the date from which damages should be computed could not have been passel consistently with its judgment in which it had been stated that the suit was being treated as a fresh suit. This defect, however is of a minor character. What is more fundamental in this case is that it was not permissible for the trial court to Treat the proceeding which had been instituted against the original defendant prior to June 10, 1964 as a live proceeding which could be converted into a fresh suit instituted against defendants NOS. 2 to 10 after the death of the original defendant, Seetharama Rao. An amendment of a plaint by inclusion of a new prayer or by addition of new parties can be made only where a suit is pending before a court in the eye of law. On June 10, 1964, the entire proceedings commenced with the plaint filed on March 2, 1964 stood terminated and there was no plaint in a live suit which could be amended by the addition of new parties and the inclusion of a new prayer. We are of the view that the addition of new parties which took place after the death of Seetharama Rao and the amendment of the plaint in the year 197 3 and the passing of the decree by the trial Judge against defendants Nos. 2 to 10 who were not parties to the suit prior to June 10, 1964 on a cause of action which accrued subsequent to January 15, 1968 were all without jurisdiction. I t was, however, argued on behalf of the plaintiff before us relying upon the decision of this Court in B. Banerjee v. Anita. Pan that since the parties had gone to trial with open eyes knowing fully that the plaintiff was relying upon a cause of action which accrued in his favour after the death of the original defendant and on the basis of the amendment of the plaint in the year 1973, the decree passed by the trial court and affirmed by the Division Bench of the High Court should not be interfered with in the interests of justice and equity. It is no doubt true that in the decision referred to above, this Court permitted the t parties to file fresh pleadings and to prosecute the proceedings after the disposal of the case by t his Court having regard to the delay which had already ensued. It was possible for this Court to do so in that case because there was no legal impediment as we have in the present case. To repeat, in the present case, the suit abated by reason of an ex press provision in a statute on June 10, 1964, the new cause of action on which the plaintiff depended accrued on January 15, 1968 i.e. the date of the death of the original defendant, the plaint itself was amended in the year 1973 claiming relief against defendants Nos. 2 to 10 not as legal representatives who inherited the tenancy right of the original defendant but as persons who had not inherited the said right . It is thus seen that there was no proceeding in the eye of law rending after June 10, 1964, the cause of action on the basis of which relief was claimed was totally different and the persons against whom the relief was sought were also different. Parties could not either by consent or acquiescence confer jurisdiction on court when law had taken it away.In these circumstances, we feel that the only course which we can adopt is to set aside the findings of the trial court and of the Division Bench on issues relating to the claim of the plaintiff to get possession of the property from defendants Nos. 2 to 10 on the ground that they were not statutory tenants i.e. issues Nos. 4 and 6 and to leave the questions involved in them open reserving liberty to the parties to agitate them in appropriate proceedings. In view of our finding on issue No. 3, we hold that the decree passed by the trial court and the appellate court are unsustainable. 21. | 1[ds]We have already referred to the object with which the Amending Act was passed and that was to give relief against unreasonable evictions and demands for unconscionable rates of rents to tenants of buildings which had been originally exempted from the operation of the principal Act. It is clear that while doing so t he Legislature gave relief also to persons against whom suits had been filed. WE think that the words "instituted on the ground that such building or part was exempt from the provisions of the principal Act by virtue , of clause (iii) of section 30 of the principal Act" should be construed in the context in which they appear as referring to a proceeding which had been instituted in the light of section 30(iii) of the principal Act which granted exemption in respect of the buildings referred to therein from the operation of the principal Act and any other construction would defeat the object of the Amending Act. lt is seen that in the instant case, the original plaint was filed on the basis that the tenancy had been terminated with effe ct from the expiry of February 29, 1964. The plaintiff prayed for eviction of the original defendant and also for a decree for damages for use and occupation at the rate of Rs. 6000/- per month from the date of the plaint till delivery of the vacant p ossession on the assumption that after the termination of the lease the original defendant No. 1 was not a tenant and was liable to pay damages and not the rent of Rs. 1, 680/- per month which was the fair rent fixed in respect of the building in a former proceeding under the rent control law in force then. The suit in the above form could be filed for the relief referred to above only because of the exemption granted by clause (iii) of section 30 of the principal Act because in the absence of such exemption, no effective decree for ejectment could be passed by the City Civil Court in view of section 10 of the principal Act which provided that no tenant could be evicted from a building except in accordance with the provisions o f section 10 and section 14 to 16 thereof. The plaintiff could not also have asked for a decree for damages at Rs. 6000/- per month which he had claimed in the plaint but for such exemption. We are, therefore. Of the view that section 3 of the Amendi ng Act was applicable to the suit in question as it was a proceeding instituted in the City Civil Court on the ground that the building in question was exempt from the provisions of the principal Act by virtue of clause (iii) of section 30 thereof although no express allegation was made in the plaint to that effectBe that as it may, we are of the view that having regard to our finding that the suit stood abated on June 10, 1964 by virtue of the provisions of section 3 of the Amending Act, the original defendant, Seetharama Rao became a statutory tenant of the premises in question and he could not be evicted from the premises except in accordance with the procedure specified in the principal Act. The position would not have been different even if a decree for eviction had been passed against him before June 10, 1964 and the decree had not been executed or satisfied in full on that date. The several decisions on which reliance was placed by the Division Bench for determining the character of possession of the original defendant, Seetharama Rao after the expiry of the notice given under section 106 of the Transfer of Property Act were not relevant for the purpose of this case because in none of them there was any occasion to consider the effect of a provision similar to section 3 of the Amending Act. We, therefore, do not agree with the finding of the Division Bench that t he original defendant was a trespasser in possession of the premises in question after June 10, 1964We also find it difficult to agree with the finding of the Division Bench that the premises in question was not a building as defined in sect ion 2(2) of the principal Act. The reason given by the Division Bench for holding that the building in question was not a building within the meaning of section 2(2) of the principal Act was that it was not a building which was either let or to be let separately for residential or non-residential purposesIt is no doubt true that in the decision referred to above, this Court permitted the t parties to file fresh pleadings and to prosecute the proceedings after the disposal of the case by t his Court having regard to the delay which had already ensued. It was possible for this Court to do so in that case because there was no legal impediment as we have in the present case. To repeat, in the present case, the suit abated by reason of an ex press provision in a statute on June 10, 1964, the new cause of action on which the plaintiff depended accrued on January 15, 1968 i.e. the date of the death of the original defendant, the plaint itself was amended in the year 1973 claiming relief against defendants Nos. 2 to 10 not as legal representatives who inherited the tenancy right of the original defendant but as persons who had not inherited the said right . It is thus seen that there was no proceeding in the eye of law rending after June 10, 1964, the cause of action on the basis of which relief was claimed was totally different and the persons against whom the relief was sought were also different. Parties could not either by consent or acquiescence confer jurisdiction on court when law had taken it away.In these circumstances, we feel that the only course which we can adopt is to set aside the findings of the trial court and of the Division Bench on issues relating to the claim of the plaintiff to get possession of the property from defendants Nos. 2 to 10 on the ground that they were not statutory tenants i.e. issues Nos. 4 and 6 and to leave the questions involved in them open reserving liberty to the parties to agitate them in appropriate proceedings. In view of our finding on issue No. 3, we hold that the decree passed by the trial court and the appellate court are unsustainable. | 1 | 10,924 | 1,173 | ### Instruction:
Judge the probable resolution of the case (approval (1) or disapproval (0)), and elaborate on this forecast by extracting and interpreting significant sentences from the proceeding.
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The learned trial Judge does not state in the course of its judgment the date from which the proceeding was treated as a fresh suit. In the instant case, the suit itself was originally flied on March 2, 1964. The original defendant died on January 15, 1968. Even if the proceeding was treated as a fresh suit against defendants Nos. 2 to 10, it could be treated as such only from a date subsequent to January 15, 968 on which date the original defendant did since the contention of the plaintiff which found favour with the learned single judge and the Division Bench of the High Court was that defendants Nos. 2 to 10 who were legal representatives of the original defendant could not succeed to the tenancy right of the original defendant. In the instant case, since the plaintiff based his claim on the above contention in the year 1973 when he made the application for 1 amendment of the plaint, the date of the institution of the fresh suit could not be earlier than the date on which the application for amendment was made even if it was permissible to do so. By his judgment the learned single Judge passed a decree for possession against defendants Nos. 2 to 10 and for damages to be determined under order 20 Rule 12 of the Code of Civil Procedure without specifying the date from which damages would be payable. In the absence of such - specification, the plaintiff became entitled to claim damages under order 20, Rule 12 of the Code of Civil Procedure even from the date of the suit i.e. March 2, 1964. The Division Bench by its judgment affirmed that part of the decree of the trial court. The direction for payment, of mesne profits given in the decree of the trial court without specify the date from which damages should be computed could not have been passel consistently with its judgment in which it had been stated that the suit was being treated as a fresh suit. This defect, however is of a minor character. What is more fundamental in this case is that it was not permissible for the trial court to Treat the proceeding which had been instituted against the original defendant prior to June 10, 1964 as a live proceeding which could be converted into a fresh suit instituted against defendants NOS. 2 to 10 after the death of the original defendant, Seetharama Rao. An amendment of a plaint by inclusion of a new prayer or by addition of new parties can be made only where a suit is pending before a court in the eye of law. On June 10, 1964, the entire proceedings commenced with the plaint filed on March 2, 1964 stood terminated and there was no plaint in a live suit which could be amended by the addition of new parties and the inclusion of a new prayer. We are of the view that the addition of new parties which took place after the death of Seetharama Rao and the amendment of the plaint in the year 197 3 and the passing of the decree by the trial Judge against defendants Nos. 2 to 10 who were not parties to the suit prior to June 10, 1964 on a cause of action which accrued subsequent to January 15, 1968 were all without jurisdiction. I t was, however, argued on behalf of the plaintiff before us relying upon the decision of this Court in B. Banerjee v. Anita. Pan that since the parties had gone to trial with open eyes knowing fully that the plaintiff was relying upon a cause of action which accrued in his favour after the death of the original defendant and on the basis of the amendment of the plaint in the year 1973, the decree passed by the trial court and affirmed by the Division Bench of the High Court should not be interfered with in the interests of justice and equity. It is no doubt true that in the decision referred to above, this Court permitted the t parties to file fresh pleadings and to prosecute the proceedings after the disposal of the case by t his Court having regard to the delay which had already ensued. It was possible for this Court to do so in that case because there was no legal impediment as we have in the present case. To repeat, in the present case, the suit abated by reason of an ex press provision in a statute on June 10, 1964, the new cause of action on which the plaintiff depended accrued on January 15, 1968 i.e. the date of the death of the original defendant, the plaint itself was amended in the year 1973 claiming relief against defendants Nos. 2 to 10 not as legal representatives who inherited the tenancy right of the original defendant but as persons who had not inherited the said right . It is thus seen that there was no proceeding in the eye of law rending after June 10, 1964, the cause of action on the basis of which relief was claimed was totally different and the persons against whom the relief was sought were also different. Parties could not either by consent or acquiescence confer jurisdiction on court when law had taken it away.In these circumstances, we feel that the only course which we can adopt is to set aside the findings of the trial court and of the Division Bench on issues relating to the claim of the plaintiff to get possession of the property from defendants Nos. 2 to 10 on the ground that they were not statutory tenants i.e. issues Nos. 4 and 6 and to leave the questions involved in them open reserving liberty to the parties to agitate them in appropriate proceedings. In view of our finding on issue No. 3, we hold that the decree passed by the trial court and the appellate court are unsustainable. 21.
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the principal Act" should be construed in the context in which they appear as referring to a proceeding which had been instituted in the light of section 30(iii) of the principal Act which granted exemption in respect of the buildings referred to therein from the operation of the principal Act and any other construction would defeat the object of the Amending Act. lt is seen that in the instant case, the original plaint was filed on the basis that the tenancy had been terminated with effe ct from the expiry of February 29, 1964. The plaintiff prayed for eviction of the original defendant and also for a decree for damages for use and occupation at the rate of Rs. 6000/- per month from the date of the plaint till delivery of the vacant p ossession on the assumption that after the termination of the lease the original defendant No. 1 was not a tenant and was liable to pay damages and not the rent of Rs. 1, 680/- per month which was the fair rent fixed in respect of the building in a former proceeding under the rent control law in force then. The suit in the above form could be filed for the relief referred to above only because of the exemption granted by clause (iii) of section 30 of the principal Act because in the absence of such exemption, no effective decree for ejectment could be passed by the City Civil Court in view of section 10 of the principal Act which provided that no tenant could be evicted from a building except in accordance with the provisions o f section 10 and section 14 to 16 thereof. The plaintiff could not also have asked for a decree for damages at Rs. 6000/- per month which he had claimed in the plaint but for such exemption. We are, therefore. Of the view that section 3 of the Amendi ng Act was applicable to the suit in question as it was a proceeding instituted in the City Civil Court on the ground that the building in question was exempt from the provisions of the principal Act by virtue of clause (iii) of section 30 thereof although no express allegation was made in the plaint to that effectBe that as it may, we are of the view that having regard to our finding that the suit stood abated on June 10, 1964 by virtue of the provisions of section 3 of the Amending Act, the original defendant, Seetharama Rao became a statutory tenant of the premises in question and he could not be evicted from the premises except in accordance with the procedure specified in the principal Act. The position would not have been different even if a decree for eviction had been passed against him before June 10, 1964 and the decree had not been executed or satisfied in full on that date. The several decisions on which reliance was placed by the Division Bench for determining the character of possession of the original defendant, Seetharama Rao after the expiry of the notice given under section 106 of the Transfer of Property Act were not relevant for the purpose of this case because in none of them there was any occasion to consider the effect of a provision similar to section 3 of the Amending Act. We, therefore, do not agree with the finding of the Division Bench that t he original defendant was a trespasser in possession of the premises in question after June 10, 1964We also find it difficult to agree with the finding of the Division Bench that the premises in question was not a building as defined in sect ion 2(2) of the principal Act. The reason given by the Division Bench for holding that the building in question was not a building within the meaning of section 2(2) of the principal Act was that it was not a building which was either let or to be let separately for residential or non-residential purposesIt is no doubt true that in the decision referred to above, this Court permitted the t parties to file fresh pleadings and to prosecute the proceedings after the disposal of the case by t his Court having regard to the delay which had already ensued. It was possible for this Court to do so in that case because there was no legal impediment as we have in the present case. To repeat, in the present case, the suit abated by reason of an ex press provision in a statute on June 10, 1964, the new cause of action on which the plaintiff depended accrued on January 15, 1968 i.e. the date of the death of the original defendant, the plaint itself was amended in the year 1973 claiming relief against defendants Nos. 2 to 10 not as legal representatives who inherited the tenancy right of the original defendant but as persons who had not inherited the said right . It is thus seen that there was no proceeding in the eye of law rending after June 10, 1964, the cause of action on the basis of which relief was claimed was totally different and the persons against whom the relief was sought were also different. Parties could not either by consent or acquiescence confer jurisdiction on court when law had taken it away.In these circumstances, we feel that the only course which we can adopt is to set aside the findings of the trial court and of the Division Bench on issues relating to the claim of the plaintiff to get possession of the property from defendants Nos. 2 to 10 on the ground that they were not statutory tenants i.e. issues Nos. 4 and 6 and to leave the questions involved in them open reserving liberty to the parties to agitate them in appropriate proceedings. In view of our finding on issue No. 3, we hold that the decree passed by the trial court and the appellate court are unsustainable.
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Suna Ullah Butt Vs. State of Jammu and Kashmir & Others | date the detention order was passed. When an argument on that score was advanced, we adjourned the case to enable the respondents to file affidavit on the point. Two affidavits have thereafter been filed on behalf of the respondents. According to the affidavit of Shri Krishanlal Gupta, Station House Officer, Police Station, Poonch, the petitioner was arrested on October 6, 1971 in a case under the Internal Movement Control Ordinance, Public Security Act, Enemy Agent Ordinance and Indian Arms Act. The petitioner was, however, released in that case on October 20, 1971. It is further in the affidavit of Shri Gupta that the petitioner was not in the custody of the police on October 24, 1971 when the order for his detention was made. The other affidavit which has been filed is that of Dr. Ravindra Gupta, officiating Superintendent of Central Jail Jammu. According to Dr. Gupta the records show that the petitioner was brought to Central Jail Jammu on October 26, 1971 in pursuance of order dated October 24, 1971 of the District Magistrate Poonch. There appears to be no cogent ground for disbelieving the statement contained in the affidavits of Shri Krishanlal Gupta and Dr. Ravindra Gupta. It is manifest from these two affidavits that the petitioner was not in custody on October 24, 1971 when the order for his detention was made by the District Magistrate. 4. The second contention of Mr. Om Parkash relates to the fact that the period for which the petitioner was to be detained has not been mentioned in the order of the State Government dated March 3, 1972 confirming the detention order. It is urged that the failure of the State Government to specify the period of detention introduces an infirmity in the detention of the petitioner. This contention, in our opinion, is without any force. According to sub-section (1) of Section 12 of the Act, in any case where the Advisory Board has reported that there is, in its opinion, sufficient cause for the detention of a person, the Government may confirm the detention order and continue the detention of the person concerned for such period as it thinks fit. Section 13 of the Act specifies the maximum period of detention. According to that section, the maximum period for which a person may be detained in pursuance of any detention order, which has been confirmed under Section 12, shall be two years from the date of detention. It is further provided that nothing in the section shall affect the power of the Government to revoke or modify the detention order at any earlier time. It is, in our opinion, difficult to infer from the language of Section 12 of the Act that the State Government while confirming the detention order should also specify the period of detention. All that the section requires is that, if the Advisory Board has reported that there is, in its opinion, sufficient cause for the detention of the person, the Government may confirm the detention order. There is nothing in the section which enjoins upon the Government to specify the period of detention also while confirming the detention order. The concluding words of sub-section (1) of Section 12, according to which the Government may continue the detention of the person concerned for such period as it thinks fit, pertain to and embody the consequence of the confirmation of the detention order. It is, however, manifest that the period for which a person can be detained after the confirmation of the detention order is subject to the limit of two years, which is the maximum period of detention for which a person can be detained, vide section 13 of the Act. 5. Apart from the above, we are of the opinion that it is not always practicable and feasible for the State Government at the time of confirming the detention order to specify the period of detention. The continued detention of the detenu, subject to the maximum period prescribed by the Act, depends upon a variety of factors and the State Government would have to take into account all the circumstances including fresh developments and subsequent events in deciding whether to keep the detenu in detention for the maximum period or to release him earlier. It has accordingly been provided in sub-section (2) of Section 13 of the Act that the State Government would have the power to revoke or modify the detention order at any time earlier than the expiry of two years from the date of detention. We may also mention in the above context that in the case of Ujagar Singh v. The State of Punjab, 1952 SCR 756 = (AIR 1952 SC 350 ) this Court, while dealing with a case under the Preventive Detention Act, held that non-specification of any definite period in a detention order made under Section 3 of that Act was not a material omission as would render the order to be invalid. 6. So far as the grounds of detention are concerned, it is manifest that the activities of the petitioner mentioned therein are germane to the object for which detention can be ordered. Sub-section (1) of S. 3 of the Act provides inter alia that the Government may if satisfied with respect to any person that with a view to preventing him from acting in any manner prejudicial to the security of the State it is necessary so to do make an order directing that such person be detained. The activities of the petitioner mentioned in the grounds of detention show that he was having contact with Pakistan Intelligence Officers and was assisting them in securing vital information relating to Indian Army. It is obvious that the above activities of the petitioner impinge upon the security of the State. No legal infirmity can consequently be found in the order for the detention of the petitioner which was made with a view to prevent him from acting in any manner prejudicial to the security of the State. | 0[ds]5. Apart from the above, we are of the opinion that it is not always practicable and feasible for the State Government at the time of confirming the detention order to specify the period of detention. The continued detention of the detenu, subject to the maximum period prescribed by the Act, depends upon a variety of factors and the State Government would have to take into account all the circumstances including fresh developments and subsequent events in decidingwhether to keep the detenu in detention for the maximum period or to release him earlier.It has accordingly been provided in sub-section (2) of Section 13 of the Act that the State Government would have the power to revoke or modify the detention order at any time earlier than the expiry of two years from the date of detentionWe may also mention in the above context that in the case of Ujagar Singh v. The State of Punjab, 1952 SCR 756 = (AIR 1952 SC 350 ) this Court, while dealing with a case under the Preventive Detention Act, held that non-specification of any definite period in a detention order made under Section 3 of that Act was not a material omission as would render the order to be invalid6. So far as the grounds of detention are concerned, it is manifest that the activities of the petitioner mentioned therein are germane to the object for which detention can be ordered. Sub-section (1) of S. 3 of the Act provides inter alia that the Government may if satisfied with respect to any person that with a view to preventing him from acting in any manner prejudicial to the security of the State it is necessary so to do make an order directing that such person be detained. The activities of the petitioner mentioned in the grounds of detention show that he was having contact with Pakistan Intelligence Officers and was assisting them in securing vital information relating to Indian Army. It is obvious that the above activities of the petitioner impinge upon the security of the State. No legal infirmity can consequently be found in the order for the detention of the petitioner which was made with a view to prevent him from acting in any manner prejudicial to the security of the State. | 0 | 1,856 | 405 | ### Instruction:
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date the detention order was passed. When an argument on that score was advanced, we adjourned the case to enable the respondents to file affidavit on the point. Two affidavits have thereafter been filed on behalf of the respondents. According to the affidavit of Shri Krishanlal Gupta, Station House Officer, Police Station, Poonch, the petitioner was arrested on October 6, 1971 in a case under the Internal Movement Control Ordinance, Public Security Act, Enemy Agent Ordinance and Indian Arms Act. The petitioner was, however, released in that case on October 20, 1971. It is further in the affidavit of Shri Gupta that the petitioner was not in the custody of the police on October 24, 1971 when the order for his detention was made. The other affidavit which has been filed is that of Dr. Ravindra Gupta, officiating Superintendent of Central Jail Jammu. According to Dr. Gupta the records show that the petitioner was brought to Central Jail Jammu on October 26, 1971 in pursuance of order dated October 24, 1971 of the District Magistrate Poonch. There appears to be no cogent ground for disbelieving the statement contained in the affidavits of Shri Krishanlal Gupta and Dr. Ravindra Gupta. It is manifest from these two affidavits that the petitioner was not in custody on October 24, 1971 when the order for his detention was made by the District Magistrate. 4. The second contention of Mr. Om Parkash relates to the fact that the period for which the petitioner was to be detained has not been mentioned in the order of the State Government dated March 3, 1972 confirming the detention order. It is urged that the failure of the State Government to specify the period of detention introduces an infirmity in the detention of the petitioner. This contention, in our opinion, is without any force. According to sub-section (1) of Section 12 of the Act, in any case where the Advisory Board has reported that there is, in its opinion, sufficient cause for the detention of a person, the Government may confirm the detention order and continue the detention of the person concerned for such period as it thinks fit. Section 13 of the Act specifies the maximum period of detention. According to that section, the maximum period for which a person may be detained in pursuance of any detention order, which has been confirmed under Section 12, shall be two years from the date of detention. It is further provided that nothing in the section shall affect the power of the Government to revoke or modify the detention order at any earlier time. It is, in our opinion, difficult to infer from the language of Section 12 of the Act that the State Government while confirming the detention order should also specify the period of detention. All that the section requires is that, if the Advisory Board has reported that there is, in its opinion, sufficient cause for the detention of the person, the Government may confirm the detention order. There is nothing in the section which enjoins upon the Government to specify the period of detention also while confirming the detention order. The concluding words of sub-section (1) of Section 12, according to which the Government may continue the detention of the person concerned for such period as it thinks fit, pertain to and embody the consequence of the confirmation of the detention order. It is, however, manifest that the period for which a person can be detained after the confirmation of the detention order is subject to the limit of two years, which is the maximum period of detention for which a person can be detained, vide section 13 of the Act. 5. Apart from the above, we are of the opinion that it is not always practicable and feasible for the State Government at the time of confirming the detention order to specify the period of detention. The continued detention of the detenu, subject to the maximum period prescribed by the Act, depends upon a variety of factors and the State Government would have to take into account all the circumstances including fresh developments and subsequent events in deciding whether to keep the detenu in detention for the maximum period or to release him earlier. It has accordingly been provided in sub-section (2) of Section 13 of the Act that the State Government would have the power to revoke or modify the detention order at any time earlier than the expiry of two years from the date of detention. We may also mention in the above context that in the case of Ujagar Singh v. The State of Punjab, 1952 SCR 756 = (AIR 1952 SC 350 ) this Court, while dealing with a case under the Preventive Detention Act, held that non-specification of any definite period in a detention order made under Section 3 of that Act was not a material omission as would render the order to be invalid. 6. So far as the grounds of detention are concerned, it is manifest that the activities of the petitioner mentioned therein are germane to the object for which detention can be ordered. Sub-section (1) of S. 3 of the Act provides inter alia that the Government may if satisfied with respect to any person that with a view to preventing him from acting in any manner prejudicial to the security of the State it is necessary so to do make an order directing that such person be detained. The activities of the petitioner mentioned in the grounds of detention show that he was having contact with Pakistan Intelligence Officers and was assisting them in securing vital information relating to Indian Army. It is obvious that the above activities of the petitioner impinge upon the security of the State. No legal infirmity can consequently be found in the order for the detention of the petitioner which was made with a view to prevent him from acting in any manner prejudicial to the security of the State.
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5. Apart from the above, we are of the opinion that it is not always practicable and feasible for the State Government at the time of confirming the detention order to specify the period of detention. The continued detention of the detenu, subject to the maximum period prescribed by the Act, depends upon a variety of factors and the State Government would have to take into account all the circumstances including fresh developments and subsequent events in decidingwhether to keep the detenu in detention for the maximum period or to release him earlier.It has accordingly been provided in sub-section (2) of Section 13 of the Act that the State Government would have the power to revoke or modify the detention order at any time earlier than the expiry of two years from the date of detentionWe may also mention in the above context that in the case of Ujagar Singh v. The State of Punjab, 1952 SCR 756 = (AIR 1952 SC 350 ) this Court, while dealing with a case under the Preventive Detention Act, held that non-specification of any definite period in a detention order made under Section 3 of that Act was not a material omission as would render the order to be invalid6. So far as the grounds of detention are concerned, it is manifest that the activities of the petitioner mentioned therein are germane to the object for which detention can be ordered. Sub-section (1) of S. 3 of the Act provides inter alia that the Government may if satisfied with respect to any person that with a view to preventing him from acting in any manner prejudicial to the security of the State it is necessary so to do make an order directing that such person be detained. The activities of the petitioner mentioned in the grounds of detention show that he was having contact with Pakistan Intelligence Officers and was assisting them in securing vital information relating to Indian Army. It is obvious that the above activities of the petitioner impinge upon the security of the State. No legal infirmity can consequently be found in the order for the detention of the petitioner which was made with a view to prevent him from acting in any manner prejudicial to the security of the State.
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Jalan Trading Co. (Private Ltd.) Vs. Mill Mazdoor Union(With Connected Petitions) | The ratio so established is only applicable if there is allocable surplus and the total payment of bonus cannot, in any event, exceed 20 per cent which it might well have lone if there was no limit. In other words, between the maximum and the minimum the tame ratio of payment is to be maintained from year to year and the payment will be more or less according as the profits from which the allocable surplus is to be calculated are greater or smaller. If extraordinary circumstances appear set on and set off will make them less onerous for the employers or employees. The existence of this rigid ratio, which applies to all establishments which come under S.34 (2) does not, in our opinion, create any inequality.87. It is, however, submitted that the Act has ignored the definition of "workmen" in the Industrial Disputes Act and by allowing bonus to employees drawing salary or wage upto Rs. 1,600 per month has increased the burden of the employers. It is also argued that this creates inequality between those establishments which come under S. 33 and those which paid bonus under the Full Bench Formula. This argument ignores several matters. The total bonus now cannot exceed 20 per cent of the total wage bill, i.e., less than 21/2 months total wages and dearness allowance. The demand for bonus in some establishments was much more and it is hardly correct to say that bonus payable under Ss. 33 and 34 (2) will always he more than that payable under the Full Bench Formula. The controlling factors are the establishment of the ratio, the fixation of a minimum limit and the principle of set off. As a result of the operation of these factors, the net amount cannot be as disadvantageous to the employers as was represented to us. The increase in the number of persons entitled to receive bonus therefore, will not be of much significance. The number of such employees cannot he very large and in any event no employee will get bonus at a higher rate than a person drawing wage or salary of Rs. 750 per month. We are not in agreement with this argument.88. The question thus is one of the power of Parliament to enact a law relating to bonus. Once the power to make the law is found, then the law so made cannot be struck down unless it offends a fundamental right. As the Bonus Act makes valid classifications and everyone in a class is equally treated, it is impossible to say that there is inequality. The arguments have taken examples of what are called "similarly situated establishments in each class to show unequal treatment when it is obvious that the similarity is imaginary and even similarly situated establishment (if any there be) in different classes cannot be compared. The arguments have not faced the question of classification but have been extremely ambiguous. For example it was even suggested that the ratio between profits and allocable surplus in a base year might be infinity if there was no profit, overlooking the simple fact that existence of profit is a condition precedent to the finding of the ratio. On this kind of reasoning the provisions of S. 10 were also attacked which we have explained are not affected.89. Our brethren have struck down Ss. 33, 34 and 37, but have upheld the other sections. We are, however, of opinion that if Parliament can legally, constitutionally, and validly order payment of bonus according to its formula, fix minimum bonus without profits, fix a ceiling in spite of high profits, evolve a principle of set on and set off and make disobedience subject to a penalty, there is no reason why it cannot order decision of pending cases treated as a class, according to the new formula and open up the intervening years of account for reconsideration. The power in S. 33 is of the same character as the other and no special competence is required, of course in doing this it should treat alike all establishments in which there is a pending dispute. This Parliament has done. Similarly, by S. 34 Parliament orders that a certain proportion between profits and allocable surplus shall be maintained. This exercise of the power is of the same character as the prescription that bonus shall be paid in this and this manner and no other. If the action is legal, so is this, provided there is no discrimination. There is none in this class either. The power to remove difficulties reserved to Government is in hundreds of statutes. All Land Reform Acts, State Reorganisation Acts, Industrial Disputes Acts, Encumbered Estates Acts, many taxation laws and such widely differing statutes as University Acts and Election Acts have it and the power of exemption is always included but is seldom abused. We have, therefore, respectfully dissented from their view.90. In our judgment, the matter requires to be looked at from the point of view of avoidance of industrial disputes and the imposition of a uniform formula for all establishments. The existence of different kinds of establishments, as set out above, has made it necessary to classify and to make special rules for determination of bonus. By the special rules contained in Ss. 33 and 34 the older establishments are treated as equally as possible, except where the pendency of cases has necessitated different rules to make the Act applicable to them. Uniformity in each class has been achieved and there is no discrimination. As the power to frame a new bonus formula cannot be gainsaid, the power to classify cannot also be denied. The Act further confers power to exempt and remove doubts and difficulties (which provisions are unfortunately criticized) and they can be invoked where in spite of so much care there is hardship in a special case.91. In our judgment the Bonus Act is validly enacted and this appeal must fail. We would dismiss the appeal and the writ petitions with costs.ORDER92. | 1[ds]It is true that by the impugned legislation certain principles declared by this Court e. g. in Express Newspapers (Private) Ltd. v. Union of India, 1959 SCR 12 : (AIR 1958 SC 578 ) in respect of grant of bonus were modified, but on that account it cannot be said that the legislation operates as fraud on the Constitution or is a colourable exercise of legislative power. Parliament has normally power within the frame-work of the Constitution to enact legislation which modifies principles enunciated by this Court as applicable to the determination of any dispute, and by exercising that power the Parliament does not perpetrate fraud on the Constitution. An enactment may be charged as colourable, and on that account void, only if it be found that the legislature has by enacting it trespassed upon a field outside its competence: K. C. Gajapati Narayan Deo v. State of Orissa, 1954 SCR 1 : (AIR 1953 SC 375 ).The plea of invalidity of Ss. 32, 36 and 37 may be dealt with first. It is true that several classes of employees set out in Cls. (i) to (xi) of S. 32 are excluded from the operation of the Act. But the petitions and the affidavits in support filed in this Court are singularly lacking in particulars showing how the employees in the specified establishment or classes of establishments were similarly situate and that discrimination was practiced by excluding those specified classes of employees from the operation of the Act while making it applicable to others. Neither the employees, nor the Government of India have chosen to place before us any materials on which the question as to the vires of the provisions of S. 32 which excludes from the operation of the Act certain specified classes of employees, can be determined. There is a presumption of constitutionality of a statute when the challenge is founded on Art. 14 of the Constitution, and the onus of proving unconstitutionality of the statute lies upon the person challenging it. Again many classes of employees are excluded by S. 32 and neither those employees, nor their employers, have been impleaded before us.Each class of employees specified in S. 32 requires separate treatment having regard to special circumstances and conditions governing their employment. We therefore decline to express any opinion on the plea of unconstitutionality raised before us in respect of the inapplicability of the Act to employees described in S. 32.We need say nothing at this date about the plea that S. 10 by imposing unreasonable restrictions infringes the fundamental freedom under Art. 19 (1) (g) of the Constitution, for by the declaration of emergency by the President under Art. 352, the protection of Art. 19 against any legislative measure, or executive order which is otherwise competent, stands suspended. The plea that S. l0 infringes the fundamental freedom under Art. 31 (1) of the Constitution also has no force. Clause (l) of Art. 31 guarantees the right against deprivation of property otherwise than by authority of law. Compelling an employer to pay sums of money to his employees which he has not contractually rendered himself liable to pay may amount to deprivation of property, but the protection against depriving a person of his property under C1. (1) of Art. 31 is available only if the deprivation is not by authority of law. Validity of the law authorising deprivation of property may be challenged on three grounds: (i) incompetence of the authority which has enacted the law; (ii) infringement by the law of the fundamental rights guaranteed by Ch. III of the Constitution; and (iii) violation by the law of any express provisions of the Constitution. Authority of the Parliament to legislate in respect of bonus is not denied and the provision for payment of bonus is not open to attack on the ground of infringement of fundamental rights other than those declared by Art. 14 and Art. 19 (1) (g) of the Constitution. Our attention has not been invited to any prohibition imposed by the Constitution which renders a statute relating to payment of bonus invalid. We are, therefore, of the view that S. 10 of the Bonus Act is not open to attack on the ground that it infringes Art. 31no dispute relating to bonus between an employer and persons employed in managerial or administrative capacity or persons employed in supervisory capacity drawing wages exceeding Rs. 500 per mensem could be referred under the Industrial Disputes Act. But under S.33 a pending industrial dispute between the workmen and the employer, by reason of the application of the Act gives rise to a statutory liability in favour of all employees of the establishment as defined under the Act by S. 2 (13) for payment of bonus under the scheme of the Act. Whereas under the Industrial Disputes Act a dispute could only be raised by employees who were workmen within the meaning of the Act, under the scheme of the Act statutory liability is imposed upon the employer to pay to all his employees as defined in S. 2 (13) bonus at the rates prescribed by the Act. Even if before May 29, 1965, there had been a settlement with some workmen or those workmen had not made any claim previously, and there would on that account be no industrial dispute pending qua those workmen, pendency of a dispute relating to bonus in which some other workmen are interested imposes statutory liability upon the employer to pay bonus to all employees in the establishment. Even if the employer had suffered loss or the available surplus was inadequate, the employer will by virtue of S. 33 be liable to pay minimum bonus at the statutory rate : the formula for computation of gross profits and available surplus will be retrospectively altered and a percentage of wages inclusive of dearness allowance will be allowed as bonus to all employees (whether they were under the Full Bench Formula entitled to bonus or not), in computing the available surplus rehabilitation will not be taken into account, and bonus will also have to be paid to employees who were not entitled thereto in the year of account. Application of the Act for the year for which the bonus dispute is pending, therefore, creates an onerous liability on the employer concernedemployees who could not claim bonus under the Industrial Disputes Act become entitled thereto merely because there was a dispute pending between the workmen in that establishment, or some of them and the employer qua bonus;2. workmen had under agreements, settlements, contracts or awards become entitled to bonus at certain rates cease to be bound by such agreements, settlements, contracts or even awards and become entitled to claim bonus at the rate computed under the scheme of the Act;3. basis of the computation of gross profits, available surplus and bonus is completely changed;4. the scheme of "set on" and "set of" prescribed by S. 15 of the Act becomes operative and applies to establishments as from the year in respect of which the bonus dispute is pending ; and5. the scheme of the Act operates not only in respect of the year for which the bonus dispute was pending, but also in respect of subsequent years for which there is no bonus dispute pending.If, therefore, in respect of an establishment there had been a settlement or an agreement for a subsequent year, pendency of a dispute for an earlier year before the authority specified in S. 33 is sufficient to upset that agreement or settlement and a statutory liability for payment of bonus according to the scheme of the Act is imposed upon the employer. Application of the Act retrospectively, therefore, depends upon the pendency immediately before May 29, 1965, of an industrial dispute regarding payment of bonus relating to any accounting year not earlier than the year ending on any day in 1962. If there be no such dispute pending immediately before the date on which the Act becomes operative, an establishment will be governed by the provisions of the Full Bench Formula and will be liable to pay bonus only if there be adequate profits which would justify payment of bonus. If, however, dispute is pending immediately before May 29, 1965, the scheme of the Act will apply not only for the year for which the dispute is pending, but even in respect at subsequent years. Assuming that the classification is founded on some intelligible differentia which distinguishes an establishment, from other establishments, the differentia has no rational relation to the object sought to be achieved by the statutory provision, viz., of ensuring peaceful relations between capital and labour by making an equitable distribution of the surplus profits of the year. Arbitrariness of the classification becomes more pronounced when it is remembered that in respect of the year subsequent to the year for which the dispute is pending, liability prescribed under the Act is attracted even if for such subsequent years no dispute is pending, whereas to an establishment in respect of which no dispute is pending immediately before May 29, 1965, no such liability is attracted. Therefore, two establishments similarly circumstanced having no dispute pending relating to bonus between the employers and the workmen in a particular year would be liable to be dealt with differently if in respect of a previous year (covered by S. 33) there is a dispute pending between the employer and the workmen in one establishment and there is no such dispute pending in the other.There is one other ground which emphasizes the arbitrary character of the classification. If a dispute relating to bonus is pending immediately before May 29, 1965, in respect of the years specified in S. 33 before the appropriate Government or before any authority under the Industrial Disputes Act or under any corresponding law, the provisions of the Act will be attracted: if the dispute is pending before this Court in appeal or before the High Court in a petition under Art. 226, the provisions of the Act will not apply. It is difficult to perceive any logical basis for making a distinction between Pendency of a dispute relating to bonus for the years in question before this Court or the High Court, and before the Industrial Tribunal or the appropriate Government. This Court is under the Constitution competent to hear and decide a dispute pending on May 29, 1965 relating to bonus as a Court of Appeal, but is not required to apply the provisions of the Act. If because of misconception of the nature of evidence or failure to apply rules of natural justice or misapplication of the law, this Court sets aside an award made by the Industrial Tribunal and remands the case which was pending on May 29, 1965, for rehearing, the Industrial Court will have to deal with the case under the Full Bench Formula and not under the provisions of the Act. The High Court has also jurisdiction in a petition under Art. 226 to issue an order or direction declaring an order of the Industrial Tribunal invalid, and issue of such writ, order or direction will ordinarily involve retrial of the proceeding. Again pendency of a dispute in respect of the previous year before the appropriate Government or the Industrial Tribunal will entail imposition of a statutory liability to pay bonus in respect of the year for which the dispute its pending, and also in respect of years subsequent thereto, but if immediately before May 29, 1965, a proceeding arising out of a dispute relating to bonus is pending before a superior Court , even if it be for the years which are covered by S. 33, statutory liability to pay bonus to employees will not be attracted. Take two industrial units-one has a dispute with its workmen or some of them, pending before the Government or before the authority under the Industrial Disputes Act and relating to an accounting year ending in the year 1962. For the years 1962, 1963 and 1964 this industrial unit will be liable to pay bonus according to the statutory formula prescribed by the Act, whereas another industrial unit in the same industry which may be regarded as reasonably similar would be under no such obligation, if it has on May 29, 1965, no dispute relating to bonus pending because the dispute has not been raised or has been settled by agreement or by award or that the dispute having been determined by an award, had reached a superior Court by way of appeal or in exercise of the writ jurisdiction. There appears neither logic nor reason in the different treatment meted out to the two establishments. It is difficult to appreciate the rationality of the nexus-if there be any-between the classification and the object of the Act. In our view, therefore, S. 33 is patently discriminatory.In our view S. 34 imposes a special liability to pay bonus determined on the gross profits of the base year on an assumption that the ratio which determines the allocable surplus is the normal ratio not affected by any special circumstance and perpetuates for the duration of the Act that ratio for determining the minimum allocable surplus each year. If bonus contemplated to be paid under the Act is intended to make an equitable distribution of the surplus profits of a particular year, a scheme for computing labours share which cannot be less than the amount determined by the application of a ratio derived from the working of the base year without taking into consideration the special circumstances governing that determination is ex facie arbitrary and unreasonable. The Additional Solicitor-General appearing for the Union of India and the representatives of the Labour Unions and counsel appearing for them contended in support of their plea that S. 34 (2) was not invalid because the ratio was intended to stabilize the previous grant of bonus and to maintain in favour of labour whatever was achieved by collective bargaining in the base year. But the validity of a statute is subject to judicial scrutiny in the context of fundamental freedoms guaranteed to employers as well as employees and the freedom of equal protection of the laws becomes chimerical, if the only ground in support of the validity of a statute ex-facie discriminatory is that Parliament intended, inconsistently with the very concept of bonus evolved by it to maintain for the benefit of labour an advantage which labour had obtained in an earlier year, based on the special circumstances of that year, without any enquiry whether that advantage may reasonably be granted in subsequent years according to the principles evolved by it and for securing the object of the Act. If the concept of bonus as allocation of an equitable share of the surplus profits of an establishment to the workmen who have contributed to the earning has reality, any condition that the ratio on which the share of one party computed on the basis of the working of an earlier year, without taking into consideration the special circumstances which had a bearing on the earning of the profits and payment of bonus in that year, shall not be touched, is in our judgment arbitrary and unreasonable. The vice of the provision lies in the position of an arbitrary ratio governing distribution of surplus profits. In our view, S. 34 (2) is invalid on the ground that it infringes Art. 14 of the Constitution. It is in the circumstances unnecessary to consider whether the provisions of S. 33 and S. 34 (2) are invalid as infringing the fundamental rights conferred by Arts. I9 (1) (g) and 31 (1).44. But the invalidity of Ss. 33 and 34 (2) does not affect the validity of the remaining provisions of the Act. These two provisions are plainly severable. All proceedings which are pending before the Act came into force including those which are covered by S. 33 will, therefore, be governed by the Full Bench Formula and that in the application of the Act the special ratio for determining the allocable surplus under S. 34 (2) will be ignored, for application of the Full Bench Formula to pending proceedings on May 29, 1965, and refusal to apply the special ratio in the determination of allocable surplus under S. 34 (2) does not affect the scheme of the rest of the Act. The declaration of invalidity of S. 37 which confers upon the Central Government power to remove difficulties also does not affect the validity of the remaining provisions of the Act. | 1 | 24,451 | 3,003 | ### Instruction:
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The ratio so established is only applicable if there is allocable surplus and the total payment of bonus cannot, in any event, exceed 20 per cent which it might well have lone if there was no limit. In other words, between the maximum and the minimum the tame ratio of payment is to be maintained from year to year and the payment will be more or less according as the profits from which the allocable surplus is to be calculated are greater or smaller. If extraordinary circumstances appear set on and set off will make them less onerous for the employers or employees. The existence of this rigid ratio, which applies to all establishments which come under S.34 (2) does not, in our opinion, create any inequality.87. It is, however, submitted that the Act has ignored the definition of "workmen" in the Industrial Disputes Act and by allowing bonus to employees drawing salary or wage upto Rs. 1,600 per month has increased the burden of the employers. It is also argued that this creates inequality between those establishments which come under S. 33 and those which paid bonus under the Full Bench Formula. This argument ignores several matters. The total bonus now cannot exceed 20 per cent of the total wage bill, i.e., less than 21/2 months total wages and dearness allowance. The demand for bonus in some establishments was much more and it is hardly correct to say that bonus payable under Ss. 33 and 34 (2) will always he more than that payable under the Full Bench Formula. The controlling factors are the establishment of the ratio, the fixation of a minimum limit and the principle of set off. As a result of the operation of these factors, the net amount cannot be as disadvantageous to the employers as was represented to us. The increase in the number of persons entitled to receive bonus therefore, will not be of much significance. The number of such employees cannot he very large and in any event no employee will get bonus at a higher rate than a person drawing wage or salary of Rs. 750 per month. We are not in agreement with this argument.88. The question thus is one of the power of Parliament to enact a law relating to bonus. Once the power to make the law is found, then the law so made cannot be struck down unless it offends a fundamental right. As the Bonus Act makes valid classifications and everyone in a class is equally treated, it is impossible to say that there is inequality. The arguments have taken examples of what are called "similarly situated establishments in each class to show unequal treatment when it is obvious that the similarity is imaginary and even similarly situated establishment (if any there be) in different classes cannot be compared. The arguments have not faced the question of classification but have been extremely ambiguous. For example it was even suggested that the ratio between profits and allocable surplus in a base year might be infinity if there was no profit, overlooking the simple fact that existence of profit is a condition precedent to the finding of the ratio. On this kind of reasoning the provisions of S. 10 were also attacked which we have explained are not affected.89. Our brethren have struck down Ss. 33, 34 and 37, but have upheld the other sections. We are, however, of opinion that if Parliament can legally, constitutionally, and validly order payment of bonus according to its formula, fix minimum bonus without profits, fix a ceiling in spite of high profits, evolve a principle of set on and set off and make disobedience subject to a penalty, there is no reason why it cannot order decision of pending cases treated as a class, according to the new formula and open up the intervening years of account for reconsideration. The power in S. 33 is of the same character as the other and no special competence is required, of course in doing this it should treat alike all establishments in which there is a pending dispute. This Parliament has done. Similarly, by S. 34 Parliament orders that a certain proportion between profits and allocable surplus shall be maintained. This exercise of the power is of the same character as the prescription that bonus shall be paid in this and this manner and no other. If the action is legal, so is this, provided there is no discrimination. There is none in this class either. The power to remove difficulties reserved to Government is in hundreds of statutes. All Land Reform Acts, State Reorganisation Acts, Industrial Disputes Acts, Encumbered Estates Acts, many taxation laws and such widely differing statutes as University Acts and Election Acts have it and the power of exemption is always included but is seldom abused. We have, therefore, respectfully dissented from their view.90. In our judgment, the matter requires to be looked at from the point of view of avoidance of industrial disputes and the imposition of a uniform formula for all establishments. The existence of different kinds of establishments, as set out above, has made it necessary to classify and to make special rules for determination of bonus. By the special rules contained in Ss. 33 and 34 the older establishments are treated as equally as possible, except where the pendency of cases has necessitated different rules to make the Act applicable to them. Uniformity in each class has been achieved and there is no discrimination. As the power to frame a new bonus formula cannot be gainsaid, the power to classify cannot also be denied. The Act further confers power to exempt and remove doubts and difficulties (which provisions are unfortunately criticized) and they can be invoked where in spite of so much care there is hardship in a special case.91. In our judgment the Bonus Act is validly enacted and this appeal must fail. We would dismiss the appeal and the writ petitions with costs.ORDER92.
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the nature of evidence or failure to apply rules of natural justice or misapplication of the law, this Court sets aside an award made by the Industrial Tribunal and remands the case which was pending on May 29, 1965, for rehearing, the Industrial Court will have to deal with the case under the Full Bench Formula and not under the provisions of the Act. The High Court has also jurisdiction in a petition under Art. 226 to issue an order or direction declaring an order of the Industrial Tribunal invalid, and issue of such writ, order or direction will ordinarily involve retrial of the proceeding. Again pendency of a dispute in respect of the previous year before the appropriate Government or the Industrial Tribunal will entail imposition of a statutory liability to pay bonus in respect of the year for which the dispute its pending, and also in respect of years subsequent thereto, but if immediately before May 29, 1965, a proceeding arising out of a dispute relating to bonus is pending before a superior Court , even if it be for the years which are covered by S. 33, statutory liability to pay bonus to employees will not be attracted. Take two industrial units-one has a dispute with its workmen or some of them, pending before the Government or before the authority under the Industrial Disputes Act and relating to an accounting year ending in the year 1962. For the years 1962, 1963 and 1964 this industrial unit will be liable to pay bonus according to the statutory formula prescribed by the Act, whereas another industrial unit in the same industry which may be regarded as reasonably similar would be under no such obligation, if it has on May 29, 1965, no dispute relating to bonus pending because the dispute has not been raised or has been settled by agreement or by award or that the dispute having been determined by an award, had reached a superior Court by way of appeal or in exercise of the writ jurisdiction. There appears neither logic nor reason in the different treatment meted out to the two establishments. It is difficult to appreciate the rationality of the nexus-if there be any-between the classification and the object of the Act. In our view, therefore, S. 33 is patently discriminatory.In our view S. 34 imposes a special liability to pay bonus determined on the gross profits of the base year on an assumption that the ratio which determines the allocable surplus is the normal ratio not affected by any special circumstance and perpetuates for the duration of the Act that ratio for determining the minimum allocable surplus each year. If bonus contemplated to be paid under the Act is intended to make an equitable distribution of the surplus profits of a particular year, a scheme for computing labours share which cannot be less than the amount determined by the application of a ratio derived from the working of the base year without taking into consideration the special circumstances governing that determination is ex facie arbitrary and unreasonable. The Additional Solicitor-General appearing for the Union of India and the representatives of the Labour Unions and counsel appearing for them contended in support of their plea that S. 34 (2) was not invalid because the ratio was intended to stabilize the previous grant of bonus and to maintain in favour of labour whatever was achieved by collective bargaining in the base year. But the validity of a statute is subject to judicial scrutiny in the context of fundamental freedoms guaranteed to employers as well as employees and the freedom of equal protection of the laws becomes chimerical, if the only ground in support of the validity of a statute ex-facie discriminatory is that Parliament intended, inconsistently with the very concept of bonus evolved by it to maintain for the benefit of labour an advantage which labour had obtained in an earlier year, based on the special circumstances of that year, without any enquiry whether that advantage may reasonably be granted in subsequent years according to the principles evolved by it and for securing the object of the Act. If the concept of bonus as allocation of an equitable share of the surplus profits of an establishment to the workmen who have contributed to the earning has reality, any condition that the ratio on which the share of one party computed on the basis of the working of an earlier year, without taking into consideration the special circumstances which had a bearing on the earning of the profits and payment of bonus in that year, shall not be touched, is in our judgment arbitrary and unreasonable. The vice of the provision lies in the position of an arbitrary ratio governing distribution of surplus profits. In our view, S. 34 (2) is invalid on the ground that it infringes Art. 14 of the Constitution. It is in the circumstances unnecessary to consider whether the provisions of S. 33 and S. 34 (2) are invalid as infringing the fundamental rights conferred by Arts. I9 (1) (g) and 31 (1).44. But the invalidity of Ss. 33 and 34 (2) does not affect the validity of the remaining provisions of the Act. These two provisions are plainly severable. All proceedings which are pending before the Act came into force including those which are covered by S. 33 will, therefore, be governed by the Full Bench Formula and that in the application of the Act the special ratio for determining the allocable surplus under S. 34 (2) will be ignored, for application of the Full Bench Formula to pending proceedings on May 29, 1965, and refusal to apply the special ratio in the determination of allocable surplus under S. 34 (2) does not affect the scheme of the rest of the Act. The declaration of invalidity of S. 37 which confers upon the Central Government power to remove difficulties also does not affect the validity of the remaining provisions of the Act.
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RAJESH Vs. STATE OF HARYANA | We also find from the perusal of the judgment of the High Court that the High Court has gone by the testimony of Krishan (PW 2) who had accompanied Dhan Singh and the police when the prosecutrix was secured from the Hisar bus stand. 9. What we find that the most crucial aspect pertaining to the involvement of the Appellant, which was argued by the defence and was very material to determine the guilt of the Appellant, has not been examined at all and is totally grossed over by the Courts below. The Appellant had pleaded that the prosecutrix in the first instance had implicated Om Prakash and Rajender insofar as the elopement of the prosecutrix is concerned and there were inherent contradictions in the statements of Krishan Kumar and other witnesses. These aspects are not considered and discussed by the Courts below. 10. We find much force in this argument of the learned Counsel for the Appellant who argued at length on the aforesaid lines. 11. In the first instance, it is not understood as to under what circumstances the prosecutrix was taken to the Judicial Magistrate for recording her statement Under Section 164 of the Code of Criminal Procedure when she had given a categorical statement on 6.11.2004, immediately after she was rescued, naming Om Prakash and Rajender. We find that in the second statement given before the Judicial Magistrate which was recorded on 8.11.2004 she has stated that she did not name Rajesh as he had threatened her with the dire consequences. This conduct of the prosecutrix is some what intriguing... as it leaves behind some lurking doubts which had not been clarified or explained. In the first instance it may be pointed out that if there was some threat given by Rajesh, how this threat vanished within two days when nothing had happened in between. Secondly, what was the reason to choose the names of Om Prakash and Rajender in place of Rajesh in the first report. Thirdly, as far as Rajender is concerned, his name is altogether missing in the second statement. Not only this she is conspicuously silent about Suresh. 12. In a matter like this it was most appropriate for the prosecution to have the investigation of the matter from both angles, namely, to see as to whether the real culprits are Om Prakash and Rajender or it is Rajesh. However, strangely as far as Om Prakash and Rajender are concerned, they were dropped from the investigation altogether. 13. We are constrained to remark that when the charge-sheet was filed before the concerned Additional Session Judge, he also did not notice the aforesaid anomalies. Had he been little vigilant, he would have ordered further investigation or summoned Om Prakash and Rajender and implicated them as well. Only then real truth would have surfaced. Insofar as charge of rape against Suresh is concerned, again for strange reasons, it is dropped altogether and not investigated at all. All these factors create serious doubts on the prosecution story. 14. That apart, the learned Counsel for the Appellant has taken us through the depositions of PW. 2 Krishan, PW. 8 ASI Tribhuwan, PW. 11-father of the prosecutrix Phool Singh, PW. 13 Indrawati-mother of the prosecutrix and PW. 17 Roshan Lal. The learned Counsel has pointed out various glaring contradictions in their statements which make the prosecution story unbelievable, even otherwise. 15. When we peruse the statement of PW. 2 Krishan Kumar, which was recorded on 22.5.2006, we find that he mentioned that when he reached bus stop Hisar, he saw the prosecutrix and Appellant Rajesh. However, in his cross-examination he admitted that in his earlier statement given to the police, he had stated that prosecutrix was in the company of Om Prakash and not Rajesh. Apart from this contradiction, another factor which needs to be highlighted is that even if prosecutrix was under some pressure from Rajesh, as far as this witness is concerned, there was no such pressure but in his very first statement to the police he had named Om Prakash and not Rajesh. 16. Likewise PW. 8-ASI Tribhuwan in his statement in the Court named Rajesh who was holding the hand of the prosecutrix and had allegedly fled away after seeing police party alongwith Krishan Kumar and Dhan Singh. However, even he in his cross-examination admitted that when his statement was recorded by the ASI Roshan Lal on 6.11.2004 immediately after the recovery of the girl, he did not mention that the person who was holding the hand of the prosecutrix was Rajesh. He has also stated that the first statement of prosecutrix was recorded in his presence which was marked as Ext. PB. He also admitted that this statement was read over to the prosecutrix and she put her signatures on the same and thereafter it was endorsed by the ASI. Though a Police Officer, the manner in which he answered some of the questions makes it clear that he was not truthful in giving the correct description of the events. He went to the extent of saying that he did not know that prosecutrix had disclosed the name of Rajesh or not. He even stated that he did not remember if ASI Roshan Lal himself scribed the statement Ext. DB or it was got scribed by some other official. When he was shown the statement Ext. DB and the endorsement of the ASI thereupon, he admitted that the said statement was recorded by himself. It is strange that when he had recorded the statement, though as per the directions of ASI (which he stated later), how he could say earlier that he did not know as to who had scribed the said statement. Even his statement is not found worthy of any credence. It would, however, be necessary to mention that at a later stage in his cross examination he admitted that when he reached the bus stand Hisar, along with Krishan Kumar, Krishan Kumar had identified Om Prakash with the prosecutrix. | 1[ds]8. Insofar as charge Under Sections 363, 366 and 376 I.P.C. are concerned, a perusal of the judgment of the trial Court as well as the High Court would demonstrate that the concentration of the Courts below was on the age of the prosecutrix. It was established by credible evidence that she was less than 16 years of age. On that basis the Courts have given the finding that even if the sexual act was consensual, the offence of rape stood established. The Courts below have also, in that view, considered the medical evidence which confirmed commission of the act of rape. We also find from the perusal of the judgment of the High Court that the High Court has gone by the testimony of Krishan (PW 2) who had accompanied Dhan Singh and the police when the prosecutrix was secured from the Hisar bus stand.9. What we find that the most crucial aspect pertaining to the involvement of the Appellant, which was argued by the defence and was very material to determine the guilt of the Appellant, has not been examined at all and is totally grossed over by the Courts below.10. We find much force in this argument of the learned Counsel for the Appellant who argued at length on the aforesaid lines.11. In the first instance, it is not understood as to under what circumstances the prosecutrix was taken to the Judicial Magistrate for recording her statement Under Section 164 of the Code of Criminal Procedure when she had given a categorical statement on 6.11.2004, immediately after she was rescued, naming Om Prakash and Rajender. We find that in the second statement given before the Judicial Magistrate which was recorded on 8.11.2004 she has stated that she did not name Rajesh as he had threatened her with the dire consequences. This conduct of the prosecutrix is some what intriguing... as it leaves behind some lurking doubts which had not been clarified or explained. In the first instance it may be pointed out that if there was some threat given by Rajesh, how this threat vanished within two days when nothing had happened in between. Secondly, what was the reason to choose the names of Om Prakash and Rajender in place of Rajesh in the first report. Thirdly, as far as Rajender is concerned, his name is altogether missing in the second statement. Not only this she is conspicuously silent about Suresh.12. In a matter like this it was most appropriate for the prosecution to have the investigation of the matter from both angles, namely, to see as to whether the real culprits are Om Prakash and Rajender or it is Rajesh. However, strangely as far as Om Prakash and Rajender are concerned, they were dropped from the investigation altogether.13. We are constrained to remark that when the charge-sheet was filed before the concerned Additional Session Judge, he also did not notice the aforesaid anomalies. Had he been little vigilant, he would have ordered further investigation or summoned Om Prakash and Rajender and implicated them as well. Only then real truth would have surfaced. Insofar as charge of rape against Suresh is concerned, again for strange reasons, it is dropped altogether and not investigated at all. All these factors create serious doubts on the prosecution story.14. That apart, the learned Counsel for the Appellant has taken us through the depositions of PW. 2 Krishan, PW. 8 ASI Tribhuwan, PW. 11-father of the prosecutrix Phool Singh, PW. 13 Indrawati-mother of the prosecutrix and PW. 17 Roshan Lal. The learned Counsel has pointed out various glaring contradictions in their statements which make the prosecution story unbelievable, even otherwise.15. When we peruse the statement of PW. 2 Krishan Kumar, which was recorded on 22.5.2006, we find that he mentioned that when he reached bus stop Hisar, he saw the prosecutrix and Appellant Rajesh. However, in his cross-examination he admitted that in his earlier statement given to the police, he had stated that prosecutrix was in the company of Om Prakash and not Rajesh. Apart from this contradiction, another factor which needs to be highlighted is that even if prosecutrix was under some pressure from Rajesh, as far as this witness is concerned, there was no such pressure but in his very first statement to the police he had named Om Prakash and not Rajesh.16. Likewise PW. 8-ASI Tribhuwan in his statement in the Court named Rajesh who was holding the hand of the prosecutrix and had allegedly fled away after seeing police party alongwith Krishan Kumar and Dhan Singh. However, even he in his cross-examination admitted that when his statement was recorded by the ASI Roshan Lal on 6.11.2004 immediately after the recovery of the girl, he did not mention that the person who was holding the hand of the prosecutrix was Rajesh. He has also stated that the first statement of prosecutrix was recorded in his presence which was marked as Ext. PB. He also admitted that this statement was read over to the prosecutrix and she put her signatures on the same and thereafter it was endorsed by the ASI. Though a Police Officer, the manner in which he answered some of the questions makes it clear that he was not truthful in giving the correct description of the events. He went to the extent of saying that he did not know that prosecutrix had disclosed the name of Rajesh or not. He even stated that he did not remember if ASI Roshan Lal himself scribed the statement Ext. DB or it was got scribed by some other official. When he was shown the statement Ext. DB and the endorsement of the ASI thereupon, he admitted that the said statement was recorded by himself. It is strange that when he had recorded the statement, though as per the directions of ASI (which he stated later), how he could say earlier that he did not know as to who had scribed the said statement. Even his statement is not found worthy of any credence. It would, however, be necessary to mention that at a later stage in his cross examination he admitted that when he reached the bus stand Hisar, along with Krishan Kumar, Krishan Kumar had identified Om Prakash with the prosecutrix. | 1 | 2,637 | 1,146 | ### Instruction:
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We also find from the perusal of the judgment of the High Court that the High Court has gone by the testimony of Krishan (PW 2) who had accompanied Dhan Singh and the police when the prosecutrix was secured from the Hisar bus stand. 9. What we find that the most crucial aspect pertaining to the involvement of the Appellant, which was argued by the defence and was very material to determine the guilt of the Appellant, has not been examined at all and is totally grossed over by the Courts below. The Appellant had pleaded that the prosecutrix in the first instance had implicated Om Prakash and Rajender insofar as the elopement of the prosecutrix is concerned and there were inherent contradictions in the statements of Krishan Kumar and other witnesses. These aspects are not considered and discussed by the Courts below. 10. We find much force in this argument of the learned Counsel for the Appellant who argued at length on the aforesaid lines. 11. In the first instance, it is not understood as to under what circumstances the prosecutrix was taken to the Judicial Magistrate for recording her statement Under Section 164 of the Code of Criminal Procedure when she had given a categorical statement on 6.11.2004, immediately after she was rescued, naming Om Prakash and Rajender. We find that in the second statement given before the Judicial Magistrate which was recorded on 8.11.2004 she has stated that she did not name Rajesh as he had threatened her with the dire consequences. This conduct of the prosecutrix is some what intriguing... as it leaves behind some lurking doubts which had not been clarified or explained. In the first instance it may be pointed out that if there was some threat given by Rajesh, how this threat vanished within two days when nothing had happened in between. Secondly, what was the reason to choose the names of Om Prakash and Rajender in place of Rajesh in the first report. Thirdly, as far as Rajender is concerned, his name is altogether missing in the second statement. Not only this she is conspicuously silent about Suresh. 12. In a matter like this it was most appropriate for the prosecution to have the investigation of the matter from both angles, namely, to see as to whether the real culprits are Om Prakash and Rajender or it is Rajesh. However, strangely as far as Om Prakash and Rajender are concerned, they were dropped from the investigation altogether. 13. We are constrained to remark that when the charge-sheet was filed before the concerned Additional Session Judge, he also did not notice the aforesaid anomalies. Had he been little vigilant, he would have ordered further investigation or summoned Om Prakash and Rajender and implicated them as well. Only then real truth would have surfaced. Insofar as charge of rape against Suresh is concerned, again for strange reasons, it is dropped altogether and not investigated at all. All these factors create serious doubts on the prosecution story. 14. That apart, the learned Counsel for the Appellant has taken us through the depositions of PW. 2 Krishan, PW. 8 ASI Tribhuwan, PW. 11-father of the prosecutrix Phool Singh, PW. 13 Indrawati-mother of the prosecutrix and PW. 17 Roshan Lal. The learned Counsel has pointed out various glaring contradictions in their statements which make the prosecution story unbelievable, even otherwise. 15. When we peruse the statement of PW. 2 Krishan Kumar, which was recorded on 22.5.2006, we find that he mentioned that when he reached bus stop Hisar, he saw the prosecutrix and Appellant Rajesh. However, in his cross-examination he admitted that in his earlier statement given to the police, he had stated that prosecutrix was in the company of Om Prakash and not Rajesh. Apart from this contradiction, another factor which needs to be highlighted is that even if prosecutrix was under some pressure from Rajesh, as far as this witness is concerned, there was no such pressure but in his very first statement to the police he had named Om Prakash and not Rajesh. 16. Likewise PW. 8-ASI Tribhuwan in his statement in the Court named Rajesh who was holding the hand of the prosecutrix and had allegedly fled away after seeing police party alongwith Krishan Kumar and Dhan Singh. However, even he in his cross-examination admitted that when his statement was recorded by the ASI Roshan Lal on 6.11.2004 immediately after the recovery of the girl, he did not mention that the person who was holding the hand of the prosecutrix was Rajesh. He has also stated that the first statement of prosecutrix was recorded in his presence which was marked as Ext. PB. He also admitted that this statement was read over to the prosecutrix and she put her signatures on the same and thereafter it was endorsed by the ASI. Though a Police Officer, the manner in which he answered some of the questions makes it clear that he was not truthful in giving the correct description of the events. He went to the extent of saying that he did not know that prosecutrix had disclosed the name of Rajesh or not. He even stated that he did not remember if ASI Roshan Lal himself scribed the statement Ext. DB or it was got scribed by some other official. When he was shown the statement Ext. DB and the endorsement of the ASI thereupon, he admitted that the said statement was recorded by himself. It is strange that when he had recorded the statement, though as per the directions of ASI (which he stated later), how he could say earlier that he did not know as to who had scribed the said statement. Even his statement is not found worthy of any credence. It would, however, be necessary to mention that at a later stage in his cross examination he admitted that when he reached the bus stand Hisar, along with Krishan Kumar, Krishan Kumar had identified Om Prakash with the prosecutrix.
### Response:
1
### Explanation:
prosecutrix. It was established by credible evidence that she was less than 16 years of age. On that basis the Courts have given the finding that even if the sexual act was consensual, the offence of rape stood established. The Courts below have also, in that view, considered the medical evidence which confirmed commission of the act of rape. We also find from the perusal of the judgment of the High Court that the High Court has gone by the testimony of Krishan (PW 2) who had accompanied Dhan Singh and the police when the prosecutrix was secured from the Hisar bus stand.9. What we find that the most crucial aspect pertaining to the involvement of the Appellant, which was argued by the defence and was very material to determine the guilt of the Appellant, has not been examined at all and is totally grossed over by the Courts below.10. We find much force in this argument of the learned Counsel for the Appellant who argued at length on the aforesaid lines.11. In the first instance, it is not understood as to under what circumstances the prosecutrix was taken to the Judicial Magistrate for recording her statement Under Section 164 of the Code of Criminal Procedure when she had given a categorical statement on 6.11.2004, immediately after she was rescued, naming Om Prakash and Rajender. We find that in the second statement given before the Judicial Magistrate which was recorded on 8.11.2004 she has stated that she did not name Rajesh as he had threatened her with the dire consequences. This conduct of the prosecutrix is some what intriguing... as it leaves behind some lurking doubts which had not been clarified or explained. In the first instance it may be pointed out that if there was some threat given by Rajesh, how this threat vanished within two days when nothing had happened in between. Secondly, what was the reason to choose the names of Om Prakash and Rajender in place of Rajesh in the first report. Thirdly, as far as Rajender is concerned, his name is altogether missing in the second statement. Not only this she is conspicuously silent about Suresh.12. In a matter like this it was most appropriate for the prosecution to have the investigation of the matter from both angles, namely, to see as to whether the real culprits are Om Prakash and Rajender or it is Rajesh. However, strangely as far as Om Prakash and Rajender are concerned, they were dropped from the investigation altogether.13. We are constrained to remark that when the charge-sheet was filed before the concerned Additional Session Judge, he also did not notice the aforesaid anomalies. Had he been little vigilant, he would have ordered further investigation or summoned Om Prakash and Rajender and implicated them as well. Only then real truth would have surfaced. Insofar as charge of rape against Suresh is concerned, again for strange reasons, it is dropped altogether and not investigated at all. All these factors create serious doubts on the prosecution story.14. That apart, the learned Counsel for the Appellant has taken us through the depositions of PW. 2 Krishan, PW. 8 ASI Tribhuwan, PW. 11-father of the prosecutrix Phool Singh, PW. 13 Indrawati-mother of the prosecutrix and PW. 17 Roshan Lal. The learned Counsel has pointed out various glaring contradictions in their statements which make the prosecution story unbelievable, even otherwise.15. When we peruse the statement of PW. 2 Krishan Kumar, which was recorded on 22.5.2006, we find that he mentioned that when he reached bus stop Hisar, he saw the prosecutrix and Appellant Rajesh. However, in his cross-examination he admitted that in his earlier statement given to the police, he had stated that prosecutrix was in the company of Om Prakash and not Rajesh. Apart from this contradiction, another factor which needs to be highlighted is that even if prosecutrix was under some pressure from Rajesh, as far as this witness is concerned, there was no such pressure but in his very first statement to the police he had named Om Prakash and not Rajesh.16. Likewise PW. 8-ASI Tribhuwan in his statement in the Court named Rajesh who was holding the hand of the prosecutrix and had allegedly fled away after seeing police party alongwith Krishan Kumar and Dhan Singh. However, even he in his cross-examination admitted that when his statement was recorded by the ASI Roshan Lal on 6.11.2004 immediately after the recovery of the girl, he did not mention that the person who was holding the hand of the prosecutrix was Rajesh. He has also stated that the first statement of prosecutrix was recorded in his presence which was marked as Ext. PB. He also admitted that this statement was read over to the prosecutrix and she put her signatures on the same and thereafter it was endorsed by the ASI. Though a Police Officer, the manner in which he answered some of the questions makes it clear that he was not truthful in giving the correct description of the events. He went to the extent of saying that he did not know that prosecutrix had disclosed the name of Rajesh or not. He even stated that he did not remember if ASI Roshan Lal himself scribed the statement Ext. DB or it was got scribed by some other official. When he was shown the statement Ext. DB and the endorsement of the ASI thereupon, he admitted that the said statement was recorded by himself. It is strange that when he had recorded the statement, though as per the directions of ASI (which he stated later), how he could say earlier that he did not know as to who had scribed the said statement. Even his statement is not found worthy of any credence. It would, however, be necessary to mention that at a later stage in his cross examination he admitted that when he reached the bus stand Hisar, along with Krishan Kumar, Krishan Kumar had identified Om Prakash with the prosecutrix.
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Bobby Joseph Vs. Union of India and Ors | L. NAGESWARA RAO, J. 1. The Appellant was granted Short Service Commission on 15.06.1969 and Permanent Commission on 15.06.1974. His promotion/seniority was fixed w.e.f. 12.08.1970. He voluntarily proceeded for his pre-mature retirement w.e.f. 15.07.1991 in the rank of Major. He was granted pension by an order dated 29.07.1991, as Major. 2. By an order dated 25.09.1991, the Appellant was granted substantive rank of Lt. Colonel. The Appellant sought for revision of pension as he was entitled for payment of pension applicable to the rank of Lt. Colonel (TS) pursuant to the implementation of the 5 th Central Pay Commission. As the request made by the Appellant was rejected, he approached the Armed Forces Tribunal, Regional Bench, Kochi, which directed the reconsideration of the representation made by the Appellant. 3. By way of implementation of the direction issued by the Armed Forces Tribunal, the Respondent reconsidered the matter pertaining to the payment of pension applicable to the rank of Lt. Colonel (TS) to the Appellant. By observing that the Appellant did not complete 21 years of reckonable service which was required for grant of pension to the Lt. Colonel, as per the Army Order dated 20.03.1990, the Respondents held that the Appellant was not entitled for payment of pension applicable to the Lt. Colonel (TS). The Military Secretary Branch, M3-8A Integrated Headquarters of Ministry of Defence (Army) South Block, New Delhi was of the opinion that the Appellant fell short of the requisite 21 years by a period of 30 days. 4. Challenging the proceedings dated 30.04.2015, the Appellant filed O.A. No.110 of 2015 before the Armed Forces Tribunal. The Armed Forces Tribunal dismissed the O.A., dissatisfied with which, the Appellant has filed the above Appeal. 5. The Tribunal accepted the submissions made on behalf of the Respondents that to be placed in the rank of Lt. Colonel (TS), a person should have 21 years of reckonable service. In case of Short Service Commissioned Officers who were granted Permanent Commission, the date of the Permanent Commission shall be taken into account for the purpose of promotion and seniority. Considering that the Appellant was granted permanent Commission w.e.f. 15.06.1974 and seniority from 12.08.1970, his reckonable service would be 20 years 11 months. In such view of the matter, the Tribunal concluded that the Appellant was not entitled to the relief claimed. 6. After retirement of the Appellant, an order for payment of pension was issued on 29.07.1991. His service for the payment of pension was shown to have been 22 years 1 month and 1 day. He was granted pension in the rank of Major. The Appellant has placed before us an order dated 15.10.1991 by which the competent authority approved the promotion of officers of 1970 to the substantive rank of Lt. Colonel by time scale. The officers whose names were found in the list annexed to the said order were directed to wear the badges of the rank of Lt. Colonel (TS). The name of the Appellant is shown at Serial No.11 of the list that was annexed to the order dated 15.10.1991. 7. Having been promoted to the rank of Lt. Colonel, the Appellant is entitled to payment of pension in the rank of Lt. Colonel (TS). In response to our query about the order dated 15.10.1991, the learned Additional Solicitor General, on instructions submitted that it was issued due to a mistake. She fairly submitted that the said order has not been withdrawn. The reliance placed on the Army orders to consider the reckonable service for the purpose of promotion/seniority as Major is of no avail to the Respondents in view of the order dated 15.10.1991. The Appellant cannot be denied payment of pension applicable to the rank of Lt. Colonel (TS) on the ground that he fell short of the reckonable service of 21 years. The Appellant retired in the year 1991 and has been made to run from pillar to post to get his rightful pension. We deem it appropriate that apart from his entitlement to the pension applicable to the post of Lt. Colonel (TS), he is also entitled to be compensated for the avoidable litigation to which he was unnecessarily dragged into. | 1[ds]6. After retirement of the Appellant, an order for payment of pension was issued on 29.07.1991. His service for the payment of pension was shown to have been 22 years 1 month and 1 day. He was granted pension in the rank of Major. The Appellant has placed before us an order dated 15.10.1991 by which the competent authority approved the promotion of officers of 1970 to the substantive rank of Lt. Colonel by time scale. The officers whose names were found in the list annexed to the said order were directed to wear the badges of the rank of Lt. Colonel (TS). The name of the Appellant is shown at Serial No.11 of the list that was annexed to the order dated 15.10.1991.Having been promoted to the rank of Lt. Colonel, the Appellant is entitled to payment of pension in the rank of Lt. ColonelAppellant cannot be denied payment of pension applicable to the rank of Lt. Colonel (TS) on the ground that he fell short of the reckonable service of 21 years. The Appellant retired in the year 1991 and has been made to run from pillar to post to get his rightful pension. We deem it appropriate that apart from his entitlement to the pension applicable to the post of Lt. Colonel (TS), he is also entitled to be compensated for the avoidable litigation to which he was unnecessarily dragged into. | 1 | 794 | 262 | ### Instruction:
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L. NAGESWARA RAO, J. 1. The Appellant was granted Short Service Commission on 15.06.1969 and Permanent Commission on 15.06.1974. His promotion/seniority was fixed w.e.f. 12.08.1970. He voluntarily proceeded for his pre-mature retirement w.e.f. 15.07.1991 in the rank of Major. He was granted pension by an order dated 29.07.1991, as Major. 2. By an order dated 25.09.1991, the Appellant was granted substantive rank of Lt. Colonel. The Appellant sought for revision of pension as he was entitled for payment of pension applicable to the rank of Lt. Colonel (TS) pursuant to the implementation of the 5 th Central Pay Commission. As the request made by the Appellant was rejected, he approached the Armed Forces Tribunal, Regional Bench, Kochi, which directed the reconsideration of the representation made by the Appellant. 3. By way of implementation of the direction issued by the Armed Forces Tribunal, the Respondent reconsidered the matter pertaining to the payment of pension applicable to the rank of Lt. Colonel (TS) to the Appellant. By observing that the Appellant did not complete 21 years of reckonable service which was required for grant of pension to the Lt. Colonel, as per the Army Order dated 20.03.1990, the Respondents held that the Appellant was not entitled for payment of pension applicable to the Lt. Colonel (TS). The Military Secretary Branch, M3-8A Integrated Headquarters of Ministry of Defence (Army) South Block, New Delhi was of the opinion that the Appellant fell short of the requisite 21 years by a period of 30 days. 4. Challenging the proceedings dated 30.04.2015, the Appellant filed O.A. No.110 of 2015 before the Armed Forces Tribunal. The Armed Forces Tribunal dismissed the O.A., dissatisfied with which, the Appellant has filed the above Appeal. 5. The Tribunal accepted the submissions made on behalf of the Respondents that to be placed in the rank of Lt. Colonel (TS), a person should have 21 years of reckonable service. In case of Short Service Commissioned Officers who were granted Permanent Commission, the date of the Permanent Commission shall be taken into account for the purpose of promotion and seniority. Considering that the Appellant was granted permanent Commission w.e.f. 15.06.1974 and seniority from 12.08.1970, his reckonable service would be 20 years 11 months. In such view of the matter, the Tribunal concluded that the Appellant was not entitled to the relief claimed. 6. After retirement of the Appellant, an order for payment of pension was issued on 29.07.1991. His service for the payment of pension was shown to have been 22 years 1 month and 1 day. He was granted pension in the rank of Major. The Appellant has placed before us an order dated 15.10.1991 by which the competent authority approved the promotion of officers of 1970 to the substantive rank of Lt. Colonel by time scale. The officers whose names were found in the list annexed to the said order were directed to wear the badges of the rank of Lt. Colonel (TS). The name of the Appellant is shown at Serial No.11 of the list that was annexed to the order dated 15.10.1991. 7. Having been promoted to the rank of Lt. Colonel, the Appellant is entitled to payment of pension in the rank of Lt. Colonel (TS). In response to our query about the order dated 15.10.1991, the learned Additional Solicitor General, on instructions submitted that it was issued due to a mistake. She fairly submitted that the said order has not been withdrawn. The reliance placed on the Army orders to consider the reckonable service for the purpose of promotion/seniority as Major is of no avail to the Respondents in view of the order dated 15.10.1991. The Appellant cannot be denied payment of pension applicable to the rank of Lt. Colonel (TS) on the ground that he fell short of the reckonable service of 21 years. The Appellant retired in the year 1991 and has been made to run from pillar to post to get his rightful pension. We deem it appropriate that apart from his entitlement to the pension applicable to the post of Lt. Colonel (TS), he is also entitled to be compensated for the avoidable litigation to which he was unnecessarily dragged into.
### Response:
1
### Explanation:
6. After retirement of the Appellant, an order for payment of pension was issued on 29.07.1991. His service for the payment of pension was shown to have been 22 years 1 month and 1 day. He was granted pension in the rank of Major. The Appellant has placed before us an order dated 15.10.1991 by which the competent authority approved the promotion of officers of 1970 to the substantive rank of Lt. Colonel by time scale. The officers whose names were found in the list annexed to the said order were directed to wear the badges of the rank of Lt. Colonel (TS). The name of the Appellant is shown at Serial No.11 of the list that was annexed to the order dated 15.10.1991.Having been promoted to the rank of Lt. Colonel, the Appellant is entitled to payment of pension in the rank of Lt. ColonelAppellant cannot be denied payment of pension applicable to the rank of Lt. Colonel (TS) on the ground that he fell short of the reckonable service of 21 years. The Appellant retired in the year 1991 and has been made to run from pillar to post to get his rightful pension. We deem it appropriate that apart from his entitlement to the pension applicable to the post of Lt. Colonel (TS), he is also entitled to be compensated for the avoidable litigation to which he was unnecessarily dragged into.
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Nandalal Roy Vs. State of West Bengal | Grover, J.1. This is petition under Article 32 of the Constitution challenging the detention of the petition under the West Bengal (Prevention of Violent Activities) Act, 1970, Hereinafter called the Act.2. An order was made on June 17, 1971 by the District Magistrate, 24 Parganas saying that with a view to preventing the petitioner from acting in any manner prejudicial to the maintenance of public order he be detained. This order was made in exercise of the power conferred by sub-section (1) read with sub-section (3) of Section 3 of the Act. The detenu was arrested on June 20, 1971, and the grounds were served on him on that date. The only ground for detention was as follows :"That on the night of June 1, 1971, at about 01.30 hrs. while committing theft of rice from Wagon No. SE 39751 at Bongaon Railway Station Yard, you and your associates charged bombs upon the R. P. F. party on duty with a view to do away with their lives, when challenged by them. As a result of your bomb charge SR 3179 Himunshu Bhushan Dhar Sharma of the R. P. F. party sustained burn injury on his person. But the R. P. F. party with the help of the police party managed to secure your arrest on the spot with 30 kgs. of stolen rice in a gunny bag and one iron-made instrument. By explosion of bombs you and your associates created panic in the station area and in the adjoining locality you caused disturbance of the public order thereby.You are hereby informed that you may make a representation to the State Government against the detention order and that such representation shall be addressed to the Assistant Secretary, Home (Special) Department, Government of West Bengal and forwarded through the Superintendent of the Jail in which you have been detained as early as possible. Under Section 10 of the West Bengal (Prevention of Violent Activities) Act, 1970 (Presidents Act No. 19 of 1970), your case shall be placed before the Advisory Board within thirty days from the date of your detention under the order.You are also informed that under Section 11 of the West Bengal (Prevention of Violent Activities) Act, 1970 (Presidents Act No. 19 of 1970), the Advisory Board shall if you desire to be so heard by the Advisory Board you should intimate such desire in your representation to the State Government."The State Government approved of the order of detention on June 28, 1971. As required by the provisions of the Act a report was made to the Central Government on the same date. The case of the detenu was placed before the Board, on July 19, 1971, his representation having been received earlier. The representation was also considered by the Government and was rejected on July 19, 1971. The decision of the Advisory Board was given on August 23, 1971, pursuant to which the State Government confirmed the detention by an order, dated September 3, 1971.3. The only question for consideration is whether the particulars given in the grounds of detention are relevant to maintenance of public order. There can be no manner of doubt and the acts attributed to the petitioner would fall within (b) and (d) of sub-section (2) of Section 3 of the Act. It has been contended on behalf of the petitioner that the allegations made against him do not satisfy the test laid down by this Court in the various decisions about the meaning of the expression public order.4. In our opinion the acts attributed to the detenu are such as would bring him squarely within the ambit of clauses (b) and (d) of Section 3(2) of the Act. Attacking the Railway Police party with bombs at the Railway Station Yard is surely a serious matter and was bound to cause a scare among all the members of the public who would be visiting the station yard and interfere with their activities of getting the goods loaded or unloaded. It was not a mere question of maintenance of law and order. It was a kind of disturbance which would be comprehended by the expression "order publique" as explained in Madhu Limayes case (AIR 1971 SC 2486 : (1970) 3 SCC 746.) . The acts may be sometimes similar in quality but what has to be seen is their potentiality in the sense as to what reverberations may be caused which might affect the even tempo of the life of the community. (See W.P. No. 308 of 1971, Nagendra Nath Mandal v. State of West Bengal, decided on January 13, 1972.) | 0[ds]The only question for consideration is whether the particulars given in the grounds of detention are relevant to maintenance of public order.There can be no manner of doubt and the acts attributed to the petitioner would fall within (b) and (d) of(2) of Section 3 of the Act.It has been contended on behalf of the petitioner that the allegations made against him do not satisfy the test laid down by this Court in the various decisions about the meaning of the expression public order.In our opinion the acts attributed to the detenu are such as would bring him squarely within the ambit of clauses (b) and (d) of Section 3(2) of the Act. Attacking the Railway Police party with bombs at the Railway Station Yard is surely a serious matter and was bound to cause a scare among all the members of the public who would be visiting the station yard and interfere with their activities of getting the goods loaded or unloaded. It was not a mere question of maintenance of law and order. It was a kind of disturbance which would be comprehended by the expression "order publique" as explained in Madhu Limayes case (AIR 1971 SC 2486 : (1970) 3 SCC 746.) . The acts may be sometimes similar in quality but what has to be seen is their potentiality in the sense as to what reverberations may be caused which might affect the even tempo of the life of the community. (See W.P. No. 308 of 1971, Nagendra Nath Mandal v. State of West Bengal, decided on January 13, 1972.) | 0 | 867 | 301 | ### 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:
Grover, J.1. This is petition under Article 32 of the Constitution challenging the detention of the petition under the West Bengal (Prevention of Violent Activities) Act, 1970, Hereinafter called the Act.2. An order was made on June 17, 1971 by the District Magistrate, 24 Parganas saying that with a view to preventing the petitioner from acting in any manner prejudicial to the maintenance of public order he be detained. This order was made in exercise of the power conferred by sub-section (1) read with sub-section (3) of Section 3 of the Act. The detenu was arrested on June 20, 1971, and the grounds were served on him on that date. The only ground for detention was as follows :"That on the night of June 1, 1971, at about 01.30 hrs. while committing theft of rice from Wagon No. SE 39751 at Bongaon Railway Station Yard, you and your associates charged bombs upon the R. P. F. party on duty with a view to do away with their lives, when challenged by them. As a result of your bomb charge SR 3179 Himunshu Bhushan Dhar Sharma of the R. P. F. party sustained burn injury on his person. But the R. P. F. party with the help of the police party managed to secure your arrest on the spot with 30 kgs. of stolen rice in a gunny bag and one iron-made instrument. By explosion of bombs you and your associates created panic in the station area and in the adjoining locality you caused disturbance of the public order thereby.You are hereby informed that you may make a representation to the State Government against the detention order and that such representation shall be addressed to the Assistant Secretary, Home (Special) Department, Government of West Bengal and forwarded through the Superintendent of the Jail in which you have been detained as early as possible. Under Section 10 of the West Bengal (Prevention of Violent Activities) Act, 1970 (Presidents Act No. 19 of 1970), your case shall be placed before the Advisory Board within thirty days from the date of your detention under the order.You are also informed that under Section 11 of the West Bengal (Prevention of Violent Activities) Act, 1970 (Presidents Act No. 19 of 1970), the Advisory Board shall if you desire to be so heard by the Advisory Board you should intimate such desire in your representation to the State Government."The State Government approved of the order of detention on June 28, 1971. As required by the provisions of the Act a report was made to the Central Government on the same date. The case of the detenu was placed before the Board, on July 19, 1971, his representation having been received earlier. The representation was also considered by the Government and was rejected on July 19, 1971. The decision of the Advisory Board was given on August 23, 1971, pursuant to which the State Government confirmed the detention by an order, dated September 3, 1971.3. The only question for consideration is whether the particulars given in the grounds of detention are relevant to maintenance of public order. There can be no manner of doubt and the acts attributed to the petitioner would fall within (b) and (d) of sub-section (2) of Section 3 of the Act. It has been contended on behalf of the petitioner that the allegations made against him do not satisfy the test laid down by this Court in the various decisions about the meaning of the expression public order.4. In our opinion the acts attributed to the detenu are such as would bring him squarely within the ambit of clauses (b) and (d) of Section 3(2) of the Act. Attacking the Railway Police party with bombs at the Railway Station Yard is surely a serious matter and was bound to cause a scare among all the members of the public who would be visiting the station yard and interfere with their activities of getting the goods loaded or unloaded. It was not a mere question of maintenance of law and order. It was a kind of disturbance which would be comprehended by the expression "order publique" as explained in Madhu Limayes case (AIR 1971 SC 2486 : (1970) 3 SCC 746.) . The acts may be sometimes similar in quality but what has to be seen is their potentiality in the sense as to what reverberations may be caused which might affect the even tempo of the life of the community. (See W.P. No. 308 of 1971, Nagendra Nath Mandal v. State of West Bengal, decided on January 13, 1972.)
### Response:
0
### Explanation:
The only question for consideration is whether the particulars given in the grounds of detention are relevant to maintenance of public order.There can be no manner of doubt and the acts attributed to the petitioner would fall within (b) and (d) of(2) of Section 3 of the Act.It has been contended on behalf of the petitioner that the allegations made against him do not satisfy the test laid down by this Court in the various decisions about the meaning of the expression public order.In our opinion the acts attributed to the detenu are such as would bring him squarely within the ambit of clauses (b) and (d) of Section 3(2) of the Act. Attacking the Railway Police party with bombs at the Railway Station Yard is surely a serious matter and was bound to cause a scare among all the members of the public who would be visiting the station yard and interfere with their activities of getting the goods loaded or unloaded. It was not a mere question of maintenance of law and order. It was a kind of disturbance which would be comprehended by the expression "order publique" as explained in Madhu Limayes case (AIR 1971 SC 2486 : (1970) 3 SCC 746.) . The acts may be sometimes similar in quality but what has to be seen is their potentiality in the sense as to what reverberations may be caused which might affect the even tempo of the life of the community. (See W.P. No. 308 of 1971, Nagendra Nath Mandal v. State of West Bengal, decided on January 13, 1972.)
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Naveen Chand Vs. Nagarjuna Travels And Hotels Pvt. Ltd | decree of eviction.10. Per contra, Shri P.P. Rao, learned senior counsel for the respondent, contended that the renewal clause in the lease deed is vague and unspecific and, therefore, not binding on the parties. According to Shri Rao, the Courts below rightly did not enforce the renewal clause and rightly decreed the suit for eviction of the lessees. Shri Rao contended that though it is stated in the lease deed that the period of lease shall be 25 years in the first instance with the right of renewal as hereinafter as set out. Nothing is set out in the document regarding the conditions on which the renewal will be given effect to; even the rate of rent and the period of renewal are not specified. In the circumstances, Shri Rao submitted, the renewal clause cannot be given effect to. 11. In view of rival contentions raised by the learned counsel for the parties the question that arises for consideration is whether the covenant for renewal of the lease was valid and enforceable? If the question is answered in the affirmative then the suit is liable to be dismissed; if on the other hand the question is answered in the negative then the suit is to be decreed. 12. Since determination of the question formulated turns mostly on the interpretation of the relevant clause in the lease deed, it will be convenient to quote the clause in extenso; "1. In pursuance of the said arrangement and in consideration of the rent hereby reserved the Lessor hereby grants and demises by way of Lease the portions of the premises described in the schedule attached hereto and delineated in the plan attached hereto for a period of 25 years in the first instance with the right of renewal as hereinafter set out. The initial period of the Lease shall commence from 1-8-1970.The Lessee shall pay the rent at the rate of Rs.650/- per months for the first 5 years and Rs.850/- per month for the subsequent period of 5 years; Rs.1,050/- per month for the third period of 5 years and Rs.1,300/- per month for the remaining period of 10 years. The aforesaid rent and the aforesaid rates shall be paid by the Lessee on or before the 10th of every succeeding month at the office or at the premises of the Lessor or on such other place as the Lessor may appoint on hi behalf from time to time." From the above noted covenant in the lease deed it is clear that the lease was granted for a period of 25 years in the first instance with the right of renewal as hereinafter set out Though the right or renewal is mentioned in the clause there is no mention about the terms and conditions of renewal either in the clause quoted above or elsewhere in the document. On a fair reading of the documents it appears that the right of renewal stated therein is shrouded in uncertainty and vagueness. The renewal clause in a lease deed is an important term of the agreement. Ordinarily the Court should be reluctant to ignore such a term of the lease, unless on a fair reading and reasonable construction no meaning can be attached to it. Since the renewal clause is not clear and specific regarding the terms of renewal the Court is to ascertain the intention of the parties for the materials on record. As noted earlier, the lease deed read as a whole, does not indicate the manner in which the right of renewal is to be exercised by the parties and the terms and conditions of such renewal. It is not even stated in the document that the renewal will be subject to terms and conditions to be decided by the parties by mutual discussion or according to any other procedure. There is no indication whether such discussion will at all be held or not. Renewal being an important condition of lease, could not have been dealt with in such careless and slip-shot manner and would not have been left in such vague and uncertain condition if the parties were serious about the renewal of the lease. On appreciation of the evidence the Courts below having not believed the case of the defendants that some verbal requests for renewal of the lease were made by them to the plaintiff after expiry of the period of lease, the Courts have found that no attempt as made by the lessees to suggest the terms and conditions for renewal of the lease particularly the rent to be paid by them except offering the rent for two months at the old rate. In such circumstances, if the Courts below have found that the lessees had no enforceable right of renewal under the document and indeed had not taken any step for execution by any document on renewal of the lease, no exception can be taken to such findings. No fixed principle or straight-jacket formula can be laid down regarding the question whether the condition of renewal in the lease which is vague and uncertain should be enforced. The question is the be judged on the facts and circumstances of each case. In the case in hand, the lease is in respect of premises which was situated in a busy commercial centre of the city of Hyderabad and lease of the property had been taken and was being used for commercial purposes. In such a case it is difficult to accept that the parties had intended that the lessees can unilaterally exercise the right of renewal without the terms and conditions of renewal being settled between the parties. At the cost of repetition it may be stated here that the lessees (appellants herein) had made no attempt to get the terms and conditions of renewal of the lease fixed by mutual discussions with the lessor-respondent herein. So far as the lessor is concerned it had made its intention clear by sending the notice of termination of the lease. | 0[ds]From the above noted covenant in the lease deed it is clear that the lease was granted for a period of 25 years in the first instance with the right of renewal as hereinafter set out Though the right or renewal is mentioned in the clause there is no mention about the terms and conditions of renewal either in the clause quoted above or elsewhere in the document. On a fair reading of the documents it appears that the right of renewal stated therein is shrouded in uncertainty and vagueness. The renewal clause in a lease deed is an important term of the agreement. Ordinarily the Court should be reluctant to ignore such a term of the lease, unless on a fair reading and reasonable construction no meaning can be attached to it. Since the renewal clause is not clear and specific regarding the terms of renewal the Court is to ascertain the intention of the parties for the materials on record. As noted earlier, the lease deed read as a whole, does not indicate the manner in which the right of renewal is to be exercised by the parties and the terms and conditions of such renewal. It is not even stated in the document that the renewal will be subject to terms and conditions to be decided by the parties by mutual discussion or according to any other procedure. There is no indication whether such discussion will at all be held or not. Renewal being an important condition of lease, could not have been dealt with in such careless andmanner and would not have been left in such vague and uncertain condition if the parties were serious about the renewal of the lease. On appreciation of the evidence the Courts below having not believed the case of the defendants that some verbal requests for renewal of the lease were made by them to the plaintiff after expiry of the period of lease, the Courts have found that no attempt as made by the lessees to suggest the terms and conditions for renewal of the lease particularly the rent to be paid by them except offering the rent for two months at the old rate. In such circumstances, if the Courts below have found that the lessees had no enforceable right of renewal under the document and indeed had not taken any step for execution by any document on renewal of the lease, no exception can be taken to such findings. No fixed principle orformula can be laid down regarding the question whether the condition of renewal in the lease which is vague and uncertain should be enforced. The question is the be judged on the facts and circumstances of each case. In the case in hand, the lease is in respect of premises which was situated in a busy commercial centre of the city of Hyderabad and lease of the property had been taken and was being used for commercial purposes. In such a case it is difficult to accept that the parties had intended that the lessees can unilaterally exercise the right of renewal without the terms and conditions of renewal being settled between the parties. At the cost of repetition it may be stated here that the lessees (appellants herein) had made no attempt to get the terms and conditions of renewal of the lease fixed by mutual discussions with theherein. So far as the lessor is concerned it had made its intention clear by sending the notice of termination of the lease. | 0 | 2,376 | 618 | ### 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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decree of eviction.10. Per contra, Shri P.P. Rao, learned senior counsel for the respondent, contended that the renewal clause in the lease deed is vague and unspecific and, therefore, not binding on the parties. According to Shri Rao, the Courts below rightly did not enforce the renewal clause and rightly decreed the suit for eviction of the lessees. Shri Rao contended that though it is stated in the lease deed that the period of lease shall be 25 years in the first instance with the right of renewal as hereinafter as set out. Nothing is set out in the document regarding the conditions on which the renewal will be given effect to; even the rate of rent and the period of renewal are not specified. In the circumstances, Shri Rao submitted, the renewal clause cannot be given effect to. 11. In view of rival contentions raised by the learned counsel for the parties the question that arises for consideration is whether the covenant for renewal of the lease was valid and enforceable? If the question is answered in the affirmative then the suit is liable to be dismissed; if on the other hand the question is answered in the negative then the suit is to be decreed. 12. Since determination of the question formulated turns mostly on the interpretation of the relevant clause in the lease deed, it will be convenient to quote the clause in extenso; "1. In pursuance of the said arrangement and in consideration of the rent hereby reserved the Lessor hereby grants and demises by way of Lease the portions of the premises described in the schedule attached hereto and delineated in the plan attached hereto for a period of 25 years in the first instance with the right of renewal as hereinafter set out. The initial period of the Lease shall commence from 1-8-1970.The Lessee shall pay the rent at the rate of Rs.650/- per months for the first 5 years and Rs.850/- per month for the subsequent period of 5 years; Rs.1,050/- per month for the third period of 5 years and Rs.1,300/- per month for the remaining period of 10 years. The aforesaid rent and the aforesaid rates shall be paid by the Lessee on or before the 10th of every succeeding month at the office or at the premises of the Lessor or on such other place as the Lessor may appoint on hi behalf from time to time." From the above noted covenant in the lease deed it is clear that the lease was granted for a period of 25 years in the first instance with the right of renewal as hereinafter set out Though the right or renewal is mentioned in the clause there is no mention about the terms and conditions of renewal either in the clause quoted above or elsewhere in the document. On a fair reading of the documents it appears that the right of renewal stated therein is shrouded in uncertainty and vagueness. The renewal clause in a lease deed is an important term of the agreement. Ordinarily the Court should be reluctant to ignore such a term of the lease, unless on a fair reading and reasonable construction no meaning can be attached to it. Since the renewal clause is not clear and specific regarding the terms of renewal the Court is to ascertain the intention of the parties for the materials on record. As noted earlier, the lease deed read as a whole, does not indicate the manner in which the right of renewal is to be exercised by the parties and the terms and conditions of such renewal. It is not even stated in the document that the renewal will be subject to terms and conditions to be decided by the parties by mutual discussion or according to any other procedure. There is no indication whether such discussion will at all be held or not. Renewal being an important condition of lease, could not have been dealt with in such careless and slip-shot manner and would not have been left in such vague and uncertain condition if the parties were serious about the renewal of the lease. On appreciation of the evidence the Courts below having not believed the case of the defendants that some verbal requests for renewal of the lease were made by them to the plaintiff after expiry of the period of lease, the Courts have found that no attempt as made by the lessees to suggest the terms and conditions for renewal of the lease particularly the rent to be paid by them except offering the rent for two months at the old rate. In such circumstances, if the Courts below have found that the lessees had no enforceable right of renewal under the document and indeed had not taken any step for execution by any document on renewal of the lease, no exception can be taken to such findings. No fixed principle or straight-jacket formula can be laid down regarding the question whether the condition of renewal in the lease which is vague and uncertain should be enforced. The question is the be judged on the facts and circumstances of each case. In the case in hand, the lease is in respect of premises which was situated in a busy commercial centre of the city of Hyderabad and lease of the property had been taken and was being used for commercial purposes. In such a case it is difficult to accept that the parties had intended that the lessees can unilaterally exercise the right of renewal without the terms and conditions of renewal being settled between the parties. At the cost of repetition it may be stated here that the lessees (appellants herein) had made no attempt to get the terms and conditions of renewal of the lease fixed by mutual discussions with the lessor-respondent herein. So far as the lessor is concerned it had made its intention clear by sending the notice of termination of the lease.
### Response:
0
### Explanation:
From the above noted covenant in the lease deed it is clear that the lease was granted for a period of 25 years in the first instance with the right of renewal as hereinafter set out Though the right or renewal is mentioned in the clause there is no mention about the terms and conditions of renewal either in the clause quoted above or elsewhere in the document. On a fair reading of the documents it appears that the right of renewal stated therein is shrouded in uncertainty and vagueness. The renewal clause in a lease deed is an important term of the agreement. Ordinarily the Court should be reluctant to ignore such a term of the lease, unless on a fair reading and reasonable construction no meaning can be attached to it. Since the renewal clause is not clear and specific regarding the terms of renewal the Court is to ascertain the intention of the parties for the materials on record. As noted earlier, the lease deed read as a whole, does not indicate the manner in which the right of renewal is to be exercised by the parties and the terms and conditions of such renewal. It is not even stated in the document that the renewal will be subject to terms and conditions to be decided by the parties by mutual discussion or according to any other procedure. There is no indication whether such discussion will at all be held or not. Renewal being an important condition of lease, could not have been dealt with in such careless andmanner and would not have been left in such vague and uncertain condition if the parties were serious about the renewal of the lease. On appreciation of the evidence the Courts below having not believed the case of the defendants that some verbal requests for renewal of the lease were made by them to the plaintiff after expiry of the period of lease, the Courts have found that no attempt as made by the lessees to suggest the terms and conditions for renewal of the lease particularly the rent to be paid by them except offering the rent for two months at the old rate. In such circumstances, if the Courts below have found that the lessees had no enforceable right of renewal under the document and indeed had not taken any step for execution by any document on renewal of the lease, no exception can be taken to such findings. No fixed principle orformula can be laid down regarding the question whether the condition of renewal in the lease which is vague and uncertain should be enforced. The question is the be judged on the facts and circumstances of each case. In the case in hand, the lease is in respect of premises which was situated in a busy commercial centre of the city of Hyderabad and lease of the property had been taken and was being used for commercial purposes. In such a case it is difficult to accept that the parties had intended that the lessees can unilaterally exercise the right of renewal without the terms and conditions of renewal being settled between the parties. At the cost of repetition it may be stated here that the lessees (appellants herein) had made no attempt to get the terms and conditions of renewal of the lease fixed by mutual discussions with theherein. So far as the lessor is concerned it had made its intention clear by sending the notice of termination of the lease.
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ASHARAM TIWARI Vs. STATE OF MADHYA PRADESH | 4.00 pm. Two persons were deceased and three injured. Accused no. 3 and accused no. 4, who are not before us, have also been convicted under Section 302. Accused no. 1 has been convicted alike the appellant. 3. The genesis of the occurrence lay in certain lands purchased by PW-1, from the father of the appellant. Peeved, the appellant along with the co-accused came to the lands of PW-1 and asked him to return the lands to him. On refusal by PW-1, the accused are said to have threatened the witness and assaulted PW-1, his wife PW-4, their 12 years old son Ramashankar who was deceased within twenty four hours during course of treatment and their minor daughter. The appellants are then said to have proceeded to the house of Ramdas, the brother of PW-1, and shot him dead in presence of his son PW-2. 4. Learned counsel for the appellant submits that he was possessed of a lathi only. Two of the co-accused, A3 and A4, were armed with a country-made pistol and an axe respectively. Death of the two persons is ascribed to injuries caused by axe and firearm respectively and not by lathi. The third accused was also possessed of a lathi. The allegation of assault with lathis is omnibus. It cannot be said with certainty that the appellant also assaulted. The appellant did not share any common intention with the other accused and has been implicated at the behest of the village sarpanch. His defence of alibi has not been considered properly. All three witnesses being related, false implication is evident because none of the independent witnesses have been examined. The defence of the appellant under Section 313, Cr.P.C. has not been properly considered. 5. Learned Additional Advocate General appearing for the State submitted that common intention is apparent from the fact that the four accused came armed together on the lands of PW-1. Having failed in their threats to him for return of the lands, all of them assaulted PW-1, PW-4, their daughter and minor son. The accused then went together to the house of the second deceased Ramdas and assaulted him also. The appellant was well aware of the co-accused carrying a country-made pistol and axe. The recovery of a bloodstained lathi and clothes of the appellant pursuant to his confession conclusively establish common intention. 6. We have considered the submissions on behalf of the parties and perused the evidence on record. 7. The appellant was unhappy that his father had sold lands to PW-1 and wanted them back. The four accused came to the lands of PW-1 and threatened him to return the lands. On his refusal to do so, A3 and A4 first assaulted him with an axe. A1 and the appellant assaulted him with lathis. PW-4, and her two children came to the rescue of PW-1. They were also assaulted and injured. A3 and A4 assaulted Ramashankar on the head with the blunt edge and sharp edge of an axe respectively. The appellant and A1 also assaulted him with lathis. He died 24 hours later during the course of the treatment at the hospital. 8. The accused persons then together went to the house of the second deceased, Ramdas, the brother of PW-1. Accused no.3 shot him dead while Accused no.4 assaulted him with the sharp edge of an axe. The appellant and A1 assaulted him with lathis. PW-2 was an eye witness to the assault. 9. The post-mortem report of the deceased Ramdas revealed the following injuries: i. Contusion 8x6 cm on right arm (inflicted with hard and blunt weapon) ii. Contusion 6x5 cm in mid of left arm (inflicted with hard and blunt weapon) iii. Lacerated wound 4x1 cm deep upto the skin on the right brow (inflicted with hard and blunt weapon) iv. Ingress injury 5x3 cm which was oval shaped in the stomach (inflicted with a firearm) v. Egress injury 32 cm on the right side at the back at the level of 5th lumbar vertebra (firearm). 10. The post-mortem report of the deceased Ramashankar revealed the following injuries: i. Incised wound injury of 5cm in temporal area. ii. Fracture and blood clotting. iii. 4x2 cm injury which was stitched on the right side of parietal area. iv. Incised wound on the left shoulder v. Injuries on the neck and forehead with hard and blunt object. 11. PW-1 and PW-4 are both injured witnesses. They have both been found to be reliable and truthful. We see no reason why they would falsely implicate another, when the deceased was their own minor son. Similarly, PW-2 is the son of the second deceased, an eye witness to the killing of his father at home. The failure to examine any available independent witness is inconsequential. It is the quality of the evidence and not the number of witnesses that is relevant. It is nobodys case of the accused that PW-1 and PW-4 were not injured in the same occurrence or that PW-2 was not an eye witness. 12. The number and nature of hard blunt injuries on the two deceased make it apparent that the assailants were more than one. Injuries by hard and blunt substance corroborate the evidence of the injured witnesses and PW-2 of assault on the two deceased by lathis also. Common intention is evident from the accused persons coming to the lands of PW-1 armed and intimidating him to return the lands followed by assault upon him and those who came to his rescue. The accused then immediately proceeded to the house of the second deceased. The recovery of a bloodstained lathi and bloodstained clothes of the appellant on his confession, leaves us satisfied, on a cumulative appreciation of the evidence, that the accused were actuated by a common intention. The conviction of the appellant therefore calls for no interference. 13. It was lastly submitted before us that the appellant has completed over 14 years of custody including remission and that he is 72 years old. | 0[ds]6. We have considered the submissions on behalf of the parties and perused the evidence on record.7. The appellant was unhappy that his father had sold lands to PW-1 and wanted them back. The four accused came to the lands of PW-1 and threatened him to return the lands. On his refusal to do so, A3 and A4 first assaulted him with an axe. A1 and the appellant assaulted him with lathis. PW-4, and her two children came to the rescue of PW-1. They were also assaulted and injured. A3 and A4 assaulted Ramashankar on the head with the blunt edge and sharp edge of an axe respectively. The appellant and A1 also assaulted him with lathis. He died 24 hours later during the course of the treatment at the hospital.8. The accused persons then together went to the house of the second deceased, Ramdas, the brother of PW-1. Accused no.3 shot him dead while Accused no.4 assaulted him with the sharp edge of an axe. The appellant and A1 assaulted him with lathis. PW-2 was an eye witness to the assault.11. PW-1 and PW-4 are both injured witnesses. They have both been found to be reliable and truthful. We see no reason why they would falsely implicate another, when the deceased was their own minor son. Similarly, PW-2 is the son of the second deceased, an eye witness to the killing of his father at home. The failure to examine any available independent witness is inconsequential. It is the quality of the evidence and not the number of witnesses that is relevant. It is nobodys case of the accused that PW-1 and PW-4 were not injured in the same occurrence or that PW-2 was not an eye witness.12. The number and nature of hard blunt injuries on the two deceased make it apparent that the assailants were more than one. Injuries by hard and blunt substance corroborate the evidence of the injured witnesses and PW-2 of assault on the two deceased by lathis also. Common intention is evident from the accused persons coming to the lands of PW-1 armed and intimidating him to return the lands followed by assault upon him and those who came to his rescue. The accused then immediately proceeded to the house of the second deceased. The recovery of a bloodstained lathi and bloodstained clothes of the appellant on his confession, leaves us satisfied, on a cumulative appreciation of the evidence, that the accused were actuated by a common intention. The conviction of the appellant therefore calls for no interference. | 0 | 1,181 | 467 | ### 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:
4.00 pm. Two persons were deceased and three injured. Accused no. 3 and accused no. 4, who are not before us, have also been convicted under Section 302. Accused no. 1 has been convicted alike the appellant. 3. The genesis of the occurrence lay in certain lands purchased by PW-1, from the father of the appellant. Peeved, the appellant along with the co-accused came to the lands of PW-1 and asked him to return the lands to him. On refusal by PW-1, the accused are said to have threatened the witness and assaulted PW-1, his wife PW-4, their 12 years old son Ramashankar who was deceased within twenty four hours during course of treatment and their minor daughter. The appellants are then said to have proceeded to the house of Ramdas, the brother of PW-1, and shot him dead in presence of his son PW-2. 4. Learned counsel for the appellant submits that he was possessed of a lathi only. Two of the co-accused, A3 and A4, were armed with a country-made pistol and an axe respectively. Death of the two persons is ascribed to injuries caused by axe and firearm respectively and not by lathi. The third accused was also possessed of a lathi. The allegation of assault with lathis is omnibus. It cannot be said with certainty that the appellant also assaulted. The appellant did not share any common intention with the other accused and has been implicated at the behest of the village sarpanch. His defence of alibi has not been considered properly. All three witnesses being related, false implication is evident because none of the independent witnesses have been examined. The defence of the appellant under Section 313, Cr.P.C. has not been properly considered. 5. Learned Additional Advocate General appearing for the State submitted that common intention is apparent from the fact that the four accused came armed together on the lands of PW-1. Having failed in their threats to him for return of the lands, all of them assaulted PW-1, PW-4, their daughter and minor son. The accused then went together to the house of the second deceased Ramdas and assaulted him also. The appellant was well aware of the co-accused carrying a country-made pistol and axe. The recovery of a bloodstained lathi and clothes of the appellant pursuant to his confession conclusively establish common intention. 6. We have considered the submissions on behalf of the parties and perused the evidence on record. 7. The appellant was unhappy that his father had sold lands to PW-1 and wanted them back. The four accused came to the lands of PW-1 and threatened him to return the lands. On his refusal to do so, A3 and A4 first assaulted him with an axe. A1 and the appellant assaulted him with lathis. PW-4, and her two children came to the rescue of PW-1. They were also assaulted and injured. A3 and A4 assaulted Ramashankar on the head with the blunt edge and sharp edge of an axe respectively. The appellant and A1 also assaulted him with lathis. He died 24 hours later during the course of the treatment at the hospital. 8. The accused persons then together went to the house of the second deceased, Ramdas, the brother of PW-1. Accused no.3 shot him dead while Accused no.4 assaulted him with the sharp edge of an axe. The appellant and A1 assaulted him with lathis. PW-2 was an eye witness to the assault. 9. The post-mortem report of the deceased Ramdas revealed the following injuries: i. Contusion 8x6 cm on right arm (inflicted with hard and blunt weapon) ii. Contusion 6x5 cm in mid of left arm (inflicted with hard and blunt weapon) iii. Lacerated wound 4x1 cm deep upto the skin on the right brow (inflicted with hard and blunt weapon) iv. Ingress injury 5x3 cm which was oval shaped in the stomach (inflicted with a firearm) v. Egress injury 32 cm on the right side at the back at the level of 5th lumbar vertebra (firearm). 10. The post-mortem report of the deceased Ramashankar revealed the following injuries: i. Incised wound injury of 5cm in temporal area. ii. Fracture and blood clotting. iii. 4x2 cm injury which was stitched on the right side of parietal area. iv. Incised wound on the left shoulder v. Injuries on the neck and forehead with hard and blunt object. 11. PW-1 and PW-4 are both injured witnesses. They have both been found to be reliable and truthful. We see no reason why they would falsely implicate another, when the deceased was their own minor son. Similarly, PW-2 is the son of the second deceased, an eye witness to the killing of his father at home. The failure to examine any available independent witness is inconsequential. It is the quality of the evidence and not the number of witnesses that is relevant. It is nobodys case of the accused that PW-1 and PW-4 were not injured in the same occurrence or that PW-2 was not an eye witness. 12. The number and nature of hard blunt injuries on the two deceased make it apparent that the assailants were more than one. Injuries by hard and blunt substance corroborate the evidence of the injured witnesses and PW-2 of assault on the two deceased by lathis also. Common intention is evident from the accused persons coming to the lands of PW-1 armed and intimidating him to return the lands followed by assault upon him and those who came to his rescue. The accused then immediately proceeded to the house of the second deceased. The recovery of a bloodstained lathi and bloodstained clothes of the appellant on his confession, leaves us satisfied, on a cumulative appreciation of the evidence, that the accused were actuated by a common intention. The conviction of the appellant therefore calls for no interference. 13. It was lastly submitted before us that the appellant has completed over 14 years of custody including remission and that he is 72 years old.
### Response:
0
### Explanation:
6. We have considered the submissions on behalf of the parties and perused the evidence on record.7. The appellant was unhappy that his father had sold lands to PW-1 and wanted them back. The four accused came to the lands of PW-1 and threatened him to return the lands. On his refusal to do so, A3 and A4 first assaulted him with an axe. A1 and the appellant assaulted him with lathis. PW-4, and her two children came to the rescue of PW-1. They were also assaulted and injured. A3 and A4 assaulted Ramashankar on the head with the blunt edge and sharp edge of an axe respectively. The appellant and A1 also assaulted him with lathis. He died 24 hours later during the course of the treatment at the hospital.8. The accused persons then together went to the house of the second deceased, Ramdas, the brother of PW-1. Accused no.3 shot him dead while Accused no.4 assaulted him with the sharp edge of an axe. The appellant and A1 assaulted him with lathis. PW-2 was an eye witness to the assault.11. PW-1 and PW-4 are both injured witnesses. They have both been found to be reliable and truthful. We see no reason why they would falsely implicate another, when the deceased was their own minor son. Similarly, PW-2 is the son of the second deceased, an eye witness to the killing of his father at home. The failure to examine any available independent witness is inconsequential. It is the quality of the evidence and not the number of witnesses that is relevant. It is nobodys case of the accused that PW-1 and PW-4 were not injured in the same occurrence or that PW-2 was not an eye witness.12. The number and nature of hard blunt injuries on the two deceased make it apparent that the assailants were more than one. Injuries by hard and blunt substance corroborate the evidence of the injured witnesses and PW-2 of assault on the two deceased by lathis also. Common intention is evident from the accused persons coming to the lands of PW-1 armed and intimidating him to return the lands followed by assault upon him and those who came to his rescue. The accused then immediately proceeded to the house of the second deceased. The recovery of a bloodstained lathi and bloodstained clothes of the appellant on his confession, leaves us satisfied, on a cumulative appreciation of the evidence, that the accused were actuated by a common intention. The conviction of the appellant therefore calls for no interference.
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State of West Bengal and Others Vs. North Adjai Coal Company Limited | SHAH, C.J.1. Section 5(2)(a)(v) of the Bengal Finance (Sales Tax) Act, 1941, provides :"(2) In this Act the expression taxable turnover means in the case of a dealer who is liable to pay tax under section 4 or under sub-section (3) of section 8, that part of his gross turnover during any period which remains after deducting therefrom -(a) his turnover during that period on .........(v) sales of goods which are shown to the satisfaction of the Commissioner not to have taken place in West Bengal, or to have taken place in the course of inter-State trade or commerce, within the meaning of section 3 of the Central Sales Tax Act, 1956, or in the course of import of the goods into, or export of the goods out of, the territory of India, within the meaning of section 5 of that Act."2. The respondent-company carries on the business of a colliery. Pursuant to an agreement between the Government of India and the Government of Pakistan, the former agreed to release certain quantities of coal for consumption in East Pakistan. The respondent-company delivered coal to the Fuel Inspector, Eastern Bengal Railway, East Pakistan of the total value of Rs. 88, 929-10-0. In respect of this supply of coal, bills were drawn by the respondent in the name of the Deputy Coal Commissioner (P), Ministry of Steel and Mines, Government of India. Under an arrangement between the Government of India and the Government of Pakistan, the price of coal so supplied was to be realized by the Government of India from the Government of Pakistan. In respect of this supply, the tax authorities of the State of West Bengal levied sales tax under the Bengal Finance (Sales Tax) Act, 1941. The contention raised by the respondent-company that it was exempt from liability to pay sales tax under section 5(2)(a)(v) was rejected by the Sales Tax Officer and by the Deputy Commissioner in appeal. Without invoking the revisional jurisdiction of the Board of Revenue, the respondent moved a petition before the High Court of Calcutta under article 226, challenging the levy. The petition filed by the respondent was dismissed by a Single Judge, but on appeal under the Letters Patent, the claim was allowed and the High Court declared that the respondent was exempt from liability to pay sales tax in respect of coal supplied to the Government of Pakistan. Against that order of the High Court, this appeal has been filed by the State of West Bengal.It is urged in the first instance that the High Court was incompetent to entertain the writ petition because the respondent had failed to exhaust the statutory remedies permissible under the Bengal Finance (Sales Tax) Act. It was submitted that a revision application lay to the Board of Revenue, and without moving the Board of Revenue, the respondent could not file a petition before the High Court. There is no substance in this contention. It is true that normally before a petition under article 226 of the Constitution is entertained, the High Court would insist that the party aggrieved by the order of a quasi-judicial tribunal should have recourse to the statutory authorities, which have power to give relief. But that is a rule of practice and not of jurisdiction. In appropriate cases, the High Court may entertain a petition even if the aggrieved party has not exhausted the remedies available under a statute before the departmental authorities. In the present case, in the view of the High Court a case was made out for its interference with the order passed by the Deputy Commissioner, and we see no reason to hold that the High Court had not properly exercised jurisdiction in this case. The facts were apparently not in dispute, and the only question was whether in the facts and circumstances of the case, the respondents were entitled to the exemption claimed by them. In the circumstances the High Court cannot be said to have acted improperly in entertaining the petition.3. It was then urged that there was no contract of sale between the respondent and the Pakistan Government, and that there was a contract between the Government of India and the respondent, and, on that account, the respondent was not entitled to the exemption claimed. It is difficult to appreciate the argument. The questions in dispute were whether there was a sale, and if so, whether the sale was exempt from liability to pay tax. Without deciding whether there was a sale by the respondent to the Government of India or to the Government of Pakistan, it is sufficient for the purpose of this case to observe that the sale if any was by virtue of section 5(2)(a)(v) exempt from liability to sales tax under the Bengal Finance (Sales Tax) Act, for it was a sale in the course of export. No argument was advanced before us which would justify us in taking a different view. | 0[ds]There is no substance in this contention. It is true that normally before a petition under article 226 of the Constitution is entertained, the High Court would insist that the party aggrieved by the order of atribunal should have recourse to the statutory authorities, which have power to give relief. But that is a rule of practice and not of jurisdiction. In appropriate cases, the High Court may entertain a petition even if the aggrieved party has not exhausted the remedies available under a statute before the departmental authorities. In the present case, in the view of the High Court a case was made out for its interference with the order passed by the Deputy Commissioner, and we see no reason to hold that the High Court had not properly exercised jurisdiction in this case. The facts were apparently not in dispute, and the only question was whether in the facts and circumstances of the case, the respondents were entitled to the exemption claimed by them. In the circumstances the High Court cannot be said to have acted improperly in entertaining theis difficult to appreciate the argument. The questions in dispute were whether there was a sale, and if so, whether the sale was exempt from liability to pay tax. Without deciding whether there was a sale by the respondent to the Government of India or to the Government of Pakistan, it is sufficient for the purpose of this case to observe that the sale if any was by virtue of section 5(2)(a)(v) exempt from liability to sales tax under the Bengal Finance (Sales Tax) Act, for it was a sale in the course of export. No argument was advanced before us which would justify us in taking a different view. | 0 | 943 | 328 | ### 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:
SHAH, C.J.1. Section 5(2)(a)(v) of the Bengal Finance (Sales Tax) Act, 1941, provides :"(2) In this Act the expression taxable turnover means in the case of a dealer who is liable to pay tax under section 4 or under sub-section (3) of section 8, that part of his gross turnover during any period which remains after deducting therefrom -(a) his turnover during that period on .........(v) sales of goods which are shown to the satisfaction of the Commissioner not to have taken place in West Bengal, or to have taken place in the course of inter-State trade or commerce, within the meaning of section 3 of the Central Sales Tax Act, 1956, or in the course of import of the goods into, or export of the goods out of, the territory of India, within the meaning of section 5 of that Act."2. The respondent-company carries on the business of a colliery. Pursuant to an agreement between the Government of India and the Government of Pakistan, the former agreed to release certain quantities of coal for consumption in East Pakistan. The respondent-company delivered coal to the Fuel Inspector, Eastern Bengal Railway, East Pakistan of the total value of Rs. 88, 929-10-0. In respect of this supply of coal, bills were drawn by the respondent in the name of the Deputy Coal Commissioner (P), Ministry of Steel and Mines, Government of India. Under an arrangement between the Government of India and the Government of Pakistan, the price of coal so supplied was to be realized by the Government of India from the Government of Pakistan. In respect of this supply, the tax authorities of the State of West Bengal levied sales tax under the Bengal Finance (Sales Tax) Act, 1941. The contention raised by the respondent-company that it was exempt from liability to pay sales tax under section 5(2)(a)(v) was rejected by the Sales Tax Officer and by the Deputy Commissioner in appeal. Without invoking the revisional jurisdiction of the Board of Revenue, the respondent moved a petition before the High Court of Calcutta under article 226, challenging the levy. The petition filed by the respondent was dismissed by a Single Judge, but on appeal under the Letters Patent, the claim was allowed and the High Court declared that the respondent was exempt from liability to pay sales tax in respect of coal supplied to the Government of Pakistan. Against that order of the High Court, this appeal has been filed by the State of West Bengal.It is urged in the first instance that the High Court was incompetent to entertain the writ petition because the respondent had failed to exhaust the statutory remedies permissible under the Bengal Finance (Sales Tax) Act. It was submitted that a revision application lay to the Board of Revenue, and without moving the Board of Revenue, the respondent could not file a petition before the High Court. There is no substance in this contention. It is true that normally before a petition under article 226 of the Constitution is entertained, the High Court would insist that the party aggrieved by the order of a quasi-judicial tribunal should have recourse to the statutory authorities, which have power to give relief. But that is a rule of practice and not of jurisdiction. In appropriate cases, the High Court may entertain a petition even if the aggrieved party has not exhausted the remedies available under a statute before the departmental authorities. In the present case, in the view of the High Court a case was made out for its interference with the order passed by the Deputy Commissioner, and we see no reason to hold that the High Court had not properly exercised jurisdiction in this case. The facts were apparently not in dispute, and the only question was whether in the facts and circumstances of the case, the respondents were entitled to the exemption claimed by them. In the circumstances the High Court cannot be said to have acted improperly in entertaining the petition.3. It was then urged that there was no contract of sale between the respondent and the Pakistan Government, and that there was a contract between the Government of India and the respondent, and, on that account, the respondent was not entitled to the exemption claimed. It is difficult to appreciate the argument. The questions in dispute were whether there was a sale, and if so, whether the sale was exempt from liability to pay tax. Without deciding whether there was a sale by the respondent to the Government of India or to the Government of Pakistan, it is sufficient for the purpose of this case to observe that the sale if any was by virtue of section 5(2)(a)(v) exempt from liability to sales tax under the Bengal Finance (Sales Tax) Act, for it was a sale in the course of export. No argument was advanced before us which would justify us in taking a different view.
### Response:
0
### Explanation:
There is no substance in this contention. It is true that normally before a petition under article 226 of the Constitution is entertained, the High Court would insist that the party aggrieved by the order of atribunal should have recourse to the statutory authorities, which have power to give relief. But that is a rule of practice and not of jurisdiction. In appropriate cases, the High Court may entertain a petition even if the aggrieved party has not exhausted the remedies available under a statute before the departmental authorities. In the present case, in the view of the High Court a case was made out for its interference with the order passed by the Deputy Commissioner, and we see no reason to hold that the High Court had not properly exercised jurisdiction in this case. The facts were apparently not in dispute, and the only question was whether in the facts and circumstances of the case, the respondents were entitled to the exemption claimed by them. In the circumstances the High Court cannot be said to have acted improperly in entertaining theis difficult to appreciate the argument. The questions in dispute were whether there was a sale, and if so, whether the sale was exempt from liability to pay tax. Without deciding whether there was a sale by the respondent to the Government of India or to the Government of Pakistan, it is sufficient for the purpose of this case to observe that the sale if any was by virtue of section 5(2)(a)(v) exempt from liability to sales tax under the Bengal Finance (Sales Tax) Act, for it was a sale in the course of export. No argument was advanced before us which would justify us in taking a different view.
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BHAVYANATH REPRESENTED BY POWER OF ATTORNEY HOLDER Vs. K.V. BALAN (DEAD) THROUGH LRS | finding that Gopinathan was actively involved in the contract. We have eluded to the fact that Gopinathan was a witness to the agreement to safely conclude that the father of the plaintiff was in the know of things and he was involved in the transaction. We have referred to Gopinathan, figuring in the deposition to arrive at the conclusion that the plaintiff, though the actual party to the agreement, the moving force and one who intended to support the plaintiff was his father. The assets which are relied on by the plaintiff to establish his financial capacity would appear to belong to the close relatives of the plaintiff, namely, his father, his mother and his wife. We must recall that in his deposition PW1, when he was asked as to on what basis he would claim that he had the financial capacity on 24.03.2008, his answer was that he had gold ornaments which were worth about Rs.24,00,000/- and he had about Rs.8,00,000/- in cash having regard to the payment of Rs.5,00,000/- by way of advance and further payment to be made, after making the advance, if Rs.24,00,000/- worth of gold being in the possession of the plaintiffs family members besides Rs.8,00,000/- was there, certainly that would suffice to establish the case of the plaintiff about his financial capacity and readiness to perform the contract. The law is certainly not that the purchaser in a suit for specific relief must prove that he was having cash with him from the date of the agreement till the relevant date. What is important is that he had the capacity to allow the deal to go through. If gold was available, as claimed, we would think that on a pragmatic view of the matter, it may be idle to contend that it could not be converted into cash either by immediate sale or by raising a loan. 35. We must, however, deal with certain other contentions before we come to a conclusion in this regard. The defendant has undoubtedly a case that the gold ornaments though claimed to be that of the mother and the wife of the plaintiff, without examining them as witnesses and without their deposition showing that they had those gold ornaments in their possession and that they were willing to employ them for the purpose of generating funds for the plaintiff, the Court cannot conclude the matter in favour of the plaintiff. We would think that it may be true that in a case of this nature and in view of the context, it may have been more appropriate that the relatives were examined. Their non-examination, however, may not fatal to the plaintiff. It must be realized that the relatives involved are none other than the mother and the wife of the plaintiff. Though subsequent their inclination can be inferred from their going to the valuer PW4. In such circumstances, we would think, it may be carrying matters a little too far to decline specific relief, particularly which was granted by the trial Court in its discretion to contend that the mother and the wife have not come forward to express their willingness to make available ornaments for the purpose of the plaintiff. In fact, no suggestion is seen put to the plaintiff about the same. 36. The further question may, however, arise as on the relevant date whether the gold ornaments having the value of Rs.24,00,000/- was available with the mother and the wife of the plaintiff. We have noticed the deposition of PW4. He has stated that neither the bills nor receipts relating to the gold ornaments were produced. No documents relating to the ownership of the gold ornaments were also produced. Could it be said, therefore, that the gold ornaments never belonged to the mother and the wife of the plaintiff and the valuation report is therefore robbed of any value that might otherwise be attached to it. 37. It is here we may notice that the family of the plaintiff was possessed of considerable assets even otherwise in terms of landed property. We further notice that the plaintiff has proceeded to purchase another 10 cents during the period when the contract was in existence (relied upon by the trial Court to establish the readiness and willingness in terms of capacity apparently). 38. A1 contract is dated 25.04.2007. Plaintiff was, no doubt, 21 years of age. His father Gopinathan was a witness to A1. Knowing these facts, defendant entered into the agreement, and what is more, received Rs.2 lakhs on the date of the agreement. Further, a sum of Rs.3 lakhs was received under the agreement on 25.08.2007. The property is measured on 16.03.2008. On the third day from 24.03.2008, which was the last day for the execution of the sale deed, i.e., on 27.03.2008, the suit came to be filed. After the advance paid by the plaintiff is deducted, the balance amount including the stamp duty and expenses would not exceed Rs.24 lakhs. There was the testimony of the plaintiff as to how he intended to pay the consideration on 24.03.2008. There was evidence of plaintiff having gold ornaments with him and family members worth about Rs.24 lakhs and cash of about Rs.8 lakhs. It also appeared that one of the family members of the appellant had lands in her name. Even the appellant purchased other land during the period of contract. In regard to the statement by the plaintiff that gold ornaments worth about Rs.24 lakhs were held by him and family members and there was cash of about Rs. 8 lakhs, the plaintiff is not cross-examined as such. At any rate, there is no serious dispute raised when he was cross-examined in this regard. There is no question raised about the family members not making available the gold ornaments or that it was not available with them. The non-availability of bills relating to the gold jewellery to prove ownership as such may not be in the facts of this case fatal to the plaintiff. | 1[ds]In Ext.A1 agreement the defendant had agreed to sell 75 ¾ cents acquired under document No.1405/1975. The price was fixed as Rs.34,000/- per cent. The extent was no doubt to be found on actual measurement. The trial Court found that though it is not stipulated as to who will carry measurement, but the defendant being in possession he was, to undertake the measurement. The defendant, when he was examined as DW1, has inter alia stated as follows; For the purpose of determination of sale consideration property had to be measured. He further states that after one week of the date of execution of the agreement Gopi brought a person and measured the property. When he saw the measuring activity, he went to the property and asked for a copy of the measurement details, but was not given. We proceed on the basis that the reference to Gopinath, is none other than the father of the plaintiff. He admits that these facts are not stated in the written statement. He states that he did not know about the measurement of the property on 16.03.2008. There was no opportunity to get the plaint schedule property measured before the same was to be assigned. He specifically states that he has not convinced them the actual measurement of the plaint schedule property. He further states that no measurement of the plaint schedule property was done before the expiry of the agreement period. He further states that he has not got measured the extent of property after execution of the agreement. He states that he does not remember about the statement in Ext.A42 about the extent of the property being convinced of by the plaintiff and his father to be 70.950 cents. He specifically states that it is not right to say that the plaint schedule property has been got measured on 16.03.2008. He states that he was not present at that time. We would think that the High Court was in error in holding that on measurement being carried on 16.03.2008, one of the conditions for the performance of agreement was satisfied if it is meant to find that the defendant had carried out the obligations under the contract. It is noticed from paragraph 23 of the impugned judgment that contrary to his deposition, which we have adverted to as DW1, it was contended on behalf of the defendant that the measurement on 16.03.2008 was at his instance. It is noticed that under Ext.A1 agreement the extent was stated to be 75 ¾ cents, under a particular assignment deed. The consideration was undoubtedly fixed with regard to the actual extent at the rate of Rs.34,000/- per cent. It is clear that the measurement was essential for executing the conveyance and the performance of further mutual obligations. When the lawyers notice was caused to be sent on 24.01.2008 by the defendant, he adverts to 75 ¾ cents. There is no reference of any measurement having been done on 16.05.2007. We are inclined to find that it was the plaintiff who took the initiative and the property indeed was measured on 16.03.2008. We are further inclined to agree with the trial Court that the plaintiff, it is who financed the measurement by making payment as he claimed. Testimony of the witness accepted by the trial Court, which has had opportunity to watch the demeanour of the witness is not to be likely shaken by the appellate court18. The High Court has overlooked this aspect and came to the conclusion that there was no dispute relating to the title. Under Ext.A1 agreement, it was incumbent upon the defendant to convince the plaintiff about the title of the property and other connected things. No doubt, the plaintiff had made a demand for the original title deeds relating to the property, as he wanted to use them for the purpose of taking a loan in connection with his proposed construction. This we do not think he was entitled under the contract and if the defendant refused the title deeds we would not be in a position to blame him. We are, therefore, of the view that the High Court has fallen into an error in reversing the finding that the defendant was in breach of his obligations19. We have noticed the law to be that it does not suffice for the plaintiff in a suit for specific performance to establish that the defendant was in breach to seek a decree for specific relief. The plaintiff must further establish, if it is contested that he was ready and willing from the date of the contract to perform his obligations20. In a contract, a contract usually embodies mutual obligations. The order of performance of obligations by the parties to the contract would have an impact on the aspect relating to readiness and willingness undoubtedly. In fact, readiness and willingness on the part of plaintiff makes its appearance right from the time of the reply notice sent by the plaintiff and continued in his pleadings. We are, however, concerned in this case only with the aspect relating whether he has proved despite what he might have established against the defendant that he was ready to perform his obligations. To begin with, the plaintiff has filed the suit on 27.03.2008. It must be remembered that under Ext.A1 agreement, the last date for executing the sale deed was 24.03.2008. This means on the third day of the date fixed under the contract on the allegation that the defendant resiled from the promise to execute the sale deed, the plaintiff has knocked at the doors of the Court seeking specific relief34. The plaintiff on the date of the suit in the year 2007 was 21 years. The agreement would show that the witnesses to the agreement are one Manoharan, who is none other than the son of the defendant and the other witness is Gopinathan, the father of the plaintiff. The trial Court has entered a finding that Gopinathan was actively involved in the contract. We have eluded to the fact that Gopinathan was a witness to the agreement to safely conclude that the father of the plaintiff was in the know of things and he was involved in the transaction. We have referred to Gopinathan, figuring in the deposition to arrive at the conclusion that the plaintiff, though the actual party to the agreement, the moving force and one who intended to support the plaintiff was his father. The assets which are relied on by the plaintiff to establish his financial capacity would appear to belong to the close relatives of the plaintiff, namely, his father, his mother and his wife. We must recall that in his deposition PW1, when he was asked as to on what basis he would claim that he had the financial capacity on 24.03.2008, his answer was that he had gold ornaments which were worth about Rs.24,00,000/- and he had about Rs.8,00,000/- in cash having regard to the payment of Rs.5,00,000/- by way of advance and further payment to be made, after making the advance, if Rs.24,00,000/- worth of gold being in the possession of the plaintiffs family members besides Rs.8,00,000/- was there, certainly that would suffice to establish the case of the plaintiff about his financial capacity and readiness to perform the contract. The law is certainly not that the purchaser in a suit for specific relief must prove that he was having cash with him from the date of the agreement till the relevant date. What is important is that he had the capacity to allow the deal to go through. If gold was available, as claimed, we would think that on a pragmatic view of the matter, it may be idle to contend that it could not be converted into cash either by immediate sale or by raising a loan35. We must, however, deal with certain other contentions before we come to a conclusion in this regard. The defendant has undoubtedly a case that the gold ornaments though claimed to be that of the mother and the wife of the plaintiff, without examining them as witnesses and without their deposition showing that they had those gold ornaments in their possession and that they were willing to employ them for the purpose of generating funds for the plaintiff, the Court cannot conclude the matter in favour of the plaintiff. We would think that it may be true that in a case of this nature and in view of the context, it may have been more appropriate that the relatives were examined. Their non-examination, however, may not fatal to the plaintiff. It must be realized that the relatives involved are none other than the mother and the wife of the plaintiff. Though subsequent their inclination can be inferred from their going to the valuer PW4. In such circumstances, we would think, it may be carrying matters a little too far to decline specific relief, particularly which was granted by the trial Court in its discretion to contend that the mother and the wife have not come forward to express their willingness to make available ornaments for the purpose of the plaintiff. In fact, no suggestion is seen put to the plaintiff about the sameWe have noticed the deposition of PW4. He has stated that neither the bills nor receipts relating to the gold ornaments were produced. No documents relating to the ownership of the gold ornaments were also produced. Could it be said, therefore, that the gold ornaments never belonged to the mother and the wife of the plaintiff and the valuation report is therefore robbed of any value that might otherwise be attached to it37. It is here we may notice that the family of the plaintiff was possessed of considerable assets even otherwise in terms of landed property. We further notice that the plaintiff has proceeded to purchase another 10 cents during the period when the contract was in existence (relied upon by the trial Court to establish the readiness and willingness in terms of capacity apparently)38. A1 contract is dated 25.04.2007. Plaintiff was, no doubt, 21 years of age. His father Gopinathan was a witness to A1. Knowing these facts, defendant entered into the agreement, and what is more, received Rs.2 lakhs on the date of the agreement. Further, a sum of Rs.3 lakhs was received under the agreement on 25.08.2007. The property is measured on 16.03.2008. On the third day from 24.03.2008, which was the last day for the execution of the sale deed, i.e., on 27.03.2008, the suit came to be filed. After the advance paid by the plaintiff is deducted, the balance amount including the stamp duty and expenses would not exceed Rs.24 lakhs. There was the testimony of the plaintiff as to how he intended to pay the consideration on 24.03.2008. There was evidence of plaintiff having gold ornaments with him and family members worth about Rs.24 lakhs and cash of about Rs.8 lakhs. It also appeared that one of the family members of the appellant had lands in her name. Even the appellant purchased other land during the period of contract. In regard to the statement by the plaintiff that gold ornaments worth about Rs.24 lakhs were held by him and family members and there was cash of about Rs. 8 lakhs, the plaintiff is not cross-examined as such. At any rate, there is no serious dispute raised when he was cross-examined in this regard. There is no question raised about the family members not making available the gold ornaments or that it was not available with them. The non-availability of bills relating to the gold jewellery to prove ownership as such may not be in the facts of this case fatal to the plaintiff. | 1 | 8,647 | 2,114 | ### Instruction:
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finding that Gopinathan was actively involved in the contract. We have eluded to the fact that Gopinathan was a witness to the agreement to safely conclude that the father of the plaintiff was in the know of things and he was involved in the transaction. We have referred to Gopinathan, figuring in the deposition to arrive at the conclusion that the plaintiff, though the actual party to the agreement, the moving force and one who intended to support the plaintiff was his father. The assets which are relied on by the plaintiff to establish his financial capacity would appear to belong to the close relatives of the plaintiff, namely, his father, his mother and his wife. We must recall that in his deposition PW1, when he was asked as to on what basis he would claim that he had the financial capacity on 24.03.2008, his answer was that he had gold ornaments which were worth about Rs.24,00,000/- and he had about Rs.8,00,000/- in cash having regard to the payment of Rs.5,00,000/- by way of advance and further payment to be made, after making the advance, if Rs.24,00,000/- worth of gold being in the possession of the plaintiffs family members besides Rs.8,00,000/- was there, certainly that would suffice to establish the case of the plaintiff about his financial capacity and readiness to perform the contract. The law is certainly not that the purchaser in a suit for specific relief must prove that he was having cash with him from the date of the agreement till the relevant date. What is important is that he had the capacity to allow the deal to go through. If gold was available, as claimed, we would think that on a pragmatic view of the matter, it may be idle to contend that it could not be converted into cash either by immediate sale or by raising a loan. 35. We must, however, deal with certain other contentions before we come to a conclusion in this regard. The defendant has undoubtedly a case that the gold ornaments though claimed to be that of the mother and the wife of the plaintiff, without examining them as witnesses and without their deposition showing that they had those gold ornaments in their possession and that they were willing to employ them for the purpose of generating funds for the plaintiff, the Court cannot conclude the matter in favour of the plaintiff. We would think that it may be true that in a case of this nature and in view of the context, it may have been more appropriate that the relatives were examined. Their non-examination, however, may not fatal to the plaintiff. It must be realized that the relatives involved are none other than the mother and the wife of the plaintiff. Though subsequent their inclination can be inferred from their going to the valuer PW4. In such circumstances, we would think, it may be carrying matters a little too far to decline specific relief, particularly which was granted by the trial Court in its discretion to contend that the mother and the wife have not come forward to express their willingness to make available ornaments for the purpose of the plaintiff. In fact, no suggestion is seen put to the plaintiff about the same. 36. The further question may, however, arise as on the relevant date whether the gold ornaments having the value of Rs.24,00,000/- was available with the mother and the wife of the plaintiff. We have noticed the deposition of PW4. He has stated that neither the bills nor receipts relating to the gold ornaments were produced. No documents relating to the ownership of the gold ornaments were also produced. Could it be said, therefore, that the gold ornaments never belonged to the mother and the wife of the plaintiff and the valuation report is therefore robbed of any value that might otherwise be attached to it. 37. It is here we may notice that the family of the plaintiff was possessed of considerable assets even otherwise in terms of landed property. We further notice that the plaintiff has proceeded to purchase another 10 cents during the period when the contract was in existence (relied upon by the trial Court to establish the readiness and willingness in terms of capacity apparently). 38. A1 contract is dated 25.04.2007. Plaintiff was, no doubt, 21 years of age. His father Gopinathan was a witness to A1. Knowing these facts, defendant entered into the agreement, and what is more, received Rs.2 lakhs on the date of the agreement. Further, a sum of Rs.3 lakhs was received under the agreement on 25.08.2007. The property is measured on 16.03.2008. On the third day from 24.03.2008, which was the last day for the execution of the sale deed, i.e., on 27.03.2008, the suit came to be filed. After the advance paid by the plaintiff is deducted, the balance amount including the stamp duty and expenses would not exceed Rs.24 lakhs. There was the testimony of the plaintiff as to how he intended to pay the consideration on 24.03.2008. There was evidence of plaintiff having gold ornaments with him and family members worth about Rs.24 lakhs and cash of about Rs.8 lakhs. It also appeared that one of the family members of the appellant had lands in her name. Even the appellant purchased other land during the period of contract. In regard to the statement by the plaintiff that gold ornaments worth about Rs.24 lakhs were held by him and family members and there was cash of about Rs. 8 lakhs, the plaintiff is not cross-examined as such. At any rate, there is no serious dispute raised when he was cross-examined in this regard. There is no question raised about the family members not making available the gold ornaments or that it was not available with them. The non-availability of bills relating to the gold jewellery to prove ownership as such may not be in the facts of this case fatal to the plaintiff.
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that the witnesses to the agreement are one Manoharan, who is none other than the son of the defendant and the other witness is Gopinathan, the father of the plaintiff. The trial Court has entered a finding that Gopinathan was actively involved in the contract. We have eluded to the fact that Gopinathan was a witness to the agreement to safely conclude that the father of the plaintiff was in the know of things and he was involved in the transaction. We have referred to Gopinathan, figuring in the deposition to arrive at the conclusion that the plaintiff, though the actual party to the agreement, the moving force and one who intended to support the plaintiff was his father. The assets which are relied on by the plaintiff to establish his financial capacity would appear to belong to the close relatives of the plaintiff, namely, his father, his mother and his wife. We must recall that in his deposition PW1, when he was asked as to on what basis he would claim that he had the financial capacity on 24.03.2008, his answer was that he had gold ornaments which were worth about Rs.24,00,000/- and he had about Rs.8,00,000/- in cash having regard to the payment of Rs.5,00,000/- by way of advance and further payment to be made, after making the advance, if Rs.24,00,000/- worth of gold being in the possession of the plaintiffs family members besides Rs.8,00,000/- was there, certainly that would suffice to establish the case of the plaintiff about his financial capacity and readiness to perform the contract. The law is certainly not that the purchaser in a suit for specific relief must prove that he was having cash with him from the date of the agreement till the relevant date. What is important is that he had the capacity to allow the deal to go through. If gold was available, as claimed, we would think that on a pragmatic view of the matter, it may be idle to contend that it could not be converted into cash either by immediate sale or by raising a loan35. We must, however, deal with certain other contentions before we come to a conclusion in this regard. The defendant has undoubtedly a case that the gold ornaments though claimed to be that of the mother and the wife of the plaintiff, without examining them as witnesses and without their deposition showing that they had those gold ornaments in their possession and that they were willing to employ them for the purpose of generating funds for the plaintiff, the Court cannot conclude the matter in favour of the plaintiff. We would think that it may be true that in a case of this nature and in view of the context, it may have been more appropriate that the relatives were examined. Their non-examination, however, may not fatal to the plaintiff. It must be realized that the relatives involved are none other than the mother and the wife of the plaintiff. Though subsequent their inclination can be inferred from their going to the valuer PW4. In such circumstances, we would think, it may be carrying matters a little too far to decline specific relief, particularly which was granted by the trial Court in its discretion to contend that the mother and the wife have not come forward to express their willingness to make available ornaments for the purpose of the plaintiff. In fact, no suggestion is seen put to the plaintiff about the sameWe have noticed the deposition of PW4. He has stated that neither the bills nor receipts relating to the gold ornaments were produced. No documents relating to the ownership of the gold ornaments were also produced. Could it be said, therefore, that the gold ornaments never belonged to the mother and the wife of the plaintiff and the valuation report is therefore robbed of any value that might otherwise be attached to it37. It is here we may notice that the family of the plaintiff was possessed of considerable assets even otherwise in terms of landed property. We further notice that the plaintiff has proceeded to purchase another 10 cents during the period when the contract was in existence (relied upon by the trial Court to establish the readiness and willingness in terms of capacity apparently)38. A1 contract is dated 25.04.2007. Plaintiff was, no doubt, 21 years of age. His father Gopinathan was a witness to A1. Knowing these facts, defendant entered into the agreement, and what is more, received Rs.2 lakhs on the date of the agreement. Further, a sum of Rs.3 lakhs was received under the agreement on 25.08.2007. The property is measured on 16.03.2008. On the third day from 24.03.2008, which was the last day for the execution of the sale deed, i.e., on 27.03.2008, the suit came to be filed. After the advance paid by the plaintiff is deducted, the balance amount including the stamp duty and expenses would not exceed Rs.24 lakhs. There was the testimony of the plaintiff as to how he intended to pay the consideration on 24.03.2008. There was evidence of plaintiff having gold ornaments with him and family members worth about Rs.24 lakhs and cash of about Rs.8 lakhs. It also appeared that one of the family members of the appellant had lands in her name. Even the appellant purchased other land during the period of contract. In regard to the statement by the plaintiff that gold ornaments worth about Rs.24 lakhs were held by him and family members and there was cash of about Rs. 8 lakhs, the plaintiff is not cross-examined as such. At any rate, there is no serious dispute raised when he was cross-examined in this regard. There is no question raised about the family members not making available the gold ornaments or that it was not available with them. The non-availability of bills relating to the gold jewellery to prove ownership as such may not be in the facts of this case fatal to the plaintiff.
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Realvalue Appliances Ltd Vs. Canara Bank | registration of the Reference under section 15 of the Act read with Regulation 19 (in Chapter II of the Regulations which refers only to section 15), there can be no question of commencement of any `inquiry referable to section 16 of the Act. Such an inquiry can be treated as having commenced only at the stage of section 16 read with Regulation 21 (in Chapter IV of the Regulations which refers to section 16). On that reasoning it held that there can be stay as contemplated by section 22 only when section 16(1) stage of inquiry has arrived and not at the stage of section 15 dealing with registration of the reference. It further held that it is only when the BIFR, i.e. the Bench of the BIFR issues notices under section 16(1) for inquiry or asks the operating agency to inquire, that the `inquiry can be said to have commenced. This line of reasoning has been applied by the Rajasthan High Court also and by the Bombay High Court in the judgment under appeal. Question is whether this view is correct ? 27. Now, Regulation 19(4) which is concerned with section 15 requires that upon receipt of a reference, an acknowledgement is to be issued stating expressly that the reference has been received `subject to verification that the reference is in order. If on scrutiny, the reference is in order, then it will be registered under Regulation 19(5). Regulation 19(5) has been amended recently with effect from 24.3.1994 which is of a date very much subsequent, in point of time, to the date of the Judgment of the Calcutta High Court. The new Regulation 19(5) as substituted w.e.f. 24.3.1994 is in two parts and reads as follows: Reg. 19(5) : If on scrutiny, the reference is found to be in order, it shall be registered, assigned a serial number and submitted to the Chairman or assigning it to a Bench. Simultaneously, remaining information, documents required, if any, shall be called for from the informant. The first part says that the reference, if it is in order, will be registered. The second part says that simultaneously notice shall be issued calling for information or documents from the informant. The effect of the amended Regulation 19(5) is that even before any bench of the BIFR can think of calling for information under Regulation 20(1) or under Regulation 21 read with section 16, it is now mandatory after the amendment that as soon as a reference is registered, information/documents shall be called for from the informant straightaway. The point is whether when such information/documents are required to be simultaneously called for at Regulation 19(5) stage, can it be said that an `inquiry under section 16(1) has commenced ? 28. The above question depends upon what is meant by the word `inquiry used in section 16(1) of the Act. According to the New Standard Dictionary, the word `inquiry includes `investigation into facts, causes, effects and relations generally; `to inquire, according to the same dictionary means `to exert oneself to discover something. Chambers 20th Century Dictionary lays down that the meaning of the term `to inquire is to ask, to seek and the meaning of the term `inquiry is given as: search for knowledge; investigation: a question. 29. Inasmuch as under the latter part of Regulation 19(5) it is necessary that simultaneously with the registration of the reference, information/documents are to be called for from the informant the `inquiry must, in our opinion, be deemed to have commenced under section 16 of the Act at that stage itself, namely, at stage of the second part of Regulation 19(5) and it is no longer permissible to say that such a stage is reached only when the BIFR issues notices and starts an inquiry under Regulation 20 calling for additional information in relation to inquiry or only when orders are passed by the BIFR under Regulation 21, read with section 16(1). The result is that, strictly speaking, after the amendment of Regulation 19(5) on 24.3.1994 the latter part of Regulation 19(5) falls into Chapters III and IV of the Regulations which are referable to `Inquiries under section 16 of the Act, rather than into Chapter II which deals with `References under section 15. The Chapter headings cannot, in our opinion, be treated as rigid compartments. 30. There can, therefore, be no difficulty in holding that after the amendment to Regulation 19 w.e.f. 24.3.1994, once the reference is registered and when once it is mandatory simultaneously to call for information/documents from the informant and such a direction is given, then inquiry under section 16(1) must for the purposes of section 22 be deemed to have commenced. Section 22 and the prohibitions contained in it shall immediately come into play. In that view of the matter, we need not go into the correctness of the view expressed by the Calcutta, Rajasthan and Bombay HIgh Courts which relied upon the unamended Regulation 19. Point 2 is decided accordingly. 31. On the facts of this case, the impugned orders dated 28.7.1997 and 8.8.1997 of the High Court have been passed after the BIFR proceedings reached the stage of the second part of Regulation 19(5) on 24.7.1997 that is to say, when proceedings, as per the amended Regulation 19(5) reached the stage of inquiry under section 16(1). It must, therefore, be deemed that the said orders are illegal and are in violation of the prohibition contained in section 22 of the Act. 32. For the aforesaid reasons, the order passed by the Division Bench on 28.7.97 appointing Receiver and the order passed by another Bench of the High Court on 8.8.97 restoring the provisional Liquidator, are set aside. The Civil appeals are accordingly allowed. There will be no order as to costs. The respondents are free, if need be, to approach the BIFR under section 22 and section 22A of the Act for further orders, if any, in addition to the orders already passed by the BIFR in this behalf. 33. | 1[ds]13. It is true that in the winding up proceedings and in the civil suit, the appellant Company contended that it was a viable unit and that neither a Receiver nor a provisional Liquidator could be appointed. The appellant was, on the one hand seeking adjournments before the Division Bench while on the other hand it had approached the BIFR on 17.7.97 and got its reference registered on 24.7.97 seeking to be declared a sick company. It is also true that in the affidavit filed on its behalf in the High Court on 22.7.97 seeking an adjournment, it had not disclosed to the Division Bench that it had moved the BIFR on 17.7.97. The Company sought an adjournment to 29.7.97 and then again to 8.8.97. Neither on 22.7.97 nor on 29.7.97 was the High Court informed about the application filed before the BIFR nor about its registration. A disclosure of these facts was made only on 8.8.9714. This conduct of the appellant, in our view, was certainly very unfair to the High Court and, therefore, the High Court had rightly deprecated the same. In our view, there was a clear attempt to keep the Court in the dark15. But the question is whether, on that account, the reference application to the BIFR would become bad. It is clear from the application filed before the BIFR that the BIFR was informed about the proceedings taken against the Company in the High Court both on the Company side and on the original side. So far as the BIFR was concerned, there was no suppression of facts before it. We are at a loss to understand as to how any conduct of the appellant Company before the High Court of Bombay could make the registration of the reference before the BIFR bad. If any orders were obtained by the Company from the High Court by way of fraud it was certainly open to the respondent to ask the High Court to recall such orders. No such thing was done. We, therefore, cannot accept the contention of the respondents that the reference under section 15 of the Act and the registration thereof by the BIFR became bad because of any conduct of the Company before the High Court. It follows that equally the subsequent orders passed by the BIFR on the reference cannot, on that account, be said to be invalid. This contention of the respondents is rejected. Point 1 is held against the respondents19. The point which has, in this context, been raised in several High Courts is that the mere registration of a reference by the BIFR under the Act, would not result in the automatic cessation of all proceedings which are pending either in civil courts or in the Company Court etc. as against its assets. It is argued that in order that section 22 of the Act can come into operation, the BIFR must - subsequent to the registration of the reference under section 15 - apply its mind and consider it necessary under section 16 to make an inquiry and issue notices on the reference to the affected parties who are required to be heard, and that only then it can be said that an `inquiry is pending. Unless an inquiry is pending there cannot be a statutory stay of proceedings etc. as contemplated by section 22 of the Act21. It is to be noticed that according to the section 22, in case an inquiry under section 16 is pending, then, notwithstanding anything in the Companies Act or any other instrument etc., no proceedings for the winding up of the company or for execution or distress or the like against the property of the company or for the appointment of a receiver and no suit for recovery of money or enforcement of any security or of any guarantee - shall lie or be proceeded with further, except with the consent of the Board or, as the case may be, by the appellate authority. Section 22A permits the Board to pass certain conditional orders22. It is also to be noticed that sub-clause (1) of section 16 says that the Board `may make such inquiry as it may deem fit for determining whether any industrial company has become a sick industrial unit - (a) upon receipt of a reference under section 15, or (b) upon information received by it or upon its own knowledge as to the financial condition of the company. Under sub-clause (2) of section 16, the Board `may, if it deems it necessary or expedient, require any operating agency to inquire and report to it. Under sub-clause (3), the Board or the operating agency is to endeavour to complete the inquiry within 60 days from the date of commencement of the inquiry. Explanation below sub-clause (3) explains that for purposes of sub-clause (3), that is to say, for computing the period of 60 days, an inquiry shall be deemed to have commenced upon the receipt by the Board of any reference or information or upon its own knowledge reduced to writing by the Board. Under sub-clause (4), when the Board deems it fit to make an inquiry under sub-clause (1) or (2) of section 16, it may (the word `shall has been omitted by Act 12 of 1994) appoint one or more directors etc23. Relying on the use of the word `may in section 16(1) of the Act it has been contended in some High Courts that the word `may in that section shows that the BIFR has power to reject a reference summarily without going into merits and that it is only when the BIFR takes up the reference for consideration on merits under section 16(1) that it can be said that the `inquiry as contemplated by section has commenced. It is argued that if the reference before the BIFR is only at the stage of registration under section 15, then section 22 is not attracted. This contention, in our opinion, has no merit. In our view, when section 16(1) says that the BIFR can conduct the inquiry in such manner as it may deem fit, the said words are intended only to convey that a wide discretion is vested in the BIFR in regard to the procedure it may follow for conducting an inquiry under section 16(1) and nothing more. In fact, once the reference is registered after scrutiny, it is, in our view, mandatory for the BIFR to conduct an inquiry. If one looks at the format of the reference a prescribed in the Regulations, it will be clear that it contains more than fifty columns regarding extensive financial details of the Companys assets, liabilities, etc. Indeed it will be practically impossible for the BIFR to reject a reference outright without calling for information/documents or without hearing the Company or other parties. Further, the Act is intended to revive and rehabilitate sick industries before they can be wound up underthe Companies Act, 1956. Whether the Company seeks a declaration that it is sick or some other body seeks to have it declared as a sick Company, it is, in our opinion, necessary that the Company be heard before any final decision is taken under the Act. It is also the legislative intention to see that no proceeding against the assets are taken before any such decision is given by the BIFR for in case the Companys assets are sold, or the company wound up it may indeed become difficult later to restore the status quo ante. Therefore, in our view, the High Court of Allahabad in Industrial Fiance Corporation v. Maharashtra Steels Ltd., 1990(67) Comp. Cases 412 (All.), the High Court of Andhra Pradesh in Sponge Iron India Ltd. v. Neelima Steels Ltd., 1990(68) Comp. Cases 201 (A.P.), the High Court of Himachal Pradesh in Orissa Sponge Iron Ltd. v. Rishab Ispat Ltd., 1993(78) Comp. Cases 264 are right in rejecting such a contention and in holding that the inquiry must be treated as having commenced as soon as the registration of the reference is completed after scrutiny and that from that time, action against the Companys assets must remain stayed as stated in section 22 till final decisions are taken by the BIFR24. The other view that mere registration does not amount to commencement of inquiry under section 16(1) for purposes of section 22(1) has been taken by the Calcutta High Court in Bengal Lamps Case (supra), and by the Rajasthan High Court in Maruti Udyog Ltd. v. Instrumentation Ltd., 1995(82) Comp. Cases 485 (Raj). This view is mainly based upon the provisions of the Regulations made under the Act31. On the facts of this case, the impugned orders dated 28.7.1997 and 8.8.1997 of the High Court have been passed after the BIFR proceedings reached the stage of the second part of Regulation 19(5) on 24.7.1997 that is to say, when proceedings, as per the amended Regulation 19(5) reached the stage of inquiry under section 16(1). It must, therefore, be deemed that the said orders are illegal and are in violation of the prohibition contained in section 22 of the Act32. For the aforesaid reasons, the order passed by the Division Bench on 28.7.97 appointing Receiver and the order passed by another Bench of the High Court on 8.8.97 restoring the provisional Liquidator, are set aside. The Civil appeals are accordingly allowed. There will be no order as to costs. The respondents are free, if need be, to approach the BIFR under section 22 and section 22A of the Act for further orders, if any, in addition to the orders already passed by the BIFR in this behalf. | 1 | 6,151 | 1,819 | ### Instruction:
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registration of the Reference under section 15 of the Act read with Regulation 19 (in Chapter II of the Regulations which refers only to section 15), there can be no question of commencement of any `inquiry referable to section 16 of the Act. Such an inquiry can be treated as having commenced only at the stage of section 16 read with Regulation 21 (in Chapter IV of the Regulations which refers to section 16). On that reasoning it held that there can be stay as contemplated by section 22 only when section 16(1) stage of inquiry has arrived and not at the stage of section 15 dealing with registration of the reference. It further held that it is only when the BIFR, i.e. the Bench of the BIFR issues notices under section 16(1) for inquiry or asks the operating agency to inquire, that the `inquiry can be said to have commenced. This line of reasoning has been applied by the Rajasthan High Court also and by the Bombay High Court in the judgment under appeal. Question is whether this view is correct ? 27. Now, Regulation 19(4) which is concerned with section 15 requires that upon receipt of a reference, an acknowledgement is to be issued stating expressly that the reference has been received `subject to verification that the reference is in order. If on scrutiny, the reference is in order, then it will be registered under Regulation 19(5). Regulation 19(5) has been amended recently with effect from 24.3.1994 which is of a date very much subsequent, in point of time, to the date of the Judgment of the Calcutta High Court. The new Regulation 19(5) as substituted w.e.f. 24.3.1994 is in two parts and reads as follows: Reg. 19(5) : If on scrutiny, the reference is found to be in order, it shall be registered, assigned a serial number and submitted to the Chairman or assigning it to a Bench. Simultaneously, remaining information, documents required, if any, shall be called for from the informant. The first part says that the reference, if it is in order, will be registered. The second part says that simultaneously notice shall be issued calling for information or documents from the informant. The effect of the amended Regulation 19(5) is that even before any bench of the BIFR can think of calling for information under Regulation 20(1) or under Regulation 21 read with section 16, it is now mandatory after the amendment that as soon as a reference is registered, information/documents shall be called for from the informant straightaway. The point is whether when such information/documents are required to be simultaneously called for at Regulation 19(5) stage, can it be said that an `inquiry under section 16(1) has commenced ? 28. The above question depends upon what is meant by the word `inquiry used in section 16(1) of the Act. According to the New Standard Dictionary, the word `inquiry includes `investigation into facts, causes, effects and relations generally; `to inquire, according to the same dictionary means `to exert oneself to discover something. Chambers 20th Century Dictionary lays down that the meaning of the term `to inquire is to ask, to seek and the meaning of the term `inquiry is given as: search for knowledge; investigation: a question. 29. Inasmuch as under the latter part of Regulation 19(5) it is necessary that simultaneously with the registration of the reference, information/documents are to be called for from the informant the `inquiry must, in our opinion, be deemed to have commenced under section 16 of the Act at that stage itself, namely, at stage of the second part of Regulation 19(5) and it is no longer permissible to say that such a stage is reached only when the BIFR issues notices and starts an inquiry under Regulation 20 calling for additional information in relation to inquiry or only when orders are passed by the BIFR under Regulation 21, read with section 16(1). The result is that, strictly speaking, after the amendment of Regulation 19(5) on 24.3.1994 the latter part of Regulation 19(5) falls into Chapters III and IV of the Regulations which are referable to `Inquiries under section 16 of the Act, rather than into Chapter II which deals with `References under section 15. The Chapter headings cannot, in our opinion, be treated as rigid compartments. 30. There can, therefore, be no difficulty in holding that after the amendment to Regulation 19 w.e.f. 24.3.1994, once the reference is registered and when once it is mandatory simultaneously to call for information/documents from the informant and such a direction is given, then inquiry under section 16(1) must for the purposes of section 22 be deemed to have commenced. Section 22 and the prohibitions contained in it shall immediately come into play. In that view of the matter, we need not go into the correctness of the view expressed by the Calcutta, Rajasthan and Bombay HIgh Courts which relied upon the unamended Regulation 19. Point 2 is decided accordingly. 31. On the facts of this case, the impugned orders dated 28.7.1997 and 8.8.1997 of the High Court have been passed after the BIFR proceedings reached the stage of the second part of Regulation 19(5) on 24.7.1997 that is to say, when proceedings, as per the amended Regulation 19(5) reached the stage of inquiry under section 16(1). It must, therefore, be deemed that the said orders are illegal and are in violation of the prohibition contained in section 22 of the Act. 32. For the aforesaid reasons, the order passed by the Division Bench on 28.7.97 appointing Receiver and the order passed by another Bench of the High Court on 8.8.97 restoring the provisional Liquidator, are set aside. The Civil appeals are accordingly allowed. There will be no order as to costs. The respondents are free, if need be, to approach the BIFR under section 22 and section 22A of the Act for further orders, if any, in addition to the orders already passed by the BIFR in this behalf. 33.
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execution or distress or the like against the property of the company or for the appointment of a receiver and no suit for recovery of money or enforcement of any security or of any guarantee - shall lie or be proceeded with further, except with the consent of the Board or, as the case may be, by the appellate authority. Section 22A permits the Board to pass certain conditional orders22. It is also to be noticed that sub-clause (1) of section 16 says that the Board `may make such inquiry as it may deem fit for determining whether any industrial company has become a sick industrial unit - (a) upon receipt of a reference under section 15, or (b) upon information received by it or upon its own knowledge as to the financial condition of the company. Under sub-clause (2) of section 16, the Board `may, if it deems it necessary or expedient, require any operating agency to inquire and report to it. Under sub-clause (3), the Board or the operating agency is to endeavour to complete the inquiry within 60 days from the date of commencement of the inquiry. Explanation below sub-clause (3) explains that for purposes of sub-clause (3), that is to say, for computing the period of 60 days, an inquiry shall be deemed to have commenced upon the receipt by the Board of any reference or information or upon its own knowledge reduced to writing by the Board. Under sub-clause (4), when the Board deems it fit to make an inquiry under sub-clause (1) or (2) of section 16, it may (the word `shall has been omitted by Act 12 of 1994) appoint one or more directors etc23. Relying on the use of the word `may in section 16(1) of the Act it has been contended in some High Courts that the word `may in that section shows that the BIFR has power to reject a reference summarily without going into merits and that it is only when the BIFR takes up the reference for consideration on merits under section 16(1) that it can be said that the `inquiry as contemplated by section has commenced. It is argued that if the reference before the BIFR is only at the stage of registration under section 15, then section 22 is not attracted. This contention, in our opinion, has no merit. In our view, when section 16(1) says that the BIFR can conduct the inquiry in such manner as it may deem fit, the said words are intended only to convey that a wide discretion is vested in the BIFR in regard to the procedure it may follow for conducting an inquiry under section 16(1) and nothing more. In fact, once the reference is registered after scrutiny, it is, in our view, mandatory for the BIFR to conduct an inquiry. If one looks at the format of the reference a prescribed in the Regulations, it will be clear that it contains more than fifty columns regarding extensive financial details of the Companys assets, liabilities, etc. Indeed it will be practically impossible for the BIFR to reject a reference outright without calling for information/documents or without hearing the Company or other parties. Further, the Act is intended to revive and rehabilitate sick industries before they can be wound up underthe Companies Act, 1956. Whether the Company seeks a declaration that it is sick or some other body seeks to have it declared as a sick Company, it is, in our opinion, necessary that the Company be heard before any final decision is taken under the Act. It is also the legislative intention to see that no proceeding against the assets are taken before any such decision is given by the BIFR for in case the Companys assets are sold, or the company wound up it may indeed become difficult later to restore the status quo ante. Therefore, in our view, the High Court of Allahabad in Industrial Fiance Corporation v. Maharashtra Steels Ltd., 1990(67) Comp. Cases 412 (All.), the High Court of Andhra Pradesh in Sponge Iron India Ltd. v. Neelima Steels Ltd., 1990(68) Comp. Cases 201 (A.P.), the High Court of Himachal Pradesh in Orissa Sponge Iron Ltd. v. Rishab Ispat Ltd., 1993(78) Comp. Cases 264 are right in rejecting such a contention and in holding that the inquiry must be treated as having commenced as soon as the registration of the reference is completed after scrutiny and that from that time, action against the Companys assets must remain stayed as stated in section 22 till final decisions are taken by the BIFR24. The other view that mere registration does not amount to commencement of inquiry under section 16(1) for purposes of section 22(1) has been taken by the Calcutta High Court in Bengal Lamps Case (supra), and by the Rajasthan High Court in Maruti Udyog Ltd. v. Instrumentation Ltd., 1995(82) Comp. Cases 485 (Raj). This view is mainly based upon the provisions of the Regulations made under the Act31. On the facts of this case, the impugned orders dated 28.7.1997 and 8.8.1997 of the High Court have been passed after the BIFR proceedings reached the stage of the second part of Regulation 19(5) on 24.7.1997 that is to say, when proceedings, as per the amended Regulation 19(5) reached the stage of inquiry under section 16(1). It must, therefore, be deemed that the said orders are illegal and are in violation of the prohibition contained in section 22 of the Act32. For the aforesaid reasons, the order passed by the Division Bench on 28.7.97 appointing Receiver and the order passed by another Bench of the High Court on 8.8.97 restoring the provisional Liquidator, are set aside. The Civil appeals are accordingly allowed. There will be no order as to costs. The respondents are free, if need be, to approach the BIFR under section 22 and section 22A of the Act for further orders, if any, in addition to the orders already passed by the BIFR in this behalf.
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Ramesh Narang Vs. Rama Narang | the Companies Act cannot be visited upon respondent No. 1. We are unable to find any merit in this submission for more than one reason. In the first instance, we do not read the order of Delhi High Court as suspending the order of conviction and, secondly, even assuming it to be so, in our judgment, the Delhi High Court had no power to suspend the order of conviction. In any event, while determining whether respondent No. 1 is disqualified to hold the post of Managing Director under Section 267 of the Companies Act, it is entirely immaterial what Delhi High Court contemplated while passing such order. The consequences flowing from the provisions of Section 267 of the Companies Act do not depend upon the passing of the order by Delhi High Court. The right of respondent No. 1 to hold the post of Managing Director comes to an end the moment the order of conviction is recorded. Mr. Cooper then urged that the appellant had earlier filed Company Petition No. 681 of 1990 in this Court to challenge the appointment of respondent No. 1 as Managing Director on the ground of conviction recorded by Additional Sessions Judge but subsequently that petition was withdrawn. Identical grievance made in petition No. 10 of 1991 filed before the Company Law board ended in consent terms filed by the parties and where the appellant accepted that respondent No. 1 can validly hold the post of Managing Director in spite of conviction. Mr. Cooper submitted that in view of the conduct of the appellant in filing consent terms before the company Law Board, it is not open for the appellant now to claim that respondent No. 1 ceases to be Managing Director because of conviction. The submission was countered by Mr. Sibal by urging that the doctrine of estoppel cannot be attracted when there is violation of the statutory provisions. The submission is correct and the respondent No. 1 cannot avoid the consequences of the provisions of Section 267 of the Companies Act merely because the parties had earlier filed consent terms. It is necessary to note that the provisions of the Companies Act are enacted by taking into consideration the public interest and not only the interest of the shareholders or the Directors of the company. It was also urged that the order passed by the learned Single Judge on notice of motion taken out by respondent Nos. 1 to 3 is at the interlocutory stage and should not be disturbed in appeal. We are unable to accede to the submission because even at the interlocutory stage the matter was extensively debated and the decision which affects not only the shareholders but the public at lage cannot be permitted to operate when found erroneous. ( 14 ) FINALLY, Mr. Cooper urged that respondent Nos. 1 to 3 had not specifically asked for any final relief in the suit in regard to the interim injunction sought against the appellant and respondent No. 5 restraining them from obstructing or interfering with the respondent No. 1s functioning as Chariman and Managing Director of the company. Mr. Cooper submitted that the issue as to whether the respondent No. 1 can function as Chariman and Managing Director does not arise on the strength of the averments made in the plaint and, consequently, it ws not necessary for the trial Judge to examine the same. The submission is obviously one of despertion and cannot be accepted. In the first instance, the pleadings in paragraph 22 of the plaint clearly indicate that respondent No. 1 was knen to secure a declaration that he is entitled to function as chariman and Managing Director of the company. Secondly, in case the issue does not arise on the basis averments in the plaint, then respondent No. 1 need not have sought interim relief of injunction restraining the appellant and respondent No. 5 from obstructing respondent No. 1 in functioning as Chariman and Managing Director of the company. The mere persual of prayer (e)of the plaint and prayer (b) of the notice of motion leaves no manner of doubt that respondent no. 1 was very keen to secure a declaration of his status to function as Managing Director of the company. It also cannot be overlooked that it is futile for respondent No. 1 now to claim that the issue as to whether respondent No. 1 is entitled to function as Managing Director does not arise when the respondent No. 1 argued the matter extensively before the learned Single Judge and the learned Single Judge framed specific point for determination on this aspect. A persual of the prayers in the plaint leaves no manner of doubt that respondent No. 1 was keen to secure a declaration of his legal status as Chairman and Managing Director of the company and, therefore, it is too late in the day now to claim that the learned Single Judge should not have examined the issue. Mr. Cooper also urged that prayer (e) in the plaint should be read as seeking an injunction restraining the appellant from obstructing or interfering with the funcntion of respondent No. 1 as Chairman and Managing Director of the company in pursuance of the resolution alleged to have been passed on July 13, 1992. Again, the submission is one of desperation because such is not the object of making the prayer in the plaint nor in the notice and such a relief was already covered by prayer (d) of the plaint and prayer (a) of the notice of motion. In our judgment, the respondent No. 1 now cannot avoid the consequences of the decision which was invited in the trial Court. In our judgment, the learned Single Judge was in error in granting relief in terms of prayers (b) of the notice of motion. As the relief granted in the terms of prayer (a) of the notice of motion is not challenged by the appellant as mentioned hereinabove, the same need not be disturbed. | 1[ds]( 8 ) THE principal contention in this appeal, and which was also vehemently argued before the learned Single Judge, was in respect of capacity of respondent no. 1 to be appointed as Director and Managing Director of the company after recording of conviction by Additional Sessions judge,are unable to find any merit in the contention. The Appellate Court exercising powers under(1) of Section 389 of the code is not concerned with the consequences which may flow from the order of conviction in regard to the provisions of some other statute. The Appellate Court which entertains appeal against the order of conviction is entitled to suspend the execution of the sentence or the orders which flow as a consequence of the judgment either of conviction or acquittal and such a Criminal Appellate Court is not concerned with the consequences in respect of some other statutes which are visited upon the person who is convicted by a Criminal Court. The submission of Mr. Cooper that the order of conviction will have automatic impact with reference to some other statutes is devoid of any merit because the legislature has taken sufficient precaution in respect of those other statutes to protect a person who has preferred an appeal against the order of conviction. As mentioned hereinabove, as regards the recording of order of conviction against a Director, the conviction will not automatically disqualify the Director of a company from holding the post, in case where appeal is preferred within stipulated period of limitation or where the Central Government exempts such person or the company from disqualification. Section 8 of the Representation of the People Act, 1951, provides that the disqualification shall not take effect until three months have elapsed from the date of conviction or, if an appeal or revision application against the order of conviction is preferred, then until that appeal or application is disposed of by the Court. Section 11 of the representation of the People Act confers power upon the Election Commission to remove any disqualification or reduce the period of such disqualification. It is, therefore, obvious that whenever the Legislature thought it fit, statutory provisions were made to lessen the rigour of the consequences of recording of conviction. The Legislature, in its wisdom, did not make any such provision under Section 267 of the Companies Act when conviction in recorded against a person who is Managing Director. In our judgment, it is not permissible for the Appellate Court which entertains the appeal against the order of conviction to suspend the order of conviction and the only power available under Section 389 (1) of the Code of Criminal Procedure is to suspend the execution of the sentence of the order and which expression does not includeany event, it is not for the Criminal Appellate Court hearing an appeal to decide what are the ends of justice in respect of enforcement of provisions of some other statutes. The powers of the appellate Court flow from the provisions of the Code and we are not prepared to accept the contention that the Appellate Court hearing the criminal appeal should pass orders to avoid consequences flowing from the provisions of statutes like Companies Act or Representation of the People Act. Such other statutes have taken care of the consequences which flow from the order of conviction recorded by the Criminal Court. In our judgment, the provisions of Section 482, of the Code of Criminal Procedure are not at all attracted to claim that order of conviction can be suspended by an order of thethe case before the division Bench, the accused were convicted under the provisions of Anti Corruption Act by the special Court and the accused had preferred appeals. The appeal was admitted and the Single judge not only granted bail but suspended the operation of the judgment with the result that the accused claimed reinstatement into service and succeeded in that claim. Application was then filed on behalf of the prosecution for revocation order of suspension of conviction and reliance was placed on the decision of a Single Judge to the effect that there is no power to suspend the order of conviction. The application was referred to the Division Bench and the Division Bench held that the two expressions "judgment" and "order" under the Code of Criminal Procedure have to be understood in the context in which they are employed. An order of conviction is a part of the judgment and the same is followed by a sentence. The Division Bench further held that the code has nowhere defined the expressions "judgment" or "order" and once it is accepted that a convicted person in his appeal challenges the judgment as such, pronounced against him by a criminal Court, it is axiomatic that he can ask for suspension of execution of the sentence, if there is a sentence. It was further held that the accused can as well ask for suspension of the operation of the conviction which is a part of the judgment, if that become necessary in a given case. The Division Bench then observed that conviction is only a declaration declaring that the accused person is convicted of the offence or offences proved against him and the same can be set aside only by the Appellate Court. The Division Bench held that the Code provides for suspension of the rigour of the judgment passed by the trial Court pending disposal of thethe first instance, we do not read the order of Delhi High Court as suspending the order of conviction and, secondly, even assuming it to be so, in our judgment, the Delhi High Court had no power to suspend the order of conviction. In any event, while determining whether respondent No. 1 is disqualified to hold the post of Managing Director under Section 267 of the Companies Act, it is entirely immaterial what Delhi High Court contemplated while passing such order. The consequences flowing from the provisions of Section 267 of the Companies Act do not depend upon the passing of the order by Delhi High Court. The right of respondent No. 1 to hold the post of Managing Director comes to an end the moment the order of conviction is recorded. Mr. Cooper then urged that the appellant had earlier filed Company Petition No. 681 of 1990 in this Court to challenge the appointment of respondent No. 1 as Managing Director on the ground of conviction recorded by Additional Sessions Judge but subsequently that petition was withdrawn. Identical grievance made in petition No. 10 of 1991 filed before the Company Law board ended in consent terms filed by the parties and where the appellant accepted that respondent No. 1 can validly hold the post of Managing Director in spite of4 ) FINALLY, Mr. Cooper urged that respondent Nos. 1 to 3 had not specifically asked for any final relief in the suit in regard to the interim injunction sought against the appellant and respondent No. 5 restraining them from obstructing or interfering with the respondent No. 1s functioning as Chariman and Managing Director of the company. Mr. Cooper submitted that the issue as to whether the respondent No. 1 can function as Chariman and Managing Director does not arise on the strength of the averments made in the plaint and, consequently, it ws not necessary for the trial Judge to examine the same. | 1 | 7,699 | 1,317 | ### Instruction:
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the Companies Act cannot be visited upon respondent No. 1. We are unable to find any merit in this submission for more than one reason. In the first instance, we do not read the order of Delhi High Court as suspending the order of conviction and, secondly, even assuming it to be so, in our judgment, the Delhi High Court had no power to suspend the order of conviction. In any event, while determining whether respondent No. 1 is disqualified to hold the post of Managing Director under Section 267 of the Companies Act, it is entirely immaterial what Delhi High Court contemplated while passing such order. The consequences flowing from the provisions of Section 267 of the Companies Act do not depend upon the passing of the order by Delhi High Court. The right of respondent No. 1 to hold the post of Managing Director comes to an end the moment the order of conviction is recorded. Mr. Cooper then urged that the appellant had earlier filed Company Petition No. 681 of 1990 in this Court to challenge the appointment of respondent No. 1 as Managing Director on the ground of conviction recorded by Additional Sessions Judge but subsequently that petition was withdrawn. Identical grievance made in petition No. 10 of 1991 filed before the Company Law board ended in consent terms filed by the parties and where the appellant accepted that respondent No. 1 can validly hold the post of Managing Director in spite of conviction. Mr. Cooper submitted that in view of the conduct of the appellant in filing consent terms before the company Law Board, it is not open for the appellant now to claim that respondent No. 1 ceases to be Managing Director because of conviction. The submission was countered by Mr. Sibal by urging that the doctrine of estoppel cannot be attracted when there is violation of the statutory provisions. The submission is correct and the respondent No. 1 cannot avoid the consequences of the provisions of Section 267 of the Companies Act merely because the parties had earlier filed consent terms. It is necessary to note that the provisions of the Companies Act are enacted by taking into consideration the public interest and not only the interest of the shareholders or the Directors of the company. It was also urged that the order passed by the learned Single Judge on notice of motion taken out by respondent Nos. 1 to 3 is at the interlocutory stage and should not be disturbed in appeal. We are unable to accede to the submission because even at the interlocutory stage the matter was extensively debated and the decision which affects not only the shareholders but the public at lage cannot be permitted to operate when found erroneous. ( 14 ) FINALLY, Mr. Cooper urged that respondent Nos. 1 to 3 had not specifically asked for any final relief in the suit in regard to the interim injunction sought against the appellant and respondent No. 5 restraining them from obstructing or interfering with the respondent No. 1s functioning as Chariman and Managing Director of the company. Mr. Cooper submitted that the issue as to whether the respondent No. 1 can function as Chariman and Managing Director does not arise on the strength of the averments made in the plaint and, consequently, it ws not necessary for the trial Judge to examine the same. The submission is obviously one of despertion and cannot be accepted. In the first instance, the pleadings in paragraph 22 of the plaint clearly indicate that respondent No. 1 was knen to secure a declaration that he is entitled to function as chariman and Managing Director of the company. Secondly, in case the issue does not arise on the basis averments in the plaint, then respondent No. 1 need not have sought interim relief of injunction restraining the appellant and respondent No. 5 from obstructing respondent No. 1 in functioning as Chariman and Managing Director of the company. The mere persual of prayer (e)of the plaint and prayer (b) of the notice of motion leaves no manner of doubt that respondent no. 1 was very keen to secure a declaration of his status to function as Managing Director of the company. It also cannot be overlooked that it is futile for respondent No. 1 now to claim that the issue as to whether respondent No. 1 is entitled to function as Managing Director does not arise when the respondent No. 1 argued the matter extensively before the learned Single Judge and the learned Single Judge framed specific point for determination on this aspect. A persual of the prayers in the plaint leaves no manner of doubt that respondent No. 1 was keen to secure a declaration of his legal status as Chairman and Managing Director of the company and, therefore, it is too late in the day now to claim that the learned Single Judge should not have examined the issue. Mr. Cooper also urged that prayer (e) in the plaint should be read as seeking an injunction restraining the appellant from obstructing or interfering with the funcntion of respondent No. 1 as Chairman and Managing Director of the company in pursuance of the resolution alleged to have been passed on July 13, 1992. Again, the submission is one of desperation because such is not the object of making the prayer in the plaint nor in the notice and such a relief was already covered by prayer (d) of the plaint and prayer (a) of the notice of motion. In our judgment, the respondent No. 1 now cannot avoid the consequences of the decision which was invited in the trial Court. In our judgment, the learned Single Judge was in error in granting relief in terms of prayers (b) of the notice of motion. As the relief granted in the terms of prayer (a) of the notice of motion is not challenged by the appellant as mentioned hereinabove, the same need not be disturbed.
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not automatically disqualify the Director of a company from holding the post, in case where appeal is preferred within stipulated period of limitation or where the Central Government exempts such person or the company from disqualification. Section 8 of the Representation of the People Act, 1951, provides that the disqualification shall not take effect until three months have elapsed from the date of conviction or, if an appeal or revision application against the order of conviction is preferred, then until that appeal or application is disposed of by the Court. Section 11 of the representation of the People Act confers power upon the Election Commission to remove any disqualification or reduce the period of such disqualification. It is, therefore, obvious that whenever the Legislature thought it fit, statutory provisions were made to lessen the rigour of the consequences of recording of conviction. The Legislature, in its wisdom, did not make any such provision under Section 267 of the Companies Act when conviction in recorded against a person who is Managing Director. In our judgment, it is not permissible for the Appellate Court which entertains the appeal against the order of conviction to suspend the order of conviction and the only power available under Section 389 (1) of the Code of Criminal Procedure is to suspend the execution of the sentence of the order and which expression does not includeany event, it is not for the Criminal Appellate Court hearing an appeal to decide what are the ends of justice in respect of enforcement of provisions of some other statutes. The powers of the appellate Court flow from the provisions of the Code and we are not prepared to accept the contention that the Appellate Court hearing the criminal appeal should pass orders to avoid consequences flowing from the provisions of statutes like Companies Act or Representation of the People Act. Such other statutes have taken care of the consequences which flow from the order of conviction recorded by the Criminal Court. In our judgment, the provisions of Section 482, of the Code of Criminal Procedure are not at all attracted to claim that order of conviction can be suspended by an order of thethe case before the division Bench, the accused were convicted under the provisions of Anti Corruption Act by the special Court and the accused had preferred appeals. The appeal was admitted and the Single judge not only granted bail but suspended the operation of the judgment with the result that the accused claimed reinstatement into service and succeeded in that claim. Application was then filed on behalf of the prosecution for revocation order of suspension of conviction and reliance was placed on the decision of a Single Judge to the effect that there is no power to suspend the order of conviction. The application was referred to the Division Bench and the Division Bench held that the two expressions "judgment" and "order" under the Code of Criminal Procedure have to be understood in the context in which they are employed. An order of conviction is a part of the judgment and the same is followed by a sentence. The Division Bench further held that the code has nowhere defined the expressions "judgment" or "order" and once it is accepted that a convicted person in his appeal challenges the judgment as such, pronounced against him by a criminal Court, it is axiomatic that he can ask for suspension of execution of the sentence, if there is a sentence. It was further held that the accused can as well ask for suspension of the operation of the conviction which is a part of the judgment, if that become necessary in a given case. The Division Bench then observed that conviction is only a declaration declaring that the accused person is convicted of the offence or offences proved against him and the same can be set aside only by the Appellate Court. The Division Bench held that the Code provides for suspension of the rigour of the judgment passed by the trial Court pending disposal of thethe first instance, we do not read the order of Delhi High Court as suspending the order of conviction and, secondly, even assuming it to be so, in our judgment, the Delhi High Court had no power to suspend the order of conviction. In any event, while determining whether respondent No. 1 is disqualified to hold the post of Managing Director under Section 267 of the Companies Act, it is entirely immaterial what Delhi High Court contemplated while passing such order. The consequences flowing from the provisions of Section 267 of the Companies Act do not depend upon the passing of the order by Delhi High Court. The right of respondent No. 1 to hold the post of Managing Director comes to an end the moment the order of conviction is recorded. Mr. Cooper then urged that the appellant had earlier filed Company Petition No. 681 of 1990 in this Court to challenge the appointment of respondent No. 1 as Managing Director on the ground of conviction recorded by Additional Sessions Judge but subsequently that petition was withdrawn. Identical grievance made in petition No. 10 of 1991 filed before the Company Law board ended in consent terms filed by the parties and where the appellant accepted that respondent No. 1 can validly hold the post of Managing Director in spite of4 ) FINALLY, Mr. Cooper urged that respondent Nos. 1 to 3 had not specifically asked for any final relief in the suit in regard to the interim injunction sought against the appellant and respondent No. 5 restraining them from obstructing or interfering with the respondent No. 1s functioning as Chariman and Managing Director of the company. Mr. Cooper submitted that the issue as to whether the respondent No. 1 can function as Chariman and Managing Director does not arise on the strength of the averments made in the plaint and, consequently, it ws not necessary for the trial Judge to examine the same.
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State Of Jharkhand Vs. M/S Cwe-Soma Consortium | not justified to sit in judgment over the decision of tender Committee and substitute its opinion on the cancellation of tender. Decision of the state issuing tender notice to cancel the tender and invite fresh tenders could not have been interfered with by the High Court unless found to be mala fide or arbitrary. When the authority took a decision to cancel the tender due to lack of adequate competition and in order to make it more competitive, it decided to invite fresh tenders, it cannot be said that there is any mala fide or want of bona fide in such decision. While exercising judicial review in the matter of government contracts, the primary concern of the court is to see whether there is any infirmity in the decision-making process or whether it is vitiated by mala fide, unreasonableness or arbitrariness. 19. Observing that while exercising power of judicial review, court does not sit as appellate court over the decision of the government but merely reviews the manner in which the decision was made, in Tata Cellular v. Union of India (1994) 6 SCC 651 , in para (70) it was held as under:- “70. It cannot be denied that the principles of judicial review would apply to the exercise of contractual powers by Government bodies in order to prevent arbitrariness or favouritism, However, it must be clearly stated that there are inherent limitations in exercise of that power of judicial review. Government is the guardian of the finances of the State. It is expected to protect the financial interest of the State. The right to refuse the lowest or any other tender is always available to the Government. But, the principles laid down in Article 14 of the Constitution have to be kept in view while accepting or refusing a tender. There can be no question of infringement of Article 14 if the Government tries to get the best person or the best quotation. The right to choose cannot be considered to be an arbitrary power. Of course, if the said power is exercised for any collateral purpose the exercise of that power will be struck down.” 20. The government must have freedom of contract. In Master Marine Services (P) Ltd. v. Metcalfe & Hodgkinson (P) Ltd. and Anr. (2005) 6 SCC 138 , in para (12) this Court held as under:- “12. After an exhaustive consideration of a large number of decisions and standard books on administrative law, the Court enunciated the principle that the modern trend points to judicial restraint in administrative action. The court does not sit as a court of appeal but merely reviews the manner in which the decision was made. The court does not have the expertise to correct the administrative decision. If a review of the administrative decision is permitted it will be substituting its own decision, without the necessary expertise, which itself may be fallible. The Government must have freedom of contract. In other words, fair play in the joints is a necessary concomitant for an administrative body functioning in an administrative sphere or quasi-administrative sphere. However, the decision must not only be tested by the application of Wednesbury principles of reasonableness but also must be free from arbitrariness not affected by bias or actuated by mala fides. It was also pointed out that quashing decisions may impose heavy administrative burden on the administration and lead to increased and unbudgeted expenditure. (See para 113 of the Report, SCC para 94.)” The court does not have the expertise to correct the administrative decision as held in Laxmikant and Ors. v. Satyawan and Ors. (1996) 4 SCC 208 , the government must have freedom of contract. 21. The right to refuse the lowest or any other tender is always available to the government. In the case in hand, the respondent has neither pleaded nor established mala fide exercise of power by the appellant. While so, the decision of tender committee ought not to have been interfered with by the High Court. In our considered view, the High Court erred in sitting in appeal over the decision of the appellant to cancel the tender and float a fresh tender. Equally, the High Court was not right in going into the financial implication of a fresh tender.22. Having addressed the correctness of reasonings recorded by the High Court, it is important to note one further aspect. When the SLP came up for hearing, by an order dated 10.08.2015, while granting interim stay on the operation of the impugned judgment, this Court directed that the appellants shall be free to invite fresh tenders and process the same, but no allotment shall be made without permission of this Court. The appellant-state has filed an additional document stating that about 20,421.43 acre of land is to be acquired under the “Right to Fair Compensation and Transparency in Land Acquisition Rehabilitation and Resettlement Act, 2013” which came into force on 01.01.2014. Section 41 of the said Act states that no acquisition of land as far as possible could be made in the Scheduled Area. If it is necessary, it should be done only as per last resort. It also states that land in Scheduled Areas can only be acquired with the prior consent of Gram Sabha or Panchayats or the autonomous District Councils. The learned Attorney General submitted that the entire sub-mergence area of the proposed Icha Dam is in the scheduled area and the remaining land for Icha Dam can be acquired only with the prior consent of the Gram Sabha of the affected villages. It is further stated that the issue was discussed in the meeting of Tribal Advisory Council held on 27.09.2014 and that Tribal Advisory Council and the sub-committee opined that the construction of Icha-Kharkai Dam may be cancelled. Learned Attorney General therefore submitted that there are some issues which need to be resolved before floating a fresh tender of Icha dam. The impugned judgment of the High Court is liable to be set aside. | 1[ds]21. The right to refuse the lowest or any other tender is always available to the government. In the case in hand, the respondent has neither pleaded nor established mala fide exercise of power by the appellant. While so, the decision of tender committee ought not to have been interfered with by the High Court. In our considered view, the High Court erred in sitting in appeal over the decision of the appellant to cancel the tender and float a fresh tender. Equally, the High Court was not right in going into the financial implication of a fresh tender.22. Having addressed the correctness of reasonings recorded by the High Court, it is important to note one further aspect. When the SLP came up for hearing, by an order dated 10.08.2015, while granting interim stay on the operation of the impugned judgment, this Court directed that the appellants shall be free to invite fresh tenders and process the same, but no allotment shall be made without permission of this Court. The appellant-state has filed an additional document stating that about 20,421.43 acre of land is to be acquired under theto Fair Compensation and Transparency in Land Acquisition Rehabilitation and Resettlement Act,which came into force on 01.01.2014. Section 41 of the said Act states that no acquisition of land as far as possible could be made in the Scheduled Area. If it is necessary, it should be done only as per last resort. It also states that land in Scheduled Areas can only be acquired with the prior consent of Gram Sabha or Panchayats or the autonomous DistrictThe impugned judgment of the High Court is liable to be set | 1 | 4,401 | 304 | ### 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:
not justified to sit in judgment over the decision of tender Committee and substitute its opinion on the cancellation of tender. Decision of the state issuing tender notice to cancel the tender and invite fresh tenders could not have been interfered with by the High Court unless found to be mala fide or arbitrary. When the authority took a decision to cancel the tender due to lack of adequate competition and in order to make it more competitive, it decided to invite fresh tenders, it cannot be said that there is any mala fide or want of bona fide in such decision. While exercising judicial review in the matter of government contracts, the primary concern of the court is to see whether there is any infirmity in the decision-making process or whether it is vitiated by mala fide, unreasonableness or arbitrariness. 19. Observing that while exercising power of judicial review, court does not sit as appellate court over the decision of the government but merely reviews the manner in which the decision was made, in Tata Cellular v. Union of India (1994) 6 SCC 651 , in para (70) it was held as under:- “70. It cannot be denied that the principles of judicial review would apply to the exercise of contractual powers by Government bodies in order to prevent arbitrariness or favouritism, However, it must be clearly stated that there are inherent limitations in exercise of that power of judicial review. Government is the guardian of the finances of the State. It is expected to protect the financial interest of the State. The right to refuse the lowest or any other tender is always available to the Government. But, the principles laid down in Article 14 of the Constitution have to be kept in view while accepting or refusing a tender. There can be no question of infringement of Article 14 if the Government tries to get the best person or the best quotation. The right to choose cannot be considered to be an arbitrary power. Of course, if the said power is exercised for any collateral purpose the exercise of that power will be struck down.” 20. The government must have freedom of contract. In Master Marine Services (P) Ltd. v. Metcalfe & Hodgkinson (P) Ltd. and Anr. (2005) 6 SCC 138 , in para (12) this Court held as under:- “12. After an exhaustive consideration of a large number of decisions and standard books on administrative law, the Court enunciated the principle that the modern trend points to judicial restraint in administrative action. The court does not sit as a court of appeal but merely reviews the manner in which the decision was made. The court does not have the expertise to correct the administrative decision. If a review of the administrative decision is permitted it will be substituting its own decision, without the necessary expertise, which itself may be fallible. The Government must have freedom of contract. In other words, fair play in the joints is a necessary concomitant for an administrative body functioning in an administrative sphere or quasi-administrative sphere. However, the decision must not only be tested by the application of Wednesbury principles of reasonableness but also must be free from arbitrariness not affected by bias or actuated by mala fides. It was also pointed out that quashing decisions may impose heavy administrative burden on the administration and lead to increased and unbudgeted expenditure. (See para 113 of the Report, SCC para 94.)” The court does not have the expertise to correct the administrative decision as held in Laxmikant and Ors. v. Satyawan and Ors. (1996) 4 SCC 208 , the government must have freedom of contract. 21. The right to refuse the lowest or any other tender is always available to the government. In the case in hand, the respondent has neither pleaded nor established mala fide exercise of power by the appellant. While so, the decision of tender committee ought not to have been interfered with by the High Court. In our considered view, the High Court erred in sitting in appeal over the decision of the appellant to cancel the tender and float a fresh tender. Equally, the High Court was not right in going into the financial implication of a fresh tender.22. Having addressed the correctness of reasonings recorded by the High Court, it is important to note one further aspect. When the SLP came up for hearing, by an order dated 10.08.2015, while granting interim stay on the operation of the impugned judgment, this Court directed that the appellants shall be free to invite fresh tenders and process the same, but no allotment shall be made without permission of this Court. The appellant-state has filed an additional document stating that about 20,421.43 acre of land is to be acquired under the “Right to Fair Compensation and Transparency in Land Acquisition Rehabilitation and Resettlement Act, 2013” which came into force on 01.01.2014. Section 41 of the said Act states that no acquisition of land as far as possible could be made in the Scheduled Area. If it is necessary, it should be done only as per last resort. It also states that land in Scheduled Areas can only be acquired with the prior consent of Gram Sabha or Panchayats or the autonomous District Councils. The learned Attorney General submitted that the entire sub-mergence area of the proposed Icha Dam is in the scheduled area and the remaining land for Icha Dam can be acquired only with the prior consent of the Gram Sabha of the affected villages. It is further stated that the issue was discussed in the meeting of Tribal Advisory Council held on 27.09.2014 and that Tribal Advisory Council and the sub-committee opined that the construction of Icha-Kharkai Dam may be cancelled. Learned Attorney General therefore submitted that there are some issues which need to be resolved before floating a fresh tender of Icha dam. The impugned judgment of the High Court is liable to be set aside.
### Response:
1
### Explanation:
21. The right to refuse the lowest or any other tender is always available to the government. In the case in hand, the respondent has neither pleaded nor established mala fide exercise of power by the appellant. While so, the decision of tender committee ought not to have been interfered with by the High Court. In our considered view, the High Court erred in sitting in appeal over the decision of the appellant to cancel the tender and float a fresh tender. Equally, the High Court was not right in going into the financial implication of a fresh tender.22. Having addressed the correctness of reasonings recorded by the High Court, it is important to note one further aspect. When the SLP came up for hearing, by an order dated 10.08.2015, while granting interim stay on the operation of the impugned judgment, this Court directed that the appellants shall be free to invite fresh tenders and process the same, but no allotment shall be made without permission of this Court. The appellant-state has filed an additional document stating that about 20,421.43 acre of land is to be acquired under theto Fair Compensation and Transparency in Land Acquisition Rehabilitation and Resettlement Act,which came into force on 01.01.2014. Section 41 of the said Act states that no acquisition of land as far as possible could be made in the Scheduled Area. If it is necessary, it should be done only as per last resort. It also states that land in Scheduled Areas can only be acquired with the prior consent of Gram Sabha or Panchayats or the autonomous DistrictThe impugned judgment of the High Court is liable to be set
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State Of Punjab & Anr Vs. M/S. Bajaj Electricals Ltd | Shah, J.1. The respondent-a Join Stock Company-has its principal place of business in Bombay, and a branch office in New Delhi. The Assessing Authority, Karnal, exercising power under the Punjab Professions, Trades, Callings and Employments Taxation Act 7 of 1956, assessed the respondent to profession tax for the years l960-61 and 1961-62 and issued a notice of demand for the amount so assessed. The High Court of Punjab quashed the notices of demand and the assessment orders holding that the respondent did not carry on trade within the State of Punjab and was not liable to be assessed to tax under the Act. The State of Punjab has appealed to this Court against the order of the High Court.2. Section 3 of Act 7 of 1956 provides :"Every person who carries on trade, either by himself or by an agent or representative, or who follows a profession or calling or who is in employment, either wholly or in part, within the State of Punjab, shall be liable to pay for each financial year or a par thereof a tax in respect of such profession, trade calling or employment.Provided * * * * "The respondent, it is common ground, has no branch office or any other place of business in the State of Punjab. It has also not appointed any agent or representative to carry on business on its behalf within the State. The respondent supplies goods to the Government of Punjab and certain "semi Government bodies" in the State in execution of orders received at its branch office at Delhi. The goods are despatched from Delhi by rail or by public motor transport. Pursuant to the terms and conditions of the "Rate Contract" between the respondent and the Controller of Stores for the State of Punjab, the respondent consigns the goods sold by it to the appropriate Government Department F. O. R. destination. Inspection of the goods is made within the State of Punjab. The price for the goods sold is collected by presenting bills or railway receipts through Banks to the consignees.3. The Assessing Authority held that the respondent" may reasonably be regarded as selling goods within" the State of Punjab because it was supplying goods F. O. R. destination. The High Court held that the respondent could not in law be regarded as carrying on trade at the place at which the goods were supplied, merely because the railway or other receipts were taken out in the name of the respondent and presented to the purchasers duly endorsed in their favour to secure realization of the price of the goods.4. Liability to pay tax under Act 7 of 1956 arises if a person carries on trade by himself, or through his agent, or follows a profession or is in employment within the State, and not otherwise. The expression "trade" is not defined in the Act. "Trade" in its primary meaning is the exchanging of goods for goods or goods for money; in its secondary meaning, it is repeated activity in the nature of business carried on with a profit motive, the activity being manual or mercantile, as distinguished from the liberal arts or learned professions or agriculture.The question whether trade is carried on by a person at a given place must be determined on a consideration of all the circumstances. No test or set of tests which is or are decisive for all cases can be evolved for determining whether a person carries on trade at a particular place. The question, though one of mixed law and fact, must in each case he determined on a consideration of the nature of the trade, the various steps taken for carrying on the trade and other relevant facts.5. In the present case, the respondent has no shop or office within the State of Punjab. The respondent supplies goods within the State pursuant to orders received and accepted at New Delhi, and also receives price for the goods within the State. But these are ancillary activities and do not in our judgment amount to carrying on trade within the State of Punjab.We need not refer in detail to cases such as Grainger and Son v. Gough (Surveyor of Taxes), (1896) Tax Cas 462 (464); F. L. Smidth and Co. v. F. Greenwood (Surveyor of Taxes), (1922) 8 Tax Cas 193: and Firestone Tyre and Rubber Co. Ltd. v Llewellin, (1957) 37 Tax Cas 111 which interpret the expression "trade exercised within the United Kingdom" in the English Income-tax Acts, for they merely lay down that for the purpose of the Income Tax Acts, there is no single decisive or crucial test to determine whether the taxpayer exercises trade at a given place. | 0[ds]The question, though one of mixed law and fact, must in each case he determined on a consideration of the nature of the trade, the various steps taken for carrying on the trade and other relevant facts.5. In the present case, the respondent has no shop or office within the State of Punjab. The respondent supplies goods within the State pursuant to orders received and accepted at New Delhi, and also receives price for the goods within the State. But these are ancillary activities and do not in our judgment amount to carrying on trade within the State of Punjab.We need not refer in detail to cases such as Graingerand Son v. Gough (Surveyor of Taxes), (1896) Tax Cas 462L. Smidth and Co. v. F. Greenwood (Surveyor of Taxes), (1922) 8 Tax Casne Tyre and Rubber Co. Ltd. v Llewellin, (1957) 37 Tax Cas111 which interpret the expression "trade exercised within the United Kingdom" in the English Income-tax Acts, for they merely lay down that for the purpose of the Income Tax Acts, there is no single decisive or crucial test to determine whether the taxpayer exercises trade at a given place.Liability to pay tax under Act 7 of 1956 arises if a person carries on trade by himself, or through his agent, or follows a profession or is in employment within the State, and not otherwise. The expression "trade" is not defined in the Act. "Trade" in its primary meaning is the exchanging of goods for goods or goods for money; in its secondary meaning, it is repeated activity in the nature of business carried on with a profit motive, the activity being manual or mercantile, as distinguished from the liberal arts or learned professions or agriculture.The question whether trade is carried on by a person at a given place must be determined on a consideration of all the circumstances. No test or set of tests which is or are decisive for all cases can be evolved for determining whether a person carries on trade at a particular place.The question, though one of mixed law and fact, must in each case he determined on a consideration of the nature of the trade, the various steps taken for carrying on the trade and other relevant facts. | 0 | 866 | 424 | ### 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:
Shah, J.1. The respondent-a Join Stock Company-has its principal place of business in Bombay, and a branch office in New Delhi. The Assessing Authority, Karnal, exercising power under the Punjab Professions, Trades, Callings and Employments Taxation Act 7 of 1956, assessed the respondent to profession tax for the years l960-61 and 1961-62 and issued a notice of demand for the amount so assessed. The High Court of Punjab quashed the notices of demand and the assessment orders holding that the respondent did not carry on trade within the State of Punjab and was not liable to be assessed to tax under the Act. The State of Punjab has appealed to this Court against the order of the High Court.2. Section 3 of Act 7 of 1956 provides :"Every person who carries on trade, either by himself or by an agent or representative, or who follows a profession or calling or who is in employment, either wholly or in part, within the State of Punjab, shall be liable to pay for each financial year or a par thereof a tax in respect of such profession, trade calling or employment.Provided * * * * "The respondent, it is common ground, has no branch office or any other place of business in the State of Punjab. It has also not appointed any agent or representative to carry on business on its behalf within the State. The respondent supplies goods to the Government of Punjab and certain "semi Government bodies" in the State in execution of orders received at its branch office at Delhi. The goods are despatched from Delhi by rail or by public motor transport. Pursuant to the terms and conditions of the "Rate Contract" between the respondent and the Controller of Stores for the State of Punjab, the respondent consigns the goods sold by it to the appropriate Government Department F. O. R. destination. Inspection of the goods is made within the State of Punjab. The price for the goods sold is collected by presenting bills or railway receipts through Banks to the consignees.3. The Assessing Authority held that the respondent" may reasonably be regarded as selling goods within" the State of Punjab because it was supplying goods F. O. R. destination. The High Court held that the respondent could not in law be regarded as carrying on trade at the place at which the goods were supplied, merely because the railway or other receipts were taken out in the name of the respondent and presented to the purchasers duly endorsed in their favour to secure realization of the price of the goods.4. Liability to pay tax under Act 7 of 1956 arises if a person carries on trade by himself, or through his agent, or follows a profession or is in employment within the State, and not otherwise. The expression "trade" is not defined in the Act. "Trade" in its primary meaning is the exchanging of goods for goods or goods for money; in its secondary meaning, it is repeated activity in the nature of business carried on with a profit motive, the activity being manual or mercantile, as distinguished from the liberal arts or learned professions or agriculture.The question whether trade is carried on by a person at a given place must be determined on a consideration of all the circumstances. No test or set of tests which is or are decisive for all cases can be evolved for determining whether a person carries on trade at a particular place. The question, though one of mixed law and fact, must in each case he determined on a consideration of the nature of the trade, the various steps taken for carrying on the trade and other relevant facts.5. In the present case, the respondent has no shop or office within the State of Punjab. The respondent supplies goods within the State pursuant to orders received and accepted at New Delhi, and also receives price for the goods within the State. But these are ancillary activities and do not in our judgment amount to carrying on trade within the State of Punjab.We need not refer in detail to cases such as Grainger and Son v. Gough (Surveyor of Taxes), (1896) Tax Cas 462 (464); F. L. Smidth and Co. v. F. Greenwood (Surveyor of Taxes), (1922) 8 Tax Cas 193: and Firestone Tyre and Rubber Co. Ltd. v Llewellin, (1957) 37 Tax Cas 111 which interpret the expression "trade exercised within the United Kingdom" in the English Income-tax Acts, for they merely lay down that for the purpose of the Income Tax Acts, there is no single decisive or crucial test to determine whether the taxpayer exercises trade at a given place.
### Response:
0
### Explanation:
The question, though one of mixed law and fact, must in each case he determined on a consideration of the nature of the trade, the various steps taken for carrying on the trade and other relevant facts.5. In the present case, the respondent has no shop or office within the State of Punjab. The respondent supplies goods within the State pursuant to orders received and accepted at New Delhi, and also receives price for the goods within the State. But these are ancillary activities and do not in our judgment amount to carrying on trade within the State of Punjab.We need not refer in detail to cases such as Graingerand Son v. Gough (Surveyor of Taxes), (1896) Tax Cas 462L. Smidth and Co. v. F. Greenwood (Surveyor of Taxes), (1922) 8 Tax Casne Tyre and Rubber Co. Ltd. v Llewellin, (1957) 37 Tax Cas111 which interpret the expression "trade exercised within the United Kingdom" in the English Income-tax Acts, for they merely lay down that for the purpose of the Income Tax Acts, there is no single decisive or crucial test to determine whether the taxpayer exercises trade at a given place.Liability to pay tax under Act 7 of 1956 arises if a person carries on trade by himself, or through his agent, or follows a profession or is in employment within the State, and not otherwise. The expression "trade" is not defined in the Act. "Trade" in its primary meaning is the exchanging of goods for goods or goods for money; in its secondary meaning, it is repeated activity in the nature of business carried on with a profit motive, the activity being manual or mercantile, as distinguished from the liberal arts or learned professions or agriculture.The question whether trade is carried on by a person at a given place must be determined on a consideration of all the circumstances. No test or set of tests which is or are decisive for all cases can be evolved for determining whether a person carries on trade at a particular place.The question, though one of mixed law and fact, must in each case he determined on a consideration of the nature of the trade, the various steps taken for carrying on the trade and other relevant facts.
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JHARKHAND STATE ELECTRICITY BOARD AND OTHERS Vs. M/S RAMKRISHNA FORGING LIMITED | of the supply of energy (4000KVA w.e.f. 12.07.2007). The consumer may determine this agreement with effect from any date after the said period on giving to the Board not less than twelve calendar months previous notice (this has charged not less than 6 Month Notice vide Secretary, Jharkhand State Electricity Board Notification No.5058 dated 20.08.2002) in writing in that behalf and upon the expiration of the period of such notice. This agreement shall cease and determine without prejudice to any right which then have accrued to the Board herewith provided always that the consumers may at any time with the previous consent of the Board transfer and assign this agreement to any other person and upon subscription of such transfer, this agreement shall be binding on the transferee and Board and take effect in all respects as if transferee had originally been party in place of the consumer who shall henceforth be discharged from all liabilities under or in respect thereof. Hence your request for reduction cannot be done as per agreement. 10. Heard learned Counsel for the parties and have carefully gone through the record. 11. From perusal of the communication dated 08.11.2007, it is clear that the application of the respondent for reduction of load has been rejected in terms of Clause 9(B) of the agreement, treating the date of commencement of the agreement to be 7/12.07.2007 and only by considering the provision of determination of the agreement, which could not have been without giving notice of less than 12 calendar months. It is clear that the said communication/order does not consider the provisions of the Regulations of 2005 with regard to reduction of load, but only treats the application for reduction of load to be an application for determination of the agreement. 12. Chapter 9 of the Regulations of 2005 deals with the enhancement and reduction of contract demand/sanctioned load. Regulation 9.1 deals with enhancement of contract demand/sanctioned load, whereas Regulation 9.2 deals with the reduction of contract demand/sanctioned load. 13. Just as the consumer has the liberty of getting its load enhanced under Regulation 9.1, the reduction of contract demand/sanctioned load can also be prayed for and decided in terms of Regulation 9.2. The proviso to Regulation 9.2.1, no doubt, provides that no reduction of load shall be allowed before expiry of the initial period of agreement, which is three years in the present case. The question would be whether the initial agreement is to be considered for such purpose, or the subsequent agreements. 14. Regulation 9.2.6 of the Regulations of 2005 provides for execution of a supplementary agreement for reduction of contract demand/sanctioned load of the consumer. Similarly, for enhancement of load also, even if a fresh agreement may have been executed between the parties, the same could be treated as nothing but a supplementary agreement of the initial agreement by which the electricity connection was granted for a particular load. Clause 2(l) of the Regulations also defines contract demand to be demand mutually agreed in the agreement or agreed through other written communication, meaning thereby that for variation of the contract demand execution of a fresh agreement is not essential and the same can be done otherwise also by mere written communication. 15. It is noteworthy that the Jharkhand State Electricity Board (the Board) is a monopoly supplier of electricity which has laid down its own terms and conditions, regarding which the consumer has no say or choice but to sign on the dotted lines, if it wants of get electricity load varied for running its industry. The Board is an instrumentality of the State. It has to be fair and reasonable. If the Regulations provide for contract load to be varied even through a written communication, then in our considered view, in all fairness, though fresh agreements may have been executed at the stage of enhancement of load of the same electricity connection, the same cannot be treated as anything but an extension/amendment or modification of the initial agreement granting the electricity connection, which in the present case would be the agreement dated 14.04.2004. On the dictates of the Board, the consumer may have been required to sign fresh agreements for each enhancement of load, but the enhancement being for the same electricity connection which still continues, it would merely be amendment of the initial agreement. This would also be in consonance with the provisions of the Regulations of 2005, which have to be liberally interpreted in favour of the consumer. 16. Reverting to the order dated 08.11.2007, which was impugned in the writ petition, we are of the opinion that the Board has gone wrong in treating the application dated 20.09.2007 of the respondent for reduction of load to be that for determination of the agreement under Clause 9B of the agreement, which application, in fact, ought to have been considered under Regulation 9.2 of the Regulations of 2005. Further, we are unable to accept the submission of the learned Counsel for the appellant that the application of the respondent for reduction of load was within the period of three years, because as we have discussed hereinabove, the agreement to be considered in the present case is the initial agreement dated 14.04.2004 and not the subsequent agreement dated 07.07.2007. 17. The judgments of this Court rendered in Bihar State Electricity Board, Patna and Others v. M/s. Green Rubber Industries and Others, (1990) 1 SCC 731 , Orissa State Electricity Board v. Orissa Tiles Limited, (1993) Supp. 3 SCC 481, Andhra Steel Corporation Ltd. and Others v. Andhra Pradesh State Electricity Board and Others, (1991) 3 SCC 263 and Jharkhand State Electricity Board & Others v Laxmi Business and Cement Company Private Limited and Another, (2014) 5 SCC 236 as have been relied upon by learned counsel for the parties, are distinguishable on facts, in as much as they all relate to minimum guarantee charge, and that too under the old Electricity Act of 1910, as is so in the first three cases. | 1[ds]5. It is noteworthy that after the initial agreement dated 14.04.2004, which came into effect from 16.04.2004 whereby the contract demand of 325 KVA was allowed in favour of the respondent, the Jharkhand State Electricity Regulatory Commission (for short, the Commission) in exercise of power conferred by Section 181(2)(x) read with Section 50 of the Electricity Act, 2003, framed the Jharkhand State Electricity Regulatory Commission (Electricity Supply Code) Regulations, 2005, which came into effect from 28.07.2005.11. From perusal of the communication dated 08.11.2007, it is clear that the application of the respondent for reduction of load has been rejected in terms of Clause 9(B) of the agreement, treating the date of commencement of the agreement to be 7/12.07.2007 and only by considering the provision of determination of the agreement, which could not have been without giving notice of less than 12 calendar months. It is clear that the said communication/order does not consider the provisions of the Regulations of 2005 with regard to reduction of load, but only treats the application for reduction of load to be an application for determination of the agreement.12. Chapter 9 of the Regulations of 2005 deals with the enhancement and reduction of contract demand/sanctioned load. Regulation 9.1 deals with enhancement of contract demand/sanctioned load, whereas Regulation 9.2 deals with the reduction of contract demand/sanctioned load.13. Just as the consumer has the liberty of getting its load enhanced under Regulation 9.1, the reduction of contract demand/sanctioned load can also be prayed for and decided in terms of Regulation 9.2. The proviso to Regulation 9.2.1, no doubt, provides that no reduction of load shall be allowed before expiry of the initial period of agreement, which is three years in the present case.15. It is noteworthy that the Jharkhand State Electricity Board (the Board) is a monopoly supplier of electricity which has laid down its own terms and conditions, regarding which the consumer has no say or choice but to sign on the dotted lines, if it wants of get electricity load varied for running its industry. The Board is an instrumentality of the State. It has to be fair and reasonable. If the Regulations provide for contract load to be varied even through a written communication, then in our considered view, in all fairness, though fresh agreements may have been executed at the stage of enhancement of load of the same electricity connection, the same cannot be treated as anything but an extension/amendment or modification of the initial agreement granting the electricity connection, which in the present case would be the agreement dated 14.04.2004. On the dictates of the Board, the consumer may have been required to sign fresh agreements for each enhancement of load, but the enhancement being for the same electricity connection which still continues, it would merely be amendment of the initial agreement. This would also be in consonance with the provisions of the Regulations of 2005, which have to be liberally interpreted in favour of the consumer.16. Reverting to the order dated 08.11.2007, which was impugned in the writ petition, we are of the opinion that the Board has gone wrong in treating the application dated 20.09.2007 of the respondent for reduction of load to be that for determination of the agreement under Clause 9B of the agreement, which application, in fact, ought to have been considered under Regulation 9.2 of the Regulations of 2005. Further, we are unable to accept the submission of the learned Counsel for the appellant that the application of the respondent for reduction of load was within the period of three years, because as we have discussed hereinabove, the agreement to be considered in the present case is the initial agreement dated 14.04.2004 and not the subsequent agreement dated 07.07.2007.17. The judgments of this Court rendered in Bihar State Electricity Board, Patna and Others v. M/s. Green Rubber Industries and Others, (1990) 1 SCC 731 , Orissa State Electricity Board v. Orissa Tiles Limited, (1993) Supp. 3 SCC 481, Andhra Steel Corporation Ltd. and Others v. Andhra Pradesh State Electricity Board and Others, (1991) 3 SCC 263 and Jharkhand State Electricity Board & Others v Laxmi Business and Cement Company Private Limited and Another, (2014) 5 SCC 236 as have been relied upon by learned counsel for the parties, are distinguishable on facts, in as much as they all relate to minimum guarantee charge, and that too under the old Electricity Act of 1910, as is so in the first three cases. | 1 | 2,944 | 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.
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of the supply of energy (4000KVA w.e.f. 12.07.2007). The consumer may determine this agreement with effect from any date after the said period on giving to the Board not less than twelve calendar months previous notice (this has charged not less than 6 Month Notice vide Secretary, Jharkhand State Electricity Board Notification No.5058 dated 20.08.2002) in writing in that behalf and upon the expiration of the period of such notice. This agreement shall cease and determine without prejudice to any right which then have accrued to the Board herewith provided always that the consumers may at any time with the previous consent of the Board transfer and assign this agreement to any other person and upon subscription of such transfer, this agreement shall be binding on the transferee and Board and take effect in all respects as if transferee had originally been party in place of the consumer who shall henceforth be discharged from all liabilities under or in respect thereof. Hence your request for reduction cannot be done as per agreement. 10. Heard learned Counsel for the parties and have carefully gone through the record. 11. From perusal of the communication dated 08.11.2007, it is clear that the application of the respondent for reduction of load has been rejected in terms of Clause 9(B) of the agreement, treating the date of commencement of the agreement to be 7/12.07.2007 and only by considering the provision of determination of the agreement, which could not have been without giving notice of less than 12 calendar months. It is clear that the said communication/order does not consider the provisions of the Regulations of 2005 with regard to reduction of load, but only treats the application for reduction of load to be an application for determination of the agreement. 12. Chapter 9 of the Regulations of 2005 deals with the enhancement and reduction of contract demand/sanctioned load. Regulation 9.1 deals with enhancement of contract demand/sanctioned load, whereas Regulation 9.2 deals with the reduction of contract demand/sanctioned load. 13. Just as the consumer has the liberty of getting its load enhanced under Regulation 9.1, the reduction of contract demand/sanctioned load can also be prayed for and decided in terms of Regulation 9.2. The proviso to Regulation 9.2.1, no doubt, provides that no reduction of load shall be allowed before expiry of the initial period of agreement, which is three years in the present case. The question would be whether the initial agreement is to be considered for such purpose, or the subsequent agreements. 14. Regulation 9.2.6 of the Regulations of 2005 provides for execution of a supplementary agreement for reduction of contract demand/sanctioned load of the consumer. Similarly, for enhancement of load also, even if a fresh agreement may have been executed between the parties, the same could be treated as nothing but a supplementary agreement of the initial agreement by which the electricity connection was granted for a particular load. Clause 2(l) of the Regulations also defines contract demand to be demand mutually agreed in the agreement or agreed through other written communication, meaning thereby that for variation of the contract demand execution of a fresh agreement is not essential and the same can be done otherwise also by mere written communication. 15. It is noteworthy that the Jharkhand State Electricity Board (the Board) is a monopoly supplier of electricity which has laid down its own terms and conditions, regarding which the consumer has no say or choice but to sign on the dotted lines, if it wants of get electricity load varied for running its industry. The Board is an instrumentality of the State. It has to be fair and reasonable. If the Regulations provide for contract load to be varied even through a written communication, then in our considered view, in all fairness, though fresh agreements may have been executed at the stage of enhancement of load of the same electricity connection, the same cannot be treated as anything but an extension/amendment or modification of the initial agreement granting the electricity connection, which in the present case would be the agreement dated 14.04.2004. On the dictates of the Board, the consumer may have been required to sign fresh agreements for each enhancement of load, but the enhancement being for the same electricity connection which still continues, it would merely be amendment of the initial agreement. This would also be in consonance with the provisions of the Regulations of 2005, which have to be liberally interpreted in favour of the consumer. 16. Reverting to the order dated 08.11.2007, which was impugned in the writ petition, we are of the opinion that the Board has gone wrong in treating the application dated 20.09.2007 of the respondent for reduction of load to be that for determination of the agreement under Clause 9B of the agreement, which application, in fact, ought to have been considered under Regulation 9.2 of the Regulations of 2005. Further, we are unable to accept the submission of the learned Counsel for the appellant that the application of the respondent for reduction of load was within the period of three years, because as we have discussed hereinabove, the agreement to be considered in the present case is the initial agreement dated 14.04.2004 and not the subsequent agreement dated 07.07.2007. 17. The judgments of this Court rendered in Bihar State Electricity Board, Patna and Others v. M/s. Green Rubber Industries and Others, (1990) 1 SCC 731 , Orissa State Electricity Board v. Orissa Tiles Limited, (1993) Supp. 3 SCC 481, Andhra Steel Corporation Ltd. and Others v. Andhra Pradesh State Electricity Board and Others, (1991) 3 SCC 263 and Jharkhand State Electricity Board & Others v Laxmi Business and Cement Company Private Limited and Another, (2014) 5 SCC 236 as have been relied upon by learned counsel for the parties, are distinguishable on facts, in as much as they all relate to minimum guarantee charge, and that too under the old Electricity Act of 1910, as is so in the first three cases.
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5. It is noteworthy that after the initial agreement dated 14.04.2004, which came into effect from 16.04.2004 whereby the contract demand of 325 KVA was allowed in favour of the respondent, the Jharkhand State Electricity Regulatory Commission (for short, the Commission) in exercise of power conferred by Section 181(2)(x) read with Section 50 of the Electricity Act, 2003, framed the Jharkhand State Electricity Regulatory Commission (Electricity Supply Code) Regulations, 2005, which came into effect from 28.07.2005.11. From perusal of the communication dated 08.11.2007, it is clear that the application of the respondent for reduction of load has been rejected in terms of Clause 9(B) of the agreement, treating the date of commencement of the agreement to be 7/12.07.2007 and only by considering the provision of determination of the agreement, which could not have been without giving notice of less than 12 calendar months. It is clear that the said communication/order does not consider the provisions of the Regulations of 2005 with regard to reduction of load, but only treats the application for reduction of load to be an application for determination of the agreement.12. Chapter 9 of the Regulations of 2005 deals with the enhancement and reduction of contract demand/sanctioned load. Regulation 9.1 deals with enhancement of contract demand/sanctioned load, whereas Regulation 9.2 deals with the reduction of contract demand/sanctioned load.13. Just as the consumer has the liberty of getting its load enhanced under Regulation 9.1, the reduction of contract demand/sanctioned load can also be prayed for and decided in terms of Regulation 9.2. The proviso to Regulation 9.2.1, no doubt, provides that no reduction of load shall be allowed before expiry of the initial period of agreement, which is three years in the present case.15. It is noteworthy that the Jharkhand State Electricity Board (the Board) is a monopoly supplier of electricity which has laid down its own terms and conditions, regarding which the consumer has no say or choice but to sign on the dotted lines, if it wants of get electricity load varied for running its industry. The Board is an instrumentality of the State. It has to be fair and reasonable. If the Regulations provide for contract load to be varied even through a written communication, then in our considered view, in all fairness, though fresh agreements may have been executed at the stage of enhancement of load of the same electricity connection, the same cannot be treated as anything but an extension/amendment or modification of the initial agreement granting the electricity connection, which in the present case would be the agreement dated 14.04.2004. On the dictates of the Board, the consumer may have been required to sign fresh agreements for each enhancement of load, but the enhancement being for the same electricity connection which still continues, it would merely be amendment of the initial agreement. This would also be in consonance with the provisions of the Regulations of 2005, which have to be liberally interpreted in favour of the consumer.16. Reverting to the order dated 08.11.2007, which was impugned in the writ petition, we are of the opinion that the Board has gone wrong in treating the application dated 20.09.2007 of the respondent for reduction of load to be that for determination of the agreement under Clause 9B of the agreement, which application, in fact, ought to have been considered under Regulation 9.2 of the Regulations of 2005. Further, we are unable to accept the submission of the learned Counsel for the appellant that the application of the respondent for reduction of load was within the period of three years, because as we have discussed hereinabove, the agreement to be considered in the present case is the initial agreement dated 14.04.2004 and not the subsequent agreement dated 07.07.2007.17. The judgments of this Court rendered in Bihar State Electricity Board, Patna and Others v. M/s. Green Rubber Industries and Others, (1990) 1 SCC 731 , Orissa State Electricity Board v. Orissa Tiles Limited, (1993) Supp. 3 SCC 481, Andhra Steel Corporation Ltd. and Others v. Andhra Pradesh State Electricity Board and Others, (1991) 3 SCC 263 and Jharkhand State Electricity Board & Others v Laxmi Business and Cement Company Private Limited and Another, (2014) 5 SCC 236 as have been relied upon by learned counsel for the parties, are distinguishable on facts, in as much as they all relate to minimum guarantee charge, and that too under the old Electricity Act of 1910, as is so in the first three cases.
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Kuldip Singh & Others Vs. Surjau Sing & Others | which the views expressed by this Court in the earlier three cases were considered. The Court, after considering the meaning given to the words "possessed" and possession" in Strouds Judicial Dictionary of Words and Phrases, Vol. 3. and Whartons Law Lexicon, 14th Ed., held, "It appears to us that the expression used in Section 14(1) of the Act was intended to cover cases of possession in law also, where lands may have descended to a female Hindu and she has not actually entered into them. It would, of course, cover the other cases of actual or constructive possession. On the language of Section 14(1), therefore, we hold that this provision will become applicable to any property which is owned by a female Hindu, even though she is not in actual, physical or constructive possession of that property." The Court then referred to the decision in the case of Gummala Pura Taggina Matada Kot trusrewami, (1959) Supp1 1. S.C.R. 968 (supra) and agreed with the earlier decision. that "possessed" in Section 14 is used in a broad sense and, in the context, means that state of owning or having in ones hand. or power. On further reference to the decision of this Court in Brahamdeo Singh, C. A. No. 51 of 1964 decided on 6.4.1967. (supra), the Court held, "It was thus made clear in that case that the property was held not to be possessed by the widow, because, the alienation made by her being binding on her, she had no longer any legal right left in that property even in the sense of being in the state of owning it. The case, thus, explains why, in cases of alienation or a gift made by a widow, even though that alienation or gift may not be binding on a reversioner, the property will not be held to be possessed by the widow, because the alienation or the gift would be binding on her for her life time and she, at least, would not possess any such rights under which she could obtain actual, or constructive possession from her transferee or donee. Having completely parted with her legal rights, in the property, she could not be said to be possessed of that property any longer. From the decision of this Court in" Eramma v. Varupana and others (Supra) the inference drawn was, expressed as follows : "This case also, thus, clarifies that the expression "possessed by" is not intended to apply to a case of mere possession without title, and that the Legislature intended this provision for cases where the Hindu female possesses the right of ownership of the property in question. Even mere physical possession of the property without the right of ownership will not attract the provisions of this Section. This case also, thus, supports our view that the expression "possessed by" was used in the sense of connoting state of ownership, and; while the Hindu female possesses the right of ownership, she would become full owner if the other conditions mentioned in the Section are fulfilled. The Section will, however, not apply at all to cases where the Hindu female may have parted with her rights so as to place herself in a position where she could, in no manner, exercise her rights of ownership in that property any longer."5. It is clear from the questions reproduced above that, on the principles laid down by this Court in the case of Mangal Singh and others (Supra), it has to be held in the present case that the property in dispute cannot be held to be possessed by Smt. Mehtab Kaur, because, after gifting the property to Harnam Singh and parting with the possession of the property, she was not left with any rights at all under which she could regain possession in her own life time. The gift executed by her was binding on her, even though it may not have been binding on the reversioner. She could not, therefore, avoid the deed of gift and could not claim back possession from Harnam Singh or his successors in interest. Having thus completely parted with her rights, she could not be held to be possessed of the property when the Act came into force and, consequently, she could not become full owner of it.6. Learned Counsel appearing on behalf of the appellants sought to distinguish all these cases decided by this Court on the ground that in none of those cases had the property been transferred by a deed of gift, so that those cases do not directly deal with the point arising in this case. We do not think that any such distinction is possible, because in those cases, this Court explained the full significance of the expression "possessed by a Hindu female" and the meaning accepted by the Court clearly covers the case of a female Hindu who may have parted with the property, by making a gift of it. Once she gifts away the property, she is no longer in a position to claim any legal right to that property; and in the absence of such a right, she cannot be held to be possessed of it. The same view has been expressed, by several High Courts when dealing with the effect of gifts or settlements made by a widow. Reference may be made to, the decisions of, the Patna High Court in Harak Singh v. Kdilash Singh, SIR 1958 Patna 581, the Punjab High Court in Amar Sigh v. Sewa Ram, ILR (1960) 2 Punj 348. the Orissa High Court in, Ganesh Mahanta v. Sukris Bewa AIR 1963 Orissa 167 and the Madras High Court in Kurruppuayar v. Periathambi Udayar, AIR 1966 Madras 165. In all these cases, gifts or settlements made by a widow were held to lead to the result that, the widow could not be held to be possessed of the property which she had gifted away or given away by settlement. The ground taken by the appellants, therefore has no force. | 0[ds]5. It is clear from the questions reproduced above that, on the principles laid down by this Court in the case of Mangal Singh and others (Supra), it has to be held in the present case that the property in dispute cannot be held to be possessed by Smt. Mehtab Kaur, because, after gifting the property to Harnam Singh and parting with the possession of the property, she was not left with any rights at all under which she could regain possession in her own life time. The gift executed by her was binding on her, even though it may not have been binding on the reversioner. She could not, therefore, avoid the deed of gift and could not claim back possession from Harnam Singh or his successors in interest. Having thus completely parted with her rights, she could not be held to be possessed of the property when the Act came into force and, consequently, she could not become full owner ofdo not think that any such distinction is possible, because in those cases, this Court explained the full significance of the expression "possessed by a Hindu female" and the meaning accepted by the Court clearly covers the case of a female Hindu who may have parted with the property, by making a gift of it. Once she gifts away the property, she is no longer in a position to claim any legal right to that property; and in the absence of such a right, she cannot be held to be possessed of it. The same view has been expressed, by several High Courts when dealing with the effect of gifts or settlements made by a widow. Reference may be made to, the decisions of, the Patna High Court in Harak Singh v. Kdilash Singh, SIR 1958 Patna 581, the Punjab High Court in Amar Sigh v. Sewa Ram, ILR (1960) 2 Punj 348. the Orissa High Court in, Ganesh Mahanta v. Sukris Bewa AIR 1963 Orissa 167 and the Madras High Court in Kurruppuayar v. Periathambi Udayar, AIR 1966 Madras 165. In all these cases, gifts or settlements made by a widow were held to lead to the result that, the widow could not be held to be possessed of the property which she had gifted away or given away by settlement. The ground taken by the appellants, therefore has no force. | 0 | 2,258 | 445 | ### 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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which the views expressed by this Court in the earlier three cases were considered. The Court, after considering the meaning given to the words "possessed" and possession" in Strouds Judicial Dictionary of Words and Phrases, Vol. 3. and Whartons Law Lexicon, 14th Ed., held, "It appears to us that the expression used in Section 14(1) of the Act was intended to cover cases of possession in law also, where lands may have descended to a female Hindu and she has not actually entered into them. It would, of course, cover the other cases of actual or constructive possession. On the language of Section 14(1), therefore, we hold that this provision will become applicable to any property which is owned by a female Hindu, even though she is not in actual, physical or constructive possession of that property." The Court then referred to the decision in the case of Gummala Pura Taggina Matada Kot trusrewami, (1959) Supp1 1. S.C.R. 968 (supra) and agreed with the earlier decision. that "possessed" in Section 14 is used in a broad sense and, in the context, means that state of owning or having in ones hand. or power. On further reference to the decision of this Court in Brahamdeo Singh, C. A. No. 51 of 1964 decided on 6.4.1967. (supra), the Court held, "It was thus made clear in that case that the property was held not to be possessed by the widow, because, the alienation made by her being binding on her, she had no longer any legal right left in that property even in the sense of being in the state of owning it. The case, thus, explains why, in cases of alienation or a gift made by a widow, even though that alienation or gift may not be binding on a reversioner, the property will not be held to be possessed by the widow, because the alienation or the gift would be binding on her for her life time and she, at least, would not possess any such rights under which she could obtain actual, or constructive possession from her transferee or donee. Having completely parted with her legal rights, in the property, she could not be said to be possessed of that property any longer. From the decision of this Court in" Eramma v. Varupana and others (Supra) the inference drawn was, expressed as follows : "This case also, thus, clarifies that the expression "possessed by" is not intended to apply to a case of mere possession without title, and that the Legislature intended this provision for cases where the Hindu female possesses the right of ownership of the property in question. Even mere physical possession of the property without the right of ownership will not attract the provisions of this Section. This case also, thus, supports our view that the expression "possessed by" was used in the sense of connoting state of ownership, and; while the Hindu female possesses the right of ownership, she would become full owner if the other conditions mentioned in the Section are fulfilled. The Section will, however, not apply at all to cases where the Hindu female may have parted with her rights so as to place herself in a position where she could, in no manner, exercise her rights of ownership in that property any longer."5. It is clear from the questions reproduced above that, on the principles laid down by this Court in the case of Mangal Singh and others (Supra), it has to be held in the present case that the property in dispute cannot be held to be possessed by Smt. Mehtab Kaur, because, after gifting the property to Harnam Singh and parting with the possession of the property, she was not left with any rights at all under which she could regain possession in her own life time. The gift executed by her was binding on her, even though it may not have been binding on the reversioner. She could not, therefore, avoid the deed of gift and could not claim back possession from Harnam Singh or his successors in interest. Having thus completely parted with her rights, she could not be held to be possessed of the property when the Act came into force and, consequently, she could not become full owner of it.6. Learned Counsel appearing on behalf of the appellants sought to distinguish all these cases decided by this Court on the ground that in none of those cases had the property been transferred by a deed of gift, so that those cases do not directly deal with the point arising in this case. We do not think that any such distinction is possible, because in those cases, this Court explained the full significance of the expression "possessed by a Hindu female" and the meaning accepted by the Court clearly covers the case of a female Hindu who may have parted with the property, by making a gift of it. Once she gifts away the property, she is no longer in a position to claim any legal right to that property; and in the absence of such a right, she cannot be held to be possessed of it. The same view has been expressed, by several High Courts when dealing with the effect of gifts or settlements made by a widow. Reference may be made to, the decisions of, the Patna High Court in Harak Singh v. Kdilash Singh, SIR 1958 Patna 581, the Punjab High Court in Amar Sigh v. Sewa Ram, ILR (1960) 2 Punj 348. the Orissa High Court in, Ganesh Mahanta v. Sukris Bewa AIR 1963 Orissa 167 and the Madras High Court in Kurruppuayar v. Periathambi Udayar, AIR 1966 Madras 165. In all these cases, gifts or settlements made by a widow were held to lead to the result that, the widow could not be held to be possessed of the property which she had gifted away or given away by settlement. The ground taken by the appellants, therefore has no force.
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5. It is clear from the questions reproduced above that, on the principles laid down by this Court in the case of Mangal Singh and others (Supra), it has to be held in the present case that the property in dispute cannot be held to be possessed by Smt. Mehtab Kaur, because, after gifting the property to Harnam Singh and parting with the possession of the property, she was not left with any rights at all under which she could regain possession in her own life time. The gift executed by her was binding on her, even though it may not have been binding on the reversioner. She could not, therefore, avoid the deed of gift and could not claim back possession from Harnam Singh or his successors in interest. Having thus completely parted with her rights, she could not be held to be possessed of the property when the Act came into force and, consequently, she could not become full owner ofdo not think that any such distinction is possible, because in those cases, this Court explained the full significance of the expression "possessed by a Hindu female" and the meaning accepted by the Court clearly covers the case of a female Hindu who may have parted with the property, by making a gift of it. Once she gifts away the property, she is no longer in a position to claim any legal right to that property; and in the absence of such a right, she cannot be held to be possessed of it. The same view has been expressed, by several High Courts when dealing with the effect of gifts or settlements made by a widow. Reference may be made to, the decisions of, the Patna High Court in Harak Singh v. Kdilash Singh, SIR 1958 Patna 581, the Punjab High Court in Amar Sigh v. Sewa Ram, ILR (1960) 2 Punj 348. the Orissa High Court in, Ganesh Mahanta v. Sukris Bewa AIR 1963 Orissa 167 and the Madras High Court in Kurruppuayar v. Periathambi Udayar, AIR 1966 Madras 165. In all these cases, gifts or settlements made by a widow were held to lead to the result that, the widow could not be held to be possessed of the property which she had gifted away or given away by settlement. The ground taken by the appellants, therefore has no force.
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ADD. COMMISSIONER OF INCOME TAX Vs. BHARAT V. PATEL | included by the legislature as part of income, the same is not taxable. In this case, the shares could not be obtained by the employees till the lock-in period was over. On facts, we hold that in the absence of legislative mandate a potential benefit could not be considered as income of the employee(s) chargeable under the head salaries….. 15. The Revenue also contended before the High Court that the amendment brought in by Section 17(2) of the IT Act was clarificatory, hence, retrospective in nature. However, the High Court rejected the stand of the Revenue. The High Court, in its impugned judgment, on the point of the applicability of clause has held as under:- 15. In the case of Commissioner of Income-Tax, Bangalore vs B.C. Srinivasa Setty [(1981) 128 ITR 294 (SC)] this Court held that the charging section and computation provision under the 1961 Act constituted an integrated code. The mechanism introduced for the first time under the Finance Act, 1999 by which cost was explained in the manner stated above was not there prior to 1.4.2000. The new mechanism stood introduced w.e.f. 1.4.2000 only. With the above definition of the word cost introduced vide clause (iiia), the value of option became ascertainable. There is nothing in the Memorandum to the Finance Act, 1999 to say that this new mechanism would operate retrospectively. Further, a mechanism which explains cost in the manner indicated above cannot be read retrospectively unless the Legislature expressly says so. It was not capable of being implemented retrospectively. Till 1.4.2000, in the absence of the definition of the word cost value of the option was not ascertainable. In our view, clause (iiia) is not clarificatory. Moreover, the meaning of the words specified securities in section (iiia) was defined or explained for the first time vide Finance Act , 1999 w.e.f. 1.4.2000.Morevover, the words allotted or transferred in clause (iiia) made things clear only after 1.4.2000. Lastly, it may be pointed out that even clause (iiia) has been subsequently deleted w.e.f. 1.4.2001. For the afore stated reasons, we are of the view the clause (iiia) cannot be read as retrospective. 16. Circular No. 710 dated 24.07.1995 which was issued by the CBDT deals with the taxability of shares issued at less than the market price. For ready reference, Circular No. 710 issued by the CBDT is reproduced hereinbelow:- 202. Taxability of the perequisite on shares issued to employees at less than market price: 1. Chief Commissioners and corporate assessees have been seeking clarification regarding taxability of the perquisite on shares issued to the employees at less than market price. 2. The matter has been considered by the Board. The benefit does amount to a perquisite within the meaning of clause (iii) of sub-section (2) of Section 17 of the Income-Tax Act, 1961. The various situations in this regard have to be dealt with as under: (i) where the shares held by the Government have been transferred to the employee, there will be no perquisite because the employer-employee relationship does not exist between Government and the employee (transferor and the transferee); (ii) where the company offers shares to the employees at the same price as have been offered to the other shareholders or the general public, there will be no perquisite; (iii) where the employer has offered the shares to its employees at a price lower than the one at which the shares have been offered to the other shareholders/public, the difference between the two prices will be taxed as perquisite; (iv) where the shares have been offered only to the employees, the value of perqusite will be the difference between the market price of the shares on the date of acceptance of the offer by the employee and the price at which the shares have been offered. On a perusal of the above, prima facie, it appears that such Circular dealt with the cases where the employer issued shares to the employees at less than the market price. In the instant case, the Respondent was allotted Stock Appreciation Rights (SARs.) by the (P&G) USA which is different from the allotment of shares. Hence, in our opinion such Circular has no applicability on the instant case. Moreover, a Circular cannot be used to introduce a new tax provision in a Statute which was otherwise absent. 17. Alternatively, the Revenue also contended that the case of the Respondent shall come within the ambit of the Section 28(iv) of the IT Act. At this juncture, we deem it appropriate, for the sake of convenience, to refer Section 28(iv) of the IT Act which is reproduced herein below:- 28. Profits and gains of business or profession.-The following income shall be chargeable to income-tax under the head Profits and gains of business or profession- (iv) the value of any benefit or perquisite, whether convertible into money or not, arising from business or the exercise of a profession. On a first look of the said provision, it is apparent that such benefit or perquisite shall have arisen from the business activities or profession whereas in the instant case there is nothing as such. The applicability of Section 28(iv) is confined only to the case where there is any business or profession related transaction involved. Hence, the instant case cannot be covered under Section 28(iv) of the IT Act for the purpose of tax liability. 18. To sum up, the Respondent got the Stock Appreciation Rights (SARs) and, eventually received an amount on account of its redemption prior to 01.04.2000 on which the amendment of Finance Act, 1999 (27 of 1999) came into force. In the absence of any express statutory provision regarding the applicability of such amendment from retrospective effect, we do not find any force in the argument of the Revenue that such amendment came into force retrospectively. It is well established rule of interpretation that taxing provisions shall be construed strictly so that no person who is otherwise not liable to pay tax, be made liable to pay tax. | 0[ds]The word Perquisite in common parlance may be defined as any perk or benefit attached to an employee or position besides salary or remuneration. Broadly speaking, these are usually non-cash benefits given by an employer to an employee in addition to entitled salary or remuneration. It may be said that these benefits are generally provided by the employers in order to retain the talented employees in the organization. There are various instances of perquisite such as concessional rent accommodation provided by the employer, any sum paid by an employer in respect of an obligation which was actually payable by the employee etc. Section 17(2) of the IT Act was enacted by the legislature to give the broad view of term perquisite. On the other hand, the word Capital Gains means a profit from the sale of property or an investment. It may be short term or long term depending upon the facts and circumstances of each case. This gain or profit is charged to tax in the year in which transfer of the capital assets takes place. In the instant case, the fundamental question which arises for consideration before this Court is with regard to the taxability of the amount received by the Respondent on redemption of Stock Appreciation Rights (SARs.)10. It is a matter of record that the Respondent was employed as the Chairman-cum-Managing Director of the (P&G) India Ltd. at the relevant time and the said company is the subsidiary of (P&G) USA through Richardson Vicks Inc. USA and that (P&G) USA owned controlling equity. It is an undisputed fact that the Respondent was working as a salaried employee. The (P&G) USA was the company who had issued the Stock Appreciation Rights (SARs.) to the Respondent without any consideration from 1991 to 1996. The said SARs were redeemed on 15.10.1997 and in lieu of that the Respondent received an amount of Rs 6,80,40,724/- from (P&G) USA. However, when the Respondent filed his return, he claimed this amount as an exemption from the ambit of Income Tax12. It is apposite to note here that, particularly, in order to bring the perquisite transferred by the employer to the employees within the ambit of tax, legislature brought an amendment under Section 17 of the IT Act by inserting Clause (iiia) in Section 17(2) of the IT Act through the Finance Act, 1999 (27 of 1999) with effect from 01.04.2000, which was later on omitted by the Finance Act, 2000.13. The intention behind the said amendment brought by the legislature was to bring the benefits transferred by the employer to the employees as in the instant case, within the ambit of the Income Tax Act, 1961. It was the first time when the legislature specified the meaning of the cost for acquiring specific securities. Only by this amendment, legislature determined what would constitute the specific securities. By this amendment, legislature clearly covered the direct or indirect transfer of specified securities from the employer to the employees during or after the employment. On a perusal of the said clause, it is evident that the case of the Respondent falls under such clause. However, since the transaction in the instant case pertains to prior to 01.04.2000, hence, such transaction cannot be covered under the said clause in the absence of an express provision of retrospective effect. We also do not find any force in the argument of the Revenue that the case of the Respondent would fall under the ambit of Section 17(2) (iii) of the IT Act instead of Section 17(2) (iiia) of the IT Act. It is a fundamental principle of law that a receipt under the IT Act must be made taxable before it can be treated as income. Courts cannot construe the law in such a way that brings an individual within the ambit of Income Tax Act to pay tax who otherwise is not liable to pay. In the absence of any such specific provision, if an individual is subjected to pay tax, it would amount to the violation of his Constitutional Right.14. It is pertinent to note that on the point of applicability of clause (iiia) of Section 17(2) of the IT Act, this Court settled the position in Infosys Technologies Ltd (supra), and has held as under:-17. Be that as it may, proceeding on the basis that there was benefit the question is whether every benefit received by the person is taxable as income? In our view, it is not so. Unless the benefit is made taxable, it cannot be regarded as income. During the relevant assessment years, there was no provision in law which made such benefit taxable as income. Further, as stated, the benefit was prospective. Unless a benefit is in the nature of income or specifically included by the legislature as part of income, the same is not taxable. In this case, the shares could not be obtained by the employees till the lock-in period was over. On facts, we hold that in the absence of legislative mandate a potential benefit could not be considered as income of the employee(s) chargeable under the head salaries…..16. Circular No. 710 dated 24.07.1995 which was issued by the CBDT deals with the taxability of shares issued at less than the market price.On a perusal of the above, prima facie, it appears that such Circular dealt with the cases where the employer issued shares to the employees at less than the market price. In the instant case, the Respondent was allotted Stock Appreciation Rights (SARs.) by the (P&G) USA which is different from the allotment of shares. Hence, in our opinion such Circular has no applicability on the instant case. Moreover, a Circular cannot be used to introduce a new tax provision in a Statute which was otherwise absent.On a first look of the said provision, it is apparent that such benefit or perquisite shall have arisen from the business activities or profession whereas in the instant case there is nothing as such. The applicability of Section 28(iv) is confined only to the case where there is any business or profession related transaction involved. Hence, the instant case cannot be covered under Section 28(iv) of the IT Act for the purpose of tax liability.18. To sum up, the Respondent got the Stock Appreciation Rights (SARs) and, eventually received an amount on account of its redemption prior to 01.04.2000 on which the amendment of Finance Act, 1999 (27 of 1999) came into force. In the absence of any express statutory provision regarding the applicability of such amendment from retrospective effect, we do not find any force in the argument of the Revenue that such amendment came into force retrospectively. It is well established rule of interpretation that taxing provisions shall be construed strictly so that no person who is otherwise not liable to pay tax, be made liable to pay tax. | 0 | 3,566 | 1,317 | ### 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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included by the legislature as part of income, the same is not taxable. In this case, the shares could not be obtained by the employees till the lock-in period was over. On facts, we hold that in the absence of legislative mandate a potential benefit could not be considered as income of the employee(s) chargeable under the head salaries….. 15. The Revenue also contended before the High Court that the amendment brought in by Section 17(2) of the IT Act was clarificatory, hence, retrospective in nature. However, the High Court rejected the stand of the Revenue. The High Court, in its impugned judgment, on the point of the applicability of clause has held as under:- 15. In the case of Commissioner of Income-Tax, Bangalore vs B.C. Srinivasa Setty [(1981) 128 ITR 294 (SC)] this Court held that the charging section and computation provision under the 1961 Act constituted an integrated code. The mechanism introduced for the first time under the Finance Act, 1999 by which cost was explained in the manner stated above was not there prior to 1.4.2000. The new mechanism stood introduced w.e.f. 1.4.2000 only. With the above definition of the word cost introduced vide clause (iiia), the value of option became ascertainable. There is nothing in the Memorandum to the Finance Act, 1999 to say that this new mechanism would operate retrospectively. Further, a mechanism which explains cost in the manner indicated above cannot be read retrospectively unless the Legislature expressly says so. It was not capable of being implemented retrospectively. Till 1.4.2000, in the absence of the definition of the word cost value of the option was not ascertainable. In our view, clause (iiia) is not clarificatory. Moreover, the meaning of the words specified securities in section (iiia) was defined or explained for the first time vide Finance Act , 1999 w.e.f. 1.4.2000.Morevover, the words allotted or transferred in clause (iiia) made things clear only after 1.4.2000. Lastly, it may be pointed out that even clause (iiia) has been subsequently deleted w.e.f. 1.4.2001. For the afore stated reasons, we are of the view the clause (iiia) cannot be read as retrospective. 16. Circular No. 710 dated 24.07.1995 which was issued by the CBDT deals with the taxability of shares issued at less than the market price. For ready reference, Circular No. 710 issued by the CBDT is reproduced hereinbelow:- 202. Taxability of the perequisite on shares issued to employees at less than market price: 1. Chief Commissioners and corporate assessees have been seeking clarification regarding taxability of the perquisite on shares issued to the employees at less than market price. 2. The matter has been considered by the Board. The benefit does amount to a perquisite within the meaning of clause (iii) of sub-section (2) of Section 17 of the Income-Tax Act, 1961. The various situations in this regard have to be dealt with as under: (i) where the shares held by the Government have been transferred to the employee, there will be no perquisite because the employer-employee relationship does not exist between Government and the employee (transferor and the transferee); (ii) where the company offers shares to the employees at the same price as have been offered to the other shareholders or the general public, there will be no perquisite; (iii) where the employer has offered the shares to its employees at a price lower than the one at which the shares have been offered to the other shareholders/public, the difference between the two prices will be taxed as perquisite; (iv) where the shares have been offered only to the employees, the value of perqusite will be the difference between the market price of the shares on the date of acceptance of the offer by the employee and the price at which the shares have been offered. On a perusal of the above, prima facie, it appears that such Circular dealt with the cases where the employer issued shares to the employees at less than the market price. In the instant case, the Respondent was allotted Stock Appreciation Rights (SARs.) by the (P&G) USA which is different from the allotment of shares. Hence, in our opinion such Circular has no applicability on the instant case. Moreover, a Circular cannot be used to introduce a new tax provision in a Statute which was otherwise absent. 17. Alternatively, the Revenue also contended that the case of the Respondent shall come within the ambit of the Section 28(iv) of the IT Act. At this juncture, we deem it appropriate, for the sake of convenience, to refer Section 28(iv) of the IT Act which is reproduced herein below:- 28. Profits and gains of business or profession.-The following income shall be chargeable to income-tax under the head Profits and gains of business or profession- (iv) the value of any benefit or perquisite, whether convertible into money or not, arising from business or the exercise of a profession. On a first look of the said provision, it is apparent that such benefit or perquisite shall have arisen from the business activities or profession whereas in the instant case there is nothing as such. The applicability of Section 28(iv) is confined only to the case where there is any business or profession related transaction involved. Hence, the instant case cannot be covered under Section 28(iv) of the IT Act for the purpose of tax liability. 18. To sum up, the Respondent got the Stock Appreciation Rights (SARs) and, eventually received an amount on account of its redemption prior to 01.04.2000 on which the amendment of Finance Act, 1999 (27 of 1999) came into force. In the absence of any express statutory provision regarding the applicability of such amendment from retrospective effect, we do not find any force in the argument of the Revenue that such amendment came into force retrospectively. It is well established rule of interpretation that taxing provisions shall be construed strictly so that no person who is otherwise not liable to pay tax, be made liable to pay tax.
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0
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be short term or long term depending upon the facts and circumstances of each case. This gain or profit is charged to tax in the year in which transfer of the capital assets takes place. In the instant case, the fundamental question which arises for consideration before this Court is with regard to the taxability of the amount received by the Respondent on redemption of Stock Appreciation Rights (SARs.)10. It is a matter of record that the Respondent was employed as the Chairman-cum-Managing Director of the (P&G) India Ltd. at the relevant time and the said company is the subsidiary of (P&G) USA through Richardson Vicks Inc. USA and that (P&G) USA owned controlling equity. It is an undisputed fact that the Respondent was working as a salaried employee. The (P&G) USA was the company who had issued the Stock Appreciation Rights (SARs.) to the Respondent without any consideration from 1991 to 1996. The said SARs were redeemed on 15.10.1997 and in lieu of that the Respondent received an amount of Rs 6,80,40,724/- from (P&G) USA. However, when the Respondent filed his return, he claimed this amount as an exemption from the ambit of Income Tax12. It is apposite to note here that, particularly, in order to bring the perquisite transferred by the employer to the employees within the ambit of tax, legislature brought an amendment under Section 17 of the IT Act by inserting Clause (iiia) in Section 17(2) of the IT Act through the Finance Act, 1999 (27 of 1999) with effect from 01.04.2000, which was later on omitted by the Finance Act, 2000.13. The intention behind the said amendment brought by the legislature was to bring the benefits transferred by the employer to the employees as in the instant case, within the ambit of the Income Tax Act, 1961. It was the first time when the legislature specified the meaning of the cost for acquiring specific securities. Only by this amendment, legislature determined what would constitute the specific securities. By this amendment, legislature clearly covered the direct or indirect transfer of specified securities from the employer to the employees during or after the employment. On a perusal of the said clause, it is evident that the case of the Respondent falls under such clause. However, since the transaction in the instant case pertains to prior to 01.04.2000, hence, such transaction cannot be covered under the said clause in the absence of an express provision of retrospective effect. We also do not find any force in the argument of the Revenue that the case of the Respondent would fall under the ambit of Section 17(2) (iii) of the IT Act instead of Section 17(2) (iiia) of the IT Act. It is a fundamental principle of law that a receipt under the IT Act must be made taxable before it can be treated as income. Courts cannot construe the law in such a way that brings an individual within the ambit of Income Tax Act to pay tax who otherwise is not liable to pay. In the absence of any such specific provision, if an individual is subjected to pay tax, it would amount to the violation of his Constitutional Right.14. It is pertinent to note that on the point of applicability of clause (iiia) of Section 17(2) of the IT Act, this Court settled the position in Infosys Technologies Ltd (supra), and has held as under:-17. Be that as it may, proceeding on the basis that there was benefit the question is whether every benefit received by the person is taxable as income? In our view, it is not so. Unless the benefit is made taxable, it cannot be regarded as income. During the relevant assessment years, there was no provision in law which made such benefit taxable as income. Further, as stated, the benefit was prospective. Unless a benefit is in the nature of income or specifically included by the legislature as part of income, the same is not taxable. In this case, the shares could not be obtained by the employees till the lock-in period was over. On facts, we hold that in the absence of legislative mandate a potential benefit could not be considered as income of the employee(s) chargeable under the head salaries…..16. Circular No. 710 dated 24.07.1995 which was issued by the CBDT deals with the taxability of shares issued at less than the market price.On a perusal of the above, prima facie, it appears that such Circular dealt with the cases where the employer issued shares to the employees at less than the market price. In the instant case, the Respondent was allotted Stock Appreciation Rights (SARs.) by the (P&G) USA which is different from the allotment of shares. Hence, in our opinion such Circular has no applicability on the instant case. Moreover, a Circular cannot be used to introduce a new tax provision in a Statute which was otherwise absent.On a first look of the said provision, it is apparent that such benefit or perquisite shall have arisen from the business activities or profession whereas in the instant case there is nothing as such. The applicability of Section 28(iv) is confined only to the case where there is any business or profession related transaction involved. Hence, the instant case cannot be covered under Section 28(iv) of the IT Act for the purpose of tax liability.18. To sum up, the Respondent got the Stock Appreciation Rights (SARs) and, eventually received an amount on account of its redemption prior to 01.04.2000 on which the amendment of Finance Act, 1999 (27 of 1999) came into force. In the absence of any express statutory provision regarding the applicability of such amendment from retrospective effect, we do not find any force in the argument of the Revenue that such amendment came into force retrospectively. It is well established rule of interpretation that taxing provisions shall be construed strictly so that no person who is otherwise not liable to pay tax, be made liable to pay tax.
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Dr. Raj Saini Vs. State of Haryana & Others | that a civil litigation was going on in relation to the said property and that her husband, Dr. Parkash Saini and his family members intended to dispossess them forcibly and illegally. On 11.02.2016, at about 1.45 p.m, Dr. Parkash Saini along with his sister, Sheela Devi and certain other persons came at the property in her possession and asked her to vacate it, failing which they will kill her. Dr. Parkash Saini and his henchmen attacked them with iron rods, dandas, knives, pistols etc. and that on the call of the Dr. Parkash Saini, they broke open the door of a room with an intention to dispossess them forcibly and illegally. When they protested, they were assaulted. The matter was reported to the police and on hearing siren of the police vehicle, all the accused ran away. On the basis of the statement, an FIR was registered. The investigating officer took possession of the medical records from the hospital and also recorded the statement of the eye witnesses. Some incriminating articles were recovered from the spot.3. On 16.02.2016, Dr. Parkash Saini was arrested for commission of offence(s) punishable under Sections 147, 149, 323, 324 and 506 IPC and he was produced before the magistrate. The police prepared a report under Section 173 Cr.P.C. and charge-sheeted Dr. Parkash Saini for commission of above offence(s) and he was released on regular bail. Later on, the matter was further investigated on the basis of CCTV footage recording, some more culprits were identified and the police introduced the offences under Sections 455 and 427 IPC and some other accused, including Rahul Kumar were arrested. Proceedings to arrest Dr. Parkash Saini for the added offences, under Sections 455 and 427 IPC, were also initiated.4. Apprehending arrest, Dr. Parkash Saini and his sister Sheela Devi sought anticipatory bail. Similarly, Rahul Kumar also sought anticipatory bail. According to them, the subsequent investigations are malicious and initiated merely with a motive to add the heinous crime, in collusion with the complainant. The applicant further alleged that as the charge-sheet has already been filed, their interrogation was not required. The bail application was contested by the prosecution, inter alia, alleging that on account of subsequent investigation, the offences under Sections 455 and 427 IPC, were added as the earlier investigation was not carried out in a proper manner and the accused involved in the case were not apprehended. After considering the rival contentions of the parties, the Sessions Court dismissed the application of Dr. Parkash Saini and Rahul Kumar.5. Dr. Parkash Saini and Rahul Kumar filed applications under Section 438 of the Cr.P.C. before the High Court of Punjab & Haryana at Chandigarh. The High Court vide order dated 27.4.2017 has granted them anticipatory bail. The appellant has called in question the legality and correctness of said order in these appeals.6. We have heard learned counsel for the parties. Appearing for the appellant, Shri R. Basant, learned senior counsel, contends that Dr. Parkash Saini trespassed into the property of the appellant along with his henchmen in order to take forcible possession of the part of the property which the appellant is in possession of and asked her to vacate the same, failing which they will kill her. Dr. Parkash Saini along with his henchmen attacked the appellant with iron rods, danda, knives and pistols, etc. On the call of Dr. Parkash Saini they broke open the door of their property with an intention to dispossess them forcibly and illegally and when they protested, they were assaulted. It is only after hearing a siren of the police vehicle all the accused ran away. The entire incident was captured in the mobile and CCTVs installed by the appellant in the premises which clearly shows the attack being committed. A defective investigation was carried out by the then Investigating Officer in collusion with the accused Dr. Parkash Saini without examining the CCTV footage and a defective report under Section 173(2) of the Cr.P.C. was prepared by him by merely adding minor Sections in his report. The appellant gave representations to the higher police officials and after considering the same, the SP passed an order for further investigation. The IO was also changed. After further investigation, Sections 455 and 427 IPC were added in the FIR for which the accused applied for anticipatory bail which was rightly rejected by the learned Sessions Judge. The High Court without considering the materials on record granted anticipatory bail.7. On the other hand, learned advocate appearing for the respondents has sought to justify the impugned order.8. We have carefully considered the submissions of the learned counsel made at the Bar. The learned Sessions Judge has assigned cogent reasons for dismissal of the application of the private respondents seeking anticipatory bail. The CCTV footage of the incident was displayed in the open court in the presence of both the parties before the Sessions Judge. The session Judge has noticed the presence of Dr. Parkash Saini in the entire occurrence. Without considering the CCTV footage the earlier report was filed by the IO. In fact, Dr. Parkash Saini was leading the other accused. It is clear that he was directly involved in breaking open the door of the room and removing the articles lying there with the help of his co-accused. Though the name of Rahul Kumar was not mentioned in the FIR, later on the basis of CCTV footage he has been identified and his name has also come on record. The private respondents are the main accused in the case. It is also evident that they have damaged the property of the appellant with an intention to dispossess her and take forcible possession. The High Court without considering any of these aspects has granted anticipatory bail. The High Court has not considered the nature and gravity of the accusation and the role of the accused in the commission of the offence(s). We are of the view that the High Court was not justified in granting anticipatory bail. | 1[ds]8. We have carefully considered the submissions of the learned counsel made at the Bar. The learned Sessions Judge has assigned cogent reasons for dismissal of the application of the private respondents seeking anticipatory bail. The CCTV footage of the incident was displayed in the open court in the presence of both the parties before the Sessions Judge. The session Judge has noticed the presence of Dr. Parkash Saini in the entire occurrence. Without considering the CCTV footage the earlier report was filed by the IO. In fact, Dr. Parkash Saini was leading the other accused. It is clear that he was directly involved in breaking open the door of the room and removing the articles lying there with the help of hisThough the name of Rahul Kumar was not mentioned in the FIR, later on the basis of CCTV footage he has been identified and his name has also come on record. The private respondents are the main accused in the case. It is also evident that they have damaged the property of the appellant with an intention to dispossess her and take forcible possession. The High Court without considering any of these aspects has granted anticipatory bail. The High Court has not considered the nature and gravity of the accusation and the role of the accused in the commission of the offence(s). We are of the view that the High Court was not justified in granting anticipatory bail. | 1 | 1,146 | 262 | ### 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:
that a civil litigation was going on in relation to the said property and that her husband, Dr. Parkash Saini and his family members intended to dispossess them forcibly and illegally. On 11.02.2016, at about 1.45 p.m, Dr. Parkash Saini along with his sister, Sheela Devi and certain other persons came at the property in her possession and asked her to vacate it, failing which they will kill her. Dr. Parkash Saini and his henchmen attacked them with iron rods, dandas, knives, pistols etc. and that on the call of the Dr. Parkash Saini, they broke open the door of a room with an intention to dispossess them forcibly and illegally. When they protested, they were assaulted. The matter was reported to the police and on hearing siren of the police vehicle, all the accused ran away. On the basis of the statement, an FIR was registered. The investigating officer took possession of the medical records from the hospital and also recorded the statement of the eye witnesses. Some incriminating articles were recovered from the spot.3. On 16.02.2016, Dr. Parkash Saini was arrested for commission of offence(s) punishable under Sections 147, 149, 323, 324 and 506 IPC and he was produced before the magistrate. The police prepared a report under Section 173 Cr.P.C. and charge-sheeted Dr. Parkash Saini for commission of above offence(s) and he was released on regular bail. Later on, the matter was further investigated on the basis of CCTV footage recording, some more culprits were identified and the police introduced the offences under Sections 455 and 427 IPC and some other accused, including Rahul Kumar were arrested. Proceedings to arrest Dr. Parkash Saini for the added offences, under Sections 455 and 427 IPC, were also initiated.4. Apprehending arrest, Dr. Parkash Saini and his sister Sheela Devi sought anticipatory bail. Similarly, Rahul Kumar also sought anticipatory bail. According to them, the subsequent investigations are malicious and initiated merely with a motive to add the heinous crime, in collusion with the complainant. The applicant further alleged that as the charge-sheet has already been filed, their interrogation was not required. The bail application was contested by the prosecution, inter alia, alleging that on account of subsequent investigation, the offences under Sections 455 and 427 IPC, were added as the earlier investigation was not carried out in a proper manner and the accused involved in the case were not apprehended. After considering the rival contentions of the parties, the Sessions Court dismissed the application of Dr. Parkash Saini and Rahul Kumar.5. Dr. Parkash Saini and Rahul Kumar filed applications under Section 438 of the Cr.P.C. before the High Court of Punjab & Haryana at Chandigarh. The High Court vide order dated 27.4.2017 has granted them anticipatory bail. The appellant has called in question the legality and correctness of said order in these appeals.6. We have heard learned counsel for the parties. Appearing for the appellant, Shri R. Basant, learned senior counsel, contends that Dr. Parkash Saini trespassed into the property of the appellant along with his henchmen in order to take forcible possession of the part of the property which the appellant is in possession of and asked her to vacate the same, failing which they will kill her. Dr. Parkash Saini along with his henchmen attacked the appellant with iron rods, danda, knives and pistols, etc. On the call of Dr. Parkash Saini they broke open the door of their property with an intention to dispossess them forcibly and illegally and when they protested, they were assaulted. It is only after hearing a siren of the police vehicle all the accused ran away. The entire incident was captured in the mobile and CCTVs installed by the appellant in the premises which clearly shows the attack being committed. A defective investigation was carried out by the then Investigating Officer in collusion with the accused Dr. Parkash Saini without examining the CCTV footage and a defective report under Section 173(2) of the Cr.P.C. was prepared by him by merely adding minor Sections in his report. The appellant gave representations to the higher police officials and after considering the same, the SP passed an order for further investigation. The IO was also changed. After further investigation, Sections 455 and 427 IPC were added in the FIR for which the accused applied for anticipatory bail which was rightly rejected by the learned Sessions Judge. The High Court without considering the materials on record granted anticipatory bail.7. On the other hand, learned advocate appearing for the respondents has sought to justify the impugned order.8. We have carefully considered the submissions of the learned counsel made at the Bar. The learned Sessions Judge has assigned cogent reasons for dismissal of the application of the private respondents seeking anticipatory bail. The CCTV footage of the incident was displayed in the open court in the presence of both the parties before the Sessions Judge. The session Judge has noticed the presence of Dr. Parkash Saini in the entire occurrence. Without considering the CCTV footage the earlier report was filed by the IO. In fact, Dr. Parkash Saini was leading the other accused. It is clear that he was directly involved in breaking open the door of the room and removing the articles lying there with the help of his co-accused. Though the name of Rahul Kumar was not mentioned in the FIR, later on the basis of CCTV footage he has been identified and his name has also come on record. The private respondents are the main accused in the case. It is also evident that they have damaged the property of the appellant with an intention to dispossess her and take forcible possession. The High Court without considering any of these aspects has granted anticipatory bail. The High Court has not considered the nature and gravity of the accusation and the role of the accused in the commission of the offence(s). We are of the view that the High Court was not justified in granting anticipatory bail.
### Response:
1
### Explanation:
8. We have carefully considered the submissions of the learned counsel made at the Bar. The learned Sessions Judge has assigned cogent reasons for dismissal of the application of the private respondents seeking anticipatory bail. The CCTV footage of the incident was displayed in the open court in the presence of both the parties before the Sessions Judge. The session Judge has noticed the presence of Dr. Parkash Saini in the entire occurrence. Without considering the CCTV footage the earlier report was filed by the IO. In fact, Dr. Parkash Saini was leading the other accused. It is clear that he was directly involved in breaking open the door of the room and removing the articles lying there with the help of hisThough the name of Rahul Kumar was not mentioned in the FIR, later on the basis of CCTV footage he has been identified and his name has also come on record. The private respondents are the main accused in the case. It is also evident that they have damaged the property of the appellant with an intention to dispossess her and take forcible possession. The High Court without considering any of these aspects has granted anticipatory bail. The High Court has not considered the nature and gravity of the accusation and the role of the accused in the commission of the offence(s). We are of the view that the High Court was not justified in granting anticipatory bail.
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G.J. Fernandez Vs. State of Mysore & Others | it must be shown that they have been issued either under the authority conferred on the State Government by some statute or under some provision of the Constitution providing therefor. It is not in dispute that there is no statute which confers any authority on the State Government to issue rules in matters with which the Code is concerned; nor has any provision of the Constitution been pointed out to us under which these instructions can be issued as statutory rules except Article 162. But as we have already indicated, Article 162 does not confer any authority on the State Government to issue statutory rules. It only provides for the extent and cope of the executive power of the State Government, and that coincides with the legislative power of the State Legislature. Thus under Article 162, the State Government can take executive action in all matters in which the Legislature of the State can pass laws. But Article 162 by itself does not confer any rule making power on the State Government in that behalf. We are therefore of opinion that instructions contained in the Code are mere administrative instructions and are not statutory rules. Therefore even if there has been any breach of such executive instructions that does not confer any right on the appellant to apply to the court for quashing orders in breach of such instructions. It is unnecessary for us to decide whether there has been in fact a breach of any instruction contained in the Code with respect to tenders and we do not therefore so decide. But assuming that there has been any breach that is a matter between the State Government and its servant, and the State Government may take disciplinary action against the servant concerned who disobeyed these instructions. But such disobedience did not confer any right on a person like the appellant to come to court for any relief based on the breach of these instructions. It is for this reason that we are not referring to the Code, though the High Court did consider whether there was any breach of these administrative instructions and came to the conclusion that there was no breach. In the view we take it is unnecessary for us to consider this for we are of opinion that no claim for any relief before a court of law can be founded by a member of the public, like the appellant on the breach of mere administrative instructions.13. Coming now to the argument under Article 14 the first contention is that though seven days, time had expired on August 26, 1966 the Chief Engineer took into account the letter of respondent No. 3 which came to him on August 31, 1966 and that this is discriminatory. We have already indicated that no such argument was apparently put forward in the High Court; nor do we think that there is any substance therein. The seven days, period given is not a period of limitation and it cannot be said that it was not open to the Chief Engineer to take into account a letter which came a few days later. There might have been some case of discrimination if at that stage i. e. on August 31, 1966, the Chief Engineer had rejected any other tenderers reply on the ground that it was beyond seven days or if some ones conditional tender was rejected on the ground that it was not made unconditional by August 31, 1966. But no such thing happened and therefore there can be no question of discrimination on the ground that the letter of August 31, 1966 written by respondent No. 3 was acted upon by the Chief Engineer. Besides, it appears that in a letter dated August 25, 1966 the appellant was asked to reply by August 31, 1966 and so it seems that the seven days time fixed by the Chief Engineer for reply was not absolutely rigid and that explains why he wrote to the appellant also to send a final reply by August 31, 1966. We are therefore of opinion that the fact that the Chief Engineer acted on the letter of respondent No. 3 which came to him on August 31, 1966 cannot be said to amount to discrimination.14. The other discrimination alleged is about what happened on October 15, 1966. The case of the appellant is that some negotiations were carried on by the Chief Engineer with respondent No. 3 alone after sealed tenders were opened at 4 p. m. on October 15, 1966. But the Chief Engineer has clearly denied that and his case is that all the tenderers were called by him at 7 p. m. and he asked them all whether they were prepared to make any further reduction. His case further is that six of them were not prepared to make any change while two said that they would send a reply later. His case further is that respondent No. 3 sent a letter the same day reducing the rates 4 per cent below the estimated cost. The High Court has accepted the Chief Engineers version. The appellant does not deny that there was a meeting with the Chief Engineer after the tenders were opened at 4 p. m. on October 15, 1966. His first affidavit on this point was vague and it was only in the reply affidavit that he stated that the Chief Engineer had not asked all the tenderers whether they would be prepared to reduce rates further or withdraw conditions. Nothing has been brought to our notice which would induce us to disagree with the view taken by the High Court, namely, that the Chief Engineers assertion that he asked all the tenderers whether they were prepared to make any furthers reductions or withdraw any conditions is correct. If that is so-and we have no difficulty in accepting the Chief Engineers assertion in that behalf- there is no question of discrimination in connection with what happened on October 15, 1966. | 0[ds]We are therefore of opinion that Article 162 does not confer any power on the State Government to frame rules and it only indicates the scope of the executive power of the State. Of course under such executive power, the State can give administrative instructions to its servants how to act in certain circumstances; but that will not make such instructions statutory rules which are justiciable in certain circumstances. In order that such executive instructions have the force of statutory rules it must be shown that they have been issued either under the authority conferred on the State Government by some statute or under some provision of the Constitution providing therefor. It is not in dispute that there is no statute which confers any authority on the State Government to issue rules in matters with which the Code is concerned; nor has any provision of the Constitution been pointed out to us under which these instructions can be issued as statutory rules except Article 162. But as we have already indicated, Article 162 does not confer any authority on the State Government to issue statutory rules. It only provides for the extent and cope of the executive power of the State Government, and that coincides with the legislative power of the State Legislature. Thus under Article 162, the State Government can take executive action in all matters in which the Legislature of the State can pass laws. But Article 162 by itself does not confer any rule making power on the State Government in that behalf. We are therefore of opinion that instructions contained in the Code are mere administrative instructions and are not statutory rules. Therefore even if there has been any breach of such executive instructions that does not confer any right on the appellant to apply to the court for quashing orders in breach of such instructions. It is unnecessary for us to decide whether there has been in fact a breach of any instruction contained in the Code with respect to tenders and we do not therefore so decide. But assuming that there has been any breach that is a matter between the State Government and its servant, and the State Government may take disciplinary action against the servant concerned who disobeyed these instructions. But such disobedience did not confer any right on a person like the appellant to come to court for any relief based on the breach of these instructions. It is for this reason that we are not referring to the Code, though the High Court did consider whether there was any breach of these administrative instructions and came to the conclusion that there was no breach. In the view we take it is unnecessary for us to consider this for we are of opinion that no claim for any relief before a court of law can be founded by a member of the public, like the appellant on the breach of mere administrative instructions.13. Coming now to the argument under Article 14 the first contention is that though seven days, time had expired on August 26, 1966 the Chief Engineer took into account the letter of respondent No. 3 which came to him on August 31, 1966 and that this is discriminatory. We have already indicated that no such argument was apparently put forward in the High Court; nor do we think that there is any substance therein. The seven days, period given is not a period of limitation and it cannot be said that it was not open to the Chief Engineer to take into account a letter which came a few days later. There might have been some case of discrimination if at that stage i. e. on August 31, 1966, the Chief Engineer had rejected any other tenderers reply on the ground that it was beyond seven days or if some ones conditional tender was rejected on the ground that it was not made unconditional by August 31, 1966. But no such thing happened and therefore there can be no question of discrimination on the ground that the letter of August 31, 1966 written by respondent No. 3 was acted upon by the Chief Engineer. Besides, it appears that in a letter dated August 25, 1966 the appellant was asked to reply by August 31, 1966 and so it seems that the seven days time fixed by the Chief Engineer for reply was not absolutely rigid and that explains why he wrote to the appellant also to send a final reply by August 31, 1966. We are therefore of opinion that the fact that the Chief Engineer acted on the letter of respondent No. 3 which came to him on August 31, 1966 cannot be said to amount to discrimination.14. The other discrimination alleged is about what happened on October 15, 1966. The case of the appellant is that some negotiations were carried on by the Chief Engineer with respondent No. 3 alone after sealed tenders were opened at 4 p. m. on October 15, 1966. But the Chief Engineer has clearly denied that and his case is that all the tenderers were called by him at 7 p. m. and he asked them all whether they were prepared to make any further reduction. His case further is that six of them were not prepared to make any change while two said that they would send a reply later. His case further is that respondent No. 3 sent a letter the same day reducing the rates 4 per cent below the estimated cost. The High Court has accepted the Chief Engineers version. The appellant does not deny that there was a meeting with the Chief Engineer after the tenders were opened at 4 p. m. on October 15, 1966. His first affidavit on this point was vague and it was only in the reply affidavit that he stated that the Chief Engineer had not asked all the tenderers whether they would be prepared to reduce rates further or withdraw conditions. Nothing has been brought to our notice which would induce us to disagree with the view taken by the High Court, namely, that the Chief Engineers assertion that he asked all the tenderers whether they were prepared to make any furthers reductions or withdraw any conditions is correct. If that is so-and we have no difficulty in accepting the Chief Engineers assertion in that behalf- there is no question of discrimination in connection with what happened on October 15,High Court has observed that therules in the Code are not framed either under any statutory enactment or under any provision of the Constitution. They are merely in the nature of administrative instructions for the guidance of the department and have been issued under the executive power of the State. Even after having said so, the High Court has considered whether the instructions in the Code were followed in the present case or not. Before however we consider the question whether instructions in the Code have been followed or not, we have to decide whether these instructions have any statutory force. If they have no statutory force, they confer no right on anybody and a tenderer cannot claim any rights on the basis of these administrative instructions. If these are mere administrative instructions it may he open to Government to take disciplinary action against its servants who do not follow these instructions butof such administrative instructions does not in our opinion confer any right on any member of the public like a tenderer to ask for a writ against Government by a petition under Article 226. The matter may be different if the instructions contained in the Code are statutory rules. Learned counsel for the appellant is unable to point out any statute under which these instructions in the Code were framed. He also admits that they are administrative instruction by Government to its servants relating to the Public Works Department. But his contention is that they are rules issued under Article 162 of the Constitution. Now Article 162 provides that "executive power of a State shall extend to the matters with respect to which the legislature of the State has power to make laws". This Article in our opinion merely indicates the scope of the executive power of the State; it does not confer any power on the State Government to issue rules thereunder. As a matter of fact wherever the Constitution envisages issue of rules it has so provided in specific terms. We may for example, refer to Article 309, the proviso to which lays down in specific terms that the President or the Governor of a State may make rules regulating the recruitment and the conditions of service of persons appointed to services and posts under the Union or the State.We are therefore of opinion that Article 162 does not confer any power on the State Government to frame rules and it only indicates the scope of the executive power of the State. Of course under such executive power, the State can give administrative instructions to its servants how to act in certain circumstances; but that will not make such instructions statutory rules which are justiciable in certain circumstances. In order that such executive instructions have the force of statutory rules it must be shown that they have been issued either under the authority conferred on the State Government by some statute or under some provision of the Constitution providing therefor. It is not in dispute that there is no statute which confers any authority on the State Government to issue rules in matters with which the Code is concerned; nor has any provision of the Constitution been pointed out to us under which these instructions can be issued as statutory rules except Article 162. But as we have already indicated, Article 162 does not confer any authority on the State Government to issue statutory rules. It only provides for the extent and cope of the executive power of the State Government, and that coincides with the legislative power of the State Legislature. Thus under Article 162, the State Government can take executive action in all matters in which the Legislature of the State can pass laws. But Article 162 by itself does not confer any rule making power on the State Government in that behalf. We are therefore of opinion that instructions contained in the Code are mere administrative instructions and are not statutory rules. Therefore even if there has been any breach of such executive instructions that does not confer any right on the appellant to apply to the court for quashing orders in breach of such instructions. It is unnecessary for us to decide whether there has been in fact a breach of any instruction contained in the Code with respect to tenders and we do not therefore so decide. But assuming that there has been any breach that is a matter between the State Government and its servant, and the State Government may take disciplinary action against the servant concerned who disobeyed these instructions. But such disobedience did not confer any right on a person like the appellant to come to court for any relief based on the breach of these instructions. It is for this reason that we are not referring to the Code, though the High Court did consider whether there was any breach of these administrative instructions and came to the conclusion that there was no breach. In the view we take it is unnecessary for us to consider this for we are of opinion that no claim for any relief before a court of law can be founded by a member of the public, like the appellant on the breach of mere administrative instructions. | 0 | 4,015 | 2,072 | ### Instruction:
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it must be shown that they have been issued either under the authority conferred on the State Government by some statute or under some provision of the Constitution providing therefor. It is not in dispute that there is no statute which confers any authority on the State Government to issue rules in matters with which the Code is concerned; nor has any provision of the Constitution been pointed out to us under which these instructions can be issued as statutory rules except Article 162. But as we have already indicated, Article 162 does not confer any authority on the State Government to issue statutory rules. It only provides for the extent and cope of the executive power of the State Government, and that coincides with the legislative power of the State Legislature. Thus under Article 162, the State Government can take executive action in all matters in which the Legislature of the State can pass laws. But Article 162 by itself does not confer any rule making power on the State Government in that behalf. We are therefore of opinion that instructions contained in the Code are mere administrative instructions and are not statutory rules. Therefore even if there has been any breach of such executive instructions that does not confer any right on the appellant to apply to the court for quashing orders in breach of such instructions. It is unnecessary for us to decide whether there has been in fact a breach of any instruction contained in the Code with respect to tenders and we do not therefore so decide. But assuming that there has been any breach that is a matter between the State Government and its servant, and the State Government may take disciplinary action against the servant concerned who disobeyed these instructions. But such disobedience did not confer any right on a person like the appellant to come to court for any relief based on the breach of these instructions. It is for this reason that we are not referring to the Code, though the High Court did consider whether there was any breach of these administrative instructions and came to the conclusion that there was no breach. In the view we take it is unnecessary for us to consider this for we are of opinion that no claim for any relief before a court of law can be founded by a member of the public, like the appellant on the breach of mere administrative instructions.13. Coming now to the argument under Article 14 the first contention is that though seven days, time had expired on August 26, 1966 the Chief Engineer took into account the letter of respondent No. 3 which came to him on August 31, 1966 and that this is discriminatory. We have already indicated that no such argument was apparently put forward in the High Court; nor do we think that there is any substance therein. The seven days, period given is not a period of limitation and it cannot be said that it was not open to the Chief Engineer to take into account a letter which came a few days later. There might have been some case of discrimination if at that stage i. e. on August 31, 1966, the Chief Engineer had rejected any other tenderers reply on the ground that it was beyond seven days or if some ones conditional tender was rejected on the ground that it was not made unconditional by August 31, 1966. But no such thing happened and therefore there can be no question of discrimination on the ground that the letter of August 31, 1966 written by respondent No. 3 was acted upon by the Chief Engineer. Besides, it appears that in a letter dated August 25, 1966 the appellant was asked to reply by August 31, 1966 and so it seems that the seven days time fixed by the Chief Engineer for reply was not absolutely rigid and that explains why he wrote to the appellant also to send a final reply by August 31, 1966. We are therefore of opinion that the fact that the Chief Engineer acted on the letter of respondent No. 3 which came to him on August 31, 1966 cannot be said to amount to discrimination.14. The other discrimination alleged is about what happened on October 15, 1966. The case of the appellant is that some negotiations were carried on by the Chief Engineer with respondent No. 3 alone after sealed tenders were opened at 4 p. m. on October 15, 1966. But the Chief Engineer has clearly denied that and his case is that all the tenderers were called by him at 7 p. m. and he asked them all whether they were prepared to make any further reduction. His case further is that six of them were not prepared to make any change while two said that they would send a reply later. His case further is that respondent No. 3 sent a letter the same day reducing the rates 4 per cent below the estimated cost. The High Court has accepted the Chief Engineers version. The appellant does not deny that there was a meeting with the Chief Engineer after the tenders were opened at 4 p. m. on October 15, 1966. His first affidavit on this point was vague and it was only in the reply affidavit that he stated that the Chief Engineer had not asked all the tenderers whether they would be prepared to reduce rates further or withdraw conditions. Nothing has been brought to our notice which would induce us to disagree with the view taken by the High Court, namely, that the Chief Engineers assertion that he asked all the tenderers whether they were prepared to make any furthers reductions or withdraw any conditions is correct. If that is so-and we have no difficulty in accepting the Chief Engineers assertion in that behalf- there is no question of discrimination in connection with what happened on October 15, 1966.
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p. m. on October 15, 1966. His first affidavit on this point was vague and it was only in the reply affidavit that he stated that the Chief Engineer had not asked all the tenderers whether they would be prepared to reduce rates further or withdraw conditions. Nothing has been brought to our notice which would induce us to disagree with the view taken by the High Court, namely, that the Chief Engineers assertion that he asked all the tenderers whether they were prepared to make any furthers reductions or withdraw any conditions is correct. If that is so-and we have no difficulty in accepting the Chief Engineers assertion in that behalf- there is no question of discrimination in connection with what happened on October 15,High Court has observed that therules in the Code are not framed either under any statutory enactment or under any provision of the Constitution. They are merely in the nature of administrative instructions for the guidance of the department and have been issued under the executive power of the State. Even after having said so, the High Court has considered whether the instructions in the Code were followed in the present case or not. Before however we consider the question whether instructions in the Code have been followed or not, we have to decide whether these instructions have any statutory force. If they have no statutory force, they confer no right on anybody and a tenderer cannot claim any rights on the basis of these administrative instructions. If these are mere administrative instructions it may he open to Government to take disciplinary action against its servants who do not follow these instructions butof such administrative instructions does not in our opinion confer any right on any member of the public like a tenderer to ask for a writ against Government by a petition under Article 226. The matter may be different if the instructions contained in the Code are statutory rules. Learned counsel for the appellant is unable to point out any statute under which these instructions in the Code were framed. He also admits that they are administrative instruction by Government to its servants relating to the Public Works Department. But his contention is that they are rules issued under Article 162 of the Constitution. Now Article 162 provides that "executive power of a State shall extend to the matters with respect to which the legislature of the State has power to make laws". This Article in our opinion merely indicates the scope of the executive power of the State; it does not confer any power on the State Government to issue rules thereunder. As a matter of fact wherever the Constitution envisages issue of rules it has so provided in specific terms. We may for example, refer to Article 309, the proviso to which lays down in specific terms that the President or the Governor of a State may make rules regulating the recruitment and the conditions of service of persons appointed to services and posts under the Union or the State.We are therefore of opinion that Article 162 does not confer any power on the State Government to frame rules and it only indicates the scope of the executive power of the State. Of course under such executive power, the State can give administrative instructions to its servants how to act in certain circumstances; but that will not make such instructions statutory rules which are justiciable in certain circumstances. In order that such executive instructions have the force of statutory rules it must be shown that they have been issued either under the authority conferred on the State Government by some statute or under some provision of the Constitution providing therefor. It is not in dispute that there is no statute which confers any authority on the State Government to issue rules in matters with which the Code is concerned; nor has any provision of the Constitution been pointed out to us under which these instructions can be issued as statutory rules except Article 162. But as we have already indicated, Article 162 does not confer any authority on the State Government to issue statutory rules. It only provides for the extent and cope of the executive power of the State Government, and that coincides with the legislative power of the State Legislature. Thus under Article 162, the State Government can take executive action in all matters in which the Legislature of the State can pass laws. But Article 162 by itself does not confer any rule making power on the State Government in that behalf. We are therefore of opinion that instructions contained in the Code are mere administrative instructions and are not statutory rules. Therefore even if there has been any breach of such executive instructions that does not confer any right on the appellant to apply to the court for quashing orders in breach of such instructions. It is unnecessary for us to decide whether there has been in fact a breach of any instruction contained in the Code with respect to tenders and we do not therefore so decide. But assuming that there has been any breach that is a matter between the State Government and its servant, and the State Government may take disciplinary action against the servant concerned who disobeyed these instructions. But such disobedience did not confer any right on a person like the appellant to come to court for any relief based on the breach of these instructions. It is for this reason that we are not referring to the Code, though the High Court did consider whether there was any breach of these administrative instructions and came to the conclusion that there was no breach. In the view we take it is unnecessary for us to consider this for we are of opinion that no claim for any relief before a court of law can be founded by a member of the public, like the appellant on the breach of mere administrative instructions.
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Ranjitsing Brahmajeetsing Sharma Vs. State Of Maharashtra | Jail. Police sub inspector Mr. Hanumansingh Subbalkar (crime branch, Pune Police Commissionerate) was the chief officer appointed to keep the custody of Telgi and party." 76. Therefore, there is some substance in the contention of Mr. Manohar that the Commissioner of Police may not like to interrogate an accused person as regard his political connections, if any, in presence of others, but the line of interrogation was revealed by Telgi immediately after he came out of his chamber. It further appears from the record that even Mushrif had interrogated Telgi exclusively.77. Furthermore, it appears that it is Mushrif who wanted to keep wife, daughter and brother of Telgi out of the chargesheet, as would appear from the statement of Mr. Kishore Eknath Yadav to the following effect: "Names of accused Fathima and Javed were mentioned in the case diary as suspects however full names and addresses of these accused could not be made accused. Because the information is not available against them and they are only servants, such instructions were issued by Addl. Commissioner of police during the time of beginning of the investigation and on other occasions.It was further stated: "Although for the said purpose note was made for seeking written orders, Honourable Additional Commissioner of Police has not made any specific order. Apart from this who should be made accused or not was the primary right of D.C.P. Zone II as per the decision taken by Additional Commissioner of Police and the final decision about the same was to be that of Addl. Commissioner of Police (Order dated 13/6/2002)." 78. Apart from the fact that nothing has been brought on record to show as to how far a report of brain mapping test can be relied upon, the report appears to be vague. It appears, the Respondents themselves did not want to put much reliance on the said report.79. Furthermore, the admissibility of a result of a scientific test will depend upon its authenticity. Whether the brain mapping test is so developed that the report will have a probative value so as to enable a court to place reliance thereupon, is a matter which would require further consideration, if and when the materials in support thereof are placed before the Court.80. In Frye Vs. United States [293 F 1013 (DC Cir) (1923)], the principles to determine the strength of any investigation to make it admissible were stated in the following terms: "Just when a scientific principle or discovery crosses the line between the experimental and demonstrable stages is difficult to define. Some where in the twilight zone the evidential force must be recognized, and while the Courts will go a long way in admitting the expert testimony deducted from a well recognized scientific principle or discovery, the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs. 81. Frye (supra), however, was rendered at a time when the technology, the polygraph test, was in its initial stage and was used in few laboratories. The guidelines issued therein posed a threat of lack of judicial adaptation of the new developments and ignored the reliability on a particular piece of evidence. 82. A change of approach was, however, found in Daubart Vs. Merryll Dow Pharmaceuticals Inc. [113 Sct 2786 (1993)] where the courts while allowing "general acceptance" stated that this might not be a precondition for admissibility of the scientific evidence, for which the Court may consider the following: (a) Whether the principle or technique has been or can be reliably tested? (b) Whether it has been subject to peer review or publication?(c) Its known or potential rate of error?(d) Whether there are recognized standards that control the procedure of implementation of the technique?(e) Whether it is generally accepted by the Community? And(f) Whether the technique has been introduced or conducted independently of the litigation? 83. In a case involving an issue as to whether on-job-exposure to the manufacturers products promoted small cell lung cancer, the U.S. Supreme Court in General Electric Co. Vs. Robert K. Joiner [522 US 139 L.Ed. 2d] following Daubert (supra), held that in cases involving the issue of expert evidence the appellate court should only consider whether there is any abuse of discretion in admitting such evidence by the trial courts and should not go into reviewing the evidence itself as it is for the trial courts to assume the "gate keepers role" in screening such evidence to ensure whether it is not only relevant but also reliable. This was further expanded in Kumho Tire Co. Ltd. Vs. Carmichael [(1999) 119 S.Ct. 1167] whereby the gate keeping obligation of the Trial Judge to ensure the relevancy and reliability for admitting the evidence extended not only to scientific but also to all kinds of expert evidence. 84. In R. Vs. Watters [(2000) All ER (D) 1469], it was held : "DNA evidence may have a great significance where there is supporting evidence, dependent, of course, on the strength of that evidence.""in every case one has to put the DNA evidence in the context of the rest of the evidence and decide whether taken as a whole it does amount to a prima facie case." 85. As at present advised, thus, and having regard to the fact that the prosecution did not rely upon the said report before the High Court, we also for the purpose of the present matter do not intend to place any reliance thereupon.86. Mr. Manohars contention to the effect that those officers whose conduct was not above board and who did not take any action for attaching the property of the accused and his relations in terms of the Act, have not been made accused, may also be correct. He has further brought to our notice that witnesses have also changed their stand after the Appellant was placed under arrest. At this juncture, it may not be necessary for us to go into details on the aforementioned contention. | 1[ds]23. MCOCA was enacted to make special provisions for prevention and control of, and for coping with, criminal activity by organized crime syndicate or gang, and for matters connected therewith or incidental thereto.The interpretation clause as regard the expression abet does not refer to the definition of abetment as contained in Section 107 of IPC. It refers to such meaning which can be attributed to it in the general sense with grammatical variations and cognate expressions. However, having regard to the cognate meaning, the term may be read in the light of the definition of these words under Sections 107 and 108 of the Indian Penal Code. The inclusive definition although expansive in nature, "communication" or "association" must be read to mean such communication or association which is in aid of or render assistance in the commission of organized crime. In our considered opinion, any communication or association which has no nexus with the commission of organized crime would not come within the purview thereof. It must mean assistance to organised crime or organised crime syndicate or to a person involved in either of them. It, however, includes (a) communication or (b) association with any person with the actual knowledge or (c) having reason to believe that such person is engaged in assisting in any manner, an organised crime. Furthermore, mens rea is a necessary ingredient for commission of a crime under MCOCA.The expression conspiracy is not a term of art. It has a definite connotation. It must be read having regard to the legal concept which is now well-settled having regard to several decisions of this Court in Kehar Singh and others Vs. The State (Delhi Admn.) [AIR 1988 SC 1883 ], State of Karnataka Vs. L. Muniswamy and others [AIR 1977 SC 1489 ] and P.K. Narayanan Vs. State of Kerala [1995 (1) SCC 142 ].Mens rea, thus, to commit the crime must be established besides the fact of agreement.s rea, thus, to commit the crime must be established besides the fact of agreement.Section 24 of MCOCA must be given a proper meaning. A public servant can be said to have committed an offence within the meaning of the said provision if he (i) renders any help or support in any manner in the commission of an organised crime; (ii) whether before or after the commission of an offence by a member of an organised crime syndicate or (iii) abstains from taking lawful measures under this Act or (iv) intentionally avoids to carry out the directions of any Court or of the superior police officers in this respect.We are furthermore of the opinion that the restrictions on the power of the Court to grant bail should not be pushed too far. If the Court, having regard to the materials brought on record, is satisfied that in all probability he may not be ultimately convicted, an order granting bail may be passed. The satisfaction of the Court as regards his likelihood of not committing an offence while on bail must be construed to mean an offence under the Act and not any offence whatsoever be it a minor or major offence. If such an expansive meaning is given, even likelihood of commission of an offence under Section 279 of the Indian Penal Code may debar the Court from releasing the accused on bail. A statute, it is trite, should not be interpreted in such a manner as would lead to absurdity. What would further be necessary on the part of the Court is to see the culpability of the accused and his involvement in the commission of an organised crime either directly or indirectly. The Court at the time of considering the application for grant of bail shall consider the question from the angle as to whether he was possessed of the requisite mens rea. Every little omission or commission, negligence or dereliction may not lead to a possibility of his having culpability in the matter which is not the sine qua non for attracting the provisions of MCOCA. A person in a given situation may not do that which he ought to have done. The Court may in a situation of this nature keep in mind the broad principles of law that some acts of omission and commission on the part of a public servant may attract disciplinary proceedings but may not attract a penal provision.Every act of negligence or carelessness by itself may not be a misconduct.47. The provisions of the said Act, therefore, must receive a strict construction so as to pass the test of reasonableness.48. Section 21(4) of MCOCA does not make any distinction between an offence which entails punishment of life imprisonment and an imprisonment for a year or two. It does not provide that even in case a person remains behind the bars for a period exceeding three years, although his involvement may be in terms of Section 24 of the Act, the court is prohibited to enlarge him on bail. Each case, therefore, must be considered on its own facts. The question as to whether he is involved in the commission of organized crime or abetment thereof must be judged objectively. Only because some allegations have been made against a high ranking officer, which cannot be brushed aside, may not by itself be sufficient to continue to keep him behind the bars although on an objective consideration the court may come to the conclusion that the evidences against him are not such as would lead to his conviction. In case of circumstantial evidence like the present one, not only culpability or mens rea of the accused should be prima facie established, the Court must also consider the question as to whether the circumstantial evidence is such whereby all the links in the chain are complete.49. The wording of Section 21(4), in our opinion, does not lead to the conclusion that the Court must arrive at a positive finding that the applicant for bail has not committed an offence under the Act. If such a construction is placed, the court intending to grant bail must arrive at a finding that the applicant has not committed such an offence. In such an event, it will be impossible for the prosecution to obtain a judgment of conviction of the applicant. Such cannot be the intention of the Legislature. Section 21(4) of MCOCA, therefore, must be construed reasonably. It must be so construed that the Court is able to maintain a delicate balance between a judgment of acquittal and conviction and an order granting bail much before commencement of trial. Similarly, the Court will be required to record a finding as to the possibility of his committing a crime after grant of bail. However, such an offence in future must be an offence under the Act and not any other offence. Since it is difficult to predict the future conduct of an accused, the court must necessarily consider this aspect of the matter having regard to the antecedents of the accused, his propensities and the nature and manner in which he is alleged to have committed the offence.The wording of Section 21(4), in our opinion, does not lead to the conclusion that the Court must arrive at a positive finding that the applicant for bail has not committed an offence under the Act. If such a construction is placed, the court intending to grant bail must arrive at a finding that the applicant has not committed such an offence. In such an event, it will be impossible for the prosecution to obtain a judgment of conviction of the applicant. Such cannot be the intention of the Legislature. Section 21(4) of MCOCA, therefore, must be construed reasonably. It must be so construed that the Court is able to maintain a delicate balance between a judgment of acquittal and conviction and an order granting bail much before commencement of trial. Similarly, the Court will be required to record a finding as to the possibility of his committing a crime after grant of bail. However, such an offence in future must be an offence under the Act and not any other offence. Since it is difficult to predict the future conduct of an accused, the court must necessarily consider this aspect of the matter having regard to the antecedents of the accused, his propensities and the nature and manner in which he is alleged to have committed the offence.It is, furthermore, trite that for the purpose of considering an application for grant of bail, although detailed reasons are not necessary to be assigned, the order granting bail must demonstrate application of mind at least in serious cases as to why the applicant has been granted or denied the privilege of bail.51. The duty of the court at this stage is not to weigh the evidence meticulously but to arrive at a finding on the basis of broad probabilities. However, while dealing with a special statute like MCOCA having regard to the provisions contained in Sub-section (4) of Section 21 of the Act, the Court may have to probe into the matter deeper so as to enable it to arrive at a finding that the materials collected against the accused during the investigation may not justify a judgment of conviction. The findings recorded by the Court while granting or refusing bail undoubtedly would be tentative in nature, which may not have any bearing on the merit of the case and the trial court would, thus, be free to decide the case on the basis of evidence adduced at the trial, without in any manner being prejudiced thereby.56. The High Court, in our considered view, considered the matter from a wrong perspective. Only because the Appellant had the power, the same would not by itself lead to a conclusion that he was a privy to the crime. As regard Mulanis visit to Bangalore, it is accepted that on all occasions he was accompanied by other officers. The purpose of such visit was to have a high level conference so as to enable the Government of Maharashtra to obtain custody of Telgi. On 9.7.2002, Mulani visited Bangalore in the company of the Appellant. On 23.7.2002, he visited in the company of Appellant as also the Additional Chief Secretary, Shri Basak. Those two visits were prior to 6.9.2002. On 11th September, 2002, he went to Bangalore in the company of Shri Sampat Kadam as the case of Telgi was fixed on that day. He is said to have been sent by Shri Mushrif. Dr. Jai Vasantrao Jadhav in his investigation note dated 15.12.The Appellant, therefore, did not suggest the name of Mulani himself. He did so at the instance of Dr. Jadav and that too both by him as also the Joint Commissioner.e Appellant, therefore, did not suggest the name of Mulani himself. He did so at the instance of Dr. Jadav and that too both by him as also the Joint Commissioner.For all intent and purport, the High Court has placed the onus of proof upon the Appellant, which is impermissible.Therefore, there is some substance in the contention of Mr. Manohar that the Commissioner of Police may not like to interrogate an accused person as regard his political connections, if any, in presence of others, but the line of interrogation was revealed by Telgi immediately after he came out of his chamber. It further appears from the record that even Mushrif had interrogated Telgi exclusively.77. Furthermore, it appears that it is Mushrif who wanted to keep wife, daughter and brother of Telgi out of the chargesheet, as would appear from the statement of Mr. Kishore EknathFurthermore, it appears that it is Mushrif who wanted to keep wife, daughter and brother of Telgi out of the chargesheet, as would appear from the statement of Mr. Kishore EknathFurthermore, the admissibility of a result of a scientific test will depend upon its authenticity. Whether the brain mapping test is so developed that the report will have a probative value so as to enable a court to place reliance thereupon, is a matter which would require further consideration, if and when the materials in support thereof are placed before the Court.As at present advised, thus, and having regard to the fact that the prosecution did not rely upon the said report before the High Court, we also for the purpose of the present matter do not intend to place any reliance thereupon.86. Mr. Manohars contention to the effect that those officers whose conduct was not above board and who did not take any action for attaching the property of the accused and his relations in terms of the Act, have not been made accused, may also be correct. He has further brought to our notice that witnesses have also changed their stand after the Appellant was placed under arrest. At this juncture, it may not be necessary for us to go into details on the aforementioned contention. | 1 | 15,717 | 2,368 | ### 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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Jail. Police sub inspector Mr. Hanumansingh Subbalkar (crime branch, Pune Police Commissionerate) was the chief officer appointed to keep the custody of Telgi and party." 76. Therefore, there is some substance in the contention of Mr. Manohar that the Commissioner of Police may not like to interrogate an accused person as regard his political connections, if any, in presence of others, but the line of interrogation was revealed by Telgi immediately after he came out of his chamber. It further appears from the record that even Mushrif had interrogated Telgi exclusively.77. Furthermore, it appears that it is Mushrif who wanted to keep wife, daughter and brother of Telgi out of the chargesheet, as would appear from the statement of Mr. Kishore Eknath Yadav to the following effect: "Names of accused Fathima and Javed were mentioned in the case diary as suspects however full names and addresses of these accused could not be made accused. Because the information is not available against them and they are only servants, such instructions were issued by Addl. Commissioner of police during the time of beginning of the investigation and on other occasions.It was further stated: "Although for the said purpose note was made for seeking written orders, Honourable Additional Commissioner of Police has not made any specific order. Apart from this who should be made accused or not was the primary right of D.C.P. Zone II as per the decision taken by Additional Commissioner of Police and the final decision about the same was to be that of Addl. Commissioner of Police (Order dated 13/6/2002)." 78. Apart from the fact that nothing has been brought on record to show as to how far a report of brain mapping test can be relied upon, the report appears to be vague. It appears, the Respondents themselves did not want to put much reliance on the said report.79. Furthermore, the admissibility of a result of a scientific test will depend upon its authenticity. Whether the brain mapping test is so developed that the report will have a probative value so as to enable a court to place reliance thereupon, is a matter which would require further consideration, if and when the materials in support thereof are placed before the Court.80. In Frye Vs. United States [293 F 1013 (DC Cir) (1923)], the principles to determine the strength of any investigation to make it admissible were stated in the following terms: "Just when a scientific principle or discovery crosses the line between the experimental and demonstrable stages is difficult to define. Some where in the twilight zone the evidential force must be recognized, and while the Courts will go a long way in admitting the expert testimony deducted from a well recognized scientific principle or discovery, the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs. 81. Frye (supra), however, was rendered at a time when the technology, the polygraph test, was in its initial stage and was used in few laboratories. The guidelines issued therein posed a threat of lack of judicial adaptation of the new developments and ignored the reliability on a particular piece of evidence. 82. A change of approach was, however, found in Daubart Vs. Merryll Dow Pharmaceuticals Inc. [113 Sct 2786 (1993)] where the courts while allowing "general acceptance" stated that this might not be a precondition for admissibility of the scientific evidence, for which the Court may consider the following: (a) Whether the principle or technique has been or can be reliably tested? (b) Whether it has been subject to peer review or publication?(c) Its known or potential rate of error?(d) Whether there are recognized standards that control the procedure of implementation of the technique?(e) Whether it is generally accepted by the Community? And(f) Whether the technique has been introduced or conducted independently of the litigation? 83. In a case involving an issue as to whether on-job-exposure to the manufacturers products promoted small cell lung cancer, the U.S. Supreme Court in General Electric Co. Vs. Robert K. Joiner [522 US 139 L.Ed. 2d] following Daubert (supra), held that in cases involving the issue of expert evidence the appellate court should only consider whether there is any abuse of discretion in admitting such evidence by the trial courts and should not go into reviewing the evidence itself as it is for the trial courts to assume the "gate keepers role" in screening such evidence to ensure whether it is not only relevant but also reliable. This was further expanded in Kumho Tire Co. Ltd. Vs. Carmichael [(1999) 119 S.Ct. 1167] whereby the gate keeping obligation of the Trial Judge to ensure the relevancy and reliability for admitting the evidence extended not only to scientific but also to all kinds of expert evidence. 84. In R. Vs. Watters [(2000) All ER (D) 1469], it was held : "DNA evidence may have a great significance where there is supporting evidence, dependent, of course, on the strength of that evidence.""in every case one has to put the DNA evidence in the context of the rest of the evidence and decide whether taken as a whole it does amount to a prima facie case." 85. As at present advised, thus, and having regard to the fact that the prosecution did not rely upon the said report before the High Court, we also for the purpose of the present matter do not intend to place any reliance thereupon.86. Mr. Manohars contention to the effect that those officers whose conduct was not above board and who did not take any action for attaching the property of the accused and his relations in terms of the Act, have not been made accused, may also be correct. He has further brought to our notice that witnesses have also changed their stand after the Appellant was placed under arrest. At this juncture, it may not be necessary for us to go into details on the aforementioned contention.
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consider this aspect of the matter having regard to the antecedents of the accused, his propensities and the nature and manner in which he is alleged to have committed the offence.The wording of Section 21(4), in our opinion, does not lead to the conclusion that the Court must arrive at a positive finding that the applicant for bail has not committed an offence under the Act. If such a construction is placed, the court intending to grant bail must arrive at a finding that the applicant has not committed such an offence. In such an event, it will be impossible for the prosecution to obtain a judgment of conviction of the applicant. Such cannot be the intention of the Legislature. Section 21(4) of MCOCA, therefore, must be construed reasonably. It must be so construed that the Court is able to maintain a delicate balance between a judgment of acquittal and conviction and an order granting bail much before commencement of trial. Similarly, the Court will be required to record a finding as to the possibility of his committing a crime after grant of bail. However, such an offence in future must be an offence under the Act and not any other offence. Since it is difficult to predict the future conduct of an accused, the court must necessarily consider this aspect of the matter having regard to the antecedents of the accused, his propensities and the nature and manner in which he is alleged to have committed the offence.It is, furthermore, trite that for the purpose of considering an application for grant of bail, although detailed reasons are not necessary to be assigned, the order granting bail must demonstrate application of mind at least in serious cases as to why the applicant has been granted or denied the privilege of bail.51. The duty of the court at this stage is not to weigh the evidence meticulously but to arrive at a finding on the basis of broad probabilities. However, while dealing with a special statute like MCOCA having regard to the provisions contained in Sub-section (4) of Section 21 of the Act, the Court may have to probe into the matter deeper so as to enable it to arrive at a finding that the materials collected against the accused during the investigation may not justify a judgment of conviction. The findings recorded by the Court while granting or refusing bail undoubtedly would be tentative in nature, which may not have any bearing on the merit of the case and the trial court would, thus, be free to decide the case on the basis of evidence adduced at the trial, without in any manner being prejudiced thereby.56. The High Court, in our considered view, considered the matter from a wrong perspective. Only because the Appellant had the power, the same would not by itself lead to a conclusion that he was a privy to the crime. As regard Mulanis visit to Bangalore, it is accepted that on all occasions he was accompanied by other officers. The purpose of such visit was to have a high level conference so as to enable the Government of Maharashtra to obtain custody of Telgi. On 9.7.2002, Mulani visited Bangalore in the company of the Appellant. On 23.7.2002, he visited in the company of Appellant as also the Additional Chief Secretary, Shri Basak. Those two visits were prior to 6.9.2002. On 11th September, 2002, he went to Bangalore in the company of Shri Sampat Kadam as the case of Telgi was fixed on that day. He is said to have been sent by Shri Mushrif. Dr. Jai Vasantrao Jadhav in his investigation note dated 15.12.The Appellant, therefore, did not suggest the name of Mulani himself. He did so at the instance of Dr. Jadav and that too both by him as also the Joint Commissioner.e Appellant, therefore, did not suggest the name of Mulani himself. He did so at the instance of Dr. Jadav and that too both by him as also the Joint Commissioner.For all intent and purport, the High Court has placed the onus of proof upon the Appellant, which is impermissible.Therefore, there is some substance in the contention of Mr. Manohar that the Commissioner of Police may not like to interrogate an accused person as regard his political connections, if any, in presence of others, but the line of interrogation was revealed by Telgi immediately after he came out of his chamber. It further appears from the record that even Mushrif had interrogated Telgi exclusively.77. Furthermore, it appears that it is Mushrif who wanted to keep wife, daughter and brother of Telgi out of the chargesheet, as would appear from the statement of Mr. Kishore EknathFurthermore, it appears that it is Mushrif who wanted to keep wife, daughter and brother of Telgi out of the chargesheet, as would appear from the statement of Mr. Kishore EknathFurthermore, the admissibility of a result of a scientific test will depend upon its authenticity. Whether the brain mapping test is so developed that the report will have a probative value so as to enable a court to place reliance thereupon, is a matter which would require further consideration, if and when the materials in support thereof are placed before the Court.As at present advised, thus, and having regard to the fact that the prosecution did not rely upon the said report before the High Court, we also for the purpose of the present matter do not intend to place any reliance thereupon.86. Mr. Manohars contention to the effect that those officers whose conduct was not above board and who did not take any action for attaching the property of the accused and his relations in terms of the Act, have not been made accused, may also be correct. He has further brought to our notice that witnesses have also changed their stand after the Appellant was placed under arrest. At this juncture, it may not be necessary for us to go into details on the aforementioned contention.
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Jumuna Prasad Mukhariya & Others Vs. Lachhi Ram & Others | matter further in special appeal. Under the law the decision of the Tribunal is meant to be final. That does not take away our jurisdiction but we will only interfere when there is some glaring error which has resulted in a substantial miscarriage of justice. On those findings a major corrupt practice on the part of 1st respondent (1st appellant here) under section 123 (5) of the Representation of the People Act, 1951 is established.4. The next finding concerns the 2nd respondent (appellant No. 2). The Tribunal finds that he made a systematic appeal to Chamhar voters to vote for him on the basis of his caste. There is evidence to support this finding. The leaflets marked N and O place that beyond doubt. This constitutes a minor corrupt practice under section 124 (5) of the Act.5. Both these provisions, namely sections 123(5) and 124 (5), were challenged as ultra vires Article 19(1)(a) of the Constitution. It was contended that Article 245(1) prohibits the making of laws which violate the Constitution and that the impugned sections interfere with a citizens fundamental right to freedom of speech. There is nothing in this contention. These laws do not stop a man from speaking. They merely prescribe conditions which must be observed if he wants to enter Parliament.The right to stand as a candidate and contest an election is not a common law right. It is a special right created by the statute and can only be exercised on the conditions laid down by the statute. The Fundamental Rights Chapter has no bearing on a right like this created by statute. The appellants have no fundamental right to be elected members of Parliament. If they want that they must observe the rules. If they prefer to exercise their right of free speech outside these rules, the impugned sections do not stop them. We hold that these sections are intra vires.6. In addition to these findings, the Tribunal found that both the appellants committed an illegal practice within the meaning of section 125(3) in that they issued a leaflet and a poster which did not have the name of the printer on them. This a pure question of fact.7. The result of committing any corrupt practice is that the election of the candidate is void under section 100(2)(b). It is not necessary to prove that the result of the election was materially affected thereby because clause (b) is an alternative that stands by itself. All that need be proved is that a corrupt practice has been committed, and that the Tribunal finds to be the fact. The Tribunal was accordingly justified in declaring the election of the first appellant to be void8. In addition to this the Tribunal found that the corrupt practice committed by the second appellant (respondent No. 2) also materially affected the result of the election. This was challenged but we need not go into that because the finding that the second appellant committed a minor corrupt practice and also an illegal practice is clear and so his case falls under clause (a) of sub-s (2) of section 100.9. Sub-section (2)(a), so far as it is material here runs ---"......... if the Tribunal is of opinion -----(a) that the election of a returned candidate has been procured or induced or the result of the election has been materially affected, by any corrupt or illegal practicex x x x x x xthe Tribunal shall declare the election of the returned candidate to be void."The Tribunal finds as a fact that the second appellants election was procured by a corrupt practice. His case therefore falls within the first of the three alternatives envisaged by clause (a), so it is not necessary to enquire whether it also falls under the third. We hold that this election was also rightly declared to be void. That disposes of the first and second appellants (respondents 1 and 2)10. We now turn to respondents 6 and 7 to the petition. They are the 4th and 5th respondents before us, Ramsahai and Sannu Lal. The Tribunal, acting under section 101 (b), declared them to be duly elected. Here, we are of opinion that the Tribunal was wrong. Before this can be done, it must be proved that"but for the votes obtained by the returned candidate by corrupt or illegal practices....... such other candidate would have obtained a majority of the valid votes".The Constituency was a double member constituency, the following stood for the General Constituency and obtained the votes shown against them :Jamuna Prasad Mukhariya (Respt. 1) 13,669Keshav Shastri (Respt. 3)1,999V.N. Sheode (Respt. No. 4) 1,350Ram Sahai (Respt. 6) 12,750The Tribunal says that the difference in votes between respondents 1 and 6 is 919. We presume that this is meant to show that the voting between them was close. From that the Tribunal jumps to the following conclusion :"Considering the scandalous nature of the false statement regarding respondent No. 6 and the mode of systematic appeal on the basis of caste made by respondent No. 2 we have no doubt in our minds that ............respondent No. 1.........got more votes simply because of........corrupt practices and if these corrupt practices had not been there respondent No. 6 ................. undoubtedly would have obtained a majority of valid votes."This, in our opinion is pure speculation and is not a conclusion which any reasonable mind could judicially reach on the data set out above. There is noting to show why the majority of the 1st respondents voters would have preferred the 6th respondent and ignored the 3rd and 4th respondents.11. An exactly similar process of reasoning was followed in the case of the 7th respondent. He was a scheduled caste candidate and the voting there was as follows :Chaturbhuj Jatav (Respt. No. 2) 12,452Hira Khusla Chamar (Respt. No. 5) 601Sunnulal (Respt. No. 7) 10,889Here, again, there is no basis for concluding that those who votes for the 2nd respondent would, if they had not done so, have preferred the 7th respondent to the 5th. | 0[ds]7. The result of committing any corrupt practice is that the election of the candidate is void under section 100(2)(b). It is not necessary to prove that the result of the election was materially affected thereby because clause (b) is an alternative that stands by itself. All that need be proved is that a corrupt practice has been committed, and that the Tribunal finds to be the fact. The Tribunal was accordingly justified in declaring the election of the first appellant to beTribunal finds as a fact that the second appellants election was procured by a corrupt practice. His case therefore falls within the first of the three alternatives envisaged by clause (a), so it is not necessary to enquire whether it also falls under the third. We hold that this election was also rightly declared to be void. That disposes of the first and second appellants (respondents 1 andagain, there is no basis for concluding that those who votes for the 2nd respondent would, if they had not done so, have preferred the 7th respondent to thein our opinion is pure speculation and is not a conclusion which any reasonable mind could judicially reach on the data set out above. There is noting to show why the majority of the 1st respondents voters would have preferred the 6th respondent and ignored the 3rd and 4th respondents. | 0 | 1,545 | 256 | ### Instruction:
Ascertain if the court will uphold (1) or dismiss (0) the appeal in the case proceeding, and then clarify this prediction by discussing critical sentences from the text.
### Input:
matter further in special appeal. Under the law the decision of the Tribunal is meant to be final. That does not take away our jurisdiction but we will only interfere when there is some glaring error which has resulted in a substantial miscarriage of justice. On those findings a major corrupt practice on the part of 1st respondent (1st appellant here) under section 123 (5) of the Representation of the People Act, 1951 is established.4. The next finding concerns the 2nd respondent (appellant No. 2). The Tribunal finds that he made a systematic appeal to Chamhar voters to vote for him on the basis of his caste. There is evidence to support this finding. The leaflets marked N and O place that beyond doubt. This constitutes a minor corrupt practice under section 124 (5) of the Act.5. Both these provisions, namely sections 123(5) and 124 (5), were challenged as ultra vires Article 19(1)(a) of the Constitution. It was contended that Article 245(1) prohibits the making of laws which violate the Constitution and that the impugned sections interfere with a citizens fundamental right to freedom of speech. There is nothing in this contention. These laws do not stop a man from speaking. They merely prescribe conditions which must be observed if he wants to enter Parliament.The right to stand as a candidate and contest an election is not a common law right. It is a special right created by the statute and can only be exercised on the conditions laid down by the statute. The Fundamental Rights Chapter has no bearing on a right like this created by statute. The appellants have no fundamental right to be elected members of Parliament. If they want that they must observe the rules. If they prefer to exercise their right of free speech outside these rules, the impugned sections do not stop them. We hold that these sections are intra vires.6. In addition to these findings, the Tribunal found that both the appellants committed an illegal practice within the meaning of section 125(3) in that they issued a leaflet and a poster which did not have the name of the printer on them. This a pure question of fact.7. The result of committing any corrupt practice is that the election of the candidate is void under section 100(2)(b). It is not necessary to prove that the result of the election was materially affected thereby because clause (b) is an alternative that stands by itself. All that need be proved is that a corrupt practice has been committed, and that the Tribunal finds to be the fact. The Tribunal was accordingly justified in declaring the election of the first appellant to be void8. In addition to this the Tribunal found that the corrupt practice committed by the second appellant (respondent No. 2) also materially affected the result of the election. This was challenged but we need not go into that because the finding that the second appellant committed a minor corrupt practice and also an illegal practice is clear and so his case falls under clause (a) of sub-s (2) of section 100.9. Sub-section (2)(a), so far as it is material here runs ---"......... if the Tribunal is of opinion -----(a) that the election of a returned candidate has been procured or induced or the result of the election has been materially affected, by any corrupt or illegal practicex x x x x x xthe Tribunal shall declare the election of the returned candidate to be void."The Tribunal finds as a fact that the second appellants election was procured by a corrupt practice. His case therefore falls within the first of the three alternatives envisaged by clause (a), so it is not necessary to enquire whether it also falls under the third. We hold that this election was also rightly declared to be void. That disposes of the first and second appellants (respondents 1 and 2)10. We now turn to respondents 6 and 7 to the petition. They are the 4th and 5th respondents before us, Ramsahai and Sannu Lal. The Tribunal, acting under section 101 (b), declared them to be duly elected. Here, we are of opinion that the Tribunal was wrong. Before this can be done, it must be proved that"but for the votes obtained by the returned candidate by corrupt or illegal practices....... such other candidate would have obtained a majority of the valid votes".The Constituency was a double member constituency, the following stood for the General Constituency and obtained the votes shown against them :Jamuna Prasad Mukhariya (Respt. 1) 13,669Keshav Shastri (Respt. 3)1,999V.N. Sheode (Respt. No. 4) 1,350Ram Sahai (Respt. 6) 12,750The Tribunal says that the difference in votes between respondents 1 and 6 is 919. We presume that this is meant to show that the voting between them was close. From that the Tribunal jumps to the following conclusion :"Considering the scandalous nature of the false statement regarding respondent No. 6 and the mode of systematic appeal on the basis of caste made by respondent No. 2 we have no doubt in our minds that ............respondent No. 1.........got more votes simply because of........corrupt practices and if these corrupt practices had not been there respondent No. 6 ................. undoubtedly would have obtained a majority of valid votes."This, in our opinion is pure speculation and is not a conclusion which any reasonable mind could judicially reach on the data set out above. There is noting to show why the majority of the 1st respondents voters would have preferred the 6th respondent and ignored the 3rd and 4th respondents.11. An exactly similar process of reasoning was followed in the case of the 7th respondent. He was a scheduled caste candidate and the voting there was as follows :Chaturbhuj Jatav (Respt. No. 2) 12,452Hira Khusla Chamar (Respt. No. 5) 601Sunnulal (Respt. No. 7) 10,889Here, again, there is no basis for concluding that those who votes for the 2nd respondent would, if they had not done so, have preferred the 7th respondent to the 5th.
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7. The result of committing any corrupt practice is that the election of the candidate is void under section 100(2)(b). It is not necessary to prove that the result of the election was materially affected thereby because clause (b) is an alternative that stands by itself. All that need be proved is that a corrupt practice has been committed, and that the Tribunal finds to be the fact. The Tribunal was accordingly justified in declaring the election of the first appellant to beTribunal finds as a fact that the second appellants election was procured by a corrupt practice. His case therefore falls within the first of the three alternatives envisaged by clause (a), so it is not necessary to enquire whether it also falls under the third. We hold that this election was also rightly declared to be void. That disposes of the first and second appellants (respondents 1 andagain, there is no basis for concluding that those who votes for the 2nd respondent would, if they had not done so, have preferred the 7th respondent to thein our opinion is pure speculation and is not a conclusion which any reasonable mind could judicially reach on the data set out above. There is noting to show why the majority of the 1st respondents voters would have preferred the 6th respondent and ignored the 3rd and 4th respondents.
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Bajaj Auto Limited Vs. Behari Lal Kohli | as quoted above the arrangement with M/s. United Automobiles cannot be condemned as a sub-lessee without the consent of the respondent, The stand of the respondent has been that the above-mentioned term, of the lease cannot be looked into as the document was not registered and further M/s. United Automobiles cannot be assumed to be an ‘associate concern? within the meaning of the term. The Rent Controller, as well as, the appellate authority held that the afore-mentioned term of the lease was not inadmissible and the appellant was entitled to rely upon the same, but ordered eviction on the ground that M/s. United Automobiles was inducted in the premises as a sub-lessee. The High Court dismissed the appellant?s second appeal in limine, and in this situation the present appeal by special leave has been filed. 5. It has been strenuously contended by the learned Counsel for the appellant that as (i) the United Automobiles is a distributor of the product manufactured by the appellant on the basis of commission, (ii) it pays the same amount to the appellant as the rent of the premises payable by the appellant to the respondent, and (iii) is entitled to be in possession only as long as it continues to be a distributor, it should be held to be an ‘associate concern? within the meaning of the afore-mentioned term of the lease. In reply of the respondent?s contention that the term cannot be taken into consideration as the deed is not a registered one, it was urged that the appellant, in view of the provisions of Section 49 of the Registration Act, is entitled to rely upon the term for collateral purpose?. The argument is that the document may not be admissible for the purpose of proving the existence of a lease or the terms thereof, but as the afore-mentioned clause does not come within that category, inasmuch as it merely amounts to a written permission to the appellant to create a sub-lease, it cannot be excluded from consideration on the ground of non-registration. 6. There is no dispute that the appellant has put M/s. United Automobiles in possession of the premises and has thus parted with the possession within the meaning of Section 14(1) proviso (b) of the Act. The appellant-Company has a separate legal entity and has nothing to do with M/s United Automobiles except that the latter is the dealer-distributor of some of its manufactured articles. M/s. United Automobiles is not a licensee and is not in possession of the premises on behalf of the appellant. The monetary benefit available to the dealer is confined to the commission it receives on the sale of every vehicle; and does not include the right of enjoy-ment of the premises. The dealer pays a fixed sum as rent to the appellant and the rent is not related or dependant on the sale of any vehicle. The fact that this amount is same as what is paid by the appellant to the respondent does not appear to be material. The irresistible conclusion is that the appellant has created a sub-lease in favour of its dealer. The question now is whether the clause in the lease mentioned above amounts to the respon-dent?s consent in writing. 7. The contention of the learned Counsel for the respondent that the aforesaid clause cannot be looked into for want of registration of the lease deed appears to be correct. Reliance has been placed on the observations of Fazal Ali J. in Sachindra Mohan Ghose v. Ramjash Agarwalla : AIR 1932 Patna 97 that if a decree purporting to create a lease is inadmissible in evidence for want of registration, none of the terms of the lease can be admitted in evidence and that to use a document for the purpose of proving an important clause in the lease is not using it as a collateral purpose. 8. The learned Counsel for the appellant attempted to meet the point by saving that so far the consent of the landlord permitting sub-letting is concerned it does not require registration and the clause, therefore, must be excepted from the requirement of registration and consequent exclusion from evidence. We do not see any force in this argument. The question whether a lessee is entitled to create a sub-lease or not is undoubtedly a term of the transaction of lease, and if it is incorporated in the document it cannot be disassociated from the lease and considered separately in isolation. If a document is inadmissible for non-registration, all its terms are inadmissible including the one dealing with landlord?s permission to his tenant to sub-let. It follows that the appellant cannot, in the present circumstances, be allowed to rely upon the clause in his unregistered lease deed. 9 There is still another reason to hold that the aforesaid clause cannot come to the aid of the appellant. A persual of its language would show that it contains the respondent?s consent in general terms without reference to M/s United Automobiles. As a matter of fact M/s. United Automobiles came to be inducted as a sub-tenant much later. Can such a general permission be treated to be the consent as required by Section 14(1) Proviso (b) of the Act? It was held by this Court in M/s. Shalimar Tar Products v.S.C. Sharma, (1988) 1 SCC 70 ; that Sections 14(1) Proviso (b) and 16 (2) and (3) of the Delhi Rent Control Act, 1958 enjoin the tenant to obtain consent of the landlord in writing to the specific sub-letting and any other interpretation of the provisions will defeat the object of the statute and is, therefore, inpermissible. Since it is not suggested that the consent of the respondent was obtained specifically with reference to the sub-letting in favour of M/s. United Automobiles, the clause in the lease deed, which has been relied on cannot save the appellant, even if it be assumed in its favour that the clause is admissible and the sub-lessee is appellant?s associate concern. 10. | 0[ds]6. There is no dispute that the appellant has put M/s. United Automobiles in possession of the premises and has thus parted with the possession within the meaning of Section 14(1) proviso (b) of the Act. The appellant-Company has a separate legal entity and has nothing to do with M/s United Automobiles except that the latter is the dealer-distributor of some of its manufactured articles. M/s. United Automobiles is not a licensee and is not in possession of the premises on behalf of the appellant. The monetary benefit available to the dealer is confined to the commission it receives on the sale of every vehicle; and does not include the right of enjoy-ment of the premises. The dealer pays a fixed sum as rent to the appellant and the rent is not related or dependant on the sale of any vehicle. The fact that this amount is same as what is paid by the appellant to the respondent does not appear to be material. The irresistible conclusion is that the appellant has created a sub-lease in favour of its dealer. The question now is whether the clause in the lease mentioned above amounts to the respon-dent?s consent in writing9 There is still another reason to hold that the aforesaid clause cannot come to the aid of the appellant. A persual of its language would show that it contains the respondent?s consent in general terms without reference to M/s United Automobiles. As a matter of fact M/s. United Automobiles came to be inducted as a sub-tenant much later. Can such a general permission be treated to be the consent as required by Section 14(1) Proviso (b) of the Act? It was held by this Court in M/s. Shalimar Tar Products v.S.C. Sharma, (1988) 1 SCC 70 ; that Sections 14(1) Proviso (b) and 16 (2) and (3) ofthe Delhi Rent Control Act, 1958 enjoin the tenant to obtain consent of the landlord in writing to the specific sub-letting and any other interpretation of the provisions will defeat the object of the statute and is, therefore, inpermissible. Since it is not suggested that the consent of the respondent was obtained specifically with reference to the sub-letting in favour of M/s. United Automobiles, the clause in the lease deed, which has been relied on cannot save the appellant, even if it be assumed in its favour that the clause is admissible and the sub-lessee is appellant?s associate concern. | 0 | 1,424 | 466 | ### Instruction:
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as quoted above the arrangement with M/s. United Automobiles cannot be condemned as a sub-lessee without the consent of the respondent, The stand of the respondent has been that the above-mentioned term, of the lease cannot be looked into as the document was not registered and further M/s. United Automobiles cannot be assumed to be an ‘associate concern? within the meaning of the term. The Rent Controller, as well as, the appellate authority held that the afore-mentioned term of the lease was not inadmissible and the appellant was entitled to rely upon the same, but ordered eviction on the ground that M/s. United Automobiles was inducted in the premises as a sub-lessee. The High Court dismissed the appellant?s second appeal in limine, and in this situation the present appeal by special leave has been filed. 5. It has been strenuously contended by the learned Counsel for the appellant that as (i) the United Automobiles is a distributor of the product manufactured by the appellant on the basis of commission, (ii) it pays the same amount to the appellant as the rent of the premises payable by the appellant to the respondent, and (iii) is entitled to be in possession only as long as it continues to be a distributor, it should be held to be an ‘associate concern? within the meaning of the afore-mentioned term of the lease. In reply of the respondent?s contention that the term cannot be taken into consideration as the deed is not a registered one, it was urged that the appellant, in view of the provisions of Section 49 of the Registration Act, is entitled to rely upon the term for collateral purpose?. The argument is that the document may not be admissible for the purpose of proving the existence of a lease or the terms thereof, but as the afore-mentioned clause does not come within that category, inasmuch as it merely amounts to a written permission to the appellant to create a sub-lease, it cannot be excluded from consideration on the ground of non-registration. 6. There is no dispute that the appellant has put M/s. United Automobiles in possession of the premises and has thus parted with the possession within the meaning of Section 14(1) proviso (b) of the Act. The appellant-Company has a separate legal entity and has nothing to do with M/s United Automobiles except that the latter is the dealer-distributor of some of its manufactured articles. M/s. United Automobiles is not a licensee and is not in possession of the premises on behalf of the appellant. The monetary benefit available to the dealer is confined to the commission it receives on the sale of every vehicle; and does not include the right of enjoy-ment of the premises. The dealer pays a fixed sum as rent to the appellant and the rent is not related or dependant on the sale of any vehicle. The fact that this amount is same as what is paid by the appellant to the respondent does not appear to be material. The irresistible conclusion is that the appellant has created a sub-lease in favour of its dealer. The question now is whether the clause in the lease mentioned above amounts to the respon-dent?s consent in writing. 7. The contention of the learned Counsel for the respondent that the aforesaid clause cannot be looked into for want of registration of the lease deed appears to be correct. Reliance has been placed on the observations of Fazal Ali J. in Sachindra Mohan Ghose v. Ramjash Agarwalla : AIR 1932 Patna 97 that if a decree purporting to create a lease is inadmissible in evidence for want of registration, none of the terms of the lease can be admitted in evidence and that to use a document for the purpose of proving an important clause in the lease is not using it as a collateral purpose. 8. The learned Counsel for the appellant attempted to meet the point by saving that so far the consent of the landlord permitting sub-letting is concerned it does not require registration and the clause, therefore, must be excepted from the requirement of registration and consequent exclusion from evidence. We do not see any force in this argument. The question whether a lessee is entitled to create a sub-lease or not is undoubtedly a term of the transaction of lease, and if it is incorporated in the document it cannot be disassociated from the lease and considered separately in isolation. If a document is inadmissible for non-registration, all its terms are inadmissible including the one dealing with landlord?s permission to his tenant to sub-let. It follows that the appellant cannot, in the present circumstances, be allowed to rely upon the clause in his unregistered lease deed. 9 There is still another reason to hold that the aforesaid clause cannot come to the aid of the appellant. A persual of its language would show that it contains the respondent?s consent in general terms without reference to M/s United Automobiles. As a matter of fact M/s. United Automobiles came to be inducted as a sub-tenant much later. Can such a general permission be treated to be the consent as required by Section 14(1) Proviso (b) of the Act? It was held by this Court in M/s. Shalimar Tar Products v.S.C. Sharma, (1988) 1 SCC 70 ; that Sections 14(1) Proviso (b) and 16 (2) and (3) of the Delhi Rent Control Act, 1958 enjoin the tenant to obtain consent of the landlord in writing to the specific sub-letting and any other interpretation of the provisions will defeat the object of the statute and is, therefore, inpermissible. Since it is not suggested that the consent of the respondent was obtained specifically with reference to the sub-letting in favour of M/s. United Automobiles, the clause in the lease deed, which has been relied on cannot save the appellant, even if it be assumed in its favour that the clause is admissible and the sub-lessee is appellant?s associate concern. 10.
### Response:
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### Explanation:
6. There is no dispute that the appellant has put M/s. United Automobiles in possession of the premises and has thus parted with the possession within the meaning of Section 14(1) proviso (b) of the Act. The appellant-Company has a separate legal entity and has nothing to do with M/s United Automobiles except that the latter is the dealer-distributor of some of its manufactured articles. M/s. United Automobiles is not a licensee and is not in possession of the premises on behalf of the appellant. The monetary benefit available to the dealer is confined to the commission it receives on the sale of every vehicle; and does not include the right of enjoy-ment of the premises. The dealer pays a fixed sum as rent to the appellant and the rent is not related or dependant on the sale of any vehicle. The fact that this amount is same as what is paid by the appellant to the respondent does not appear to be material. The irresistible conclusion is that the appellant has created a sub-lease in favour of its dealer. The question now is whether the clause in the lease mentioned above amounts to the respon-dent?s consent in writing9 There is still another reason to hold that the aforesaid clause cannot come to the aid of the appellant. A persual of its language would show that it contains the respondent?s consent in general terms without reference to M/s United Automobiles. As a matter of fact M/s. United Automobiles came to be inducted as a sub-tenant much later. Can such a general permission be treated to be the consent as required by Section 14(1) Proviso (b) of the Act? It was held by this Court in M/s. Shalimar Tar Products v.S.C. Sharma, (1988) 1 SCC 70 ; that Sections 14(1) Proviso (b) and 16 (2) and (3) ofthe Delhi Rent Control Act, 1958 enjoin the tenant to obtain consent of the landlord in writing to the specific sub-letting and any other interpretation of the provisions will defeat the object of the statute and is, therefore, inpermissible. Since it is not suggested that the consent of the respondent was obtained specifically with reference to the sub-letting in favour of M/s. United Automobiles, the clause in the lease deed, which has been relied on cannot save the appellant, even if it be assumed in its favour that the clause is admissible and the sub-lessee is appellant?s associate concern.
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Vasant Krishnarao Paturkar & Anr Vs. D. R. Majramkar & Others | That matter is still pending in the Nagpur Bench. The respondents 1 to 19 were impleaded as respondents in that application and although they had been served, they did not file any return when the said application came up for hearing at Nagpur on 2nd February, 1972. The learned Government Advocate, however, mentioned to the Court that another petition on the same subject had already been decided by the Bombay High Court. It is said that this was the first time when the appellants came to know of the impugned judgment and took immediate steps in the Bombay High Court to set aside the order and for rehearing the writ petition, but failed to obtain favourable orders.7. The problem is indeed ticklish and sensitive concerning integration, absorption, gradation and fixation of appropriate seniority of the officers throwing by act of the State their common lot from different areas, namely, the former State of Madhya Pradesh, former State of Hyderabad and the former State of Bombay allotted to the new bilingual State of Bombay under the provisions of the States Reorganisation Act. It is, however, clear that there is sufficient guideline in Part X of the States Reorganisation Act, 1956 as also later in Part VIII of the Bombay Reorganisation Act, 1960 and it is reserved for the Government of India, advisedly, to be the final authority in the matter of division and integration of services among the new States to ensure a fair and equitable treatment to all persons affected by the reorganisation including proper consideration of any representation made by concerned persons. (See Section 115 and Section 117 of the Act and Secs. 81 and 83 of the Bombay Reorganisation Act, 1960).8. It is well settled that the Central Government under Section 115 of the Act has to determine the principles governing equation of posts and prepare common gradation lists by integration of services and in doing so to ensure fair and equitable treatment to all persons concerned. The Central Government is also required to give opportunities to the parties affected to make their representations.(See D. Rajiah Raj v. Union of India, AIR 1974 SC 457 = (1973) 1 SCC 61 = (1973 Lab IC 84); N. Subba Rao v. Union of India, (1972) 2 SCC 862 = (AIR 1973 SC 69 = 1974 Lab IC 240) and Union of India v. P. K. Roy, (1968) 2 SCR 186 = (AIR 1968 SC 850 ).9. The High Court cannot clothe upon itself the authority for performing the functions which are specifically and expressly intended to be the obligation and duty of the Central Government under the Act. The High Court is, therefore, not right in two matters, namely, in directing the State Government to do that which under the provisions of the Act is within the domain of the Central Government and secondly in fixing a time limit for action and, if the same is exceeded, directing an automatic entitlement to the second relief as to equation, absorption and fixation of seniority as prayed for by respondents 1 to 19. This view of the High Court is clearly erroneous in view of the provisions of the Act.10. That, however, does not dispose of this matter. Mr. Phadke, learned counsel for the appellants, raises several questions before us. Firstly, that the Division Bench of the High Court could not sit in appeal against the Division Bench decision of the Nagpur Bench which is binding on the respondents 1 to 19. Secondly, that there is clear violation of the principles of natural justice in disposing of the writ petition by the High Court, ex parte, and in not reviewing its order when sufficient cause was shown by the appellants herein. Thirdly, that the High Court should not have allowed the application under Order 1, Rule 8, Civil Procedure Code, and should have insisted upon personal service of the rule nisi on the affected petitioners in a service matter of such implications.11. Mr. Bhandare, learned counsel for the State of Maharashtra, also, inter alia took the point that the Central Government was a necessary party and the petition should have been dismissed by the High Court for non-joinder of that Government.12. It is not necessary for us to go into these questions in view of the High Courts order of December 24, 1971, in Civil Application No. 3261 of 1971, of the State of Maharashtra and the Director of Agriculture praying for permission to file an affidavit in reply to the writ petition and for contesting the petition on merits. The High Court observed "we are satisfied on reading these affidavits that there was sufficient cause for rehearing the Special Civil Application", but on perusal of the affidavit in reply and hearing counsel for the State rejected the said petition. The High Court also dismissed the petitioners application for rehearing the writ application.13. We are not satisfied that the High Court was right in not allowing an opportunity to the petitioners as well as to the State to canvass their respective points of view before it against the writ application, particularly so when the matter had been heard in a representative writ application and not one of the actually affected persons had been impleaded as a respondent even to represent their category. The High Court itself observed, as noticed above, "there was sufficient cause of rehearing". Without, therefore, going into the various points raised before us, we set aside the impugned judgment and order of the Bombay High Court of 9th December, 1971 and direct restoration of the Special Civil Application No. 1354 of 1970 to its file for disposal of the same in accordance with law after giving opportunity to all the parties concerned. We further direct that respondents 1 to 19 shall take steps in the High Court to impleaded the Central Government as well as the present appellants and all other officers affected by the orders sought to be quashed in the Special Civil Application No. 1354 of 1970. | 1[ds]8. It is well settled that the Central Government under Section 115 of the Act has to determine the principles governing equation of posts and prepare common gradation lists by integration of services and in doing so to ensure fair and equitable treatment to all persons concerned. The Central Government is also required to give opportunities to the parties affected to make theirThe High Court cannot clothe upon itself the authority for performing the functions which are specifically and expressly intended to be the obligation and duty of the Central Government under the Act. The High Court is, therefore, not right in two matters, namely, in directing the State Government to do that which under the provisions of the Act is within the domain of the Central Government and secondly in fixing a time limit for action and, if the same is exceeded, directing an automatic entitlement to the second relief as to equation, absorption and fixation of seniority as prayed for by respondents 1 to 19. This view of the High Court is clearly erroneous in view of the provisions of the Act.We are not satisfied that the High Court was right in not allowing an opportunity to the petitioners as well as to the State to canvass their respective points of view before it against the writ application, particularly so when the matter had been heard in a representative writ application and not one of the actually affected persons had been impleaded as a respondent even to represent their category. The High Court itself observed, as noticed above, "there was sufficient cause of rehearing". Without, therefore, going into the various points raised before us, we set aside the impugned judgment and order of the Bombay High Court of 9th December, 1971 and direct restoration of the Special Civil Application No. 1354 of 1970 to its file for disposal of the same in accordance with law after giving opportunity to all the parties concerned. We further direct that respondents 1 to 19 shall take steps in the High Court to impleaded the Central Government as well as the present appellants and all other officers affected by the orders sought to be quashed in the Special Civil Application No. 1354 ofis, however, clear that there is sufficient guideline in Part X ofthe States Reorganisation Act, 1956 as also later in Part VIII ofthe Bombay Reorganisation Act, 1960 and it is reserved for the Government of India, advisedly, to be the final authority in the matter of division and integration of services among the new States to ensure a fair and equitable treatment to all persons affected by the reorganisation including proper consideration of any representation made by concerned persons. (See Section 115 and Section 117 of the Act and Secs. 81 and 83 ofthe Bombay Reorganisation Act, 1960).It is not necessary for us to go into these questions in view of the High Courts order of December 24, 1971, in Civil Application No. 3261 of 1971, of the State of Maharashtra and the Director of Agriculture praying for permission to file an affidavit in reply to the writ petition and for contesting the petition on merits. The High Court observed "we are satisfied on reading these affidavits that there was sufficient cause for rehearing the Special Civil Application", but on perusal of the affidavit in reply and hearing counsel for the State rejected the said petition. The High Court also dismissed the petitioners application for rehearing the writ application.13.We are not satisfied that the High Court was right in not allowing an opportunity to the petitioners as well as to the State to canvass their respective points of view before it against the writ application, particularly so when the matter had been heard in a representative writ application and not one of the actually affected persons had been impleaded as a respondent even to represent their category. The High Court itself observed, as noticed above, "there was sufficient cause of rehearing". Without, therefore, going into the various points raised before us, we set aside the impugned judgment and order of the Bombay High Court of 9th December, 1971 and direct restoration of the Special Civil Application No. 1354 of 1970 to its file for disposal of the same in accordance with law after giving opportunity to all the parties concerned. We further direct that respondents 1 to 19 shall take steps in the High Court to impleaded the Central Government as well as the present appellants and all other officers affected by the orders sought to be quashed in the Special Civil Application No. 1354 of | 1 | 2,130 | 831 | ### Instruction:
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That matter is still pending in the Nagpur Bench. The respondents 1 to 19 were impleaded as respondents in that application and although they had been served, they did not file any return when the said application came up for hearing at Nagpur on 2nd February, 1972. The learned Government Advocate, however, mentioned to the Court that another petition on the same subject had already been decided by the Bombay High Court. It is said that this was the first time when the appellants came to know of the impugned judgment and took immediate steps in the Bombay High Court to set aside the order and for rehearing the writ petition, but failed to obtain favourable orders.7. The problem is indeed ticklish and sensitive concerning integration, absorption, gradation and fixation of appropriate seniority of the officers throwing by act of the State their common lot from different areas, namely, the former State of Madhya Pradesh, former State of Hyderabad and the former State of Bombay allotted to the new bilingual State of Bombay under the provisions of the States Reorganisation Act. It is, however, clear that there is sufficient guideline in Part X of the States Reorganisation Act, 1956 as also later in Part VIII of the Bombay Reorganisation Act, 1960 and it is reserved for the Government of India, advisedly, to be the final authority in the matter of division and integration of services among the new States to ensure a fair and equitable treatment to all persons affected by the reorganisation including proper consideration of any representation made by concerned persons. (See Section 115 and Section 117 of the Act and Secs. 81 and 83 of the Bombay Reorganisation Act, 1960).8. It is well settled that the Central Government under Section 115 of the Act has to determine the principles governing equation of posts and prepare common gradation lists by integration of services and in doing so to ensure fair and equitable treatment to all persons concerned. The Central Government is also required to give opportunities to the parties affected to make their representations.(See D. Rajiah Raj v. Union of India, AIR 1974 SC 457 = (1973) 1 SCC 61 = (1973 Lab IC 84); N. Subba Rao v. Union of India, (1972) 2 SCC 862 = (AIR 1973 SC 69 = 1974 Lab IC 240) and Union of India v. P. K. Roy, (1968) 2 SCR 186 = (AIR 1968 SC 850 ).9. The High Court cannot clothe upon itself the authority for performing the functions which are specifically and expressly intended to be the obligation and duty of the Central Government under the Act. The High Court is, therefore, not right in two matters, namely, in directing the State Government to do that which under the provisions of the Act is within the domain of the Central Government and secondly in fixing a time limit for action and, if the same is exceeded, directing an automatic entitlement to the second relief as to equation, absorption and fixation of seniority as prayed for by respondents 1 to 19. This view of the High Court is clearly erroneous in view of the provisions of the Act.10. That, however, does not dispose of this matter. Mr. Phadke, learned counsel for the appellants, raises several questions before us. Firstly, that the Division Bench of the High Court could not sit in appeal against the Division Bench decision of the Nagpur Bench which is binding on the respondents 1 to 19. Secondly, that there is clear violation of the principles of natural justice in disposing of the writ petition by the High Court, ex parte, and in not reviewing its order when sufficient cause was shown by the appellants herein. Thirdly, that the High Court should not have allowed the application under Order 1, Rule 8, Civil Procedure Code, and should have insisted upon personal service of the rule nisi on the affected petitioners in a service matter of such implications.11. Mr. Bhandare, learned counsel for the State of Maharashtra, also, inter alia took the point that the Central Government was a necessary party and the petition should have been dismissed by the High Court for non-joinder of that Government.12. It is not necessary for us to go into these questions in view of the High Courts order of December 24, 1971, in Civil Application No. 3261 of 1971, of the State of Maharashtra and the Director of Agriculture praying for permission to file an affidavit in reply to the writ petition and for contesting the petition on merits. The High Court observed "we are satisfied on reading these affidavits that there was sufficient cause for rehearing the Special Civil Application", but on perusal of the affidavit in reply and hearing counsel for the State rejected the said petition. The High Court also dismissed the petitioners application for rehearing the writ application.13. We are not satisfied that the High Court was right in not allowing an opportunity to the petitioners as well as to the State to canvass their respective points of view before it against the writ application, particularly so when the matter had been heard in a representative writ application and not one of the actually affected persons had been impleaded as a respondent even to represent their category. The High Court itself observed, as noticed above, "there was sufficient cause of rehearing". Without, therefore, going into the various points raised before us, we set aside the impugned judgment and order of the Bombay High Court of 9th December, 1971 and direct restoration of the Special Civil Application No. 1354 of 1970 to its file for disposal of the same in accordance with law after giving opportunity to all the parties concerned. We further direct that respondents 1 to 19 shall take steps in the High Court to impleaded the Central Government as well as the present appellants and all other officers affected by the orders sought to be quashed in the Special Civil Application No. 1354 of 1970.
### Response:
1
### Explanation:
8. It is well settled that the Central Government under Section 115 of the Act has to determine the principles governing equation of posts and prepare common gradation lists by integration of services and in doing so to ensure fair and equitable treatment to all persons concerned. The Central Government is also required to give opportunities to the parties affected to make theirThe High Court cannot clothe upon itself the authority for performing the functions which are specifically and expressly intended to be the obligation and duty of the Central Government under the Act. The High Court is, therefore, not right in two matters, namely, in directing the State Government to do that which under the provisions of the Act is within the domain of the Central Government and secondly in fixing a time limit for action and, if the same is exceeded, directing an automatic entitlement to the second relief as to equation, absorption and fixation of seniority as prayed for by respondents 1 to 19. This view of the High Court is clearly erroneous in view of the provisions of the Act.We are not satisfied that the High Court was right in not allowing an opportunity to the petitioners as well as to the State to canvass their respective points of view before it against the writ application, particularly so when the matter had been heard in a representative writ application and not one of the actually affected persons had been impleaded as a respondent even to represent their category. The High Court itself observed, as noticed above, "there was sufficient cause of rehearing". Without, therefore, going into the various points raised before us, we set aside the impugned judgment and order of the Bombay High Court of 9th December, 1971 and direct restoration of the Special Civil Application No. 1354 of 1970 to its file for disposal of the same in accordance with law after giving opportunity to all the parties concerned. We further direct that respondents 1 to 19 shall take steps in the High Court to impleaded the Central Government as well as the present appellants and all other officers affected by the orders sought to be quashed in the Special Civil Application No. 1354 ofis, however, clear that there is sufficient guideline in Part X ofthe States Reorganisation Act, 1956 as also later in Part VIII ofthe Bombay Reorganisation Act, 1960 and it is reserved for the Government of India, advisedly, to be the final authority in the matter of division and integration of services among the new States to ensure a fair and equitable treatment to all persons affected by the reorganisation including proper consideration of any representation made by concerned persons. (See Section 115 and Section 117 of the Act and Secs. 81 and 83 ofthe Bombay Reorganisation Act, 1960).It is not necessary for us to go into these questions in view of the High Courts order of December 24, 1971, in Civil Application No. 3261 of 1971, of the State of Maharashtra and the Director of Agriculture praying for permission to file an affidavit in reply to the writ petition and for contesting the petition on merits. The High Court observed "we are satisfied on reading these affidavits that there was sufficient cause for rehearing the Special Civil Application", but on perusal of the affidavit in reply and hearing counsel for the State rejected the said petition. The High Court also dismissed the petitioners application for rehearing the writ application.13.We are not satisfied that the High Court was right in not allowing an opportunity to the petitioners as well as to the State to canvass their respective points of view before it against the writ application, particularly so when the matter had been heard in a representative writ application and not one of the actually affected persons had been impleaded as a respondent even to represent their category. The High Court itself observed, as noticed above, "there was sufficient cause of rehearing". Without, therefore, going into the various points raised before us, we set aside the impugned judgment and order of the Bombay High Court of 9th December, 1971 and direct restoration of the Special Civil Application No. 1354 of 1970 to its file for disposal of the same in accordance with law after giving opportunity to all the parties concerned. We further direct that respondents 1 to 19 shall take steps in the High Court to impleaded the Central Government as well as the present appellants and all other officers affected by the orders sought to be quashed in the Special Civil Application No. 1354 of
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AMRIT PAUL SINGH Vs. TATA AIG GENERAL INSURANCE CO. LTD | to avoid liability, the insurer must establish that there was breach on the part of the insured. 19. The obtaining fact situation is sought to be equated with the factual score in the said case. In this regard, it is useful to refer to the Bench decision in HDFC Bank Limited v. Reshma and Ors. (2015) 3 SCC 679. The issue that arose before the Court was whether the financier was liable to pay the compensation or it was the liability of the borrower. The tribunal had returned the finding that the duty of the financier was to see that the borrower did not neglect to get the vehicle insured and, therefore, it was jointly and severally liable along with the owner. The High Court had concurred with the said conclusion. The Court referred to Purnya Kala Devi v. State of Assam and Ors. (2014) 14 SCC 142 that has dealt with the definition of the term owner as contained in Section 2(30) of the Act. In the said case, the vehicle in question was under the requisition of the State of Assam under the provisions of law. In that context, the Court has expressed that:16. ... The High Court failed to appreciate that at the relevant time the offending vehicle was under the requisition of Respondent 1 State of Assam under the provisions of the Assam Act. Therefore, Respondent 1 was squarely covered under the definition of owner as contained in Section 2(30) of the 1988 Act. The High Court failed to appreciate the underlying legislative intention in including in the definition of owner a person in possession of a vehicle either under an agreement of lease or agreement of hypothecation or under a hire-purchase agreement to the effect that a person in control and possession of the vehicle should be construed as the owner and not alone the registered owner. The High Court further failed to appreciate the legislative intention that the registered owner of the vehicle should not be held liable if the vehicle was not in his possession and control. The High Court also failed to appreciate that Section 146 of the 1988 Act requires that no person shall use or cause or allow any other person to use a motor vehicle in a public place without an insurance policy meeting the requirements of Chapter XI of the 1988 Act and the State Government has violated the statutory provisions of the 1988 Act. 20. Be it noted, in the said case, the liability was fixed on the State keeping in view the legislative intention behind Section 146 of the Act, no person shall use or cause or allow any other person to use a motor vehicle in a public place without an insurance policy as that is the mandatory statutory requirement under the Act. Emphasis was laid on possession and control of the vehicle and accordingly liability was fixed on the State of Assam. 21. In HDFC Bank Limited (supra), the three-Judge Bench opined that the hypothecation agreement did not convey that the Appellant financier had become the owner and was in control and possession of the vehicle. It was the absolute fault of the Respondent No. 2 to take the vehicle from the dealer without full payment of the insurance, more so when nothing had been brought on record that the said fact was known to the Appellant financier or that it was done in collusion with the financier. 22. The Court held that when the intention of the legislature is quite clear to the effect that a registered owner of the vehicle should not be held liable if the vehicle is not in his possession and control and there was evidence on record that the Respondent No. 2, plied the vehicle without the insurance in violation of the statutory provision contained in Section 146 of the Act, the High Court could not have mulcted the liability on the financier and finally, the financer was absolved of the liability. 23. In the case at hand, it is clearly demonstrable from the materials brought on record that the vehicle at the time of the accident did not have a permit. The Appellants had taken the stand that the vehicle was not involved in the accident. That apart, they had not stated whether the vehicle had temporary permit or any other kind of permit. The exceptions that have been carved out Under Section 66 of the Act, needless to emphasise, are to be pleaded and proved. The exceptions cannot be taken aid of in the course of an argument to seek absolution from liability. Use of a vehicle in a public place without a permit is a fundamental statutory infraction. We are disposed to think so in view of the series of exceptions carved out in Section 66. The said situations cannot be equated with absence of licence or a fake licence or a licence for different kind of vehicle, or, for that matter, violation of a condition of carrying more number of passengers. Therefore, the principles laid down in Swaran Singh (supra) and Lakhmi Chand (supra) in that regard would not be applicable to the case at hand. That apart, the insurer had taken the plea that the vehicle in question had no permit. It does not require the wisdom of the Tripitaka, that the existence of a permit of any nature is a matter of documentary evidence. Nothing has been brought on record by the insured to prove that he had a permit of the vehicle. In such a situation, the onus cannot be cast on the insurer. Therefore, the tribunal as well as the High Court had directed the insurer was required to pay the compensation amount to the claimants with interest with the stipulation that the insurer shall be entitled to recover the same from the owner and the driver. The said directions are in consonance with the principles stated in Swaran Singh (supra) and Ors. cases pertaining to pay and recover principle. | 0[ds]On a perusal of both the definitions, it is quite clear that a permit has to be issued by the competent authority under the Act for use of a motor vehicle as a transport vehicle. The emphasis is on the words use as well as transport vehicle.10. In the case at hand, the findings would show that the Appellant No. 2 did not have a permit for the vehicle. There is no dispute that the vehicle initially had a temporary registration and eventually the permanent registration.A distinction has to be made between route permit and permit in the context of Section 149 of the Act. Section 149(2) provides the grounds that can be taken as defence by the insurer. It enables the insurer to defend on the ground that there has been breach of a specific condition of the policy, namely, (i) a condition that excludes the use of the vehicle,-(a) for hire or reward, where the vehicle is, on the date of the contract of insurance, a vehicle not covered by a permit to ply for hire or reward, or (b) for organized racing and speed testing, or (c) for a purpose not allowed by the permit under which the vehicle is used, where the vehicle is a transport vehicle, or (d) without side-car being attached where the vehicle is a motor cycle. That apart, it also entitles the insurer to raise the issue pertaining to a condition that excludes driving by a named person or persons or by any person who is not duly licensed or by any person who has been disqualified for holding or obtaining a driving licence during the period of disqualification or that excludes liability for injury caused or contributed to by conditions of war, civil war, riot or civil commotion. A further defence that can be availed of by the insurer is that the policy is void on the ground that it has been obtained by non-disclosure of the material fact or by representation of act which is false in the material particular.11. On a perusal of the written statement filed by the owner and the driver, it is evident that the factum of accident having been caused by the vehicle in question had been denied. That apart, there is also a denial of liability that relates to the manner in which the accident had occurred as alleged in the claim petition.14. We may fruitfully note that the three-Judge Bench adverted to situations where the driver does not have a licence and the same has been allowed to be driven by the owner of the vehicle by such person, the insurer would be entitled to succeed in defence and avoid liability, but the position would be different where the disputed question of fact arises as to whether the driver had a valid licence and where the owner of the vehicle committed a breach of the terms of the contract of insurance as also the provisions of the Act by consciously allowing any person to drive a vehicle who did not have a valid driving licence15. The Court held that if, on facts, it is found that the accident was caused solely because of some other unforeseen or intervening causes like mechanical failures and similar other causes having no nexus with the driver not possessing the requisite type of licence, the insurer will not be allowed to avoid its liability merely for technical breach of conditions concerning driving licence. That apart, minor and inconsequential deviations with regard to licensing conditions would not constitute sufficient ground to deny the benefit of coverage of insurance to third parties. The other category of cases that the Court addressed to included cases where the licence of the driver is found to be fake.16. The three-Judge Bench summed up its conclusions and we think it appropriate to reproduce the relevant part of the same:(vi) Even where the insurer is able to prove breach on the part of the insured concerning the policy condition regarding holding of a valid licence by the driver or his qualification to drive during the relevant period, the insurer would not be allowed to avoid its liability towards the insured unless the said breach or breaches on the condition of driving licence is/are so fundamental as are found to have contributed to the cause of the accident. The Tribunals in interpreting the policy conditions would apply the Rule of main purpose and the concept of fundamental breach to allow defences available to the insurer Under Section 149(2) of the Act(vii) The question, as to whether the owner has taken reasonable care to find out as to whether the driving licence produced by the driver (a fake one or otherwise), does not fulfil the requirements of law or not will have to be determined in each case.In this context, we may profitably refer to the decision in Challa Bharathamma (supra) wherein a two-Judge Bench squarely dealt with the absence of a permit and ruled that plying a vehicle without a permit is an infraction and insurer is not liable.18. In Lakhmi Chand v. Reliance General Insurance (2016) 3 SCC 100 , the Court was concerned with an order passed by the National Consumer Disputes Redressal Commission (NCDRC) that had declined the relief to the Petitioner therein. The insurer in the said case had taken the plea that the complainant had violated the terms and conditions of the policy, for five passengers were travelling in the goods carrying vehicle at the time of the accident, whereas the permitted seating capacity of the motor vehicle of the Appellant was only 1 + 1. The two-Judge Bench referred to Oriental Insurance Co. Ltd. v. Meena Variyal and Ors. (2007) 5 SCC 428 and expressed the view that in order to avoid liability, the insurer must establish that there was breach on the part of the insured.21. In HDFC Bank Limited (supra), the three-Judge Bench opined that the hypothecation agreement did not convey that the Appellant financier had become the owner and was in control and possession of the vehicle. It was the absolute fault of the Respondent No. 2 to take the vehicle from the dealer without full payment of the insurance, more so when nothing had been brought on record that the said fact was known to the Appellant financier or that it was done in collusion with the financier22. The Court held that when the intention of the legislature is quite clear to the effect that a registered owner of the vehicle should not be held liable if the vehicle is not in his possession and control and there was evidence on record that the Respondent No. 2, plied the vehicle without the insurance in violation of the statutory provision contained in Section 146 of the Act, the High Court could not have mulcted the liability on the financier and finally, the financer was absolved of the liability23. In the case at hand, it is clearly demonstrable from the materials brought on record that the vehicle at the time of the accident did not have a permit. The Appellants had taken the stand that the vehicle was not involved in the accident. That apart, they had not stated whether the vehicle had temporary permit or any other kind of permit. The exceptions that have been carved out Under Section 66 of the Act, needless to emphasise, are to be pleaded and proved. The exceptions cannot be taken aid of in the course of an argument to seek absolution from liability. Use of a vehicle in a public place without a permit is a fundamental statutory infraction. We are disposed to think so in view of the series of exceptions carved out in Section 66. The said situations cannot be equated with absence of licence or a fake licence or a licence for different kind of vehicle, or, for that matter, violation of a condition of carrying more number of passengers. Therefore, the principles laid down in Swaran Singh (supra) and Lakhmi Chand (supra) in that regard would not be applicable to the case at hand. That apart, the insurer had taken the plea that the vehicle in question had no permit. It does not require the wisdom of the Tripitaka, that the existence of a permit of any nature is a matter of documentary evidence. Nothing has been brought on record by the insured to prove that he had a permit of the vehicle. In such a situation, the onus cannot be cast on the insurer. Therefore, the tribunal as well as the High Court had directed the insurer was required to pay the compensation amount to the claimants with interest with the stipulation that the insurer shall be entitled to recover the same from the owner and the driver. The said directions are in consonance with the principles stated in Swaran Singh (supra) and Ors. cases pertaining to pay and recover principle.19. The obtaining fact situation is sought to be equated with the factual score in the said case. In this regard, it is useful to refer to the Bench decision in HDFC Bank Limited v. Reshma and Ors. (2015) 3 SCC 679. The issue that arose before the Court was whether the financier was liable to pay the compensation or it was the liability of the borrower. The tribunal had returned the finding that the duty of the financier was to see that the borrower did not neglect to get the vehicle insured and, therefore, it was jointly and severally liable along with the owner. The High Court had concurred with the said conclusion. The Court referred to Purnya Kala Devi v. State of Assam and Ors. (2014) 14 SCC 142 that has dealt with the definition of the term owner as contained in Section 2(30) of the Act. In the said case, the vehicle in question was under the requisition of the State of Assam under the provisions of law. In that context, the Court has expressed that:16. ... The High Court failed to appreciate that at the relevant time the offending vehicle was under the requisition of Respondent 1 State of Assam under the provisions of the Assam Act. Therefore, Respondent 1 was squarely covered under the definition of owner as contained in Section 2(30) of the 1988 Act. The High Court failed to appreciate the underlying legislative intention in including in the definition of owner a person in possession of a vehicle either under an agreement of lease or agreement of hypothecation or under a hire-purchase agreement to the effect that a person in control and possession of the vehicle should be construed as the owner and not alone the registered owner. The High Court further failed to appreciate the legislative intention that the registered owner of the vehicle should not be held liable if the vehicle was not in his possession and control. The High Court also failed to appreciate that Section 146 of the 1988 Act requires that no person shall use or cause or allow any other person to use a motor vehicle in a public place without an insurance policy meeting the requirements of Chapter XI of the 1988 Act and the State Government has violated the statutory provisions of the 1988 Act.20. Be it noted, in the said case, the liability was fixed on the State keeping in view the legislative intention behind Section 146 of the Act, no person shall use or cause or allow any other person to use a motor vehicle in a public place without an insurance policy as that is the mandatory statutory requirement under the Act. Emphasis was laid on possession and control of the vehicle and accordingly liability was fixed on the State of Assam. | 0 | 5,351 | 2,130 | ### 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:
to avoid liability, the insurer must establish that there was breach on the part of the insured. 19. The obtaining fact situation is sought to be equated with the factual score in the said case. In this regard, it is useful to refer to the Bench decision in HDFC Bank Limited v. Reshma and Ors. (2015) 3 SCC 679. The issue that arose before the Court was whether the financier was liable to pay the compensation or it was the liability of the borrower. The tribunal had returned the finding that the duty of the financier was to see that the borrower did not neglect to get the vehicle insured and, therefore, it was jointly and severally liable along with the owner. The High Court had concurred with the said conclusion. The Court referred to Purnya Kala Devi v. State of Assam and Ors. (2014) 14 SCC 142 that has dealt with the definition of the term owner as contained in Section 2(30) of the Act. In the said case, the vehicle in question was under the requisition of the State of Assam under the provisions of law. In that context, the Court has expressed that:16. ... The High Court failed to appreciate that at the relevant time the offending vehicle was under the requisition of Respondent 1 State of Assam under the provisions of the Assam Act. Therefore, Respondent 1 was squarely covered under the definition of owner as contained in Section 2(30) of the 1988 Act. The High Court failed to appreciate the underlying legislative intention in including in the definition of owner a person in possession of a vehicle either under an agreement of lease or agreement of hypothecation or under a hire-purchase agreement to the effect that a person in control and possession of the vehicle should be construed as the owner and not alone the registered owner. The High Court further failed to appreciate the legislative intention that the registered owner of the vehicle should not be held liable if the vehicle was not in his possession and control. The High Court also failed to appreciate that Section 146 of the 1988 Act requires that no person shall use or cause or allow any other person to use a motor vehicle in a public place without an insurance policy meeting the requirements of Chapter XI of the 1988 Act and the State Government has violated the statutory provisions of the 1988 Act. 20. Be it noted, in the said case, the liability was fixed on the State keeping in view the legislative intention behind Section 146 of the Act, no person shall use or cause or allow any other person to use a motor vehicle in a public place without an insurance policy as that is the mandatory statutory requirement under the Act. Emphasis was laid on possession and control of the vehicle and accordingly liability was fixed on the State of Assam. 21. In HDFC Bank Limited (supra), the three-Judge Bench opined that the hypothecation agreement did not convey that the Appellant financier had become the owner and was in control and possession of the vehicle. It was the absolute fault of the Respondent No. 2 to take the vehicle from the dealer without full payment of the insurance, more so when nothing had been brought on record that the said fact was known to the Appellant financier or that it was done in collusion with the financier. 22. The Court held that when the intention of the legislature is quite clear to the effect that a registered owner of the vehicle should not be held liable if the vehicle is not in his possession and control and there was evidence on record that the Respondent No. 2, plied the vehicle without the insurance in violation of the statutory provision contained in Section 146 of the Act, the High Court could not have mulcted the liability on the financier and finally, the financer was absolved of the liability. 23. In the case at hand, it is clearly demonstrable from the materials brought on record that the vehicle at the time of the accident did not have a permit. The Appellants had taken the stand that the vehicle was not involved in the accident. That apart, they had not stated whether the vehicle had temporary permit or any other kind of permit. The exceptions that have been carved out Under Section 66 of the Act, needless to emphasise, are to be pleaded and proved. The exceptions cannot be taken aid of in the course of an argument to seek absolution from liability. Use of a vehicle in a public place without a permit is a fundamental statutory infraction. We are disposed to think so in view of the series of exceptions carved out in Section 66. The said situations cannot be equated with absence of licence or a fake licence or a licence for different kind of vehicle, or, for that matter, violation of a condition of carrying more number of passengers. Therefore, the principles laid down in Swaran Singh (supra) and Lakhmi Chand (supra) in that regard would not be applicable to the case at hand. That apart, the insurer had taken the plea that the vehicle in question had no permit. It does not require the wisdom of the Tripitaka, that the existence of a permit of any nature is a matter of documentary evidence. Nothing has been brought on record by the insured to prove that he had a permit of the vehicle. In such a situation, the onus cannot be cast on the insurer. Therefore, the tribunal as well as the High Court had directed the insurer was required to pay the compensation amount to the claimants with interest with the stipulation that the insurer shall be entitled to recover the same from the owner and the driver. The said directions are in consonance with the principles stated in Swaran Singh (supra) and Ors. cases pertaining to pay and recover principle.
### Response:
0
### Explanation:
avoid liability, the insurer must establish that there was breach on the part of the insured.21. In HDFC Bank Limited (supra), the three-Judge Bench opined that the hypothecation agreement did not convey that the Appellant financier had become the owner and was in control and possession of the vehicle. It was the absolute fault of the Respondent No. 2 to take the vehicle from the dealer without full payment of the insurance, more so when nothing had been brought on record that the said fact was known to the Appellant financier or that it was done in collusion with the financier22. The Court held that when the intention of the legislature is quite clear to the effect that a registered owner of the vehicle should not be held liable if the vehicle is not in his possession and control and there was evidence on record that the Respondent No. 2, plied the vehicle without the insurance in violation of the statutory provision contained in Section 146 of the Act, the High Court could not have mulcted the liability on the financier and finally, the financer was absolved of the liability23. In the case at hand, it is clearly demonstrable from the materials brought on record that the vehicle at the time of the accident did not have a permit. The Appellants had taken the stand that the vehicle was not involved in the accident. That apart, they had not stated whether the vehicle had temporary permit or any other kind of permit. The exceptions that have been carved out Under Section 66 of the Act, needless to emphasise, are to be pleaded and proved. The exceptions cannot be taken aid of in the course of an argument to seek absolution from liability. Use of a vehicle in a public place without a permit is a fundamental statutory infraction. We are disposed to think so in view of the series of exceptions carved out in Section 66. The said situations cannot be equated with absence of licence or a fake licence or a licence for different kind of vehicle, or, for that matter, violation of a condition of carrying more number of passengers. Therefore, the principles laid down in Swaran Singh (supra) and Lakhmi Chand (supra) in that regard would not be applicable to the case at hand. That apart, the insurer had taken the plea that the vehicle in question had no permit. It does not require the wisdom of the Tripitaka, that the existence of a permit of any nature is a matter of documentary evidence. Nothing has been brought on record by the insured to prove that he had a permit of the vehicle. In such a situation, the onus cannot be cast on the insurer. Therefore, the tribunal as well as the High Court had directed the insurer was required to pay the compensation amount to the claimants with interest with the stipulation that the insurer shall be entitled to recover the same from the owner and the driver. The said directions are in consonance with the principles stated in Swaran Singh (supra) and Ors. cases pertaining to pay and recover principle.19. The obtaining fact situation is sought to be equated with the factual score in the said case. In this regard, it is useful to refer to the Bench decision in HDFC Bank Limited v. Reshma and Ors. (2015) 3 SCC 679. The issue that arose before the Court was whether the financier was liable to pay the compensation or it was the liability of the borrower. The tribunal had returned the finding that the duty of the financier was to see that the borrower did not neglect to get the vehicle insured and, therefore, it was jointly and severally liable along with the owner. The High Court had concurred with the said conclusion. The Court referred to Purnya Kala Devi v. State of Assam and Ors. (2014) 14 SCC 142 that has dealt with the definition of the term owner as contained in Section 2(30) of the Act. In the said case, the vehicle in question was under the requisition of the State of Assam under the provisions of law. In that context, the Court has expressed that:16. ... The High Court failed to appreciate that at the relevant time the offending vehicle was under the requisition of Respondent 1 State of Assam under the provisions of the Assam Act. Therefore, Respondent 1 was squarely covered under the definition of owner as contained in Section 2(30) of the 1988 Act. The High Court failed to appreciate the underlying legislative intention in including in the definition of owner a person in possession of a vehicle either under an agreement of lease or agreement of hypothecation or under a hire-purchase agreement to the effect that a person in control and possession of the vehicle should be construed as the owner and not alone the registered owner. The High Court further failed to appreciate the legislative intention that the registered owner of the vehicle should not be held liable if the vehicle was not in his possession and control. The High Court also failed to appreciate that Section 146 of the 1988 Act requires that no person shall use or cause or allow any other person to use a motor vehicle in a public place without an insurance policy meeting the requirements of Chapter XI of the 1988 Act and the State Government has violated the statutory provisions of the 1988 Act.20. Be it noted, in the said case, the liability was fixed on the State keeping in view the legislative intention behind Section 146 of the Act, no person shall use or cause or allow any other person to use a motor vehicle in a public place without an insurance policy as that is the mandatory statutory requirement under the Act. Emphasis was laid on possession and control of the vehicle and accordingly liability was fixed on the State of Assam.
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Burn & Company Limited & Others Vs. Their Employees | The workmen therefore claimed that these two categories should also be given incentive bonus like the manual workers and pointed out that in other concerns this was done. The company resisted the claim on two grounds (i) that the clerical staff got what is known as the Bengal Chamber of Commerce dearness allowance, which is higher than the dearness allowance paid to the manual workers and (ii) that the clerical staff and the subordinate staff do not actually produce anything and if they are given incentive bonus it will mean that they would be paid on the production of others, namely, the manual workers.3. The tribunal was of the view that the face that the clerks got the Bengal Chamber of Commerce dearness allowance was no reason for their total exclusion from the benefit of the incentive bonus scheme. It also pointed out that the subordinate staff did not get the Bengal Chamber of Commerce dearness allowance and there was no difference between their dearness allowance and the dearness allowance of the manual workers. Further the tribunal was conscious of the fact that the clerical staff and the subordinate staff do not directly produce goods but that in its opinion was no justification for their total exclusion, particularly when other comparable concerns like the Indian Iron and Steel Company Limited at Burnpur, Bridge and Roof Company (India) Limited, Howrah and Tatas were paying incentive bonus to the clerical and subordinate staff also. It therefore ordered that the company should extend the scheme of incentive bonus to the clerical and subordinate staff also and lay down the rates and conditions for the same.4. The main contention of the company before us is that as the clerical staff and the subordinate staff have no part in actual production they should not be given any incentive bonus, particularly as their work does not increase at all because of the increased production. It is, however, difficult to accept that there will be no increase in the work of the clerical staff in particular and also of the subordinate staff because of higher production, though it may be accepted that the increase may not be in proportion to the increase of production.It is also true that the clerical staff and the subordinate staff do not directly produce goods like manual workers and that may be a reason for treating them somewhat differently in the matter of incentive bonus and that is what the tribunal seems to have done, for it has directed the company to extend the scheme of incentive bonus to the clerical and subordinate staff and to lay down the rates and conditions of the same and has not said that exactly the same rates and conditions should apply to the clerical and subordinate staff as apply to the manual workers. But there can be no doubt that economically speaking the clerical staff and the subordinate staff also take part in the production and there is no reason therefore for excluding them altogether from the scheme of incentive bonus. Besides, as the tribunal has pointed out, in other comparable concerns incentive, bonus is being paid to the clerical and subordinate staff. The fact that dearness allowance was paid to the clerical staff at a higher scale is also, in our opinion, no reason for depriving them altogether of the benefits of the incentive bonus scheme.5. It is also urged on behalf of the company that the introduction of incentive bonus is a management function and the tribunal should not impose it on the management and reference in this connection has been made to Messrs. Titaghur Paper Mills Co. Ltd. v. Their Workmen, AIR 1959 SC 1095 . In the present case, however, the incentive bonus scheme has already been introduced by the company for the major part of its workmen and all that is now asked for it that the benefit of the scheme should be extended to the remainder of the workmen. This prayer is, in our opinion, very different from asking a tribunal to impose an incentive bonus scheme for the first time in a concern.We can see no reason why where an incentive bonus is in force in a concern for the majority of its workmen, the tribunal should not be able to extend the same to the remainder of the workmen.6. We therefore see no reason to interfere with the order of the tribunal in this behalf.7. Turning now to the appeal of the workmen with respect to eight annas tiffin allowance during the period the canteen was not working, it is enough to say that this matter was examined at length by the tribunal. It has dealt with the history relation to this tiffin allowance and exhaustively considered all the points raised on behalf of the workmen. Nothing has been brought to our notice which would induce us to interfere with the considered order of the tribunal in this behalf. All the points that Sri Chatterjee has raised on behalf of the workmen have been dealt with by the tribunal and the conclusion it has reached is that having regard to the circumstances, the workmen were not eligible to the tiffin allowance of annas eight per head per working day. All that we need say is that the correspondence between the workmen and the company shows that though the workmen were keen on the provision of a canteen before the tiffin allowance was granted by the award dated July 24, 1953, their keenness disappeared after the award. The company seems to have taken step even before the award to start a canteen and pursued the matter vigorously after the award; but the workmen started objecting to the arrangements made and some of the objections were fantastic. It seems that having been given the tiffin allowance they preferred to have it rather than go to the canteen. In the circumstances we are of opinion that the conclusion of the tribunal is correct and there is no reason for interference. | 0[ds]It is, however, difficult to accept that there will be no increase in the work of the clerical staff in particular and also of the subordinate staff because of higher production, though it may be accepted that the increase may not be in proportion to the increase of production.It is also true that the clerical staff and the subordinate staff do not directly produce goods like manual workers and that may be a reason for treating them somewhat differently in the matter of incentive bonus and that is what the tribunal seems to have done, for it has directed the company to extend the scheme of incentive bonus to the clerical and subordinate staff and to lay down the rates and conditions of the same and has not said that exactly the same rates and conditions should apply to the clerical and subordinate staff as apply to the manual workers. But there can be no doubt that economically speaking the clerical staff and the subordinate staff also take part in the production and there is no reason therefore for excluding them altogether from the scheme of incentive bonus. Besides, as the tribunal has pointed out, in other comparable concerns incentive, bonus is being paid to the clerical and subordinate staff. The fact that dearness allowance was paid to the clerical staff at a higher scale is also, in our opinion, no reason for depriving them altogether of the benefits of the incentive bonusthe present case, however, the incentive bonus scheme has already been introduced by the company for the major part of its workmen and all that is now asked for it that the benefit of the scheme should be extended to the remainder of the workmen. This prayer is, in our opinion, very different from asking a tribunal to impose an incentive bonus scheme for the first time in a concern.We can see no reason why where an incentive bonus is in force in a concern for the majority of its workmen, the tribunal should not be able to extend the same to the remainder of the workmen.6. We therefore see no reason to interfere with the order of the tribunal in thishas been brought to our notice which would induce us to interfere with the considered order of the tribunal in this behalf. All the points that Sri Chatterjee has raised on behalf of the workmen have been dealt with by the tribunal and the conclusion it has reached is that having regard to the circumstances, the workmen were not eligible to the tiffin allowance of annas eight per head per working day. All that we need say is that the correspondence between the workmen and the company shows that though the workmen were keen on the provision of a canteen before the tiffin allowance was granted by the award dated July 24, 1953, their keenness disappeared after the award. The company seems to have taken step even before the award to start a canteen and pursued the matter vigorously after the award; but the workmen started objecting to the arrangements made and some of the objections were fantastic. It seems that having been given the tiffin allowance they preferred to have it rather than go to the canteen. In the circumstances we are of opinion that the conclusion of the tribunal is correct and there is no reason for interference. | 0 | 1,260 | 596 | ### Instruction:
Ascertain if the court will uphold (1) or dismiss (0) the appeal in the case proceeding, and then clarify this prediction by discussing critical sentences from the text.
### Input:
The workmen therefore claimed that these two categories should also be given incentive bonus like the manual workers and pointed out that in other concerns this was done. The company resisted the claim on two grounds (i) that the clerical staff got what is known as the Bengal Chamber of Commerce dearness allowance, which is higher than the dearness allowance paid to the manual workers and (ii) that the clerical staff and the subordinate staff do not actually produce anything and if they are given incentive bonus it will mean that they would be paid on the production of others, namely, the manual workers.3. The tribunal was of the view that the face that the clerks got the Bengal Chamber of Commerce dearness allowance was no reason for their total exclusion from the benefit of the incentive bonus scheme. It also pointed out that the subordinate staff did not get the Bengal Chamber of Commerce dearness allowance and there was no difference between their dearness allowance and the dearness allowance of the manual workers. Further the tribunal was conscious of the fact that the clerical staff and the subordinate staff do not directly produce goods but that in its opinion was no justification for their total exclusion, particularly when other comparable concerns like the Indian Iron and Steel Company Limited at Burnpur, Bridge and Roof Company (India) Limited, Howrah and Tatas were paying incentive bonus to the clerical and subordinate staff also. It therefore ordered that the company should extend the scheme of incentive bonus to the clerical and subordinate staff also and lay down the rates and conditions for the same.4. The main contention of the company before us is that as the clerical staff and the subordinate staff have no part in actual production they should not be given any incentive bonus, particularly as their work does not increase at all because of the increased production. It is, however, difficult to accept that there will be no increase in the work of the clerical staff in particular and also of the subordinate staff because of higher production, though it may be accepted that the increase may not be in proportion to the increase of production.It is also true that the clerical staff and the subordinate staff do not directly produce goods like manual workers and that may be a reason for treating them somewhat differently in the matter of incentive bonus and that is what the tribunal seems to have done, for it has directed the company to extend the scheme of incentive bonus to the clerical and subordinate staff and to lay down the rates and conditions of the same and has not said that exactly the same rates and conditions should apply to the clerical and subordinate staff as apply to the manual workers. But there can be no doubt that economically speaking the clerical staff and the subordinate staff also take part in the production and there is no reason therefore for excluding them altogether from the scheme of incentive bonus. Besides, as the tribunal has pointed out, in other comparable concerns incentive, bonus is being paid to the clerical and subordinate staff. The fact that dearness allowance was paid to the clerical staff at a higher scale is also, in our opinion, no reason for depriving them altogether of the benefits of the incentive bonus scheme.5. It is also urged on behalf of the company that the introduction of incentive bonus is a management function and the tribunal should not impose it on the management and reference in this connection has been made to Messrs. Titaghur Paper Mills Co. Ltd. v. Their Workmen, AIR 1959 SC 1095 . In the present case, however, the incentive bonus scheme has already been introduced by the company for the major part of its workmen and all that is now asked for it that the benefit of the scheme should be extended to the remainder of the workmen. This prayer is, in our opinion, very different from asking a tribunal to impose an incentive bonus scheme for the first time in a concern.We can see no reason why where an incentive bonus is in force in a concern for the majority of its workmen, the tribunal should not be able to extend the same to the remainder of the workmen.6. We therefore see no reason to interfere with the order of the tribunal in this behalf.7. Turning now to the appeal of the workmen with respect to eight annas tiffin allowance during the period the canteen was not working, it is enough to say that this matter was examined at length by the tribunal. It has dealt with the history relation to this tiffin allowance and exhaustively considered all the points raised on behalf of the workmen. Nothing has been brought to our notice which would induce us to interfere with the considered order of the tribunal in this behalf. All the points that Sri Chatterjee has raised on behalf of the workmen have been dealt with by the tribunal and the conclusion it has reached is that having regard to the circumstances, the workmen were not eligible to the tiffin allowance of annas eight per head per working day. All that we need say is that the correspondence between the workmen and the company shows that though the workmen were keen on the provision of a canteen before the tiffin allowance was granted by the award dated July 24, 1953, their keenness disappeared after the award. The company seems to have taken step even before the award to start a canteen and pursued the matter vigorously after the award; but the workmen started objecting to the arrangements made and some of the objections were fantastic. It seems that having been given the tiffin allowance they preferred to have it rather than go to the canteen. In the circumstances we are of opinion that the conclusion of the tribunal is correct and there is no reason for interference.
### Response:
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### Explanation:
It is, however, difficult to accept that there will be no increase in the work of the clerical staff in particular and also of the subordinate staff because of higher production, though it may be accepted that the increase may not be in proportion to the increase of production.It is also true that the clerical staff and the subordinate staff do not directly produce goods like manual workers and that may be a reason for treating them somewhat differently in the matter of incentive bonus and that is what the tribunal seems to have done, for it has directed the company to extend the scheme of incentive bonus to the clerical and subordinate staff and to lay down the rates and conditions of the same and has not said that exactly the same rates and conditions should apply to the clerical and subordinate staff as apply to the manual workers. But there can be no doubt that economically speaking the clerical staff and the subordinate staff also take part in the production and there is no reason therefore for excluding them altogether from the scheme of incentive bonus. Besides, as the tribunal has pointed out, in other comparable concerns incentive, bonus is being paid to the clerical and subordinate staff. The fact that dearness allowance was paid to the clerical staff at a higher scale is also, in our opinion, no reason for depriving them altogether of the benefits of the incentive bonusthe present case, however, the incentive bonus scheme has already been introduced by the company for the major part of its workmen and all that is now asked for it that the benefit of the scheme should be extended to the remainder of the workmen. This prayer is, in our opinion, very different from asking a tribunal to impose an incentive bonus scheme for the first time in a concern.We can see no reason why where an incentive bonus is in force in a concern for the majority of its workmen, the tribunal should not be able to extend the same to the remainder of the workmen.6. We therefore see no reason to interfere with the order of the tribunal in thishas been brought to our notice which would induce us to interfere with the considered order of the tribunal in this behalf. All the points that Sri Chatterjee has raised on behalf of the workmen have been dealt with by the tribunal and the conclusion it has reached is that having regard to the circumstances, the workmen were not eligible to the tiffin allowance of annas eight per head per working day. All that we need say is that the correspondence between the workmen and the company shows that though the workmen were keen on the provision of a canteen before the tiffin allowance was granted by the award dated July 24, 1953, their keenness disappeared after the award. The company seems to have taken step even before the award to start a canteen and pursued the matter vigorously after the award; but the workmen started objecting to the arrangements made and some of the objections were fantastic. It seems that having been given the tiffin allowance they preferred to have it rather than go to the canteen. In the circumstances we are of opinion that the conclusion of the tribunal is correct and there is no reason for interference.
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Dr. Subramanian Swamy & Another Vs. Director, Central Bureau of Investigation & Others | have the same adverse connotation that an investigation has. To that extent, Section 6-A, as it is, does not survive. Insofar as investigation is concerned, an investigation into a crime may have some adverse impact but where there are allegations of an offence under the PC Act, 1988 against a public servant, whether high or low, whether decision-maker or not, an independent investigation into such allegations is of utmost importance and unearthing the truth is the goal. The aim and object of investigation is ultimately to search for truth and any law that impedes that object may not stand the test of Article 14. 91. In the referral order, the contention of learned Solicitor General has been noted with regard to inconsistency in the two judgments of this Court in Vineet Narain1 and K. Veeraswami25. 92. In K. Veeraswami25, this Court in para 28 (pages 693-694 of the report) observed: “28. … Section 6 is primarily concerned to see that prosecution for the specified offences shall not commence without the sanction of a competent authority. That does not mean that the Act was intended to condone the offence of bribery and corruption by public servant. Nor it was meant to afford protection to public servant from criminal prosecution for such offences. It is only to protect the honest public servants from frivolous and vexatious prosecution. The competent authority has to examine independently and impartially the material on record to form his own opinion whether the offence alleged is frivolous or vexatious. The competent authority may refuse sanction for prosecution if the offence alleged has no material to support or it is frivolous or intended to harass the honest officer. But he cannot refuse to grant sanction if the material collected has made out the commission of the offence alleged against the public servant. Indeed he is duty-bound to grant sanction if the material collected lend credence to the offence complained of. There seems to be another reason for taking away the discretion of the investigating agency to prosecute or not to prosecute a public servant. When a public servant is prosecuted for an offence which challenges his honesty and integrity, the issue in such a case is not only between the prosecutor and the offender, but the State is also vitally concerned with it as it affects the morale of public servants and also the administrative interest of the State. The discretion to prosecute public servant is taken away from the prosecuting agency and is vested in the authority which is competent to remove the public servant. The authority competent to remove the public servant would be in a better position than the prosecuting agency to assess the material collected in a dispassionate and reasonable manner and determine whether sanction for prosecution of a public servant deserves to be granted or not.” 93. In Vineet Narain1, the above observations in K. Veeraswami25 have been considered in paras 34 and 35 of the report (pages 259-260) and the three-Judge Bench held that the position of Judges of High Courts and the Supreme Court, who are constitutional functionaries, is distinct, and the independence of judiciary, keeping it free from any extraneous influence, including that from executive, is the rationale of the decision in K. Veeraswami25. The Court went on to say: “…. In strict terms the Prevention of Corruption Act, 1946 could not be applied to the superior Judges and, therefore, while bringing those Judges within the purview of the Act yet maintaining the independence of judiciary, this guideline was issued as a direction by the Court. The feature of independence of judiciary has no application to the officers covered by the Single Directive. The need for independence of judiciary from the executive influence does not arise in the case of officers belonging to the executive…..” 94. The observations in K. Veeraswami25, as noted above, were found to be confined to the Judges of the High Courts and the Supreme Court, who are constitutional functionaries, and their position being distinct and different from the Government officers. In our opinion, the Constitution Bench decision in K. Veeraswami25 has no application to the senior public servants specified in Section 6-A. We have, therefore, no hesitation in holding that the conclusion reached in para 34 in Vineet Narain1, in no manner, can be said to be inconsistent with the findings recorded in para 28 of K. Veeraswami25. 95. Various provisions under different statutes were referred to by Mr. L. Nageswara Rao where permission of the government is required before taking cognizance or for institution of an offence. Section 197 of Cr.P.C. was also referred to, which provides for protection to Judges and public servants from prosecution except with the previous sanction by the competent authority. It may be immediately stated that there is no similarity between the impugned provision in Section 6-A of the DSPE Act and Section 197 of Cr.P.C. Moreover, where challenge is laid to the constitutionality of a legislation on the bedrock or touchstone of classification, it has to be determined in each case by applying well- settled two tests: (i) that classification is founded on intelligible differentia and (ii) that differentia has a rational relation with the object sought to be achieved by the legislation. Each case has to be examined independently in the context of Article 14 and not by applying any general rule. 96. A feeble attempt was made by Mr. K.V. Viswanathan, learned Additional Solicitor General that Section 6-A must at least be saved for the purposes of Section 13(1)(d)(ii) and (iii) of the PC Act, 1988. In our opinion, Section 6-A does not satisfy the well-settled tests in the context of Article 14 and is not capable of severance for the purposes of Section 13(1)(d)(ii) and (iii). 97. Having considered the impugned provision contained in Section 6-A and for the reasons indicated above, we do not think that it is necessary to consider the other objections challenging the impugned provision in the context of Article 14. 98. | 1[ds]67. Can it be said that the classification is based on intelligible differentia when one set of bureaucrats of Joint Secretary level and above who are working with the Central Government are offered protection under Section 6-A while the same level of officers who are working in the States do not get protection though both classes of these officers are accused of an offence under PC Act, 1988 and inquiry / investigation into such allegations is to be carried out. Our answer is in the negative. The provision in Section 6-A, thus, impedes tracking down the corrupt senior bureaucrats as without previous approval of the Central Government, the CBI cannot even hold preliminary inquiry much less an investigation into the allegations. The protection in Section 6-A has propensity of shielding the corrupt. The object of Section 6-A, that senior public servants of the level of Joint Secretary and above who take policy decision must not be put to any harassment, side-tracks the fundamental objective of the PC Act, 1988 to deal with corruption and act against senior public servants. The CBI is not able to proceed even to collect the material to unearth prima facie substance into the merits of allegations. Thus, the object of Section 6-A itself is discriminatory. That being the position, the discrimination cannot be justified on the ground that there is a reasonable classification because it has rational relation to the object sought to be achieved.Office of public power cannot be the workshop of personal gain. The probity in public life is of great importance. How can two public servants against whom there are allegations of corruption or graft or bribe-taking or criminal misconduct under the PC Act, 1988 can be made to be treated differently because one happens to be a junior officer and the other, a senior decision maker.71. Corruption is an enemy of nation and tracking down corrupt public servant, howsoever high he may be, and punishing such person is a necessary mandate under the PC Act, 1988. The status or position of public servant does not qualify such public servant from exemption from equal treatment. The decision making power does not segregate corrupt officers into two classes as they are common crime doers and have to be tracked down by the same process of inquiry and investigation.The PC Act, 1988 has also widened the scope of the definition of the expression ‘publicand incorporated offences under Sections 161 to 165A of the Indian Penal Code (IPC). By Lokpal and Lokayuktas Act, 2013 (Act 1 of 2014), further amendments have been made therein. The penalties relating to the offences under Sections 7, 8, 9, 12, 13 and 14 have been enhanced by these amendments.It is not the stand of the Central Government before us nor any material is placed on record by it to suggest even remotely that during the period when the Single Directive was not in operation or until Section 6-A was brought on the statute book, CBI harassed any senior government officer or investigated frivolous and vexatious complaints. The high-pitched argument in justification of Section 6-A that senior government officers may be unduly and unnecessarily harassed on frivolous and vexatious complaints, therefore, does not hold water.The constitutional validity of Section 6-A is in issue in these two writ petitions, both filed under Article 32 of the Constitution. Since Section 6-A came to be inserted by Section 26(c) of the Central Vigilance Commission Act, 2003 (Act 45 of 2003), the constitutional validity of Section 26(c) has also been raised. It is not necessary to independently refer to Section 26(c). Our reference to Section 6-A of the DSPE Act, wherever necessary, shall be treated as reference to Section 26(c) of the Act 45 of 2003 as well.Criminal justice system mandates that any investigation into the crime should be fair, in accordance with law and should not be tainted. It is equally important that interested or influential persons are not able to misdirect or highjack the investigation so as to throttle a fair investigation resulting in the offenders escaping the punitive course of law. These are important facets of rule of law. Breach of rule of law, in our opinion, amounts to negation of equality under Article 14. Section 6-A fails in the context of these facets of Article 14. The argument of Mr. L. Nageswara Rao that rule of law is not above law and cannot be a ground for invalidating legislations overlooks the well settled position that rule of law is a facet of equality under Article 14 and breach of rule of law amounts to breach of equality under Article 14 and, therefore, breach of rule of law may be a ground for invalidating the legislation being in negation of Article 14.86. Section 156 of the Cr.P.C. enables any officer in charge of a police station to investigate a cognizable offence. Insofar as non-cognizable offence is concerned, a police officer by virtue of Section 155 of Cr.P.C. can investigate it after obtaining appropriate order from the Magistrate having power to try such case or commit the case for trial regardless of the status of the officer concerned. The scheme of Section 155 and Section 156 Cr.P.C. indicates that the local police may investigate a senior Government officer without previous approval of the Central Government. However, CBI cannot do so in view of Section 6-A. This anomaly in fact occurred in Centre for PIL [Centre for PIL and Anr. v. Union of India and Anr.; [(2011) 4 SCC 1] ]. That was a matter in which investigations were conducted by the local police in respect of senior Government official without any previous approval and a challan filed in the court of Special Judge dealing with offences under the PC Act, 1988. Dealing with such anomaly in Centre for PIL79, Madan B. Lokur, J. in Manohar Lal Sharma4 observed,is difficult to understand the logic behind such a dichotomy unless it is assumed that frivolous and vexatious complaints are made only when the CBI is the investigating agency and that it is only CBI that is capable of harassing or victimizing a senior Government official while the local police of the State Government does not entertain frivolous and vexatious complaints and is not capable of harassing or victimizing a senior government official. No such assumption can beThe above clearly indicates that Section 6-A has brought an anomalous situation and the very object of the provision to give protection to certain officers (Joint Secretary and above) in the Central Government has been rendered discriminatory and violative of Article 14.87. It is pertinent to notice that in Subramanian Swamy9 this Court noted that as per supplementary written submissions tendered by the learned Attorney General, 126 cases were awaiting sanction for prosecution from the Central Government for periods ranging from one year to few months. Moreover, in more than one-third of the cases of requests for prosecution in corruption cases against public servants, sanctions have not been accorded. Whether an enactment providing for special procedure for a certain class of persons is or is not discriminatory and violative of Article 14 must be determined in its own context. A practical assessment of the operation of the law in particular circumstances is necessary and the court can take judicial notice of existing conditions from time to time. The scenario noted in Subramanian Swamy9 and the facts in Telecom Watchdog5- to illustrate the few – show that differentia in Section 6-A is directly destructive and runs counter to the object and reason of the PC Act, 1988. It also undermines the object of detecting and punishing high level corruption.In our opinion, P. Sirajuddin52 also emphasizes equality before law. This decision, in our opinion, cannot be read as laying down the proposition that the distinction can be made for the purposes of inquiry /investigation of an offence of which public servants are accused based on their status.A feeble attempt was made by Mr. K.V. Viswanathan, learned Additional Solicitor General that Section 6-A must at least be saved for the purposes of Section 13(1)(d)(ii) and (iii) of the PC Act, 1988. In our opinion, Section 6-A does not satisfy the well-settled tests in the context of Article 14 and is not capable of severance for the purposes of Section 13(1)(d)(ii) and (iii). | 1 | 22,423 | 1,538 | ### 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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have the same adverse connotation that an investigation has. To that extent, Section 6-A, as it is, does not survive. Insofar as investigation is concerned, an investigation into a crime may have some adverse impact but where there are allegations of an offence under the PC Act, 1988 against a public servant, whether high or low, whether decision-maker or not, an independent investigation into such allegations is of utmost importance and unearthing the truth is the goal. The aim and object of investigation is ultimately to search for truth and any law that impedes that object may not stand the test of Article 14. 91. In the referral order, the contention of learned Solicitor General has been noted with regard to inconsistency in the two judgments of this Court in Vineet Narain1 and K. Veeraswami25. 92. In K. Veeraswami25, this Court in para 28 (pages 693-694 of the report) observed: “28. … Section 6 is primarily concerned to see that prosecution for the specified offences shall not commence without the sanction of a competent authority. That does not mean that the Act was intended to condone the offence of bribery and corruption by public servant. Nor it was meant to afford protection to public servant from criminal prosecution for such offences. It is only to protect the honest public servants from frivolous and vexatious prosecution. The competent authority has to examine independently and impartially the material on record to form his own opinion whether the offence alleged is frivolous or vexatious. The competent authority may refuse sanction for prosecution if the offence alleged has no material to support or it is frivolous or intended to harass the honest officer. But he cannot refuse to grant sanction if the material collected has made out the commission of the offence alleged against the public servant. Indeed he is duty-bound to grant sanction if the material collected lend credence to the offence complained of. There seems to be another reason for taking away the discretion of the investigating agency to prosecute or not to prosecute a public servant. When a public servant is prosecuted for an offence which challenges his honesty and integrity, the issue in such a case is not only between the prosecutor and the offender, but the State is also vitally concerned with it as it affects the morale of public servants and also the administrative interest of the State. The discretion to prosecute public servant is taken away from the prosecuting agency and is vested in the authority which is competent to remove the public servant. The authority competent to remove the public servant would be in a better position than the prosecuting agency to assess the material collected in a dispassionate and reasonable manner and determine whether sanction for prosecution of a public servant deserves to be granted or not.” 93. In Vineet Narain1, the above observations in K. Veeraswami25 have been considered in paras 34 and 35 of the report (pages 259-260) and the three-Judge Bench held that the position of Judges of High Courts and the Supreme Court, who are constitutional functionaries, is distinct, and the independence of judiciary, keeping it free from any extraneous influence, including that from executive, is the rationale of the decision in K. Veeraswami25. The Court went on to say: “…. In strict terms the Prevention of Corruption Act, 1946 could not be applied to the superior Judges and, therefore, while bringing those Judges within the purview of the Act yet maintaining the independence of judiciary, this guideline was issued as a direction by the Court. The feature of independence of judiciary has no application to the officers covered by the Single Directive. The need for independence of judiciary from the executive influence does not arise in the case of officers belonging to the executive…..” 94. The observations in K. Veeraswami25, as noted above, were found to be confined to the Judges of the High Courts and the Supreme Court, who are constitutional functionaries, and their position being distinct and different from the Government officers. In our opinion, the Constitution Bench decision in K. Veeraswami25 has no application to the senior public servants specified in Section 6-A. We have, therefore, no hesitation in holding that the conclusion reached in para 34 in Vineet Narain1, in no manner, can be said to be inconsistent with the findings recorded in para 28 of K. Veeraswami25. 95. Various provisions under different statutes were referred to by Mr. L. Nageswara Rao where permission of the government is required before taking cognizance or for institution of an offence. Section 197 of Cr.P.C. was also referred to, which provides for protection to Judges and public servants from prosecution except with the previous sanction by the competent authority. It may be immediately stated that there is no similarity between the impugned provision in Section 6-A of the DSPE Act and Section 197 of Cr.P.C. Moreover, where challenge is laid to the constitutionality of a legislation on the bedrock or touchstone of classification, it has to be determined in each case by applying well- settled two tests: (i) that classification is founded on intelligible differentia and (ii) that differentia has a rational relation with the object sought to be achieved by the legislation. Each case has to be examined independently in the context of Article 14 and not by applying any general rule. 96. A feeble attempt was made by Mr. K.V. Viswanathan, learned Additional Solicitor General that Section 6-A must at least be saved for the purposes of Section 13(1)(d)(ii) and (iii) of the PC Act, 1988. In our opinion, Section 6-A does not satisfy the well-settled tests in the context of Article 14 and is not capable of severance for the purposes of Section 13(1)(d)(ii) and (iii). 97. Having considered the impugned provision contained in Section 6-A and for the reasons indicated above, we do not think that it is necessary to consider the other objections challenging the impugned provision in the context of Article 14. 98.
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of inquiry and investigation.The PC Act, 1988 has also widened the scope of the definition of the expression ‘publicand incorporated offences under Sections 161 to 165A of the Indian Penal Code (IPC). By Lokpal and Lokayuktas Act, 2013 (Act 1 of 2014), further amendments have been made therein. The penalties relating to the offences under Sections 7, 8, 9, 12, 13 and 14 have been enhanced by these amendments.It is not the stand of the Central Government before us nor any material is placed on record by it to suggest even remotely that during the period when the Single Directive was not in operation or until Section 6-A was brought on the statute book, CBI harassed any senior government officer or investigated frivolous and vexatious complaints. The high-pitched argument in justification of Section 6-A that senior government officers may be unduly and unnecessarily harassed on frivolous and vexatious complaints, therefore, does not hold water.The constitutional validity of Section 6-A is in issue in these two writ petitions, both filed under Article 32 of the Constitution. Since Section 6-A came to be inserted by Section 26(c) of the Central Vigilance Commission Act, 2003 (Act 45 of 2003), the constitutional validity of Section 26(c) has also been raised. It is not necessary to independently refer to Section 26(c). Our reference to Section 6-A of the DSPE Act, wherever necessary, shall be treated as reference to Section 26(c) of the Act 45 of 2003 as well.Criminal justice system mandates that any investigation into the crime should be fair, in accordance with law and should not be tainted. It is equally important that interested or influential persons are not able to misdirect or highjack the investigation so as to throttle a fair investigation resulting in the offenders escaping the punitive course of law. These are important facets of rule of law. Breach of rule of law, in our opinion, amounts to negation of equality under Article 14. Section 6-A fails in the context of these facets of Article 14. The argument of Mr. L. Nageswara Rao that rule of law is not above law and cannot be a ground for invalidating legislations overlooks the well settled position that rule of law is a facet of equality under Article 14 and breach of rule of law amounts to breach of equality under Article 14 and, therefore, breach of rule of law may be a ground for invalidating the legislation being in negation of Article 14.86. Section 156 of the Cr.P.C. enables any officer in charge of a police station to investigate a cognizable offence. Insofar as non-cognizable offence is concerned, a police officer by virtue of Section 155 of Cr.P.C. can investigate it after obtaining appropriate order from the Magistrate having power to try such case or commit the case for trial regardless of the status of the officer concerned. The scheme of Section 155 and Section 156 Cr.P.C. indicates that the local police may investigate a senior Government officer without previous approval of the Central Government. However, CBI cannot do so in view of Section 6-A. This anomaly in fact occurred in Centre for PIL [Centre for PIL and Anr. v. Union of India and Anr.; [(2011) 4 SCC 1] ]. That was a matter in which investigations were conducted by the local police in respect of senior Government official without any previous approval and a challan filed in the court of Special Judge dealing with offences under the PC Act, 1988. Dealing with such anomaly in Centre for PIL79, Madan B. Lokur, J. in Manohar Lal Sharma4 observed,is difficult to understand the logic behind such a dichotomy unless it is assumed that frivolous and vexatious complaints are made only when the CBI is the investigating agency and that it is only CBI that is capable of harassing or victimizing a senior Government official while the local police of the State Government does not entertain frivolous and vexatious complaints and is not capable of harassing or victimizing a senior government official. No such assumption can beThe above clearly indicates that Section 6-A has brought an anomalous situation and the very object of the provision to give protection to certain officers (Joint Secretary and above) in the Central Government has been rendered discriminatory and violative of Article 14.87. It is pertinent to notice that in Subramanian Swamy9 this Court noted that as per supplementary written submissions tendered by the learned Attorney General, 126 cases were awaiting sanction for prosecution from the Central Government for periods ranging from one year to few months. Moreover, in more than one-third of the cases of requests for prosecution in corruption cases against public servants, sanctions have not been accorded. Whether an enactment providing for special procedure for a certain class of persons is or is not discriminatory and violative of Article 14 must be determined in its own context. A practical assessment of the operation of the law in particular circumstances is necessary and the court can take judicial notice of existing conditions from time to time. The scenario noted in Subramanian Swamy9 and the facts in Telecom Watchdog5- to illustrate the few – show that differentia in Section 6-A is directly destructive and runs counter to the object and reason of the PC Act, 1988. It also undermines the object of detecting and punishing high level corruption.In our opinion, P. Sirajuddin52 also emphasizes equality before law. This decision, in our opinion, cannot be read as laying down the proposition that the distinction can be made for the purposes of inquiry /investigation of an offence of which public servants are accused based on their status.A feeble attempt was made by Mr. K.V. Viswanathan, learned Additional Solicitor General that Section 6-A must at least be saved for the purposes of Section 13(1)(d)(ii) and (iii) of the PC Act, 1988. In our opinion, Section 6-A does not satisfy the well-settled tests in the context of Article 14 and is not capable of severance for the purposes of Section 13(1)(d)(ii) and (iii).
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Mohd. Saeed Siddiqui Vs. State of U.P. & Another | 194 which speaks about the powers, privileges of the House of Legislatures and of the members and committees thereof.34) We have already quoted Article 199. In terms of Article 199(3), the decision of the Speaker of the Legislative Assembly that the Bill in question was a Money Bill is final and the said decision cannot be disputed nor can the procedure of State Legislature be questioned by virtue of Article 212. We are conscious of the fact that in the decision of this Court in Raja Ram Pal vs. Hon’ble Speaker Lok Sabha and Others (2007) 3 SCC 184 , it has been held that the proceedings which may be tainted on account of substantive or gross irregularity or unconstitutionality are not protected from judicial scrutiny.35) Even if it is established that there was some infirmity in the procedure in the enactment of the Amendment Act, in terms of Article 255 of the Constitution the matters of procedures do not render invalid an Act to which assent has been given to by the President or the Governor, as the case may be.36) In the case of M.S.M. Sharma vs. Shree Krishna Sinha AIR 1960 SC 1186 and Mangalore Ganesh Beedi Works vs. State of Mysore and Another AIR 1963 SC 589 , the Constitution Benches of this Court held that (i) the validity of an Act cannot be challenged on the ground that it offends Articles 197 to 199 and the procedure laid down in Article 202; (ii) Article 212 prohibits the validity of any proceedings in a Legislature of a State from being called in question on the ground of any alleged irregularity of procedure; and (iii) Article 255 lays down that the requirements as to recommendation and previous sanction are to be regarded as a matter of procedure only. It is further held that the validity of the proceedings inside the Legislature of a State cannot be called in question on the allegation that the procedure laid down by the law has not been strictly followed and that no Court can go into those questions which are within the special jurisdiction of the Legislature itself, which has the power to conduct its own business.37) Besides, the question whether a Bill is a Money Bill or not can be raised only in the State Legislative Assembly by a member thereof when the Bill is pending in the State Legislature and before it becomes an Act. It is brought to our notice that in the instant case no such question was ever raised by anyone. 38) Mr. K.K. Venugopal, learned senior counsel for the petitioner has also raised another contention that the Bill was passed only by the Legislative Assembly and not by both the Houses. In other words, according to him, it was not passed by the Legislative Council and, therefore, the Amendment Act is bad. 39) Chapter III of Part VI of the Constitution deals with the State Legislature. Article 168 relates to constitution of Legislatures in States. The said Article makes it clear that the State Legislature consists of the Governor, the Legislative Assembly and the Legislative Council. After the Governor’s assent to a Bill, the consequent Act is the Act of the State Legislature without any distinction between its Houses, as projected by the petitioner. We have also gone through the original records placed by the State and we are satisfied that there is no infirmity in passing of the Bill and the enactment of the Amendment Act, as claimed by the petitioner.40) Though it is claimed that the Amendment Act could not have been enacted by passing the Bill as a Money Bill because the Act was not enacted by passing the Bill as a Money Bill, as rightly pointed out, there is no such rule that if the Bill in a case of an original Act was not a Money Bill, no subsequent Bill for amendment of the original Act can be a Money Bill. It is brought to our notice that the Act has been amended earlier by the U.P. Lokayukta and Up-Lokayuktas (Amendment) Act, 1988 and the same was enacted by passing the Money Bill. By the said Amendment Act of 1988, Section 5(1) of the Act was amended to provide that the term of the Lokayukta and Up-Lokayukta shall be six years instead of five years.41) With regard to giving effect to the Amendment Act retrospectively, as rightly pointed out by the State, a deeming clause/legal fiction must be given full effect and shall be carried to its logical conclusion. As observed in K. Kamaraja Nadar vs. Kunju Thevar AIR 1958 SC 687 , the effect of a legal fiction is that a position which otherwise would not obtain is deemed to obtain under those circumstances. The materials placed clearly show that the Amendment Act has been enacted by a competent legislature with legislative intent to provide a term of eight years to Lokayukta and Up-Lokayukta, whether present or future, to ensure effective implementation of the Act. We are also satisfied that the aforesaid extension of the term of Lokayukta and Up-Lokayukta from six years to eight years is a matter of legislative policy and it cannot be narrowed down by saying that the same was enacted only for the benefit of Respondent No. 2. 42) As discussed above, the decision of the Speaker of the Legislative Assembly that the Bill in question was a Money Bill is final and the said decision cannot be disputed nor can the procedure of the State Legislature be questioned by virtue of Article 212. Further, as noted earlier, Article 252 also shows that under the Constitution the matters of procedure do not render invalid an Act to which assent has been given to by the President or the Governor, as the case may be. Inasmuch as the Bill in question was a Money Bill, the contrary contention by the petitioner against the passing of the said Bill by the Legislative Assembly alone is unacceptable. | 0[ds]33) The above provisions make it clear that the finality of the decision of the Speaker and the proceedings of the State Legislature being important privilege of the State Legislature, viz., freedom of speech, debate and proceedings are not to be inquired by the Courts. Theincludes everything said or done in either House in the transaction of the Parliamentary Business, which in the present case is enactment of the Amendment Act. Further, Article 212 precludes the Courts from interfering with the presentation of a Bill for assent to the Governor on the ground of non-compliance with the procedure for passing Bills, or from otherwise questioning the Bills passed by the House. To put it clear, proceedings inside the Legislature cannot be called into question on the ground that they have not been carried on in accordance with the Rules of Business. This is also evident from Article 194 which speaks about the powers, privileges of the House of Legislatures and of the members and committees thereof.34) We have already quoted Article 199. In terms of Article 199(3), the decision of the Speaker of the Legislative Assembly that the Bill in question was a Money Bill is final and the said decision cannot be disputed nor can the procedure of State Legislature be questioned by virtue of Article 212. We are conscious of the fact that in the decision of this Court in Raja Ram Pal vs.Speaker Lok Sabha and Others (2007) 3 SCC 184 , it has been held that the proceedings which may be tainted on account of substantive or gross irregularity or unconstitutionality are not protected from judicial scrutiny.35) Even if it is established that there was some infirmity in the procedure in the enactment of the Amendment Act, in terms of Article 255 of the Constitution the matters of procedures do not render invalid an Act to which assent has been given to by the President or the Governor, as the case mayhave also gone through the original records placed by the State and we are satisfied that there is no infirmity in passing of the Bill and the enactment of the Amendment Act, as claimed by theWith regard to giving effect to the Amendment Act retrospectively, as rightly pointed out by the State, a deeming clause/legal fiction must be given full effect and shall be carried to its logical conclusion. As observed in K. Kamaraja Nadar vs. Kunju Thevar AIR 1958 SC 687 , the effect of a legal fiction is that a position which otherwise would not obtain is deemed to obtain under those circumstances. The materials placed clearly show that the Amendment Act has been enacted by a competent legislature with legislative intent to provide a term of eight years to Lokayukta and Up-Lokayukta, whether present or future, to ensure effective implementation of the Act. We are also satisfied that the aforesaid extension of the term of Lokayukta and Up-Lokayukta from six years to eight years is a matter of legislative policy and it cannot be narrowed down by saying that the same was enacted only for the benefit of Respondent No.As discussed above, the decision of the Speaker of the Legislative Assembly that the Bill in question was a Money Bill is final and the said decision cannot be disputed nor can the procedure of the State Legislature be questioned by virtue of Article 212. Further, as noted earlier, Article 252 also shows that under the Constitution the matters of procedure do not render invalid an Act to which assent has been given to by the President or the Governor, as the case may be. Inasmuch as the Bill in question was a Money Bill, the contrary contention by the petitioner against the passing of the said Bill by the Legislative Assembly alone isAmong all the contentions/issues raised, the main challenge relates to the validity of U.P. Lokayukta and(Amendment) Act, 2012. In order to consider the claim of both the parties, it is useful to refer the relevant provisions. The State of U.P. has brought an Act called the U.P. Lokayukta andAct, 1975 (U.P. Act 42 of 1975). The said Act was enacted in order to make provision for appointment and functions of certain authorities for the investigation on grievances and elections against Ministers, legislators and other public servants in certain cases. The Act came into force onThough elaborate arguments have been made by Mr. K.K. Venugopal as well as Mr. Desai about the merits of the various recommendations/orders passed by Respondent No. 2Lokayukta in respect of former Ministers and persons connected with the government in these matters, we are primarily concerned about the validity of the Amendment Act and continuance of Respondent No. 2 as Lokayukta even after expiry of hisThe above provisions make it clear that the finality of the decision of the Speaker and the proceedings of the State Legislature being important privilege of the State Legislature, viz., freedom of speech, debate and proceedings are not to be inquired by the Courts. Thes everything said or done in either House in the transaction of the Parliamentary Business, which in the present case is enactment of the Amendment Act. Further, Article 212 precludes the Courts from interfering with the presentation of a Bill for assent to the Governor on the ground ofwith the procedure for passing Bills, or from otherwise questioning the Bills passed by the House. To put it clear, proceedings inside the Legislature cannot be called into question on the ground that they have not been carried on in accordance with the Rules of Business. This is also evident from Article 194 which speaks about the powers, privileges of the House of Legislatures and of the members and committees thereof.34) We have already quoted Article 199. In terms of Article 199(3), the decision of the Speaker of the Legislative Assembly that the Bill in question was a Money Bill is final and the said decision cannot be disputed nor can the procedure of State Legislature be questioned by virtue of Article 212. We are conscious of the fact that in the decision of this Court in Raja Ram Pal vs.r Lok Sabha and Others (2007) 3 SCC 184 , it has been held that the proceedings which may be tainted on account of substantive or gross irregularity or unconstitutionality are not protected from judicial scrutiny.35) Even if it is established that there was some infirmity in the procedure in the enactment of the Amendment Act, in terms of Article 255 of the Constitution the matters of procedures do not render invalid an Act to which assent has been given to by the President or the Governor, as the case maybe.36) In the case of M.S.M. Sharma vs. Shree Krishna Sinha AIR 1960 SC 1186 and Mangalore Ganesh Beedi Works vs. State of Mysore and Another AIR 1963 SC 589 , the Constitution Benches of this Court held that (i) the validity of an Act cannot be challenged on the ground that it offends Articles 197 to 199 and the procedure laid down in Article 202; (ii) Article 212 prohibits the validity of any proceedings in a Legislature of a State from being called in question on the ground of any alleged irregularity of procedure; and (iii) Article 255 lays down that the requirements as to recommendation and previous sanction are to be regarded as a matter of procedure only. It is further held that the validity of the proceedings inside the Legislature of a State cannot be called in question on the allegation that the procedure laid down by the law has not been strictly followed and that no Court can go into those questions which are within the special jurisdiction of the Legislature itself, which has the power to conduct its own business.37) Besides, the question whether a Bill is a Money Bill or not can be raised only in the State Legislative Assembly by a member thereof when the Bill is pending in the State Legislature and before it becomes an Act. It is brought to our notice that in the instant case no such question was ever raised byChapter III of Part VI of the Constitution deals with the State Legislature. Article 168 relates to constitution of Legislatures in States. The said Article makes it clear that the State Legislature consists of the Governor, the Legislative Assembly and the Legislative Council. After theassent to a Bill, the consequent Act is the Act of the State Legislature without any distinction between its Houses, as projected by the petitioner. Wehave also gone through the original records placed by the State and we are satisfied that there is no infirmity in passing of the Bill and the enactment of the Amendment Act, as claimed by thepetitioner.40) Though it is claimed that the Amendment Act could not have been enacted by passing the Bill as a Money Bill because the Act was not enacted by passing the Bill as a Money Bill, as rightly pointed out, there is no such rule that if the Bill in a case of an original Act was not a Money Bill, no subsequent Bill for amendment of the original Act can be a Money Bill. It is brought to our notice that the Act has been amended earlier by the U.P. Lokayukta and(Amendment) Act, 1988 and the same was enacted by passing the Money Bill. By the said Amendment Act of 1988, Section 5(1) of the Act was amended to provide that the term of the Lokayukta andshall be six years instead of five years.41)With regard to giving effect to the Amendment Act retrospectively, as rightly pointed out by the State, a deeming clause/legal fiction must be given full effect and shall be carried to its logical conclusion. As observed in K. Kamaraja Nadar vs. Kunju Thevar AIR 1958 SC 687 , the effect of a legal fiction is that a position which otherwise would not obtain is deemed to obtain under those circumstances. The materials placed clearly show that the Amendment Act has been enacted by a competent legislature with legislative intent to provide a term of eight years to Lokayukta andwhether present or future, to ensure effective implementation of the Act. We are also satisfied that the aforesaid extension of the term of Lokayukta andfrom six years to eight years is a matter of legislative policy and it cannot be narrowed down by saying that the same was enacted only for the benefit of Respondent No.s discussed above, the decision of the Speaker of the Legislative Assembly that the Bill in question was a Money Bill is final and the said decision cannot be disputed nor can the procedure of the State Legislature be questioned by virtue of Article 212. Further, as noted earlier, Article 252 also shows that under the Constitution the matters of procedure do not render invalid an Act to which assent has been given to by the President or the Governor, as the case may be. Inasmuch as the Bill in question was a Money Bill, the contrary contention by the petitioner against the passing of the said Bill by the Legislative Assembly alone is | 0 | 6,344 | 2,010 | ### Instruction:
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194 which speaks about the powers, privileges of the House of Legislatures and of the members and committees thereof.34) We have already quoted Article 199. In terms of Article 199(3), the decision of the Speaker of the Legislative Assembly that the Bill in question was a Money Bill is final and the said decision cannot be disputed nor can the procedure of State Legislature be questioned by virtue of Article 212. We are conscious of the fact that in the decision of this Court in Raja Ram Pal vs. Hon’ble Speaker Lok Sabha and Others (2007) 3 SCC 184 , it has been held that the proceedings which may be tainted on account of substantive or gross irregularity or unconstitutionality are not protected from judicial scrutiny.35) Even if it is established that there was some infirmity in the procedure in the enactment of the Amendment Act, in terms of Article 255 of the Constitution the matters of procedures do not render invalid an Act to which assent has been given to by the President or the Governor, as the case may be.36) In the case of M.S.M. Sharma vs. Shree Krishna Sinha AIR 1960 SC 1186 and Mangalore Ganesh Beedi Works vs. State of Mysore and Another AIR 1963 SC 589 , the Constitution Benches of this Court held that (i) the validity of an Act cannot be challenged on the ground that it offends Articles 197 to 199 and the procedure laid down in Article 202; (ii) Article 212 prohibits the validity of any proceedings in a Legislature of a State from being called in question on the ground of any alleged irregularity of procedure; and (iii) Article 255 lays down that the requirements as to recommendation and previous sanction are to be regarded as a matter of procedure only. It is further held that the validity of the proceedings inside the Legislature of a State cannot be called in question on the allegation that the procedure laid down by the law has not been strictly followed and that no Court can go into those questions which are within the special jurisdiction of the Legislature itself, which has the power to conduct its own business.37) Besides, the question whether a Bill is a Money Bill or not can be raised only in the State Legislative Assembly by a member thereof when the Bill is pending in the State Legislature and before it becomes an Act. It is brought to our notice that in the instant case no such question was ever raised by anyone. 38) Mr. K.K. Venugopal, learned senior counsel for the petitioner has also raised another contention that the Bill was passed only by the Legislative Assembly and not by both the Houses. In other words, according to him, it was not passed by the Legislative Council and, therefore, the Amendment Act is bad. 39) Chapter III of Part VI of the Constitution deals with the State Legislature. Article 168 relates to constitution of Legislatures in States. The said Article makes it clear that the State Legislature consists of the Governor, the Legislative Assembly and the Legislative Council. After the Governor’s assent to a Bill, the consequent Act is the Act of the State Legislature without any distinction between its Houses, as projected by the petitioner. We have also gone through the original records placed by the State and we are satisfied that there is no infirmity in passing of the Bill and the enactment of the Amendment Act, as claimed by the petitioner.40) Though it is claimed that the Amendment Act could not have been enacted by passing the Bill as a Money Bill because the Act was not enacted by passing the Bill as a Money Bill, as rightly pointed out, there is no such rule that if the Bill in a case of an original Act was not a Money Bill, no subsequent Bill for amendment of the original Act can be a Money Bill. It is brought to our notice that the Act has been amended earlier by the U.P. Lokayukta and Up-Lokayuktas (Amendment) Act, 1988 and the same was enacted by passing the Money Bill. By the said Amendment Act of 1988, Section 5(1) of the Act was amended to provide that the term of the Lokayukta and Up-Lokayukta shall be six years instead of five years.41) With regard to giving effect to the Amendment Act retrospectively, as rightly pointed out by the State, a deeming clause/legal fiction must be given full effect and shall be carried to its logical conclusion. As observed in K. Kamaraja Nadar vs. Kunju Thevar AIR 1958 SC 687 , the effect of a legal fiction is that a position which otherwise would not obtain is deemed to obtain under those circumstances. The materials placed clearly show that the Amendment Act has been enacted by a competent legislature with legislative intent to provide a term of eight years to Lokayukta and Up-Lokayukta, whether present or future, to ensure effective implementation of the Act. We are also satisfied that the aforesaid extension of the term of Lokayukta and Up-Lokayukta from six years to eight years is a matter of legislative policy and it cannot be narrowed down by saying that the same was enacted only for the benefit of Respondent No. 2. 42) As discussed above, the decision of the Speaker of the Legislative Assembly that the Bill in question was a Money Bill is final and the said decision cannot be disputed nor can the procedure of the State Legislature be questioned by virtue of Article 212. Further, as noted earlier, Article 252 also shows that under the Constitution the matters of procedure do not render invalid an Act to which assent has been given to by the President or the Governor, as the case may be. Inasmuch as the Bill in question was a Money Bill, the contrary contention by the petitioner against the passing of the said Bill by the Legislative Assembly alone is unacceptable.
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Further, Article 212 precludes the Courts from interfering with the presentation of a Bill for assent to the Governor on the ground ofwith the procedure for passing Bills, or from otherwise questioning the Bills passed by the House. To put it clear, proceedings inside the Legislature cannot be called into question on the ground that they have not been carried on in accordance with the Rules of Business. This is also evident from Article 194 which speaks about the powers, privileges of the House of Legislatures and of the members and committees thereof.34) We have already quoted Article 199. In terms of Article 199(3), the decision of the Speaker of the Legislative Assembly that the Bill in question was a Money Bill is final and the said decision cannot be disputed nor can the procedure of State Legislature be questioned by virtue of Article 212. We are conscious of the fact that in the decision of this Court in Raja Ram Pal vs.r Lok Sabha and Others (2007) 3 SCC 184 , it has been held that the proceedings which may be tainted on account of substantive or gross irregularity or unconstitutionality are not protected from judicial scrutiny.35) Even if it is established that there was some infirmity in the procedure in the enactment of the Amendment Act, in terms of Article 255 of the Constitution the matters of procedures do not render invalid an Act to which assent has been given to by the President or the Governor, as the case maybe.36) In the case of M.S.M. Sharma vs. Shree Krishna Sinha AIR 1960 SC 1186 and Mangalore Ganesh Beedi Works vs. State of Mysore and Another AIR 1963 SC 589 , the Constitution Benches of this Court held that (i) the validity of an Act cannot be challenged on the ground that it offends Articles 197 to 199 and the procedure laid down in Article 202; (ii) Article 212 prohibits the validity of any proceedings in a Legislature of a State from being called in question on the ground of any alleged irregularity of procedure; and (iii) Article 255 lays down that the requirements as to recommendation and previous sanction are to be regarded as a matter of procedure only. It is further held that the validity of the proceedings inside the Legislature of a State cannot be called in question on the allegation that the procedure laid down by the law has not been strictly followed and that no Court can go into those questions which are within the special jurisdiction of the Legislature itself, which has the power to conduct its own business.37) Besides, the question whether a Bill is a Money Bill or not can be raised only in the State Legislative Assembly by a member thereof when the Bill is pending in the State Legislature and before it becomes an Act. It is brought to our notice that in the instant case no such question was ever raised byChapter III of Part VI of the Constitution deals with the State Legislature. Article 168 relates to constitution of Legislatures in States. The said Article makes it clear that the State Legislature consists of the Governor, the Legislative Assembly and the Legislative Council. After theassent to a Bill, the consequent Act is the Act of the State Legislature without any distinction between its Houses, as projected by the petitioner. Wehave also gone through the original records placed by the State and we are satisfied that there is no infirmity in passing of the Bill and the enactment of the Amendment Act, as claimed by thepetitioner.40) Though it is claimed that the Amendment Act could not have been enacted by passing the Bill as a Money Bill because the Act was not enacted by passing the Bill as a Money Bill, as rightly pointed out, there is no such rule that if the Bill in a case of an original Act was not a Money Bill, no subsequent Bill for amendment of the original Act can be a Money Bill. It is brought to our notice that the Act has been amended earlier by the U.P. Lokayukta and(Amendment) Act, 1988 and the same was enacted by passing the Money Bill. By the said Amendment Act of 1988, Section 5(1) of the Act was amended to provide that the term of the Lokayukta andshall be six years instead of five years.41)With regard to giving effect to the Amendment Act retrospectively, as rightly pointed out by the State, a deeming clause/legal fiction must be given full effect and shall be carried to its logical conclusion. As observed in K. Kamaraja Nadar vs. Kunju Thevar AIR 1958 SC 687 , the effect of a legal fiction is that a position which otherwise would not obtain is deemed to obtain under those circumstances. The materials placed clearly show that the Amendment Act has been enacted by a competent legislature with legislative intent to provide a term of eight years to Lokayukta andwhether present or future, to ensure effective implementation of the Act. We are also satisfied that the aforesaid extension of the term of Lokayukta andfrom six years to eight years is a matter of legislative policy and it cannot be narrowed down by saying that the same was enacted only for the benefit of Respondent No.s discussed above, the decision of the Speaker of the Legislative Assembly that the Bill in question was a Money Bill is final and the said decision cannot be disputed nor can the procedure of the State Legislature be questioned by virtue of Article 212. Further, as noted earlier, Article 252 also shows that under the Constitution the matters of procedure do not render invalid an Act to which assent has been given to by the President or the Governor, as the case may be. Inasmuch as the Bill in question was a Money Bill, the contrary contention by the petitioner against the passing of the said Bill by the Legislative Assembly alone is
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PUNJAB STATE POWER CORPORATION LTD Vs. RAJESH KUMAR JINDAL | promotion from Circle Assistants/ARAs. The grievance of the respondents in this regard has been taken note by the Pay Anomaly Committee and as per its view in para (5.1), the same is redressed.36. Promotional avenues available to the Internal Auditors:- Promotional channels which are available against the post of Head Clerk, Internal Auditor and Senior Assistant are as under:-tableBy perusal of the above, it is seen that the promotional avenues which are available to all the Internal Auditors are far more in comparison to the promotional avenues which are available to the Head Clerks. Therefore, for this reason also, option of Internal Auditors which has been exercised by the Internal Auditors was a “conscious option” exercised by them because of more promotional avenues may available in the channel of Internal Auditors.37. That apart, the pay scales which are available in the promotional channel for Internal Auditors are also sharply higher than the Head Clerks. A Head Clerk on promotion to a Circle Superintendent receives one additional increment above the scale of Rs.10900- 34800 plus grade pay of Rs.5450 (i.e. available to a Head Clerk). However, in the Internal Auditors channel, further promotion as Accounts Officer will be in the pay scale of Rs.16650- 39100 plus grade pay of Rs.5800. Thereafter, on promotion as Deputy Chief Accounts Officer, he receives one further increment and the grade pay increases to Rs.8500. Thereafter, on further promotion as Chief Accounts Officer, he goes into the scale of Rs.41300-67000 plus grade pay of Rs.9600. Two senior-most Chief Accounts Officers are put in the scale equivalent to Chief Engineer i.e. Rs.41300-67000 plus grade pay of Rs.10500. From submission of the appellant-Board, we find that the increase in the pay scale is much higher on promotion against the post in the Internal Auditor promotional channel. Thus, for the said reason also, the choice of Internal Auditors made by all the persons (including those who have exercised the option between 01.01.1986 to 03.10.1990) is a reasoned choice keeping in view the greater promotional avenues and the higher pay scales which are available.38. It is also relevant to note that insofar as the direct recruits are concerned, the direct recruited Internal Auditors are entitled to a time-bound promotional scale on completion of nine and sixteen years of service. Time-bound promotional scale of directly recruited Internal Auditors after regular service of nine years is Rs.1900-3300 (unrevised) and after completion of sixteen years of service is Rs.2000-3500 (unrevised). However, no such time-bound promotional scale is available to Head Clerks. Head Clerks are not directly recruited and their appointment as Head Clerk is by promotion only.39. The only ground urged by respondents-Internal Auditors is that parity of pay scale between the Head Clerks and the Internal Auditors was maintained by the appellant-Board for more than two decades and while so, disturbing the parity is arbitrary and illegal. The Court has to keep in mind that a mere difference in service conditions, does not amount to discrimination. Unless there is complete identity between the two posts, they should not be treated as equivalent to claim parity of pay scale. No doubt, Internal Auditors were earlier placed in the same group namely Group XII; but educational qualifications for the post of Head Clerk and mode of recruitment are different. As submitted by the learned Senior Counsel for the appellant-Board, that in the year 1980, there were only four posts in Group XII but subsequently some posts were added to Group XII and the total fourteen posts which were added to Group XII are:- Punjabi Teacher, Drawing Teacher, Hindi Teacher, D.P.Ed. Teacher, Master/Mistress, Science Teacher, Security Inspector, Modeller Divisional Head Draftsman, Prosecuting Inspector (now Law Officer), Law Officer Grade II, Medical Assistant, Librarian and Fire Officer, etc. For all these posts, source and mode of recruitment, qualifications and nature of work are entirely different. If the contention of the Internal Auditors for claiming parity of pay scale with that of Head Clerks merely on the ground that the post of Internal Auditor was placed in Group XII, then if such parity of pay scale may have to be extended to all other posts, it would have huge financial implication on the finance of the Board which is a service-oriented institution owing to the consumers. As held in Union of India and Another v. Manik Lal Banerjee (2006) 9 SCC 643 , “it is now a well settled principle of law that financial implication is a relevant factor for accepting the revision of pay.”40. The learned Single Judge proceeded under the erroneous footing as if the case of Internal Auditors is covered by the case put forth by Sub Fire Officers. The learned Single Judge did not keep in view the counter statement filed by the appellant-Board before the High Court pointing out various distinguishing features of Internal Auditors and Head Clerks on account of which no parity could be granted to the Internal Auditors with the Head Clerks. The High Court also did not keep in view that the Pay Anomaly Committee did consider the demand of Internal Auditors and had not accepted the demand in view of different nature of duties and various other relevant factors. The learned Single Judge erred in recording that the respondents were in the same category of “Sub Fire Officers” within the same group which have been decided by the earlier judgment dated 21.01.2010.41. As discussed earlier, merely because various different posts have been categorized under Group XII, they cannot claim parity of pay scale as that of the Head Clerk. All the more so, when the Internal Auditors are appointed 55% by direct recruitment and 45% by promotion from Circle Assistant/Assistant Revenue Accountant. The High Court did not keep in view that the duties, nature of work and promotion channel of Head Clerks and Internal Auditors are entirely different and that option to seek promotion apparently as Internal Auditors was the “conscious exercise of option”, the impugned judgment cannot be sustained and is liable to be set aside. | 1[ds]21. It is well settled that for considering the equation of posts and the issue of equivalence of posts, the following factors had been held to be determinative:-(i) The nature and duties of a post;(ii) The responsibilities and powers exercised by the officer holding a post, the extent of territorial or other charge held or responsibilities discharged;(iii) The minimum qualifications, if any, prescribed for recruitment to the post; and(iv) The salary of the post (vide Union of India and Another v. P.K. Roy and Others AIR 1968 SC 850 ).The burden of proof in establishing parity in pay scales and the nature of duties and responsibilities is on the person claiming such right. The person claiming parity must produce material before the court to prove that the nature of duties and functions are similar and that they are entitled to parity of pay scales. After referring to number of judgments and observing that it is the duty of an employee seeking parity of pay to prove and establish that he had been discriminated against, this Court, in SAIL, held as under:-22. It is the duty of an employee seeking parity of pay under Article 39(d) of the Constitution of India to prove and establish that he had been discriminated against, as the question of parity has to be decided on consideration of various facts and statutory rules, etc. The doctrine ofpay for equalas enshrined under Article 39(d) of the Constitution read with Article 14 thereof, cannot be applied in a vacuum. The constitutional scheme postulates equalpay for equalwork for those who are equally placed in all respects. The court must consider the factors like the source and mode of recruitment/appointment, the qualifications, the nature of work, the value thereof, responsibilities, reliability, experience, confidentiality, functional need, etc. In other words, the equality clause can be invoked in the matter of pay scales only when there is wholesome/wholesale identity between the holders of two posts.Nature of duties and responsibilities of Head Clerks are different from the Internal Auditors:- The duties and nature of work of Head Clerks and Internal Auditors are entirely different. Head Clerk works under XEN, Drawing and Disbursement Officer and there is only one Head Clerk in the Division Office. Head Clerk is the Head of the establishment in the Divisional Office and total work of the establishment is under the control of the Head Clerk. The Head Clerk disburses the salaries and other payments of the Sub-divisions and Division Offices and also maintains the leave and other miscellaneous works for the Sub-divisions and the Division Offices and discharges administrative functions and thus, has more responsibilities. Per contra, Internal Auditor works under the control of Chief Auditor. Duty of the Internal Auditor is to audit the billing of the Revenue Department of the Sub-division Office which includes billing of domestic supply to large supply. Internal Auditors work in the Sub-division and there can be one or more Internal Auditors as per quantity of work.25. It is thus well settled that it is the duty of an employee seeking parity of scale of pay to prove that the educational qualifications required for both the posts, mode of recruitment and the nature of work performed by them are one and the same. There are neither pleadings nor any material produced by the respondents to prove that the nature of work performed by the Internal Auditors is similar with that of the Head Clerks. In the writ petition, respondents have claimed parity of pay scale only on the ground that they were categorised in Group XII along with the Head Clerks. Merely on the ground that the cadre of Internal Auditors are placed in Group XII along with the Head Clerks, cannot be a ground for seeking parity of pay scale.31. Though the above arguments of the respondents appear to be attractive, when considered in the light of the well settled principles, we find no merit in the contention. Equation of posts and revision of pay scale is within the domain of the Government. The matter should be left to the discretion and expertise of the Pay Committee and the Government to take the decision on the scale of pay/revision of pay scale by considering the nature of duties and responsibilities. As pointed out earlier, the Pay Anomaly Committee has given elaborate reasons for revising the pay scales of the Head Clerks at Rs.2000-3500 and Internal Auditors at Rs.1800-3200. The conclusion arrived at by the experts/Pay Anomaly Committee are not susceptible to judicial review and the courts are not to interfere with the decision of the Government which is based on the opinion of the experts.40. The learned Single Judge proceeded under the erroneous footing as if the case of Internal Auditors is covered by the case put forth by Sub Fire Officers. The learned Single Judge did not keep in view the counter statement filed by the appellant-Board before the High Court pointing out various distinguishing features of Internal Auditors and Head Clerks on account of which no parity could be granted to the Internal Auditors with the Head Clerks. The High Court also did not keep in view that the Pay Anomaly Committee did consider the demand of Internal Auditors and had not accepted the demand in view of different nature of duties and various other relevant factors. The learned Single Judge erred in recording that the respondents were in the same category ofwithin the same group which have been decided by the earlier judgment dated 21.01.2010.41. As discussed earlier, merely because various different posts have been categorized under Group XII, they cannot claim parity of pay scale as that of the Head Clerk. All the more so, when the Internal Auditors are appointed 55% by direct recruitment and 45% by promotion from Circle Assistant/Assistant Revenue Accountant. The High Court did not keep in view that the duties, nature of work and promotion channel of Head Clerks and Internal Auditors are entirely different and that option to seek promotion apparently as Internal Auditors was thethe impugned judgment cannot be sustained and is liable to be set aside. | 1 | 7,764 | 1,121 | ### Instruction:
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promotion from Circle Assistants/ARAs. The grievance of the respondents in this regard has been taken note by the Pay Anomaly Committee and as per its view in para (5.1), the same is redressed.36. Promotional avenues available to the Internal Auditors:- Promotional channels which are available against the post of Head Clerk, Internal Auditor and Senior Assistant are as under:-tableBy perusal of the above, it is seen that the promotional avenues which are available to all the Internal Auditors are far more in comparison to the promotional avenues which are available to the Head Clerks. Therefore, for this reason also, option of Internal Auditors which has been exercised by the Internal Auditors was a “conscious option” exercised by them because of more promotional avenues may available in the channel of Internal Auditors.37. That apart, the pay scales which are available in the promotional channel for Internal Auditors are also sharply higher than the Head Clerks. A Head Clerk on promotion to a Circle Superintendent receives one additional increment above the scale of Rs.10900- 34800 plus grade pay of Rs.5450 (i.e. available to a Head Clerk). However, in the Internal Auditors channel, further promotion as Accounts Officer will be in the pay scale of Rs.16650- 39100 plus grade pay of Rs.5800. Thereafter, on promotion as Deputy Chief Accounts Officer, he receives one further increment and the grade pay increases to Rs.8500. Thereafter, on further promotion as Chief Accounts Officer, he goes into the scale of Rs.41300-67000 plus grade pay of Rs.9600. Two senior-most Chief Accounts Officers are put in the scale equivalent to Chief Engineer i.e. Rs.41300-67000 plus grade pay of Rs.10500. From submission of the appellant-Board, we find that the increase in the pay scale is much higher on promotion against the post in the Internal Auditor promotional channel. Thus, for the said reason also, the choice of Internal Auditors made by all the persons (including those who have exercised the option between 01.01.1986 to 03.10.1990) is a reasoned choice keeping in view the greater promotional avenues and the higher pay scales which are available.38. It is also relevant to note that insofar as the direct recruits are concerned, the direct recruited Internal Auditors are entitled to a time-bound promotional scale on completion of nine and sixteen years of service. Time-bound promotional scale of directly recruited Internal Auditors after regular service of nine years is Rs.1900-3300 (unrevised) and after completion of sixteen years of service is Rs.2000-3500 (unrevised). However, no such time-bound promotional scale is available to Head Clerks. Head Clerks are not directly recruited and their appointment as Head Clerk is by promotion only.39. The only ground urged by respondents-Internal Auditors is that parity of pay scale between the Head Clerks and the Internal Auditors was maintained by the appellant-Board for more than two decades and while so, disturbing the parity is arbitrary and illegal. The Court has to keep in mind that a mere difference in service conditions, does not amount to discrimination. Unless there is complete identity between the two posts, they should not be treated as equivalent to claim parity of pay scale. No doubt, Internal Auditors were earlier placed in the same group namely Group XII; but educational qualifications for the post of Head Clerk and mode of recruitment are different. As submitted by the learned Senior Counsel for the appellant-Board, that in the year 1980, there were only four posts in Group XII but subsequently some posts were added to Group XII and the total fourteen posts which were added to Group XII are:- Punjabi Teacher, Drawing Teacher, Hindi Teacher, D.P.Ed. Teacher, Master/Mistress, Science Teacher, Security Inspector, Modeller Divisional Head Draftsman, Prosecuting Inspector (now Law Officer), Law Officer Grade II, Medical Assistant, Librarian and Fire Officer, etc. For all these posts, source and mode of recruitment, qualifications and nature of work are entirely different. If the contention of the Internal Auditors for claiming parity of pay scale with that of Head Clerks merely on the ground that the post of Internal Auditor was placed in Group XII, then if such parity of pay scale may have to be extended to all other posts, it would have huge financial implication on the finance of the Board which is a service-oriented institution owing to the consumers. As held in Union of India and Another v. Manik Lal Banerjee (2006) 9 SCC 643 , “it is now a well settled principle of law that financial implication is a relevant factor for accepting the revision of pay.”40. The learned Single Judge proceeded under the erroneous footing as if the case of Internal Auditors is covered by the case put forth by Sub Fire Officers. The learned Single Judge did not keep in view the counter statement filed by the appellant-Board before the High Court pointing out various distinguishing features of Internal Auditors and Head Clerks on account of which no parity could be granted to the Internal Auditors with the Head Clerks. The High Court also did not keep in view that the Pay Anomaly Committee did consider the demand of Internal Auditors and had not accepted the demand in view of different nature of duties and various other relevant factors. The learned Single Judge erred in recording that the respondents were in the same category of “Sub Fire Officers” within the same group which have been decided by the earlier judgment dated 21.01.2010.41. As discussed earlier, merely because various different posts have been categorized under Group XII, they cannot claim parity of pay scale as that of the Head Clerk. All the more so, when the Internal Auditors are appointed 55% by direct recruitment and 45% by promotion from Circle Assistant/Assistant Revenue Accountant. The High Court did not keep in view that the duties, nature of work and promotion channel of Head Clerks and Internal Auditors are entirely different and that option to seek promotion apparently as Internal Auditors was the “conscious exercise of option”, the impugned judgment cannot be sustained and is liable to be set aside.
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posts, the following factors had been held to be determinative:-(i) The nature and duties of a post;(ii) The responsibilities and powers exercised by the officer holding a post, the extent of territorial or other charge held or responsibilities discharged;(iii) The minimum qualifications, if any, prescribed for recruitment to the post; and(iv) The salary of the post (vide Union of India and Another v. P.K. Roy and Others AIR 1968 SC 850 ).The burden of proof in establishing parity in pay scales and the nature of duties and responsibilities is on the person claiming such right. The person claiming parity must produce material before the court to prove that the nature of duties and functions are similar and that they are entitled to parity of pay scales. After referring to number of judgments and observing that it is the duty of an employee seeking parity of pay to prove and establish that he had been discriminated against, this Court, in SAIL, held as under:-22. It is the duty of an employee seeking parity of pay under Article 39(d) of the Constitution of India to prove and establish that he had been discriminated against, as the question of parity has to be decided on consideration of various facts and statutory rules, etc. The doctrine ofpay for equalas enshrined under Article 39(d) of the Constitution read with Article 14 thereof, cannot be applied in a vacuum. The constitutional scheme postulates equalpay for equalwork for those who are equally placed in all respects. The court must consider the factors like the source and mode of recruitment/appointment, the qualifications, the nature of work, the value thereof, responsibilities, reliability, experience, confidentiality, functional need, etc. In other words, the equality clause can be invoked in the matter of pay scales only when there is wholesome/wholesale identity between the holders of two posts.Nature of duties and responsibilities of Head Clerks are different from the Internal Auditors:- The duties and nature of work of Head Clerks and Internal Auditors are entirely different. Head Clerk works under XEN, Drawing and Disbursement Officer and there is only one Head Clerk in the Division Office. Head Clerk is the Head of the establishment in the Divisional Office and total work of the establishment is under the control of the Head Clerk. The Head Clerk disburses the salaries and other payments of the Sub-divisions and Division Offices and also maintains the leave and other miscellaneous works for the Sub-divisions and the Division Offices and discharges administrative functions and thus, has more responsibilities. Per contra, Internal Auditor works under the control of Chief Auditor. Duty of the Internal Auditor is to audit the billing of the Revenue Department of the Sub-division Office which includes billing of domestic supply to large supply. Internal Auditors work in the Sub-division and there can be one or more Internal Auditors as per quantity of work.25. It is thus well settled that it is the duty of an employee seeking parity of scale of pay to prove that the educational qualifications required for both the posts, mode of recruitment and the nature of work performed by them are one and the same. There are neither pleadings nor any material produced by the respondents to prove that the nature of work performed by the Internal Auditors is similar with that of the Head Clerks. In the writ petition, respondents have claimed parity of pay scale only on the ground that they were categorised in Group XII along with the Head Clerks. Merely on the ground that the cadre of Internal Auditors are placed in Group XII along with the Head Clerks, cannot be a ground for seeking parity of pay scale.31. Though the above arguments of the respondents appear to be attractive, when considered in the light of the well settled principles, we find no merit in the contention. Equation of posts and revision of pay scale is within the domain of the Government. The matter should be left to the discretion and expertise of the Pay Committee and the Government to take the decision on the scale of pay/revision of pay scale by considering the nature of duties and responsibilities. As pointed out earlier, the Pay Anomaly Committee has given elaborate reasons for revising the pay scales of the Head Clerks at Rs.2000-3500 and Internal Auditors at Rs.1800-3200. The conclusion arrived at by the experts/Pay Anomaly Committee are not susceptible to judicial review and the courts are not to interfere with the decision of the Government which is based on the opinion of the experts.40. The learned Single Judge proceeded under the erroneous footing as if the case of Internal Auditors is covered by the case put forth by Sub Fire Officers. The learned Single Judge did not keep in view the counter statement filed by the appellant-Board before the High Court pointing out various distinguishing features of Internal Auditors and Head Clerks on account of which no parity could be granted to the Internal Auditors with the Head Clerks. The High Court also did not keep in view that the Pay Anomaly Committee did consider the demand of Internal Auditors and had not accepted the demand in view of different nature of duties and various other relevant factors. The learned Single Judge erred in recording that the respondents were in the same category ofwithin the same group which have been decided by the earlier judgment dated 21.01.2010.41. As discussed earlier, merely because various different posts have been categorized under Group XII, they cannot claim parity of pay scale as that of the Head Clerk. All the more so, when the Internal Auditors are appointed 55% by direct recruitment and 45% by promotion from Circle Assistant/Assistant Revenue Accountant. The High Court did not keep in view that the duties, nature of work and promotion channel of Head Clerks and Internal Auditors are entirely different and that option to seek promotion apparently as Internal Auditors was thethe impugned judgment cannot be sustained and is liable to be set aside.
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Claggett Brachi Co.Ltd., London Vs. Commissioner Of Income-Tax, A.P | overhead expenses for the profits arising out of the Indian sales. On that basis, he determined that the adjusted profits would be 160 pounds (Rs. 2, 253), and that this would have to be substituted in place of the loss of Rs. 37, 680 arrived in the original assessment. Similarly for the assessment year 1960-61, the Income-tax Officer realised that the original assessment would have to be varied accordingly. Being of the opinion that income had escaped assessment for the two assessment years 1959-60 and 1960-61, he issued notices on January 18, 1964, under section 148 of the Income-tax Act, 1961, to the statutory agents. The agents contested the validity of the notices and contended that in view of section 149(3) of the Act, no notice of reassessment could be served on the agent of a non-resident assessee after the expiry of two years from the end of the relevant assessment year. The Income-tax Officer upheld the objection and dropped the proceedings. 3. Thereupon the Income-tax Officer issued notice under section 148 for the two assessment years directly to the assessee to their London address on February 29, 1964. The assessee filed returns on August 19, 1964, for both the years under protest, contending that it could not be served with those notices inasmuch as the Income-tax Officer had already proceeded against its agents. The Income-tax Officer rejected the objections and made reassessments on the assessee for the two assessment yearsThe appeals filed by the assessee before the Appellate assistant Commissioner were dismissed, but in second appeal, the Income tax Appellate Tribunal took the view that the reassessments proceeded on mere change of opinion on the part of the Income-tax Officer and, therefore, were without jurisdiction, and further as the assessments had been made originally on the agents, it, was not open to the Income-tax Officer to proceed directly against the assessee. Accordingly, the Appellate Tribunal allowed the appeals and set aside the reassessments made on the assessee. 4. At the instance of the Revenue, the Appellate Tribunal referred the two questions of law set forth earlier to the High Court of Andhra Pradesh for its opinion. On the first question, the High Court held that it was not mere change of opinion on the part of the Income-tax Officer pursuant to which he made the reassessments, but that the Income-tax Officer had received information subsequent to the original assessments from the records of the subsequent assessment year that the overhead expenses related to the entire business, including the business as commission agents, and not merely to the business of purchases and sales of tobacco. On the second question, the High Court held that there was nothing to prevent the Income-tax Officer, when he found that reassessment proceedings could not be taken against the agents, from proceeding directly against the assessee and reassessing it for the two assessment years 5. Two points have been urged before us by learned counsel for the assessee. It is contended that the Income-tax Officer has no jurisdiction to take proceedings under sections 147 and 148 of the Income-tax Act because the conditions prerequisite for making the reassessments were not satisfied. The reassessments were made with reference to clause (b) of section 147 of the Act, and apparently the Income-tax Officer proceeded on the basis that in consequence of information in his possession, he had reason to believe that income chargeable to tax had escaped assessment for the two assessments years. From the material before us it appears that the Income-tax Officer came to realise that income had escaped assessment for the two assessment years when he was in the process of making assessment for a subsequent assessment year. While making that assessment, he came to know from the documents pertaining to that assessment that the overhead expenses related to the entire business including the business as commission agents and were not confined to the business of purchase and sale. It is true, as the High Court has observed, that this information could have been acquired by the Income-tax Officer if he had exercised due diligence at the time of the original assessment itself. It does not appear, however, that the attention of the Income-tax Officer was directed by anything before him to the fact that the overhead expenses related to the entire business. The information derived by the Income-tax Officer evidently came into his possession when taking assessment proceedings for the subsequent year, In the circumstances, it cannot be doubted that the case falls within the terms of clause (b) of section 147 of the Act, and that, therefore, the High Court is right in holding against the assesseeThe second point urged before us is that when the Income-tax Officer had taken the assessment proceedings against the Indian agent of the assessee, it was not open to him to take assessment proceedings against the assessee. It is open to an Income-tax Officer to assess either a nonresident assessee or to assess the agent of such non-resident assessee. It cannot be disputed also that if an assessment is made on one, there can be no assessment on the other, and therefore, in this case if the assessment had been made on the Indian agent, the assessment could not have been made on the assessee. However, facts show that the reassessment proceedings commenced against the agent were found to be barred by time by reason of section 149(3) of the Act. The issue of notice under section 148 of the Act to the agent after the expiry of two years from the end of the relevant assessment year is prohibited by the statute., The Income-tax Officer dropped the proceedings when he was made aware of that prohibition. The assessment proceedings taken by him against the agent, have to be ignored and cannot operate as a bar to assessment proceedings directly against the assessee. On this point also, the High Court has taken the correct view when it answered the question in favour of the Revenue. 6. | 0[ds]From the material before us it appears that the Income-tax Officer came to realise that income had escaped assessment for the two assessment years when he was in the process of making assessment for a subsequent assessment year. While making that assessment, he came to know from the documents pertaining to that assessment that the overhead expenses related to the entire business including the business as commission agents and were not confined to the business of purchase and sale. It is true, as the High Court has observed, that this information could have been acquired by the Income-tax Officer if he had exercised due diligence at the time of the original assessment itself. It does not appear, however, that the attention of the Income-tax Officer was directed by anything before him to the fact that the overhead expenses related to the entire business. The information derived by the Income-tax Officer evidently came into his possession when taking assessment proceedings for the subsequent year, In the circumstances, it cannot be doubted that the case falls within the terms of clause (b) of section 147 of the Act, and that, therefore, the High Court is right in holding against the assesseeThe second point urged before us is that when the Income-tax Officer had taken the assessment proceedings against the Indian agent of the assessee, it was not open to him to take assessment proceedings against the assessee. It is open to an Income-tax Officer to assess either a nonresident assessee or to assess the agent of such non-resident assessee. It cannot be disputed also that if an assessment is made on one, there can be no assessment on the other, and therefore, in this case if the assessment had been made on the Indian agent, the assessment could not have been made on the assessee. However, facts show that the reassessment proceedings commenced against the agent were found to be barred by time by reason of section 149(3) of the Act. The issue of notice under section 148 of the Act to the agent after the expiry of two years from the end of the relevant assessment year is prohibited by the statute., The Income-tax Officer dropped the proceedings when he was made aware of that prohibition. The assessment proceedings taken by him against the agent, have to be ignored and cannot operate as a bar to assessment proceedings directly against the assessee. On this point also, the High Court has taken the correct view when it answered the question in favour of the Revenue | 0 | 1,682 | 464 | ### 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:
overhead expenses for the profits arising out of the Indian sales. On that basis, he determined that the adjusted profits would be 160 pounds (Rs. 2, 253), and that this would have to be substituted in place of the loss of Rs. 37, 680 arrived in the original assessment. Similarly for the assessment year 1960-61, the Income-tax Officer realised that the original assessment would have to be varied accordingly. Being of the opinion that income had escaped assessment for the two assessment years 1959-60 and 1960-61, he issued notices on January 18, 1964, under section 148 of the Income-tax Act, 1961, to the statutory agents. The agents contested the validity of the notices and contended that in view of section 149(3) of the Act, no notice of reassessment could be served on the agent of a non-resident assessee after the expiry of two years from the end of the relevant assessment year. The Income-tax Officer upheld the objection and dropped the proceedings. 3. Thereupon the Income-tax Officer issued notice under section 148 for the two assessment years directly to the assessee to their London address on February 29, 1964. The assessee filed returns on August 19, 1964, for both the years under protest, contending that it could not be served with those notices inasmuch as the Income-tax Officer had already proceeded against its agents. The Income-tax Officer rejected the objections and made reassessments on the assessee for the two assessment yearsThe appeals filed by the assessee before the Appellate assistant Commissioner were dismissed, but in second appeal, the Income tax Appellate Tribunal took the view that the reassessments proceeded on mere change of opinion on the part of the Income-tax Officer and, therefore, were without jurisdiction, and further as the assessments had been made originally on the agents, it, was not open to the Income-tax Officer to proceed directly against the assessee. Accordingly, the Appellate Tribunal allowed the appeals and set aside the reassessments made on the assessee. 4. At the instance of the Revenue, the Appellate Tribunal referred the two questions of law set forth earlier to the High Court of Andhra Pradesh for its opinion. On the first question, the High Court held that it was not mere change of opinion on the part of the Income-tax Officer pursuant to which he made the reassessments, but that the Income-tax Officer had received information subsequent to the original assessments from the records of the subsequent assessment year that the overhead expenses related to the entire business, including the business as commission agents, and not merely to the business of purchases and sales of tobacco. On the second question, the High Court held that there was nothing to prevent the Income-tax Officer, when he found that reassessment proceedings could not be taken against the agents, from proceeding directly against the assessee and reassessing it for the two assessment years 5. Two points have been urged before us by learned counsel for the assessee. It is contended that the Income-tax Officer has no jurisdiction to take proceedings under sections 147 and 148 of the Income-tax Act because the conditions prerequisite for making the reassessments were not satisfied. The reassessments were made with reference to clause (b) of section 147 of the Act, and apparently the Income-tax Officer proceeded on the basis that in consequence of information in his possession, he had reason to believe that income chargeable to tax had escaped assessment for the two assessments years. From the material before us it appears that the Income-tax Officer came to realise that income had escaped assessment for the two assessment years when he was in the process of making assessment for a subsequent assessment year. While making that assessment, he came to know from the documents pertaining to that assessment that the overhead expenses related to the entire business including the business as commission agents and were not confined to the business of purchase and sale. It is true, as the High Court has observed, that this information could have been acquired by the Income-tax Officer if he had exercised due diligence at the time of the original assessment itself. It does not appear, however, that the attention of the Income-tax Officer was directed by anything before him to the fact that the overhead expenses related to the entire business. The information derived by the Income-tax Officer evidently came into his possession when taking assessment proceedings for the subsequent year, In the circumstances, it cannot be doubted that the case falls within the terms of clause (b) of section 147 of the Act, and that, therefore, the High Court is right in holding against the assesseeThe second point urged before us is that when the Income-tax Officer had taken the assessment proceedings against the Indian agent of the assessee, it was not open to him to take assessment proceedings against the assessee. It is open to an Income-tax Officer to assess either a nonresident assessee or to assess the agent of such non-resident assessee. It cannot be disputed also that if an assessment is made on one, there can be no assessment on the other, and therefore, in this case if the assessment had been made on the Indian agent, the assessment could not have been made on the assessee. However, facts show that the reassessment proceedings commenced against the agent were found to be barred by time by reason of section 149(3) of the Act. The issue of notice under section 148 of the Act to the agent after the expiry of two years from the end of the relevant assessment year is prohibited by the statute., The Income-tax Officer dropped the proceedings when he was made aware of that prohibition. The assessment proceedings taken by him against the agent, have to be ignored and cannot operate as a bar to assessment proceedings directly against the assessee. On this point also, the High Court has taken the correct view when it answered the question in favour of the Revenue. 6.
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### Explanation:
From the material before us it appears that the Income-tax Officer came to realise that income had escaped assessment for the two assessment years when he was in the process of making assessment for a subsequent assessment year. While making that assessment, he came to know from the documents pertaining to that assessment that the overhead expenses related to the entire business including the business as commission agents and were not confined to the business of purchase and sale. It is true, as the High Court has observed, that this information could have been acquired by the Income-tax Officer if he had exercised due diligence at the time of the original assessment itself. It does not appear, however, that the attention of the Income-tax Officer was directed by anything before him to the fact that the overhead expenses related to the entire business. The information derived by the Income-tax Officer evidently came into his possession when taking assessment proceedings for the subsequent year, In the circumstances, it cannot be doubted that the case falls within the terms of clause (b) of section 147 of the Act, and that, therefore, the High Court is right in holding against the assesseeThe second point urged before us is that when the Income-tax Officer had taken the assessment proceedings against the Indian agent of the assessee, it was not open to him to take assessment proceedings against the assessee. It is open to an Income-tax Officer to assess either a nonresident assessee or to assess the agent of such non-resident assessee. It cannot be disputed also that if an assessment is made on one, there can be no assessment on the other, and therefore, in this case if the assessment had been made on the Indian agent, the assessment could not have been made on the assessee. However, facts show that the reassessment proceedings commenced against the agent were found to be barred by time by reason of section 149(3) of the Act. The issue of notice under section 148 of the Act to the agent after the expiry of two years from the end of the relevant assessment year is prohibited by the statute., The Income-tax Officer dropped the proceedings when he was made aware of that prohibition. The assessment proceedings taken by him against the agent, have to be ignored and cannot operate as a bar to assessment proceedings directly against the assessee. On this point also, the High Court has taken the correct view when it answered the question in favour of the Revenue
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WESTERN COALFIELDS LTD Vs. COMMISSIONER OF CENTRAL EXCISE MADURAI | (2) If, on receipt of any such application, the [Assistant Commissioner of Central Excise or Deputy Commissioner of Central Excise] is satisfied that the whole or any part of the duty of excise paid by the applicant is refundable, he may make an order accordingly and the amount so determined shall be credited to the Fund : Provided that the amount of duty of excise as determined by the [Assistant Commissioner of Central Excise or Deputy Commissioner of Central Excise] under the foregoing provisions of this sub-section shall, instead of being credited to the Fund, be paid to the applicant, if such amount is relatable to – (a)…..(b)….(c )….(d)….(e) the duty of excise borne by the buyer, if he had not passed on the incidence of such duty to any other person;(f)…. (3) …. (4) … (5) For the removal of any notification issued under clause (f) of doubts, it is hereby declared that the first proviso to sub-section (2), including any such notification approved or modified under sub-section (4), may be rescinded by the Central Government at any time by notification in the Official Gazette.] [Explanation. — For the purposes of this section, (A) …. (B) ?relevant date? means,(a) …(i) …(ii) …(iii) ….(b) ….(c) ….(d)….(e) in the case of a person, other than the manufacturer, the date of purchase of the goods by such person;] in the case of goods which are exempt from payment of duty(eb) ….(ec) ….(f) ….?11. It is not disputed that the excise duty was paid by the manufacturer(M/s. Fenner (India) Ltd.) under protest to the department and the dispute with regard to the classification of the product finally came to be decided by this Court in M/s. Fenner India?s case(supra) and the manufacturer M/s. Fenner (India) Ltd. never moved any application for refund of the excise duty at any given point of time. The appellant herein is the buyer and purchased conveyor beltings from the manufacturer M/s. Fenner (India) Ltd. during the period 20 th July, 1988 to 15 th January, 1994 indicated in Civil Appeal No. 7625 of 2005. The period for which the refund of excise duty has been claimed differs but in all the cases, applications have been filed by the appellant(buyer) much after the period of limitation which was six months from the date of purchase of goods at the time of filing of the application to claim refund under Section 11B of the Act. 12. Section 11B deals with the claim of refund of duty as paid on his own accord by any person for refund of such duty to the competent authority before the expiry of six months from the relevant date as prescribed but where the duty was paid under protest in terms of the 2 nd proviso to Section 11B(1), the period of limitation may not apply. Although the buyer can also apply for refund provided the duty of excise is borne by the buyer and he had not passed on the incidence of such duty to any other person as referred to under Section 11B(2)(e) and the application has been moved within the period of six months from the relevant date of purchase of the goods by such person in terms of Section 11B(5)(B)(e) of the Act. The scheme of Section 11B makes a distinction between right of the manufacturer to claim refund from right of the buyer to claim refund treating them separate and distinct for making an application for refund exercising their right under Section 11B of the Act and it has been examined by the three-Judge Bench of this Court in Commissioner of Central Excise, Mumbai-II Vs. Allied Photographics India Ltd. case(supra) as under:-Therefore, Section 11-B(3) stated that no refund shall be made except in terms of Section 11-B(2). Section 11-B(2)( e ) conferred a right on the buyer to claim refund in cases where he proved that he had not passed on the duty to any other person. The entire scheme of Section 11-B showed the difference between the rights of a manufacturer to claim refund and the right of the buyer to claim refund as separate and distinct. Moreover, under Section 4 of the said Act, every payment by the manufacturer whether under protest or under provisional assessment was on his own account. The accounts of the manufacturer are different from the accounts of a buyer(distributor). Consequently, there is no merit in the argument advanced on behalf of the respondent that the distributor was entitled to claim refund of ?on-account? payment made under protest by the manufacturer without complying with Section 11-B of the Act.? It was further held as under:- ?Having come to the conclusion that the respondent was bound to comply with Section 11B of the Act and having come to the conclusion that the refund application dated 11-2-1997 was time-barred in terms of Section 11B of the Act, we are not required to go into the merits of the claim for refund by the respondent who has alleged that it has not passed on the burden of duty to its dealers.?13. It may be appropriate to notice that the view earlier expressed by the two-Judge Bench of this Court in National Winder Vs. Commissioner of Central Excise, Allahabad 2003(11) SCC 361 was held to be per incuriam in Commissioner of Central Excise, Mumbai-II Vs. Allied Photographics India Ltd. case(supra). 14. In the instant case, indisputedly the application was filed by the appellant as a buyer of the goods(conveyor belts) from M/s. Fenner (India) Ltd. who paid the duty under protest much after a period of limitation(six months) as prescribed under the mandate of law disentitles the claim of refund to the appellant as prayed for in view of the judgment of this Court in Commissoiner of Central Excise, Mumbai-II Vs. Allied Photographics India Ltd. case(supra) holding that the purchaser of the goods was not entitled to claim refund of duty made under protest by the manufacturer without complying the mandate of Section 11B of the Act, 1944. | 0[ds]It is not disputed that the excise duty was paid by the manufacturer(M/s. Fenner (India) Ltd.) under protest to the department and the dispute with regard to the classification of the product finally came to be decided by this Court in M/s. Fenner India?s case(supra) and the manufacturer M/s. Fenner (India) Ltd. never moved any application for refund of the excise duty at any given point of time. The appellant herein is the buyer and purchased conveyor beltings from the manufacturer M/s. Fenner (India) Ltd. during the period 20 th July, 1988 to 15 th January, 1994 indicated in Civil Appeal No. 7625 of 2005. The period for which the refund of excise duty has been claimed differs but in all the cases, applications have been filed by the appellant(buyer) much after the period of limitation which was six months from the date of purchase of goods at the time of filing of the application to claim refund under Section 11B of the Act.It may be appropriate to notice that the view earlier expressed by the two-Judge Bench of this Court in National Winder Vs. Commissioner of Central Excise, Allahabad 2003(11) SCC 361 was held to be per incuriam in Commissioner of Central Excise, Mumbai-II Vs. Allied Photographics India Ltd. case(supra).In the instant case, indisputedly the application was filed by the appellant as a buyer of the goods(conveyor belts) from M/s. Fenner (India) Ltd. who paid the duty under protest much after a period of limitation(six months) as prescribed under the mandate of law disentitles the claim of refund to the appellant as prayed for in view of the judgment of this Court in Commissoiner of Central Excise, Mumbai-II Vs. Allied Photographics India Ltd. case(supra) holding that the purchaser of the goods was not entitled to claim refund of duty made under protest by the manufacturer without complying the mandate of Section 11B of the Act, 1944. | 0 | 2,702 | 373 | ### Instruction:
Make a prediction on the court's ruling (acceptance (1) or rejection (0) of the petition), and then dissect the proceeding to provide a detailed explanation using key textual passages.
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(2) If, on receipt of any such application, the [Assistant Commissioner of Central Excise or Deputy Commissioner of Central Excise] is satisfied that the whole or any part of the duty of excise paid by the applicant is refundable, he may make an order accordingly and the amount so determined shall be credited to the Fund : Provided that the amount of duty of excise as determined by the [Assistant Commissioner of Central Excise or Deputy Commissioner of Central Excise] under the foregoing provisions of this sub-section shall, instead of being credited to the Fund, be paid to the applicant, if such amount is relatable to – (a)…..(b)….(c )….(d)….(e) the duty of excise borne by the buyer, if he had not passed on the incidence of such duty to any other person;(f)…. (3) …. (4) … (5) For the removal of any notification issued under clause (f) of doubts, it is hereby declared that the first proviso to sub-section (2), including any such notification approved or modified under sub-section (4), may be rescinded by the Central Government at any time by notification in the Official Gazette.] [Explanation. — For the purposes of this section, (A) …. (B) ?relevant date? means,(a) …(i) …(ii) …(iii) ….(b) ….(c) ….(d)….(e) in the case of a person, other than the manufacturer, the date of purchase of the goods by such person;] in the case of goods which are exempt from payment of duty(eb) ….(ec) ….(f) ….?11. It is not disputed that the excise duty was paid by the manufacturer(M/s. Fenner (India) Ltd.) under protest to the department and the dispute with regard to the classification of the product finally came to be decided by this Court in M/s. Fenner India?s case(supra) and the manufacturer M/s. Fenner (India) Ltd. never moved any application for refund of the excise duty at any given point of time. The appellant herein is the buyer and purchased conveyor beltings from the manufacturer M/s. Fenner (India) Ltd. during the period 20 th July, 1988 to 15 th January, 1994 indicated in Civil Appeal No. 7625 of 2005. The period for which the refund of excise duty has been claimed differs but in all the cases, applications have been filed by the appellant(buyer) much after the period of limitation which was six months from the date of purchase of goods at the time of filing of the application to claim refund under Section 11B of the Act. 12. Section 11B deals with the claim of refund of duty as paid on his own accord by any person for refund of such duty to the competent authority before the expiry of six months from the relevant date as prescribed but where the duty was paid under protest in terms of the 2 nd proviso to Section 11B(1), the period of limitation may not apply. Although the buyer can also apply for refund provided the duty of excise is borne by the buyer and he had not passed on the incidence of such duty to any other person as referred to under Section 11B(2)(e) and the application has been moved within the period of six months from the relevant date of purchase of the goods by such person in terms of Section 11B(5)(B)(e) of the Act. The scheme of Section 11B makes a distinction between right of the manufacturer to claim refund from right of the buyer to claim refund treating them separate and distinct for making an application for refund exercising their right under Section 11B of the Act and it has been examined by the three-Judge Bench of this Court in Commissioner of Central Excise, Mumbai-II Vs. Allied Photographics India Ltd. case(supra) as under:-Therefore, Section 11-B(3) stated that no refund shall be made except in terms of Section 11-B(2). Section 11-B(2)( e ) conferred a right on the buyer to claim refund in cases where he proved that he had not passed on the duty to any other person. The entire scheme of Section 11-B showed the difference between the rights of a manufacturer to claim refund and the right of the buyer to claim refund as separate and distinct. Moreover, under Section 4 of the said Act, every payment by the manufacturer whether under protest or under provisional assessment was on his own account. The accounts of the manufacturer are different from the accounts of a buyer(distributor). Consequently, there is no merit in the argument advanced on behalf of the respondent that the distributor was entitled to claim refund of ?on-account? payment made under protest by the manufacturer without complying with Section 11-B of the Act.? It was further held as under:- ?Having come to the conclusion that the respondent was bound to comply with Section 11B of the Act and having come to the conclusion that the refund application dated 11-2-1997 was time-barred in terms of Section 11B of the Act, we are not required to go into the merits of the claim for refund by the respondent who has alleged that it has not passed on the burden of duty to its dealers.?13. It may be appropriate to notice that the view earlier expressed by the two-Judge Bench of this Court in National Winder Vs. Commissioner of Central Excise, Allahabad 2003(11) SCC 361 was held to be per incuriam in Commissioner of Central Excise, Mumbai-II Vs. Allied Photographics India Ltd. case(supra). 14. In the instant case, indisputedly the application was filed by the appellant as a buyer of the goods(conveyor belts) from M/s. Fenner (India) Ltd. who paid the duty under protest much after a period of limitation(six months) as prescribed under the mandate of law disentitles the claim of refund to the appellant as prayed for in view of the judgment of this Court in Commissoiner of Central Excise, Mumbai-II Vs. Allied Photographics India Ltd. case(supra) holding that the purchaser of the goods was not entitled to claim refund of duty made under protest by the manufacturer without complying the mandate of Section 11B of the Act, 1944.
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It is not disputed that the excise duty was paid by the manufacturer(M/s. Fenner (India) Ltd.) under protest to the department and the dispute with regard to the classification of the product finally came to be decided by this Court in M/s. Fenner India?s case(supra) and the manufacturer M/s. Fenner (India) Ltd. never moved any application for refund of the excise duty at any given point of time. The appellant herein is the buyer and purchased conveyor beltings from the manufacturer M/s. Fenner (India) Ltd. during the period 20 th July, 1988 to 15 th January, 1994 indicated in Civil Appeal No. 7625 of 2005. The period for which the refund of excise duty has been claimed differs but in all the cases, applications have been filed by the appellant(buyer) much after the period of limitation which was six months from the date of purchase of goods at the time of filing of the application to claim refund under Section 11B of the Act.It may be appropriate to notice that the view earlier expressed by the two-Judge Bench of this Court in National Winder Vs. Commissioner of Central Excise, Allahabad 2003(11) SCC 361 was held to be per incuriam in Commissioner of Central Excise, Mumbai-II Vs. Allied Photographics India Ltd. case(supra).In the instant case, indisputedly the application was filed by the appellant as a buyer of the goods(conveyor belts) from M/s. Fenner (India) Ltd. who paid the duty under protest much after a period of limitation(six months) as prescribed under the mandate of law disentitles the claim of refund to the appellant as prayed for in view of the judgment of this Court in Commissoiner of Central Excise, Mumbai-II Vs. Allied Photographics India Ltd. case(supra) holding that the purchaser of the goods was not entitled to claim refund of duty made under protest by the manufacturer without complying the mandate of Section 11B of the Act, 1944.
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Nepal Chandra Roy Vs. Netai Chandra Das and Others | practitioner. It is in evidence that the former has been criticising the latter as a quack. The acceptance of the evidence of witness No. 4 by the learned Judge, was even on the reasons given by him quite unjustified. It is not necessary for us to discuss this matter elaborately because even according to the learned Judge this witness could not even bear to hear the name of Congress being uttered in his presence and that the witness made a very unfavourable impression on the Court. The learned Judge has also stated that the general demeanour of witness No. 4 in the witness box was unsatisfactory. The learned Judge has also held that witness No.3 Ramesh Chandra Dutta, who also speaks to Ex. B, was also an ardent supporter of the third respondent and his evidence has to be treated with considerable caution. The Court has further observed that if it has to decide only on the basis of the evidence of witnesses Nos.3 and 4, it would have to face considerable difficulty in deciding in favour of the election petitioner. In spite of all the above observations, the learned Judge has held the witnesses Nos.3 and 4 could by believed when they speak to having gone to the dispensary of witness No.7 on receipt of a copy of the pamphlet Ex. 3 and that witness No. 7 admitted that he is the author of the same as he had got necessary particulars from the appellant. The story given by these witnesses, in our opinion is very fantastic and totally unbelievable. It is difficult to believe that Dr. Sailendra Mohan Roy, witness No. 7 would have spoken to such things as stated by these witnesses. Therefore, it follows that the acceptance of the evidence of witnesses Nos. 3 and 4 and the rejection of the evidence of Dr. Sailendra Mohan Roy, witness No. 7 by the learned Judge was not justified. We have gone through the evidence of Dr. Sailendra Mohan Roy, and in out opinion his evidence is quite natural and acceptable. From the above discussion, it follows that Ex. B was not printed by witness No. 7 either himself or at the instance of the appellant.33. The allegations in sub-paragraphs (l) and (m) of paragraphs 7, in out opinion are thoroughly fantastic. A reading of the evidence of the witnesses who speak to having been shown a copy of the said deed by the appellant containing incomplete particulars and the appellant making allegations against the respondent No. 1, and calling him a debauch cannot be believed. The evidence of the witnesses walking into the office of the appellant on getting copies of Ex. B to find out the nature of the transaction relating to the property purchased by the third respondent is very artificial and tutored. It is equally fantastic to allege that the appellant would have called the third respondent a debauch and that in the presence of the election petitioner when the appellant was stated to be in his round soliciting votes for him. It is also equally fantastic that the appellant would have referred to the character of the third respondent to a person like the election petitioner who was known to be an ardent supporter of the third respondent. We have already referred to the observations of the learned Judge that most of the witnesses called by the election petitioner were not only partisan and tutored but also reckless and without any respect for the oath they had taken in the witness box. For instance in discussing the question whether the appellant had an election office at No. 5, Jadulal Malik Road and where the posters Exs. A and C were printed and circulated, the learned Judge was prepared to accept the evidence of one Gajju, who has been characterised by the Court as a despicable character and anti-social element. The court was prepared to believe the evidence of one Deo Narain Chawdhary, an employee of the Official Receiver, in whose in-charge the press was at the relevant time, notwithstanding the fact that the witness admitted that Gajju and rowdy element and a dangerous character and that he was terribly afraid of Gajju.34. Regarding another witness of the election petitioner, namely, witness No. 3, the Court has observed that it had considerable doubt whether the appellant would have taken witness into his confidence to the extent claimed by the latter as he was an incorrigible supporter of the third respondent. Regarding Swaran Pratima Bai, who has given evidence on the side of the appellant and has spoken to the fact that she was working in the election office at No. 6, Jadulal Malik Road, the Court having held that she did work for the appellant in the mid term election, brushed aside her evidence on the sole ground that she was not able to give correctly the total number of booths in her area.35. After having so criticised the evidence adduced on the side of the election petitioner as mentioned earlier, the learned Judge was not justified in acting on such evidence and setting aside the election of the appellant. In our opinion, the finding of the learned Judge with reference to the allegations contained in sub-paragraphs (j), (k), (l) and (m) of Paragraph 7 of the election petition cannot be sustained, and we accordingly hold that the appellant is not guilty of any corrupt practice.36. Before we conclude it is necessary to state that there is no allegation that the appellant made any statement reasonably calculated to prejudice the prospects of the third respondent in the election. There is no evidence let in this regard. The learned Judge has also not considered at all this aspect and given a finding one way or the other. We are referring to this aspect because under Section 123(4) of the Act this is one of the essential ingredients to be established. In this respect also the judgment of the learned Judge suffers from a serious defect. | 1[ds]We are not inclined to agree with the view of the learned Judge that the appellant is guilty of the corrupt practices found against him and referred to above. In our opinion, the appellant is not guilty of any corrupt practice. The judgment of the learned Judge is hereby set aside and the appeal allowed. The reasons for this order will be given in due course. Suitable directions regarding costs will be given along with theis in the premises not clear to which posers allegation has been referred to and the said charges are therefore vague and untenable. This respondent is not aware and he does not admit if the respondent No. 3 or any of his supporters at any meeting challenged the truth or veracity of the contents of the said poster or the allegedanswers elicited by the learned Judge, in out opinion, are totally irrelevant to the point under consideration. The function of the court was to find out whether in Ex. A there were any statements of facts relating to the personal character or conduct of the third respondent and if so whether those statements were false. This the Court has miserably failed to do.18. It is seen from the evidence of the third respondent as well as of the other witnesses that the statements of facts contained in Ex. A are absolutely correct. The plot number has been correctly given, it has been described properly, its extent has been correctly give, the true sale consideration has been stated and the date of registration has also been correctly given. That the date of registration falls within the tenure of office of the United Front Government is absolutely irrelevant. There is no statement in Ex. A which is not true. The facts mentioned in Ex. A are all the same as even found by the learned Judge himself and borne out by the copy of the registration document Ex. N. Ex. N. does not contain any statement which is in conflict with Ex. A. The sale consideration, the identity of the plot, the names of the purchaser and the vendor and the date of the document as given in Ex. A tally in all respects with the particulars contained in Ex.this answer it is clear that the very person, who according to the election petitioner is portrayed as a dishonest person, has categorically stated to the court that at any rate so far as he was concerned there is no such impression created in his mind.21. The second feature in the evidence of this witness is that he does not dispute the correctness of the statements made in Ex. A regarding the description of the properties and their extent, value and the date of the document. In fact no suggestion has been made even by the counsel for the election petitioner that the statements contained in Ex. A are false. We do not propose to refer to the evidence of other witnesses to the effect that Ex. A does not contain the date of the auction and that the balance consideration has to be paid in 14 annual instalments and that the consideration has been paid by third respondent from his professional earnings.22. The evidence referred to above clearly indicates that none of the statements contained in Ex. A is false; none of the statements relate to the personal character or conduct of the thirdout view, none of the statements in Exs. A and C are statements in relation to the personal character or conduct of the third respondent. On the other hand, they are mere statements regarding the purchase of the property by the third respondent and they contain correct and accurate facts. No part of those statement isthe same reasons given by us with regard to Exs. A and C we hold that the statements regarding the property in Ex. B are also true and they do not relate to the personal character or conduct of the third respondent. From the above discussion it follows that one of the essential ingredients to constitute corrupt practice is lacking in this case as we have held that there is no statement in Exs. A to C in relation to the personal character or conduct of the third respondent. Even assuming that they are such statements, they are true and no part of the statements is false. But in our view they are only statements of fact giving particulars relating to the purchase of the property by the third respondent which facts are true.25. In the view that we have expressed above, it really becomes unnecessary to discuss the further question whether Exs. A, B and C were printed, published and circulated by the appellant or by any other person with his consent or by his election agent. But any how we will also consider those aspects and express our opinion.In our opinion, the approach made by the learned Judge is totally erroneous. Mr. A. K. Sen, learned counsel for the appellant, relied on the provisions of Sectionof the Act and according to him he nature of the evidence contemplated therein has not been adduced by the election petitioner. There is a considerable force in this contention of Mr. Sen. It is not necessary for us to base out decision on thewith the provisions of that section alone. In cases where a candidate wants to have pamphlets or posters printed surreptitiously for election purposes, the provisions of Sectionmay not have been complied with. But in this case so far as we could see it is not the case of the election petitioner that the posters Exs. A and C were got surreptitiously printed at Imperial Art Cottage. In fact no such suggestion has been made to the three witnesses mentioned above. On the other hand, the evidence of some of those witnesses clearly shows that it was the Manager who was giving directions regarding the printing of those posters and also directing the workmen to expedite the printing on the ground that the work was urgent. None of the witnesses have stated that any secret instruction was given by the Manager in this regard. On the other hand the work was done openly in the presence of various other workmen in the press. Under these circumstances Sectionof the Act should have been invoked by the learned Judge.30. In this case there is no controversy that Subhash Kumar Dhar, the Manager of the Imperial Art Cottage, had been summoned by the election petitioner to produce the Job Register, Bill Register, Ledger and Bill Books of the Company.Sinha, counsel for the first respondent admitted that the best evidence, that Exs. A and C were printed in the Imperial Art Cottage, would have been to have before the Court the evidence of the Manager supported by necessary documentary evidence admittedly brought by him on summons. But the counsel pressed for accepting the evidence of the three witnesses, namely, witnesses Nos. 9, 11 and 13. We are not inclined to accept this contention of the learnedthose circumstances, without summoning the Manager and the Receiver and having the books of the press placed before the Court, it was not open to the respondent No. 1 herein to ask the Court to give a judgment in his favour merely on the ipse dixit of the three workmen who are admittedly members of a particular Union. In our opinion, the evidence of the three witnesses, namely, witnesses Nos. 9, 11 and 13 is absolutely useless and is of a partisan nature and their evidence has been got up for the purpose of this case. It is highly improbable that when the press is in charge of a Receiver and there is a Magistrate who is looking after the day to day work in the press, that these three workmen would have got these things printed surreptitiously. It is not even the case of the electionstory given by these witnesses, in our opinion is very fantastic and totally unbelievable. It is difficult to believe that Dr. Sailendra Mohan Roy, witness No. 7 would have spoken to such things as stated by these witnesses. Therefore, it follows that the acceptance of the evidence of witnesses Nos. 3 and 4 and the rejection of the evidence of Dr. Sailendra Mohan Roy, witness No. 7 by the learned Judge was not justified. We have gone through the evidence of Dr. Sailendra Mohan Roy, and in out opinion his evidence is quite natural and acceptable. From the above discussion, it follows that Ex. B was not printed by witness No. 7 either himself or at the instance of thehave already referred to the observations of the learned Judge that most of the witnesses called by the election petitioner were not only partisan and tutored but also reckless and without any respect for the oath they had taken in the witness box. For instance in discussing the question whether the appellant had an election office at No. 5, Jadulal Malik Road and where the posters Exs. A and C were printed and circulated, the learned Judge was prepared to accept the evidence of one Gajju, who has been characterised by the Court as a despicable character andelement. The court was prepared to believe the evidence of one Deo Narain Chawdhary, an employee of the Official Receiver, in whosethe press was at the relevant time, notwithstanding the fact that the witness admitted that Gajju and rowdy element and a dangerous character and that he was terribly afraid of Gajju.After having so criticised the evidence adduced on the side of the election petitioner as mentioned earlier, the learned Judge was not justified in acting on such evidence and setting aside the election of the appellant. In our opinion, the finding of the learned Judge with reference to the allegations contained in(j), (k), (l) and (m) of Paragraph 7 of the election petition cannot be sustained, and we accordingly hold that the appellant is not guilty of any corrupt practice.Before we conclude it is necessary to state that there is no allegation that the appellant made any statement reasonably calculated to prejudice the prospects of the third respondent in the election. There is no evidence let in this regard. The learned Judge has also not considered at all this aspect and given a finding one way or the other. We are referring to this aspect because under Section 123(4) of the Act this is one of the essential ingredients to be established. In this respect also the judgment of the learned Judge suffers from a serious defect. | 1 | 14,098 | 1,918 | ### 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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practitioner. It is in evidence that the former has been criticising the latter as a quack. The acceptance of the evidence of witness No. 4 by the learned Judge, was even on the reasons given by him quite unjustified. It is not necessary for us to discuss this matter elaborately because even according to the learned Judge this witness could not even bear to hear the name of Congress being uttered in his presence and that the witness made a very unfavourable impression on the Court. The learned Judge has also stated that the general demeanour of witness No. 4 in the witness box was unsatisfactory. The learned Judge has also held that witness No.3 Ramesh Chandra Dutta, who also speaks to Ex. B, was also an ardent supporter of the third respondent and his evidence has to be treated with considerable caution. The Court has further observed that if it has to decide only on the basis of the evidence of witnesses Nos.3 and 4, it would have to face considerable difficulty in deciding in favour of the election petitioner. In spite of all the above observations, the learned Judge has held the witnesses Nos.3 and 4 could by believed when they speak to having gone to the dispensary of witness No.7 on receipt of a copy of the pamphlet Ex. 3 and that witness No. 7 admitted that he is the author of the same as he had got necessary particulars from the appellant. The story given by these witnesses, in our opinion is very fantastic and totally unbelievable. It is difficult to believe that Dr. Sailendra Mohan Roy, witness No. 7 would have spoken to such things as stated by these witnesses. Therefore, it follows that the acceptance of the evidence of witnesses Nos. 3 and 4 and the rejection of the evidence of Dr. Sailendra Mohan Roy, witness No. 7 by the learned Judge was not justified. We have gone through the evidence of Dr. Sailendra Mohan Roy, and in out opinion his evidence is quite natural and acceptable. From the above discussion, it follows that Ex. B was not printed by witness No. 7 either himself or at the instance of the appellant.33. The allegations in sub-paragraphs (l) and (m) of paragraphs 7, in out opinion are thoroughly fantastic. A reading of the evidence of the witnesses who speak to having been shown a copy of the said deed by the appellant containing incomplete particulars and the appellant making allegations against the respondent No. 1, and calling him a debauch cannot be believed. The evidence of the witnesses walking into the office of the appellant on getting copies of Ex. B to find out the nature of the transaction relating to the property purchased by the third respondent is very artificial and tutored. It is equally fantastic to allege that the appellant would have called the third respondent a debauch and that in the presence of the election petitioner when the appellant was stated to be in his round soliciting votes for him. It is also equally fantastic that the appellant would have referred to the character of the third respondent to a person like the election petitioner who was known to be an ardent supporter of the third respondent. We have already referred to the observations of the learned Judge that most of the witnesses called by the election petitioner were not only partisan and tutored but also reckless and without any respect for the oath they had taken in the witness box. For instance in discussing the question whether the appellant had an election office at No. 5, Jadulal Malik Road and where the posters Exs. A and C were printed and circulated, the learned Judge was prepared to accept the evidence of one Gajju, who has been characterised by the Court as a despicable character and anti-social element. The court was prepared to believe the evidence of one Deo Narain Chawdhary, an employee of the Official Receiver, in whose in-charge the press was at the relevant time, notwithstanding the fact that the witness admitted that Gajju and rowdy element and a dangerous character and that he was terribly afraid of Gajju.34. Regarding another witness of the election petitioner, namely, witness No. 3, the Court has observed that it had considerable doubt whether the appellant would have taken witness into his confidence to the extent claimed by the latter as he was an incorrigible supporter of the third respondent. Regarding Swaran Pratima Bai, who has given evidence on the side of the appellant and has spoken to the fact that she was working in the election office at No. 6, Jadulal Malik Road, the Court having held that she did work for the appellant in the mid term election, brushed aside her evidence on the sole ground that she was not able to give correctly the total number of booths in her area.35. After having so criticised the evidence adduced on the side of the election petitioner as mentioned earlier, the learned Judge was not justified in acting on such evidence and setting aside the election of the appellant. In our opinion, the finding of the learned Judge with reference to the allegations contained in sub-paragraphs (j), (k), (l) and (m) of Paragraph 7 of the election petition cannot be sustained, and we accordingly hold that the appellant is not guilty of any corrupt practice.36. Before we conclude it is necessary to state that there is no allegation that the appellant made any statement reasonably calculated to prejudice the prospects of the third respondent in the election. There is no evidence let in this regard. The learned Judge has also not considered at all this aspect and given a finding one way or the other. We are referring to this aspect because under Section 123(4) of the Act this is one of the essential ingredients to be established. In this respect also the judgment of the learned Judge suffers from a serious defect.
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above, it really becomes unnecessary to discuss the further question whether Exs. A, B and C were printed, published and circulated by the appellant or by any other person with his consent or by his election agent. But any how we will also consider those aspects and express our opinion.In our opinion, the approach made by the learned Judge is totally erroneous. Mr. A. K. Sen, learned counsel for the appellant, relied on the provisions of Sectionof the Act and according to him he nature of the evidence contemplated therein has not been adduced by the election petitioner. There is a considerable force in this contention of Mr. Sen. It is not necessary for us to base out decision on thewith the provisions of that section alone. In cases where a candidate wants to have pamphlets or posters printed surreptitiously for election purposes, the provisions of Sectionmay not have been complied with. But in this case so far as we could see it is not the case of the election petitioner that the posters Exs. A and C were got surreptitiously printed at Imperial Art Cottage. In fact no such suggestion has been made to the three witnesses mentioned above. On the other hand, the evidence of some of those witnesses clearly shows that it was the Manager who was giving directions regarding the printing of those posters and also directing the workmen to expedite the printing on the ground that the work was urgent. None of the witnesses have stated that any secret instruction was given by the Manager in this regard. On the other hand the work was done openly in the presence of various other workmen in the press. Under these circumstances Sectionof the Act should have been invoked by the learned Judge.30. In this case there is no controversy that Subhash Kumar Dhar, the Manager of the Imperial Art Cottage, had been summoned by the election petitioner to produce the Job Register, Bill Register, Ledger and Bill Books of the Company.Sinha, counsel for the first respondent admitted that the best evidence, that Exs. A and C were printed in the Imperial Art Cottage, would have been to have before the Court the evidence of the Manager supported by necessary documentary evidence admittedly brought by him on summons. But the counsel pressed for accepting the evidence of the three witnesses, namely, witnesses Nos. 9, 11 and 13. We are not inclined to accept this contention of the learnedthose circumstances, without summoning the Manager and the Receiver and having the books of the press placed before the Court, it was not open to the respondent No. 1 herein to ask the Court to give a judgment in his favour merely on the ipse dixit of the three workmen who are admittedly members of a particular Union. In our opinion, the evidence of the three witnesses, namely, witnesses Nos. 9, 11 and 13 is absolutely useless and is of a partisan nature and their evidence has been got up for the purpose of this case. It is highly improbable that when the press is in charge of a Receiver and there is a Magistrate who is looking after the day to day work in the press, that these three workmen would have got these things printed surreptitiously. It is not even the case of the electionstory given by these witnesses, in our opinion is very fantastic and totally unbelievable. It is difficult to believe that Dr. Sailendra Mohan Roy, witness No. 7 would have spoken to such things as stated by these witnesses. Therefore, it follows that the acceptance of the evidence of witnesses Nos. 3 and 4 and the rejection of the evidence of Dr. Sailendra Mohan Roy, witness No. 7 by the learned Judge was not justified. We have gone through the evidence of Dr. Sailendra Mohan Roy, and in out opinion his evidence is quite natural and acceptable. From the above discussion, it follows that Ex. B was not printed by witness No. 7 either himself or at the instance of thehave already referred to the observations of the learned Judge that most of the witnesses called by the election petitioner were not only partisan and tutored but also reckless and without any respect for the oath they had taken in the witness box. For instance in discussing the question whether the appellant had an election office at No. 5, Jadulal Malik Road and where the posters Exs. A and C were printed and circulated, the learned Judge was prepared to accept the evidence of one Gajju, who has been characterised by the Court as a despicable character andelement. The court was prepared to believe the evidence of one Deo Narain Chawdhary, an employee of the Official Receiver, in whosethe press was at the relevant time, notwithstanding the fact that the witness admitted that Gajju and rowdy element and a dangerous character and that he was terribly afraid of Gajju.After having so criticised the evidence adduced on the side of the election petitioner as mentioned earlier, the learned Judge was not justified in acting on such evidence and setting aside the election of the appellant. In our opinion, the finding of the learned Judge with reference to the allegations contained in(j), (k), (l) and (m) of Paragraph 7 of the election petition cannot be sustained, and we accordingly hold that the appellant is not guilty of any corrupt practice.Before we conclude it is necessary to state that there is no allegation that the appellant made any statement reasonably calculated to prejudice the prospects of the third respondent in the election. There is no evidence let in this regard. The learned Judge has also not considered at all this aspect and given a finding one way or the other. We are referring to this aspect because under Section 123(4) of the Act this is one of the essential ingredients to be established. In this respect also the judgment of the learned Judge suffers from a serious defect.
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Ahalya A. Samtaney Vs. The State of Maharashtra and Ors | her in the "rest category", is the absence of continuous employment and for no other reason. Her termination and re-appointment is being used against her. Para 5 of the counter affidavit before us is quite clear on this aspect. The one day gap arising from the letter dated 29.9.1976 informing the Appellant that she would be joining on 1.10.1976 in the junior college as she was declared surplus in the senior college from 29.9.1976 is, thus, sought to be put against her. The letter dated 16.11.1993 may usefully be referred to for this purpose, which reads as under:I have to state that Mrs. A.A. Samtaney REST category teachers the Degree College was transferred to the Junior College for want of workload as per the above orders she is to be absorbed as Lecturer in the Degree College, in the Vacancy be filled in now, the particulars are as below:(1) Mrs. A.A. Samtaney was working as Tutor in English from 16.12.1974 to 14.3.1975, she was again appointed as Tutor in English from 15.7.1975, but was promoted as Lecturer in English from 1.8.1975. She would have continued as Lecturer in English during the academic year 1975-76, but for the loss work-load in the Degree College, she was transferred to the Junior College, with effect from 1.10.1976. She is working in the Junior College till today.17. The aforesaid, thus, buttresses the claim of the Appellant that she had been in continuous service, but for this artificial break of one day, arising from the change in curriculum. This position continued till 31.12.1993 when she was transferred to the senior college in view of the vacancy arising from the retirement of one Mrs. K.I. Sippy on 31.12.1993. The Appellant continued to work in that capacity till September, 2011 when she retired from service, receiving pension.18. It is also relevant to note that pension is granted only if there is 20 years of continuous service, thus, the grant of pension itself also supports the continuation of service of the Appellant.19. We have to really, thus, only examine as to what is the effect of this artificial break of one day, which was given to the Appellant, as otherwise the Appellant is fully covered and is entitled to the benefit under the Resolution dated 27.11.1991.20. We really do not have to labour much on this aspect as the High Court of Bombay itself had an occasion to examine the same in Writ Petition No. 2903/1989 titled Professor Pervez H. Lentin v. The Principal St. Xaviers College and Ors. decided on 17.2.2005. In a sense this is also an identical case of an artificial break arising from the change in the education pattern. We may usefully extract para 16 of the said judgment as under:16. The Petitioner was undoubtedly in continuous service. Indeed, what is termed as a break was at the highest an artificial break. From the correspondence referred to above, it appears to us clear that there in fact was not even an artificial break, for the re-appointments were from the very next date. However, even assuming that the same in the Petitioners case amounted to an artificial break, the Petitioner is adequately safeguarded by the circulars/resolutions issued by the Government of Maharashtra. For instance, by a G.R. dated 7.6.1980 the Government recorded the fact that it had considered the representations made to it regarding such breaks; that it was observed that in most of the cases services of the teachers in junior colleges were terminated at the end of every academic year and they were appointed for the next academic year without benefit of continuous service and that it had further been represented to Government that such teachers should get the status of confirmed teachers if they had put in, in all, 24 months service even though it was not continuous due to the breaks given by the managements of the Non-Government Junior Colleges. It was observed that such practice had resulted in a sense of insecurity amongst the employees and deprived them of benefits of continuous service. It was therefore directed that a total of 24 months service in the same institution over-looking the break in service, should qualify junior college teachers to be treated as substantive subject to certain conditions. The Petitioner admittedly complied with all such conditions. Thereafter, by a further resolution dated 26.2.1981 this resolution was extended mutatis mutandis. The same was so far as it related to the counting of break periods towards completion of probation period of 24 months in respect of teachers of Non-Government Junior Colleges to the teachers of Non-Government Senior Colleges in the State as well.21. We are in complete agreement with the approach adopted by the High Court in the aforesaid judgment of deprecating such artificial breaks to deny the benefit to an employee, more so a teacher. We cannot lose sight of the fact that security of tenure for a teacher, who dedicates her life for education of the students, is of utmost importance. Insecurity should not be created in the employment of such lecturers or teachers, more so when they are through a process of really a subterfuge of giving artificial breaks. Another plus point is that this artificial break is also the result of a change in the educational curriculum. It is really a matter of internal adjustment arising from the change in curriculum and the Appellant has been in continuous service for two decades, but for this one day break. This is how it has been really understood by the college and by the State Government, as they have given pension to her which is admissible after 20 years of service.22. We are also of the view that this issue has been receiving attention and has been agitated before different authorities and the alleged delay in filing the writ petition cannot stand in the way of the Appellant getting the benefit for services. The relevant pay-scale will entitle her to the emoluments which were admissible to her for work already performed. | 1[ds]13. We may note that delay and laches has also been found to be an additional obstruction in the way of the Appellant as the pay-scale was fixed in the year 1976 while the petition was filed in the year 1998This is so as the Appellant was working under the old pattern of 10+4 in the senior college, but for no fault of hers, on account of change in the education pattern to 10+2+3, she was rendered "fully surplus" in the degree college in June, 1976. As a consequence of the same, the services of the Appellant were terminated from the senior college by the letter dated 29.9.1976, but came along with an almost simultaneous/immediate transfer in the junior college with effect from 1.10.1976. It is also relevant to note that the appointment letter records that the salary of the Appellant shall remain the same. However, when the Appellant joined the junior college from 1.10.1976 she was given the pay-scale of Rs. 500-900 instead of Rs. 700-1600. This was so, as under the Resolution dated 11.6.1976, extracted partly aforesaid, the Appellant would not fit in any of the categories of P-1 to P-5. The Appellant, being a tutor on the cut-off date of 7.2.1975, would not fall in categories P-1 to P-3, while though a tutor was covered under categories P-4 and P-5, she did not meet the requisite parameters thereof. It was for the benefit of such persons like the Appellant, who did not fit in any of the categories, that the same were declared as "rest category" in the Government of Maharashtra Resolution dated 27.11.1991, and were accordingly given the benefit of the pay-scale of Rs. 700-1600 from their initial appointment date in the senior college16. There is really no dispute that the Appellant falls in the "rest category". This is inter alia acknowledged in the letter of the Principal of the College dated 16.11.1993 noticing that but for the loss of workload in the degree college she would have been working in the senior college but had to be re-appointed in the junior college. Once again in the letter dated 16.11.1993 addressed by the College to the University it is categorically stated that the Appellant falls in the "rest category". The only ground on which the Government refuses to consider her in the "rest category", is the absence of continuous employment and for no other reason. Her termination and re-appointment is being used against her. Para 5 of the counter affidavit before us is quite clear on this aspect. The one day gap arising from the letter dated 29.9.1976 informing the Appellant that she would be joining on 1.10.1976 in the junior college as she was declared surplus in the senior college from 29.9.1976 is, thus, sought to be put against her17. The aforesaid, thus, buttresses the claim of the Appellant that she had been in continuous service, but for this artificial break of one day, arising from the change in curriculum. This position continued till 31.12.1993 when she was transferred to the senior college in view of the vacancy arising from the retirement of one Mrs. K.I. Sippy on 31.12.1993. The Appellant continued to work in that capacity till September, 2011 when she retired from service, receiving pension18. It is also relevant to note that pension is granted only if there is 20 years of continuous service, thus, the grant of pension itself also supports the continuation of service of the Appellant20. We really do not have to labour much on this aspect as the High Court of Bombay itself had an occasion to examine the same in Writ Petition No. 2903/1989 titled Professor Pervez H. Lentin v. The Principal St. Xaviers College and Ors. decided on 17.2.200521. We are in complete agreement with the approach adopted by the High Court in the aforesaid judgment of deprecating such artificial breaks to deny the benefit to an employee, more so a teacher. We cannot lose sight of the fact that security of tenure for a teacher, who dedicates her life for education of the students, is of utmost importance. Insecurity should not be created in the employment of such lecturers or teachers, more so when they are through a process of really a subterfuge of giving artificial breaks. Another plus point is that this artificial break is also the result of a change in the educational curriculum. It is really a matter of internal adjustment arising from the change in curriculum and the Appellant has been in continuous service for two decades, but for this one day break. This is how it has been really understood by the college and by the State Government, as they have given pension to her which is admissible after 20 years of service22. We are also of the view that this issue has been receiving attention and has been agitated before different authorities and the alleged delay in filing the writ petition cannot stand in the way of the Appellant getting the benefit for services. The relevant pay-scale will entitle her to the emoluments which were admissible to her for work already performed. | 1 | 3,477 | 936 | ### 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:
her in the "rest category", is the absence of continuous employment and for no other reason. Her termination and re-appointment is being used against her. Para 5 of the counter affidavit before us is quite clear on this aspect. The one day gap arising from the letter dated 29.9.1976 informing the Appellant that she would be joining on 1.10.1976 in the junior college as she was declared surplus in the senior college from 29.9.1976 is, thus, sought to be put against her. The letter dated 16.11.1993 may usefully be referred to for this purpose, which reads as under:I have to state that Mrs. A.A. Samtaney REST category teachers the Degree College was transferred to the Junior College for want of workload as per the above orders she is to be absorbed as Lecturer in the Degree College, in the Vacancy be filled in now, the particulars are as below:(1) Mrs. A.A. Samtaney was working as Tutor in English from 16.12.1974 to 14.3.1975, she was again appointed as Tutor in English from 15.7.1975, but was promoted as Lecturer in English from 1.8.1975. She would have continued as Lecturer in English during the academic year 1975-76, but for the loss work-load in the Degree College, she was transferred to the Junior College, with effect from 1.10.1976. She is working in the Junior College till today.17. The aforesaid, thus, buttresses the claim of the Appellant that she had been in continuous service, but for this artificial break of one day, arising from the change in curriculum. This position continued till 31.12.1993 when she was transferred to the senior college in view of the vacancy arising from the retirement of one Mrs. K.I. Sippy on 31.12.1993. The Appellant continued to work in that capacity till September, 2011 when she retired from service, receiving pension.18. It is also relevant to note that pension is granted only if there is 20 years of continuous service, thus, the grant of pension itself also supports the continuation of service of the Appellant.19. We have to really, thus, only examine as to what is the effect of this artificial break of one day, which was given to the Appellant, as otherwise the Appellant is fully covered and is entitled to the benefit under the Resolution dated 27.11.1991.20. We really do not have to labour much on this aspect as the High Court of Bombay itself had an occasion to examine the same in Writ Petition No. 2903/1989 titled Professor Pervez H. Lentin v. The Principal St. Xaviers College and Ors. decided on 17.2.2005. In a sense this is also an identical case of an artificial break arising from the change in the education pattern. We may usefully extract para 16 of the said judgment as under:16. The Petitioner was undoubtedly in continuous service. Indeed, what is termed as a break was at the highest an artificial break. From the correspondence referred to above, it appears to us clear that there in fact was not even an artificial break, for the re-appointments were from the very next date. However, even assuming that the same in the Petitioners case amounted to an artificial break, the Petitioner is adequately safeguarded by the circulars/resolutions issued by the Government of Maharashtra. For instance, by a G.R. dated 7.6.1980 the Government recorded the fact that it had considered the representations made to it regarding such breaks; that it was observed that in most of the cases services of the teachers in junior colleges were terminated at the end of every academic year and they were appointed for the next academic year without benefit of continuous service and that it had further been represented to Government that such teachers should get the status of confirmed teachers if they had put in, in all, 24 months service even though it was not continuous due to the breaks given by the managements of the Non-Government Junior Colleges. It was observed that such practice had resulted in a sense of insecurity amongst the employees and deprived them of benefits of continuous service. It was therefore directed that a total of 24 months service in the same institution over-looking the break in service, should qualify junior college teachers to be treated as substantive subject to certain conditions. The Petitioner admittedly complied with all such conditions. Thereafter, by a further resolution dated 26.2.1981 this resolution was extended mutatis mutandis. The same was so far as it related to the counting of break periods towards completion of probation period of 24 months in respect of teachers of Non-Government Junior Colleges to the teachers of Non-Government Senior Colleges in the State as well.21. We are in complete agreement with the approach adopted by the High Court in the aforesaid judgment of deprecating such artificial breaks to deny the benefit to an employee, more so a teacher. We cannot lose sight of the fact that security of tenure for a teacher, who dedicates her life for education of the students, is of utmost importance. Insecurity should not be created in the employment of such lecturers or teachers, more so when they are through a process of really a subterfuge of giving artificial breaks. Another plus point is that this artificial break is also the result of a change in the educational curriculum. It is really a matter of internal adjustment arising from the change in curriculum and the Appellant has been in continuous service for two decades, but for this one day break. This is how it has been really understood by the college and by the State Government, as they have given pension to her which is admissible after 20 years of service.22. We are also of the view that this issue has been receiving attention and has been agitated before different authorities and the alleged delay in filing the writ petition cannot stand in the way of the Appellant getting the benefit for services. The relevant pay-scale will entitle her to the emoluments which were admissible to her for work already performed.
### Response:
1
### Explanation:
13. We may note that delay and laches has also been found to be an additional obstruction in the way of the Appellant as the pay-scale was fixed in the year 1976 while the petition was filed in the year 1998This is so as the Appellant was working under the old pattern of 10+4 in the senior college, but for no fault of hers, on account of change in the education pattern to 10+2+3, she was rendered "fully surplus" in the degree college in June, 1976. As a consequence of the same, the services of the Appellant were terminated from the senior college by the letter dated 29.9.1976, but came along with an almost simultaneous/immediate transfer in the junior college with effect from 1.10.1976. It is also relevant to note that the appointment letter records that the salary of the Appellant shall remain the same. However, when the Appellant joined the junior college from 1.10.1976 she was given the pay-scale of Rs. 500-900 instead of Rs. 700-1600. This was so, as under the Resolution dated 11.6.1976, extracted partly aforesaid, the Appellant would not fit in any of the categories of P-1 to P-5. The Appellant, being a tutor on the cut-off date of 7.2.1975, would not fall in categories P-1 to P-3, while though a tutor was covered under categories P-4 and P-5, she did not meet the requisite parameters thereof. It was for the benefit of such persons like the Appellant, who did not fit in any of the categories, that the same were declared as "rest category" in the Government of Maharashtra Resolution dated 27.11.1991, and were accordingly given the benefit of the pay-scale of Rs. 700-1600 from their initial appointment date in the senior college16. There is really no dispute that the Appellant falls in the "rest category". This is inter alia acknowledged in the letter of the Principal of the College dated 16.11.1993 noticing that but for the loss of workload in the degree college she would have been working in the senior college but had to be re-appointed in the junior college. Once again in the letter dated 16.11.1993 addressed by the College to the University it is categorically stated that the Appellant falls in the "rest category". The only ground on which the Government refuses to consider her in the "rest category", is the absence of continuous employment and for no other reason. Her termination and re-appointment is being used against her. Para 5 of the counter affidavit before us is quite clear on this aspect. The one day gap arising from the letter dated 29.9.1976 informing the Appellant that she would be joining on 1.10.1976 in the junior college as she was declared surplus in the senior college from 29.9.1976 is, thus, sought to be put against her17. The aforesaid, thus, buttresses the claim of the Appellant that she had been in continuous service, but for this artificial break of one day, arising from the change in curriculum. This position continued till 31.12.1993 when she was transferred to the senior college in view of the vacancy arising from the retirement of one Mrs. K.I. Sippy on 31.12.1993. The Appellant continued to work in that capacity till September, 2011 when she retired from service, receiving pension18. It is also relevant to note that pension is granted only if there is 20 years of continuous service, thus, the grant of pension itself also supports the continuation of service of the Appellant20. We really do not have to labour much on this aspect as the High Court of Bombay itself had an occasion to examine the same in Writ Petition No. 2903/1989 titled Professor Pervez H. Lentin v. The Principal St. Xaviers College and Ors. decided on 17.2.200521. We are in complete agreement with the approach adopted by the High Court in the aforesaid judgment of deprecating such artificial breaks to deny the benefit to an employee, more so a teacher. We cannot lose sight of the fact that security of tenure for a teacher, who dedicates her life for education of the students, is of utmost importance. Insecurity should not be created in the employment of such lecturers or teachers, more so when they are through a process of really a subterfuge of giving artificial breaks. Another plus point is that this artificial break is also the result of a change in the educational curriculum. It is really a matter of internal adjustment arising from the change in curriculum and the Appellant has been in continuous service for two decades, but for this one day break. This is how it has been really understood by the college and by the State Government, as they have given pension to her which is admissible after 20 years of service22. We are also of the view that this issue has been receiving attention and has been agitated before different authorities and the alleged delay in filing the writ petition cannot stand in the way of the Appellant getting the benefit for services. The relevant pay-scale will entitle her to the emoluments which were admissible to her for work already performed.
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Suhbramanium Sethuraman Vs. State Of Maharashtra | delay the trial in spite of the fact the core issue involved in this case has already been decided by this Court in the earlier S.L.P. filed by the company. 12. Having considered the argument of the learned counsel for the parties, we are of the opinion that the argument of the learned counsel for the appellant that the decision of this Court in Adalat Prasads case requires reconsideration cannot be accepted. It is true that the case of Adalat Prasad pertained to a warrant case whereas in Mathews case the same pertained to a summons case. To this extent, there is some difference in the two cases, but that does not, in any manner, make the law laid down by this Court in Adalat Prasads case a bad law. 13. In Mathews case this Court held that consequent to a process issued under Section 204 by the concerned Magistrate it is open to the accused the enter appearance and satisfy the court that there is no allegation in the complaint involving the accused in the commission of the crime. In such situation, this Court held that it is open to the Magistrate to recall the process issued against the accused. This Court also noticed the fact that the Code did not provide for any such procedure for recalling the process. But supported its reasoning by holding for such an act of judicial discretion no specific provision is required. 14. In Adalat Prasads case, this court considered the said view of the court in K.M. Mathews case and held that the issuance of process under Section 204 is a preliminary step in the stage of trial contemplated in Chapter XX of the Code. Such an order made at a preliminary stage being an interlocutory order, same cannot be reviewed or reconsidered by the Magistrate, there being no provision under the code for review of an order by the same Court. Hence, it is impermissible for the Magistrate to reconsider his decision to issue process in the absence of any specific provision to recall such order. In that line of reasoning this Court in Adalat Prasads case held: Therefore, we are of the opinion that the view of this Court in Mathews case (supra) that no specific provision is required for recalling and issuance order amounting to one without jurisdiction, does not laid down the correct law. 15. From the above, it is clear that the larger Bench of this Court in Adalat Prasads case did not accept the correctness of the law laid down by this Court in K.M. Mathews case. Therefore, reliance on K.M. Mathews case by the learned counsel appearing for the appellant cannot be accepted nor can the argument that Adalat Prasads case requires reconsideration be accepted. 16. The next challenge of the learned counsel for the appellant made to the finding of the High Court that once a plea is recorded in a summons case it is not open to the accused person to seek a discharge cannot also be accepted. The case involving a summons case is covered by Chapter XX of the Code which does not contemplates a stage of discharge like Section 239 which provides for a discharge in a warrant case. Therefore, in our opinion the High Court was correct in coming to the conclusion once the plea of the accused is recorded under Section 252 of the Code the procedure contemplated under Chapter XX has to be followed which is to take the trial to its logical conclusion. 17. As observed by us in Adalat Prasads case the only remedy available to an aggrieved accused to challenge an order in an interlocutory stage is the extraordinary remedy under Section 482 of the Code and not by way of an application to recall the summons or to seek discharge which is not contemplated in the trial of a summons case. 18. The learned counsel for the appellant then sought leave of this Court to approach the High Court by way of 482 petition questioning the issuance of process by the Magistrate. The same was very strongly opposed by the learned counsel for the respondents who contended that the complaint in this case was filed as far back as 24th of December, 1996 and though there was a direction earlier for an early disposal of the trial, appellant and the other accused have successfully managed to keep the trial in abeyance by initiating one proceedings after the another even up to this Court. He submitted both this Court as well as the High Court in the earlier proceedings has left the question of validity of statutory notice to be considered at the trial but the accused persons including the appellant herein are time and again raising the same issue with a view to delay the trial, hence no such permission as sought for by the appellant should be granted. 19. We see that this Court while dismissing earlier S.L.P. as withdrawn had left the question of legality of the notice open to be decided at the trial. Therefore, legitimately the appellant should raise this issue to be decided at the trial. Be that as it may, we cannot prevent an accused person from taking recourse to a remedy, which is available in law. In Adalat Prasads case we have held that for an aggrieved person the only course available to challenge the issuance of process under Section 204 of the Code is by way of a petition under Section 482 of the Code. Hence, while we do not grant any permission to the appellant to file a petition under Section 482, we cannot also deny him the statutory right available to him in law. However, taking into consideration the history of this case, we have no doubt the concerned court entertaining the application will also take into considerations i.e. raised by the respondent in this case as to delay i.e. being caused by the entertainment of applications and petitions filed by the accused. | 0[ds]we are of the opinion that the argument of the learned counsel for the appellant that the decision of this Court in Adalat Prasads case requires reconsideration cannot be accepted. It is true that the case of Adalat Prasad pertained to a warrant case whereas in Mathews case the same pertained to a summons case. To this extent, there is some difference in the two cases, but that does not, in any manner, make the law laid down by this Court in Adalat Prasads case a bad law13. In Mathews case this Court held that consequent to a process issued under Section 204 by the concerned Magistrate it is open to the accused the enter appearance and satisfy the court that there is no allegation in the complaint involving the accused in the commission of the crime. In such situation, this Court held that it is open to the Magistrate to recall the process issued against the accused. This Court also noticed the fact that the Code did not provide for any such procedure for recalling the process. But supported its reasoning by holding for such an act of judicial discretion no specific provision is required15. From the above, it is clear that the larger Bench of this Court in Adalat Prasads case did not accept the correctness of the law laid down by this Court in K.M. Mathews case. Therefore, reliance on K.M. Mathews case by the learned counsel appearing for the appellant cannot be accepted nor can the argument that Adalat Prasads case requires reconsideration be acceptedThe case involving a summons case is covered by Chapter XX of the Code which does not contemplates a stage of discharge like Section 239 which provides for a discharge in a warrant case. Therefore, in our opinion the High Court was correct in coming to the conclusion once the plea of the accused is recorded under Section 252 of the Code the procedure contemplated under Chapter XX has to be followed which is to take the trial to its logical conclusion19. We see that this Court while dismissing earlier S.L.P. as withdrawn had left the question of legality of the notice open to be decided at the trial. Therefore, legitimately the appellant should raise this issue to be decided at the trial. Be that as it may, we cannot prevent an accused person from taking recourse to a remedy, which is available in law. In Adalat Prasads case we have held that for an aggrieved person the only course available to challenge the issuance of process under Section 204 of the Code is by way of a petition under Section 482 of the Code. Hence, while we do not grant any permission to the appellant to file a petition under Section 482, we cannot also deny him the statutory right available to him in law. However, taking into consideration the history of this case, we have no doubt the concerned court entertaining the application will also take into considerations i.e. raised by the respondent in this case as to delay i.e. being caused by the entertainment of applications and petitions filed by the accused. | 0 | 2,689 | 567 | ### 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:
delay the trial in spite of the fact the core issue involved in this case has already been decided by this Court in the earlier S.L.P. filed by the company. 12. Having considered the argument of the learned counsel for the parties, we are of the opinion that the argument of the learned counsel for the appellant that the decision of this Court in Adalat Prasads case requires reconsideration cannot be accepted. It is true that the case of Adalat Prasad pertained to a warrant case whereas in Mathews case the same pertained to a summons case. To this extent, there is some difference in the two cases, but that does not, in any manner, make the law laid down by this Court in Adalat Prasads case a bad law. 13. In Mathews case this Court held that consequent to a process issued under Section 204 by the concerned Magistrate it is open to the accused the enter appearance and satisfy the court that there is no allegation in the complaint involving the accused in the commission of the crime. In such situation, this Court held that it is open to the Magistrate to recall the process issued against the accused. This Court also noticed the fact that the Code did not provide for any such procedure for recalling the process. But supported its reasoning by holding for such an act of judicial discretion no specific provision is required. 14. In Adalat Prasads case, this court considered the said view of the court in K.M. Mathews case and held that the issuance of process under Section 204 is a preliminary step in the stage of trial contemplated in Chapter XX of the Code. Such an order made at a preliminary stage being an interlocutory order, same cannot be reviewed or reconsidered by the Magistrate, there being no provision under the code for review of an order by the same Court. Hence, it is impermissible for the Magistrate to reconsider his decision to issue process in the absence of any specific provision to recall such order. In that line of reasoning this Court in Adalat Prasads case held: Therefore, we are of the opinion that the view of this Court in Mathews case (supra) that no specific provision is required for recalling and issuance order amounting to one without jurisdiction, does not laid down the correct law. 15. From the above, it is clear that the larger Bench of this Court in Adalat Prasads case did not accept the correctness of the law laid down by this Court in K.M. Mathews case. Therefore, reliance on K.M. Mathews case by the learned counsel appearing for the appellant cannot be accepted nor can the argument that Adalat Prasads case requires reconsideration be accepted. 16. The next challenge of the learned counsel for the appellant made to the finding of the High Court that once a plea is recorded in a summons case it is not open to the accused person to seek a discharge cannot also be accepted. The case involving a summons case is covered by Chapter XX of the Code which does not contemplates a stage of discharge like Section 239 which provides for a discharge in a warrant case. Therefore, in our opinion the High Court was correct in coming to the conclusion once the plea of the accused is recorded under Section 252 of the Code the procedure contemplated under Chapter XX has to be followed which is to take the trial to its logical conclusion. 17. As observed by us in Adalat Prasads case the only remedy available to an aggrieved accused to challenge an order in an interlocutory stage is the extraordinary remedy under Section 482 of the Code and not by way of an application to recall the summons or to seek discharge which is not contemplated in the trial of a summons case. 18. The learned counsel for the appellant then sought leave of this Court to approach the High Court by way of 482 petition questioning the issuance of process by the Magistrate. The same was very strongly opposed by the learned counsel for the respondents who contended that the complaint in this case was filed as far back as 24th of December, 1996 and though there was a direction earlier for an early disposal of the trial, appellant and the other accused have successfully managed to keep the trial in abeyance by initiating one proceedings after the another even up to this Court. He submitted both this Court as well as the High Court in the earlier proceedings has left the question of validity of statutory notice to be considered at the trial but the accused persons including the appellant herein are time and again raising the same issue with a view to delay the trial, hence no such permission as sought for by the appellant should be granted. 19. We see that this Court while dismissing earlier S.L.P. as withdrawn had left the question of legality of the notice open to be decided at the trial. Therefore, legitimately the appellant should raise this issue to be decided at the trial. Be that as it may, we cannot prevent an accused person from taking recourse to a remedy, which is available in law. In Adalat Prasads case we have held that for an aggrieved person the only course available to challenge the issuance of process under Section 204 of the Code is by way of a petition under Section 482 of the Code. Hence, while we do not grant any permission to the appellant to file a petition under Section 482, we cannot also deny him the statutory right available to him in law. However, taking into consideration the history of this case, we have no doubt the concerned court entertaining the application will also take into considerations i.e. raised by the respondent in this case as to delay i.e. being caused by the entertainment of applications and petitions filed by the accused.
### Response:
0
### Explanation:
we are of the opinion that the argument of the learned counsel for the appellant that the decision of this Court in Adalat Prasads case requires reconsideration cannot be accepted. It is true that the case of Adalat Prasad pertained to a warrant case whereas in Mathews case the same pertained to a summons case. To this extent, there is some difference in the two cases, but that does not, in any manner, make the law laid down by this Court in Adalat Prasads case a bad law13. In Mathews case this Court held that consequent to a process issued under Section 204 by the concerned Magistrate it is open to the accused the enter appearance and satisfy the court that there is no allegation in the complaint involving the accused in the commission of the crime. In such situation, this Court held that it is open to the Magistrate to recall the process issued against the accused. This Court also noticed the fact that the Code did not provide for any such procedure for recalling the process. But supported its reasoning by holding for such an act of judicial discretion no specific provision is required15. From the above, it is clear that the larger Bench of this Court in Adalat Prasads case did not accept the correctness of the law laid down by this Court in K.M. Mathews case. Therefore, reliance on K.M. Mathews case by the learned counsel appearing for the appellant cannot be accepted nor can the argument that Adalat Prasads case requires reconsideration be acceptedThe case involving a summons case is covered by Chapter XX of the Code which does not contemplates a stage of discharge like Section 239 which provides for a discharge in a warrant case. Therefore, in our opinion the High Court was correct in coming to the conclusion once the plea of the accused is recorded under Section 252 of the Code the procedure contemplated under Chapter XX has to be followed which is to take the trial to its logical conclusion19. We see that this Court while dismissing earlier S.L.P. as withdrawn had left the question of legality of the notice open to be decided at the trial. Therefore, legitimately the appellant should raise this issue to be decided at the trial. Be that as it may, we cannot prevent an accused person from taking recourse to a remedy, which is available in law. In Adalat Prasads case we have held that for an aggrieved person the only course available to challenge the issuance of process under Section 204 of the Code is by way of a petition under Section 482 of the Code. Hence, while we do not grant any permission to the appellant to file a petition under Section 482, we cannot also deny him the statutory right available to him in law. However, taking into consideration the history of this case, we have no doubt the concerned court entertaining the application will also take into considerations i.e. raised by the respondent in this case as to delay i.e. being caused by the entertainment of applications and petitions filed by the accused.
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Indra Kumar Patodia Vs. Reliance Inds. Ltd | warrant of arrest issued by a court under this Code shall be in writing, signed by the presiding officer of such court and shall bear the sea] of the court.(2) Every such warrant shall remain in force until it is cancelled by the Court which issued it, or until it is executed.154. Information in cognizable cases.(1) Every information relating to the commission of a cognizable offence, if given orally to an officer in charge of a police station, shall be reduced to writing by him or under his direction, and be read over to the informant; and every such information, whether given in writing or reduced to writing as aforesaid, shall be signed by the person giving it, and the substance thereof shall be entered in a book to be kept by such officer in such form as the State Government may prescribe in this behalf. …..164. Recording of confessions and statements.xxx xxxx(4) Any such confession shall be recorded in the manner provided in section 281 for recording the examination of an accused person and shall be signed by the person making the confession; and the Magistrate shall make a memorandum at the foot of such record to the following effect-281. Record of examination of accused.(1) Whenever the accused is examined by a Metropolitan Magistrate, the Magistrate shall make a memorandum of the substance of the examination of the accused in the language of the court and such memorandum shall be signed by the Magistrate and shall form part of the record…..” A perusal of the above shows that the legislature has made it clear that wherever it required a written document to be signed, it should be mentioned specifically in the section itself, which is missing both from Section 2(d) as well as Section 142. 14) The General Clauses Act, 1897 too draws a distinction between writing and signature and defines them separately. Section 3(56) defines signature and Section 3(65) defines writing which reads thus: “In this Act, and in all Central Acts and Regulations made after the commencement of this Act, unless there is anything repugnant in the subject or context,-56. "Sign" with its grammatical variations and cognate expressions, shall, with reference to a person who is unable to write his name, include, "mark", with its grammatical variation and cognate expressions,65. Expressions referring to "writing" shall be construed as including references to printing, lithography, photography and other modes of representing or reproducing words in a visible form,” Writing as defined by General Clauses Act requires that the same is representation or reproduction of “words” in a visible form and does not require signature. “Signature” within the meaning of “writing” would be adding words to the section which the legislature did not contemplate.15) In the case on hand, the complaint was presented in person on June 3, 1998 and on the direction by the Magistrate, the complaint was verified on July 30, 1998 and duly signed by the authorized officer of the Company-the complainant. As rightly pointed out by the Division Bench, no prejudice has been caused to the accused for non-signing the complaint. The statement made on oath and signed by the complainant safeguards the interest of the accused. In view of the same, we hold that the requirements of Section 142(a) of the Act is that the complaint must necessarily be in writing and the complaint can be presented by the payee or holder in due course of the cheque and it need not be signed by the complainant. In other words, if the legislature intended that the complaint under the Act, apart from being in writing, is also required to be signed by the complainant, the legislature would have used different language and inserted the same at the appropriate place. In our opinion, the correct interpretation would be that the complaint under Section 142(a) of the Act requires to be in writing as at the time of taking cognizance, the Magistrate will examine the complainant on oath and the verification statement will be signed by the complainant.16) It is the contention of Mr. Bhagwati Prasad, learned senior counsel for the appellant that the limitation period expired on the date of verification and the complaint cannot be entertained. In view of the above discussion, we are unable to accept the said contention.17) In Japani Sahoo vs. Chandra Sekhar Mohanty, (2007) 7 SCC 394 , in para 48, this Court held that “so far as the complainant is concerned, as soon as he files a complaint in a competent court of law, he has done everything which is required to be done by him at that stage. Thereafter, it is for the Magistrate to consider the matter to apply his mind and to take an appropriate decision of taking cognizance, issuing process or any other action which the law contemplates”. This Court further held that “the complainant has no control over those proceedings”. Taking note of Sections 468 and 473 of the Code, in para 52, this Court held that “for the purpose of computing the period of limitation, the relevant date must be considered as the date of filing of the complaint or initiating criminal proceedings and not the date of taking cognizance by a Magistrate or issuance of process by a Court”. 18) In the light of the scheme of the Act and various provisions of the Code, we fully endorse the above view and hold that the crucial date for computing the period of limitation is the date of filing of the complaint or initiating criminal proceedings and not the date of taking cognizance by the Magistrate. In the case on hand, as pointed out earlier, the complaint was filed on June 3, 1998 which is well within the time and on the direction of the Magistrate, verification was recorded by solemn affirmation by authorized representatives of the complainant and after recording the statement and securing his signature, the learned Magistrate passed an order issuing summons against the accused under Sections 138/142 of the Act. | 0[ds]15) In the case on hand, the complaint was presented in person on June 3, 1998 and on the direction by the Magistrate, the complaint was verified on July 30, 1998 and duly signed by the authorized officer of the Company-the complainant. As rightly pointed out by the Division Bench, no prejudice has been caused to the accused for non-signing the complaint. The statement made on oath and signed by the complainant safeguards the interest of the accused. In view of the same, we hold that the requirements of Section 142(a) of the Act is that the complaint must necessarily be in writing and the complaint can be presented by the payee or holder in due course of the cheque and it need not be signed by the complainant. In other words, if the legislature intended that the complaint under the Act, apart from being in writing, is also required to be signed by the complainant, the legislature would have used different language and inserted the same at the appropriate place. In our opinion, the correct interpretation would be that the complaint under Section 142(a) of the Act requires to be in writing as at the time of taking cognizance, the Magistrate will examine the complainant on oath and the verification statement will be signed by theIn the light of the scheme of the Act and various provisions of the Code, we fully endorse the above view and hold that the crucial date for computing the period of limitation is the date of filing of the complaint or initiating criminal proceedings and not the date of taking cognizance by the Magistrate. In the case on hand, as pointed out earlier, the complaint was filed on June 3, 1998 which is well within the time and on the direction of the Magistrate, verification was recorded by solemn affirmation by authorized representatives of the complainant and after recording the statement and securing his signature, the learned Magistrate passed an order issuing summons against the accused under Sections 138/142 of thepointed out, the controversy in our case, concentrates on construction of Section 142(a) of the Act and in particular phraseemployed therein. It provides that notwithstanding anything contained in the Code, no Court shall take cognizance of any offence punishable under Section 138 of the Act except upon amade by the payee or as the case may be the holder in due course of the cheque. The important question in the instant case is what is meant by ‘complaint inWhether complaint should be in writing simpliciter or complaint being in writing requires signature below suchIt is also relevant to refer a decision of this Court in M.M.T.C. Ltd. and Another vs. Medchl Chemicals and Pharma (P) Ltd. and Another, (2002) 1 SCC 234. The question in that decision was whether a complaint filed in the name and on behalf of the company by its employee without necessary authorization is maintainable. After analyzing the relevant provisions and language used in Sections 138 and 142(a) of the Act, this Court held that such complaint is maintainable and held that want of authorization can be rectified even at a subsequent stage. This Court further clarified that the only eligibility criteria prescribed by Section 142 is that the complaint must be by the payee or the holder in due course. This Court held that this criteria is satisfied as the complaint is in the name and on behalf of theIt was further held that even presuming, that initially there was no authority, still the company can, at any stage, rectify the defect. It was further held that at a subsequent stage the company can send a person who is competent to represent the company and concluded that the complaint could thus not have been quashed on thisThe object and scope of Sections 138 and 142 of the Act has been considered by this Court in Pankajbhai Nagjibhai Patel vs. State of Gujarat and Another, (2001) 2 SCC 595. In that case, Judicial Magistrate of the First Class, after convicting an accused for an offence under Section 138 of the Act sentenced him to imprisonment for six months along with a fine of Rs.83,000/The conviction and sentence were confirmed by the Sessions Judge in appeal and the revision filed by the convicted person was dismissed by the High Court. When the SLP was moved, the counsel confined his contention to the question whether a Judicial Magistrate of the First Class could have imposed sentence of fine beyond Rs. 5,000/in view of the limitation contained in Section 29(2) of the Code. Learned counsel for the respondent contended the decision of this Court in K. Bhaskaran vs. Sankaran Vaidhyan Balan, (1999) 7 SCC 510 to the effect that power of Judicial Magistrate of First Class is limited in the matter of imposing a sentence of fine of Rs. 5,000/is not correct in view of the non obstante clause contained in Section 142 of the Act. After hearing both the parties, this Court held that Section 138 of the Act provides punishment as imprisonment for a term which may extend to one year or fine which may extend to twice the amount of cheque or with both. Section 29(2) of the Code contains limitation for a Magistrate of First Class in the matter of imposing fine as a sentence or as part of sentence. After quoting Section 29(2) of the Code as well as Section 142 of the Act, this Court has concludedIt is clear that the aforesaid non obstante expression is intended to operate only in respect of three aspects, and nothing more. The first is this: Under the Code a Magistrate can take cognizance of an offence either upon receiving a complaint, or upon a police report, or upon receiving information from any person, or upon his own knowledge except in the cases differently indicated in Chapter XIV of the Code. But Section 142 of the NI Act says that insofar as the offence under Section 138 is concerned no court shall take cognizance except upon a complaint made by the payee or the holder in due course of the cheque.7. The second is this: Under the Code a complaint could be made at any time subject to the provisions of Chapter XXXVI. But so far as the offence under Section 138 of the NI Act is concerned such complaint shall be made within one month of the cause of action. The third is this: Under Article 511 of the First Schedule of the Code, if the offence is punishable with imprisonment for less than 3 years or with fine only under any enactment (other than the Indian Penal Code) such offence can be tried by any Magistrate. Normally Section 138 of the NI Act which is punishable with a maximum sentence of imprisonment for one year would have fallen within the scope of the said Article. But Section 142 of the NI Act says that for the offence under Section 138, no court inferior to that of a Metropolitan Magistrate or Judicial Magistrate of the First Class shall try the said offence.8. Thus, the non obstante limb provided in Section 142 of the NI Act is not intended to expand the powers of a Magistrate of the First Class beyond what is fixed in Chapter III of the Code. Section 29, which falls within Chapter III of the Code, contains a limit for a Magistrate of the First Class in the matter of imposing a sentence as noticed above i.e. if the sentence is imprisonment it shall not exceed 3 years and if the sentence is fine (even if it is part of the sentence) it shall not exceed RsIt is clear that the non obstante clause has to be given restricted meaning and when the section containing the said clause does not refer to any particular provisions which intends to over ride but refers to the provisions of the statute generally, it is not permissible to hold that it excludes the whole Act and stands all alone by itself. In other words, there requires to be a determination as to which provisions answers the description and which does not. While interpreting the non obstante clause, the Court is required to find out the extent to which the legislature intended to do so and the context in which the non obstante clause is used. We have already referred to the definition of complaint as stated in Section 2(d) of the Code which provides that the same needs to be in oral or in writing. The non obstante clause, when it refers to the Code only excludes the oral part in such definition.13) According to us, the non obstante clause in Section 142(a) is restricted to exclude two things only from the Code i.e. (a) exclusion of oral complaints and (b) exclusion of cognizance on complaint by anybody other than the payee or the holder in due course. Section 190 of the Code provides that a Magistrate can take cognizance on a complaint which constitutes such an offence irrespective of who had made such complaint or on a police report or upon receiving information from any person other then a police officer or upon his own knowledge. Non obstante clause, when it refers to the core, restricts the power of the Magistrate to take cognizance only on a complaint by a payee or the holder in due course and excludes the rest of Section 190 of the Code. In other words, none of the other provisions of the Code are excluded by the said non obstante clause, hence, the Magistrate is therefore required to follow the procedure under Section 200 of the Code once he has taken the complaint of the payee/holder in due course and record statement of the complainant and such other witnesses as present at the said date. Here, the Code specifically provides that the same is required to be signed by the complainant as well as the witnesses making thepresentation of the complaint is only the first step and no action can be taken unless the process of verification is complete and, thereafter, the Magistrate has to consider the statement on oath, that is, the verification statement under Section 200 and the statement of any witness, and the Magistrate has to decide whether there is sufficient ground tois also clear that a person could be called upon to answer a charge of false complaint/perjury only on such verification statement and not mere on the presentation of the complaint as the same is not on oath and, therefore, need to obtain the signature of the person. Apart from the above section, the legislative intent becomes clear thatose that the same has to be signed. Various sections in the Code when contrasted with Section 2(d) clarify that the legislature was clearly of the intent that a written complaint need not beIn the case on hand, the complaint was presented in person on June 3, 1998 and on the direction by the Magistrate, the complaint was verified on July 30, 1998 and duly signed by the authorized officer of thecomplainant. As rightly pointed out by the Division Bench, no prejudice has been caused to the accused forthe complaint. The statement made on oath and signed by the complainant safeguards the interest of the accused. In view of the same, we hold that the requirements of Section 142(a) of the Act is that the complaint must necessarily be in writing and the complaint can be presented by the payee or holder in due course of the cheque and it need not be signed by the complainant. In other words, if the legislature intended that the complaint under the Act, apart from being in writing, is also required to be signed by the complainant, the legislature would have used different language and inserted the same at the appropriate place. In our opinion, the correct interpretation would be that the complaint under Section 142(a) of the Act requires to be in writing as at the time of taking cognizance, the Magistrate will examine the complainant on oath and the verification statement will be signed by theIn Japani Sahoo vs. Chandra Sekhar Mohanty, (2007) 7 SCC 394 , in para 48, this Court held thatfar as the complainant is concerned, as soon as he files a complaint in a competent court of law, he has done everything which is required to be done by him at that stage. Thereafter, it is for the Magistrate to consider the matter to apply his mind and to take an appropriate decision of taking cognizance, issuing process or any other action which the lawThis Court further held thatcomplainant has no control over thoseTaking note of Sections 468 and 473 of the Code, in para 52, this Court held thatthe purpose of computing the period of limitation, the relevant date must be considered as the date of filing of the complaint or initiating criminal proceedings and not the date of taking cognizance by a Magistrate or issuance of process by aIn the light of the scheme of the Act and various provisions of the Code, we fully endorse the above view and hold that the crucial date for computing the period of limitation is the date of filing of the complaint or initiating criminal proceedings and not the date of taking cognizance by the Magistrate. In the case on hand, as pointed out earlier, the complaint was filed on June 3, 1998 which is well within the time and on the direction of the Magistrate, verification was recorded by solemn affirmation by authorized representatives of the complainant and after recording the statement and securing his signature, the learned Magistrate passed an order issuing summons against the accused under Sections 138/142 of the | 0 | 4,762 | 2,497 | ### 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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warrant of arrest issued by a court under this Code shall be in writing, signed by the presiding officer of such court and shall bear the sea] of the court.(2) Every such warrant shall remain in force until it is cancelled by the Court which issued it, or until it is executed.154. Information in cognizable cases.(1) Every information relating to the commission of a cognizable offence, if given orally to an officer in charge of a police station, shall be reduced to writing by him or under his direction, and be read over to the informant; and every such information, whether given in writing or reduced to writing as aforesaid, shall be signed by the person giving it, and the substance thereof shall be entered in a book to be kept by such officer in such form as the State Government may prescribe in this behalf. …..164. Recording of confessions and statements.xxx xxxx(4) Any such confession shall be recorded in the manner provided in section 281 for recording the examination of an accused person and shall be signed by the person making the confession; and the Magistrate shall make a memorandum at the foot of such record to the following effect-281. Record of examination of accused.(1) Whenever the accused is examined by a Metropolitan Magistrate, the Magistrate shall make a memorandum of the substance of the examination of the accused in the language of the court and such memorandum shall be signed by the Magistrate and shall form part of the record…..” A perusal of the above shows that the legislature has made it clear that wherever it required a written document to be signed, it should be mentioned specifically in the section itself, which is missing both from Section 2(d) as well as Section 142. 14) The General Clauses Act, 1897 too draws a distinction between writing and signature and defines them separately. Section 3(56) defines signature and Section 3(65) defines writing which reads thus: “In this Act, and in all Central Acts and Regulations made after the commencement of this Act, unless there is anything repugnant in the subject or context,-56. "Sign" with its grammatical variations and cognate expressions, shall, with reference to a person who is unable to write his name, include, "mark", with its grammatical variation and cognate expressions,65. Expressions referring to "writing" shall be construed as including references to printing, lithography, photography and other modes of representing or reproducing words in a visible form,” Writing as defined by General Clauses Act requires that the same is representation or reproduction of “words” in a visible form and does not require signature. “Signature” within the meaning of “writing” would be adding words to the section which the legislature did not contemplate.15) In the case on hand, the complaint was presented in person on June 3, 1998 and on the direction by the Magistrate, the complaint was verified on July 30, 1998 and duly signed by the authorized officer of the Company-the complainant. As rightly pointed out by the Division Bench, no prejudice has been caused to the accused for non-signing the complaint. The statement made on oath and signed by the complainant safeguards the interest of the accused. In view of the same, we hold that the requirements of Section 142(a) of the Act is that the complaint must necessarily be in writing and the complaint can be presented by the payee or holder in due course of the cheque and it need not be signed by the complainant. In other words, if the legislature intended that the complaint under the Act, apart from being in writing, is also required to be signed by the complainant, the legislature would have used different language and inserted the same at the appropriate place. In our opinion, the correct interpretation would be that the complaint under Section 142(a) of the Act requires to be in writing as at the time of taking cognizance, the Magistrate will examine the complainant on oath and the verification statement will be signed by the complainant.16) It is the contention of Mr. Bhagwati Prasad, learned senior counsel for the appellant that the limitation period expired on the date of verification and the complaint cannot be entertained. In view of the above discussion, we are unable to accept the said contention.17) In Japani Sahoo vs. Chandra Sekhar Mohanty, (2007) 7 SCC 394 , in para 48, this Court held that “so far as the complainant is concerned, as soon as he files a complaint in a competent court of law, he has done everything which is required to be done by him at that stage. Thereafter, it is for the Magistrate to consider the matter to apply his mind and to take an appropriate decision of taking cognizance, issuing process or any other action which the law contemplates”. This Court further held that “the complainant has no control over those proceedings”. Taking note of Sections 468 and 473 of the Code, in para 52, this Court held that “for the purpose of computing the period of limitation, the relevant date must be considered as the date of filing of the complaint or initiating criminal proceedings and not the date of taking cognizance by a Magistrate or issuance of process by a Court”. 18) In the light of the scheme of the Act and various provisions of the Code, we fully endorse the above view and hold that the crucial date for computing the period of limitation is the date of filing of the complaint or initiating criminal proceedings and not the date of taking cognizance by the Magistrate. In the case on hand, as pointed out earlier, the complaint was filed on June 3, 1998 which is well within the time and on the direction of the Magistrate, verification was recorded by solemn affirmation by authorized representatives of the complainant and after recording the statement and securing his signature, the learned Magistrate passed an order issuing summons against the accused under Sections 138/142 of the Act.
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and when the section containing the said clause does not refer to any particular provisions which intends to over ride but refers to the provisions of the statute generally, it is not permissible to hold that it excludes the whole Act and stands all alone by itself. In other words, there requires to be a determination as to which provisions answers the description and which does not. While interpreting the non obstante clause, the Court is required to find out the extent to which the legislature intended to do so and the context in which the non obstante clause is used. We have already referred to the definition of complaint as stated in Section 2(d) of the Code which provides that the same needs to be in oral or in writing. The non obstante clause, when it refers to the Code only excludes the oral part in such definition.13) According to us, the non obstante clause in Section 142(a) is restricted to exclude two things only from the Code i.e. (a) exclusion of oral complaints and (b) exclusion of cognizance on complaint by anybody other than the payee or the holder in due course. Section 190 of the Code provides that a Magistrate can take cognizance on a complaint which constitutes such an offence irrespective of who had made such complaint or on a police report or upon receiving information from any person other then a police officer or upon his own knowledge. Non obstante clause, when it refers to the core, restricts the power of the Magistrate to take cognizance only on a complaint by a payee or the holder in due course and excludes the rest of Section 190 of the Code. In other words, none of the other provisions of the Code are excluded by the said non obstante clause, hence, the Magistrate is therefore required to follow the procedure under Section 200 of the Code once he has taken the complaint of the payee/holder in due course and record statement of the complainant and such other witnesses as present at the said date. Here, the Code specifically provides that the same is required to be signed by the complainant as well as the witnesses making thepresentation of the complaint is only the first step and no action can be taken unless the process of verification is complete and, thereafter, the Magistrate has to consider the statement on oath, that is, the verification statement under Section 200 and the statement of any witness, and the Magistrate has to decide whether there is sufficient ground tois also clear that a person could be called upon to answer a charge of false complaint/perjury only on such verification statement and not mere on the presentation of the complaint as the same is not on oath and, therefore, need to obtain the signature of the person. Apart from the above section, the legislative intent becomes clear thatose that the same has to be signed. Various sections in the Code when contrasted with Section 2(d) clarify that the legislature was clearly of the intent that a written complaint need not beIn the case on hand, the complaint was presented in person on June 3, 1998 and on the direction by the Magistrate, the complaint was verified on July 30, 1998 and duly signed by the authorized officer of thecomplainant. As rightly pointed out by the Division Bench, no prejudice has been caused to the accused forthe complaint. The statement made on oath and signed by the complainant safeguards the interest of the accused. In view of the same, we hold that the requirements of Section 142(a) of the Act is that the complaint must necessarily be in writing and the complaint can be presented by the payee or holder in due course of the cheque and it need not be signed by the complainant. In other words, if the legislature intended that the complaint under the Act, apart from being in writing, is also required to be signed by the complainant, the legislature would have used different language and inserted the same at the appropriate place. In our opinion, the correct interpretation would be that the complaint under Section 142(a) of the Act requires to be in writing as at the time of taking cognizance, the Magistrate will examine the complainant on oath and the verification statement will be signed by theIn Japani Sahoo vs. Chandra Sekhar Mohanty, (2007) 7 SCC 394 , in para 48, this Court held thatfar as the complainant is concerned, as soon as he files a complaint in a competent court of law, he has done everything which is required to be done by him at that stage. Thereafter, it is for the Magistrate to consider the matter to apply his mind and to take an appropriate decision of taking cognizance, issuing process or any other action which the lawThis Court further held thatcomplainant has no control over thoseTaking note of Sections 468 and 473 of the Code, in para 52, this Court held thatthe purpose of computing the period of limitation, the relevant date must be considered as the date of filing of the complaint or initiating criminal proceedings and not the date of taking cognizance by a Magistrate or issuance of process by aIn the light of the scheme of the Act and various provisions of the Code, we fully endorse the above view and hold that the crucial date for computing the period of limitation is the date of filing of the complaint or initiating criminal proceedings and not the date of taking cognizance by the Magistrate. In the case on hand, as pointed out earlier, the complaint was filed on June 3, 1998 which is well within the time and on the direction of the Magistrate, verification was recorded by solemn affirmation by authorized representatives of the complainant and after recording the statement and securing his signature, the learned Magistrate passed an order issuing summons against the accused under Sections 138/142 of the
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A.K. Doshi Vs. U.O.I. | from the reserve panel. Further this Court directed the Government to appoint that appellant as there was nothing against him. Based on this case it was submitted that the 1st respondent was bound to appoint the appellant (herein) once the name of the 2nd respondent had been rejected. 13. We are unable to accept this argument. The Government of India has framed Company Law Board (Qualifications, Experience and Other Conditions of Service of Members) Rules, 1993 (hereinafter called the said Rules). These rules were notified on 28th April, 1993. Rule 4 provides for the method of recruitment of Members. It provides that the selection of Members shall be made by the Government of India in consultation with the Chief Justice of India or his nominee. Thus the appointment can only be in consultation with the Chief Justice of India or his nominee. It is for that reason that a Selection Committee headed by a nominee of the Chief Justice of India is constituted for the purposes of selecting a Member. All materials, which are relevant, are to be placed before the Selection Committee. It is the Selection Committee which makes the selection on the basis of relevant materials. After the Selection Committee completes the exercise and recommends one or more names for appointment the recommendation alongwith the materials considered by the Selection Committee should be placed before the Appointments Committee without any further addition or alteration. If in an exceptional case the Appointments Committee feels that certain material which was not available to be considered by the Selection Committee has come into existence in the meantime, and the material is relevant for the purpose of appointment, then, the matter should be placed before the Appointments Committee with the additional material for its consideration. Such a course, in our view, will be in accordance with the scheme of the rules and the purpose of making appointment to the important public office. We are constrained to observe that the notings made by the Secretary of the Appointments Committee in the file, as noted earlier, was an attempt to interfere with the process of selection, which was neither permissible under the rules nor desirable otherwise. By indulging in such unhealthy process the sanctity of the selection by the Selection Committee was attempted to be set at naught. Such conduct on the part of a senior and experienced Government officer does not commend us. It must be ensured that in future such a practice is not repeated. In this case the facts indicate that, even though the Selection Committee made a recommendation, the appointment of that candidate was got rejected/stalled. Thereafter even though directed to do so by the Appointments Committee, process of fresh selection was not initiated. The file was kept pending till name of the appellant could be sent to the Appointments Committee. The facts lead to the only conclusion that there was rank favouritism and a blatant attempt to get the appellant appointed as Member (Technical), Company Law Board. On these facts the ratio in Aggarwal’s case has no application. Also in the present case there is no office memorandum requiring selection from the reserve panel. 14. In view of the facts set out herein above, we are of the opinion that the Central Administrative Tribunal as well as the High Court were right in setting aside the appointment of the appellant. The appellant had been unduly favoured and the candidate selected by the Selection Committee and placed on the merit list had been deprived of appointment. 15. It was also submitted that the Central Administrative Tribunal had no jurisdiction to entertain the petition of the 2nd respondent. It was submitted that the appellant had already become a Member of the Company Law Board. It was submitted that by virtue of Section 14 of the Central Administrative Tribunal, 1985, the Central Administrative Tribunal could only exercise jurisdiction, powers and authority in respect of an All India Service or to any Civil Service of the Union or a Civil post under the Union or to a post connected with defence or in the defence services, being a post filled by a civilian. It was submitted that the post of a Member (Technical), Company Law Board was neither an All India Service nor a Civil Service of the Union nor a civil post under the Union. Reliance was placed upon the authority in the case of Canara Bank v. Nuclear Power Corporation of India Ltd. and Ors., reported in 1995 Suppl. (3) SCC Pg. 81. In this case it was held that the Company Law Board was a Court. Based on this authority it was submitted that since the Company Law Board is a Court, its Members could not be holding civil posts under the Union. It was submitted that both the Central Administrative Tribunal and the High Court erred in holding that the post of a Member, Company Law Board was a civil post. 16. Both the Central Administrative Tribunal and the High Court have relied upon various rules, notably Rules 6, 7, 10 and 13 of the said rules and concluded that these rules indicated control by the Government. It was held that as the Government had control, thus the post was a civil post. It must be mentioned that we have reservation in accepting this view. However for all these years the post has laid vacant. Even if we were to hold in favour of the appellant no useful purpose would be served. The 2nd respondent would have to be given time to challenge in a proper Forum. On facts set out hereinabove the end result would be the same. The selection of the appellant would be set aside. The post would then lie vacant for the period it takes to dispose of that matter. The only sufferer would be the litigating public. As in this case the facts are very gross, we see no reason to interfere. We leave this question open to be decided in an appropriate matter. | 1[ds]In our view, on the facts of this case the contention raised on behalf of the appellant that the 2nd respondent could not challenge theappointment since he (2nd respondent) had not challenged the rejection of his name by the Appointments Committee, cannot be accepted. Even assuming that the 2nd respondent could have challenged the rejection of his name by the Appointments Committee he would have a cause of action to challenge the appointment of the appellant who was undisputedly placed below him in the panel drawn up by the Selection Committee.12.We are unable to accept this argument. The Government of India has framed Company Law Board (Qualifications, Experience and Other Conditions of Service of Members) Rules, 1993 (hereinafter called the said Rules). These rules were notified on 28th April, 1993. Rule 4 provides for the method of recruitment of Members. It provides that the selection of Members shall be made by the Government of India in consultation with the Chief Justice of India or his nominee. Thus the appointment can only be in consultation with the Chief Justice of India or his nominee. It is for that reason that a Selection Committee headed by a nominee of the Chief Justice of India is constituted for the purposes of selecting a Member. All materials, which are relevant, are to be placed before the Selection Committee. It is the Selection Committee which makes the selection on the basis of relevant materials. After the Selection Committee completes the exercise and recommends one or more names for appointment the recommendation alongwith the materials considered by the Selection Committee should be placed before the Appointments Committee without any further addition or alteration. If in an exceptional case the Appointments Committee feels that certain material which was not available to be considered by the Selection Committee has come into existence in the meantime, and the material is relevant for the purpose of appointment, then, the matter should be placed before the Appointments Committee with the additional material for its consideration. Such a course, in our view, will be in accordance with the scheme of the rules and the purpose of making appointment to the important public office. We are constrained to observe that the notings made by the Secretary of the Appointments Committee in the file, as noted earlier, was an attempt to interfere with the process of selection, which was neither permissible under the rules nor desirable otherwise. By indulging in such unhealthy process the sanctity of the selection by the Selection Committee was attempted to be set at naught. Such conduct on the part of a senior and experienced Government officer does not commend us. It must be ensured that in future such a practice is not repeated. In this case the facts indicate that, even though the Selection Committee made a recommendation, the appointment of that candidate was got rejected/stalled. Thereafter even though directed to do so by the Appointments Committee, process of fresh selection was not initiated. The file was kept pending till name of the appellant could be sent to the Appointments Committee. The facts lead to the only conclusion that there was rank favouritism and a blatant attempt to get the appellant appointed as Member (Technical), Company Law Board. On these facts the ratio incase has no application. Also in the present case there is no office memorandum requiring selection from the reserve panel. | 1 | 3,127 | 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:
from the reserve panel. Further this Court directed the Government to appoint that appellant as there was nothing against him. Based on this case it was submitted that the 1st respondent was bound to appoint the appellant (herein) once the name of the 2nd respondent had been rejected. 13. We are unable to accept this argument. The Government of India has framed Company Law Board (Qualifications, Experience and Other Conditions of Service of Members) Rules, 1993 (hereinafter called the said Rules). These rules were notified on 28th April, 1993. Rule 4 provides for the method of recruitment of Members. It provides that the selection of Members shall be made by the Government of India in consultation with the Chief Justice of India or his nominee. Thus the appointment can only be in consultation with the Chief Justice of India or his nominee. It is for that reason that a Selection Committee headed by a nominee of the Chief Justice of India is constituted for the purposes of selecting a Member. All materials, which are relevant, are to be placed before the Selection Committee. It is the Selection Committee which makes the selection on the basis of relevant materials. After the Selection Committee completes the exercise and recommends one or more names for appointment the recommendation alongwith the materials considered by the Selection Committee should be placed before the Appointments Committee without any further addition or alteration. If in an exceptional case the Appointments Committee feels that certain material which was not available to be considered by the Selection Committee has come into existence in the meantime, and the material is relevant for the purpose of appointment, then, the matter should be placed before the Appointments Committee with the additional material for its consideration. Such a course, in our view, will be in accordance with the scheme of the rules and the purpose of making appointment to the important public office. We are constrained to observe that the notings made by the Secretary of the Appointments Committee in the file, as noted earlier, was an attempt to interfere with the process of selection, which was neither permissible under the rules nor desirable otherwise. By indulging in such unhealthy process the sanctity of the selection by the Selection Committee was attempted to be set at naught. Such conduct on the part of a senior and experienced Government officer does not commend us. It must be ensured that in future such a practice is not repeated. In this case the facts indicate that, even though the Selection Committee made a recommendation, the appointment of that candidate was got rejected/stalled. Thereafter even though directed to do so by the Appointments Committee, process of fresh selection was not initiated. The file was kept pending till name of the appellant could be sent to the Appointments Committee. The facts lead to the only conclusion that there was rank favouritism and a blatant attempt to get the appellant appointed as Member (Technical), Company Law Board. On these facts the ratio in Aggarwal’s case has no application. Also in the present case there is no office memorandum requiring selection from the reserve panel. 14. In view of the facts set out herein above, we are of the opinion that the Central Administrative Tribunal as well as the High Court were right in setting aside the appointment of the appellant. The appellant had been unduly favoured and the candidate selected by the Selection Committee and placed on the merit list had been deprived of appointment. 15. It was also submitted that the Central Administrative Tribunal had no jurisdiction to entertain the petition of the 2nd respondent. It was submitted that the appellant had already become a Member of the Company Law Board. It was submitted that by virtue of Section 14 of the Central Administrative Tribunal, 1985, the Central Administrative Tribunal could only exercise jurisdiction, powers and authority in respect of an All India Service or to any Civil Service of the Union or a Civil post under the Union or to a post connected with defence or in the defence services, being a post filled by a civilian. It was submitted that the post of a Member (Technical), Company Law Board was neither an All India Service nor a Civil Service of the Union nor a civil post under the Union. Reliance was placed upon the authority in the case of Canara Bank v. Nuclear Power Corporation of India Ltd. and Ors., reported in 1995 Suppl. (3) SCC Pg. 81. In this case it was held that the Company Law Board was a Court. Based on this authority it was submitted that since the Company Law Board is a Court, its Members could not be holding civil posts under the Union. It was submitted that both the Central Administrative Tribunal and the High Court erred in holding that the post of a Member, Company Law Board was a civil post. 16. Both the Central Administrative Tribunal and the High Court have relied upon various rules, notably Rules 6, 7, 10 and 13 of the said rules and concluded that these rules indicated control by the Government. It was held that as the Government had control, thus the post was a civil post. It must be mentioned that we have reservation in accepting this view. However for all these years the post has laid vacant. Even if we were to hold in favour of the appellant no useful purpose would be served. The 2nd respondent would have to be given time to challenge in a proper Forum. On facts set out hereinabove the end result would be the same. The selection of the appellant would be set aside. The post would then lie vacant for the period it takes to dispose of that matter. The only sufferer would be the litigating public. As in this case the facts are very gross, we see no reason to interfere. We leave this question open to be decided in an appropriate matter.
### Response:
1
### Explanation:
In our view, on the facts of this case the contention raised on behalf of the appellant that the 2nd respondent could not challenge theappointment since he (2nd respondent) had not challenged the rejection of his name by the Appointments Committee, cannot be accepted. Even assuming that the 2nd respondent could have challenged the rejection of his name by the Appointments Committee he would have a cause of action to challenge the appointment of the appellant who was undisputedly placed below him in the panel drawn up by the Selection Committee.12.We are unable to accept this argument. The Government of India has framed Company Law Board (Qualifications, Experience and Other Conditions of Service of Members) Rules, 1993 (hereinafter called the said Rules). These rules were notified on 28th April, 1993. Rule 4 provides for the method of recruitment of Members. It provides that the selection of Members shall be made by the Government of India in consultation with the Chief Justice of India or his nominee. Thus the appointment can only be in consultation with the Chief Justice of India or his nominee. It is for that reason that a Selection Committee headed by a nominee of the Chief Justice of India is constituted for the purposes of selecting a Member. All materials, which are relevant, are to be placed before the Selection Committee. It is the Selection Committee which makes the selection on the basis of relevant materials. After the Selection Committee completes the exercise and recommends one or more names for appointment the recommendation alongwith the materials considered by the Selection Committee should be placed before the Appointments Committee without any further addition or alteration. If in an exceptional case the Appointments Committee feels that certain material which was not available to be considered by the Selection Committee has come into existence in the meantime, and the material is relevant for the purpose of appointment, then, the matter should be placed before the Appointments Committee with the additional material for its consideration. Such a course, in our view, will be in accordance with the scheme of the rules and the purpose of making appointment to the important public office. We are constrained to observe that the notings made by the Secretary of the Appointments Committee in the file, as noted earlier, was an attempt to interfere with the process of selection, which was neither permissible under the rules nor desirable otherwise. By indulging in such unhealthy process the sanctity of the selection by the Selection Committee was attempted to be set at naught. Such conduct on the part of a senior and experienced Government officer does not commend us. It must be ensured that in future such a practice is not repeated. In this case the facts indicate that, even though the Selection Committee made a recommendation, the appointment of that candidate was got rejected/stalled. Thereafter even though directed to do so by the Appointments Committee, process of fresh selection was not initiated. The file was kept pending till name of the appellant could be sent to the Appointments Committee. The facts lead to the only conclusion that there was rank favouritism and a blatant attempt to get the appellant appointed as Member (Technical), Company Law Board. On these facts the ratio incase has no application. Also in the present case there is no office memorandum requiring selection from the reserve panel.
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State Of Maharashtra Vs. Kamani Employees' Union & Ors | matter on which a further reference is asked for by the employer is "connected with or relevant to the said dispute." The reference to the "said dispute" is regarding the revision of production bonus which was already the subject of the reference dated December 19, 1962.7. The Tribunal appears to have passed an award on February 27, 1964, en all the disputes comprised in the 1st Reference excepting demand No. 3, which, as we have already stated, relates to the revision of the existing production bonus scheme. The union filed an application before the Tribunal, stating that the second reference dated January 18, 1964, should not be adjudicated upon. This objection was raised on the ground that the order dated January 18, 1964, really amounts to the withdrawal of the previous reference made on December 19, l962 and that it interferes with the exercise of the powers of the Tribunal in the matter of adjudicating dispute No. 3 already referred to it. The management opposed this application on the ground that the order dated January 18, 1964, does not have the effect of withdrawing the previous reference and that on the other hand, the dispute that was referred by order of 1964 was really one "connected with or relevant to the dispute" which was already pending adjudication before the Tribunal.8. The Tribunal overruled the preliminary objection of the workmen about the competency of the Reference made on January 18, 1964; and it resulted in the latter approaching the High Court under Article 226. The High Court, in its present order, accepting the contentions of the union, has held that the second order dated January 18, 1964 had really the effect of superseding the previous reference made on December 19, 1962 and also of interfering with the powers exercised by the Tribunal in respect of the previous reference.9. Mr. Bhandare, learned counsel, for the appellant-State, has contended that the reasoning of the High Court that the second order of reference amounts to a withdrawal of the previous order dated December 19, 1962, is fallacious. He has further pointed out that the subject-matter of the reference dated January 18, 1964, could have been included in the order of December 18, 1962 and then it would have been perfectly competent for the Tribunal to consider the nature of the modification that is to be effected in respect of the production scheme then existing in the company. For that purpose, the Tribunal could have considered the nature of the modifications required by the workmen as well as the further question whether the Incentive Scheme evolved by the Ibcon Private Limited could be adopted. Mr. Bhandare also pointed out that the question covered by the second reference is really a matter which is "connected with or relevant to the dispute" already pending before the Tribunal.10. We are of the opinion that the contentions of Mr. Bhandare have to be accepted. We are not able to appreciate the reasoning of the learned judges that the order dated January 18, 1964, has the effect of withdrawing or superseding the reference already made on December l9, 1962. There will be withdrawal of a reference, when the dispute referred is taken out of the purview of the Tribunal. There will be supersession of a previous reference, when the second Reference comprises matters or disputes totally unconnected with or different from the disputes originally referred. Neither is the case here. On the other hand, in our opinion the question regarding the nature of the modification to be effected to the production bonus scheme has to be considered by the Tribunal having due regard to the scheme as it exists as well as to the various suggestions that may be made by the parties, namely, the employer and the employee. If the employer had relied on the scheme evolved by M/s Ibcon Pvt. Ltd., it was certainly competent for the tribunal to consider how far that scheme could be adopted in this particular case. This aspect could have been considered by the Tribunal, because it is "connected with or relevant to the dispute No. 3" relating to Bonus.11. We are not inclined to accept the view of the High Court that the reference dated January 18, 1964 in any manner interferes with the powers of the Tribunal in adjudicating upon the demand No. 3 covered by the reference dated December 19, 1962. In fact, in our view, the question that has been further referred by order dated January 18, 1964, is really a matter connected with or relevant to dispute No. 2 already pending adjudication before the Tribunal. The Tribunal had full jurisdiction when dealing with demand No. 3 covered by the order dated December 19, 1962, to consider the report mentioned in the subsequent reference dated January 18, 1964. It had full power to consider as to in what manner and to what extent the modification is to be effected in the Incentive Scheme obtaining in the company. In fact, even without the second reference, the Tribunal, when dealing with demand No. 8 of the 1st reference, could have also considered the question of adopting the scheme evolved by Ibcon Private Limited, because it was a relevant matter, and also connected with the Production Bonus Scheme. When it was so open to the Tribunal to consider the Scheme of Ibcon, the fact that the Government specifically referred for consideration the said Scheme, makes no difference. At any rate the question covered by the 2nd Reference was a matter "connected with or relevant" to dispute No. 3 of the 1st Reference and hence the State was well within its jurisdiction under Section 10 (1) (d) of the Industrial Disputes Act in passing the order dated January 18, 1964.The High Court has referred to various decisions regarding the powers of the Government, when making a reference; which, in our opinion, it is not necessary to consider, in the view that we take regarding the nature of the reference dated January 18, 1964. | 1[ds]10. We are of the opinion that the contentions of Mr. Bhandare have to be accepted. We are not able to appreciate the reasoning of the learned judges that the order dated January 18, 1964, has the effect of withdrawing or superseding the reference already made on December l9, 1962. There will be withdrawal of a reference, when the dispute referred is taken out of the purview of the Tribunal. There will be supersession of a previous reference, when the second Reference comprises matters or disputes totally unconnected with or different from the disputes originally referred. Neither is the case here. On the other hand, in our opinion the question regarding the nature of the modification to be effected to the production bonus scheme has to be considered by the Tribunal having due regard to the scheme as it exists as well as to the various suggestions that may be made by the parties, namely, the employer and the employee. If the employer had relied on the scheme evolved by M/s Ibcon Pvt. Ltd., it was certainly competent for the tribunal to consider how far that scheme could be adopted in this particular case. This aspect could have been considered by the Tribunal, because it is "connected with or relevant to the dispute No. 3" relating to Bonus.11. We are not inclined to accept the view of the High Court that the reference dated January 18, 1964 in any manner interferes with the powers of the Tribunal in adjudicating upon the demand No. 3 covered by the reference dated December 19, 1962. In fact, in our view, the question that has been further referred by order dated January 18, 1964, is really a matter connected with or relevant to dispute No. 2 already pending adjudication before the Tribunal. The Tribunal had full jurisdiction when dealing with demand No. 3 covered by the order dated December 19, 1962, to consider the report mentioned in the subsequent reference dated January 18, 1964. It had full power to consider as to in what manner and to what extent the modification is to be effected in the Incentive Scheme obtaining in the company. In fact, even without the second reference, the Tribunal, when dealing with demand No. 8 of the 1st reference, could have also considered the question of adopting the scheme evolved by Ibcon Private Limited, because it was a relevant matter, and also connected with the Production Bonus Scheme. When it was so open to the Tribunal to consider the Scheme of Ibcon, the fact that the Government specifically referred for consideration the said Scheme, makes no difference. At any rate the question covered by the 2nd Reference was a matter "connected with or relevant" to dispute No. 3 of the 1st Reference and hence the State was well within its jurisdiction under Section 10 (1) (d) of the Industrial Disputes Act in passing the order dated January 18, 1964.The High Court has referred to various decisions regarding the powers of the Government, when making a reference; which, in our opinion, it is not necessary to consider, in the view that we take regarding the nature of the reference dated January 18, 1964. | 1 | 1,776 | 600 | ### 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:
matter on which a further reference is asked for by the employer is "connected with or relevant to the said dispute." The reference to the "said dispute" is regarding the revision of production bonus which was already the subject of the reference dated December 19, 1962.7. The Tribunal appears to have passed an award on February 27, 1964, en all the disputes comprised in the 1st Reference excepting demand No. 3, which, as we have already stated, relates to the revision of the existing production bonus scheme. The union filed an application before the Tribunal, stating that the second reference dated January 18, 1964, should not be adjudicated upon. This objection was raised on the ground that the order dated January 18, 1964, really amounts to the withdrawal of the previous reference made on December 19, l962 and that it interferes with the exercise of the powers of the Tribunal in the matter of adjudicating dispute No. 3 already referred to it. The management opposed this application on the ground that the order dated January 18, 1964, does not have the effect of withdrawing the previous reference and that on the other hand, the dispute that was referred by order of 1964 was really one "connected with or relevant to the dispute" which was already pending adjudication before the Tribunal.8. The Tribunal overruled the preliminary objection of the workmen about the competency of the Reference made on January 18, 1964; and it resulted in the latter approaching the High Court under Article 226. The High Court, in its present order, accepting the contentions of the union, has held that the second order dated January 18, 1964 had really the effect of superseding the previous reference made on December 19, 1962 and also of interfering with the powers exercised by the Tribunal in respect of the previous reference.9. Mr. Bhandare, learned counsel, for the appellant-State, has contended that the reasoning of the High Court that the second order of reference amounts to a withdrawal of the previous order dated December 19, 1962, is fallacious. He has further pointed out that the subject-matter of the reference dated January 18, 1964, could have been included in the order of December 18, 1962 and then it would have been perfectly competent for the Tribunal to consider the nature of the modification that is to be effected in respect of the production scheme then existing in the company. For that purpose, the Tribunal could have considered the nature of the modifications required by the workmen as well as the further question whether the Incentive Scheme evolved by the Ibcon Private Limited could be adopted. Mr. Bhandare also pointed out that the question covered by the second reference is really a matter which is "connected with or relevant to the dispute" already pending before the Tribunal.10. We are of the opinion that the contentions of Mr. Bhandare have to be accepted. We are not able to appreciate the reasoning of the learned judges that the order dated January 18, 1964, has the effect of withdrawing or superseding the reference already made on December l9, 1962. There will be withdrawal of a reference, when the dispute referred is taken out of the purview of the Tribunal. There will be supersession of a previous reference, when the second Reference comprises matters or disputes totally unconnected with or different from the disputes originally referred. Neither is the case here. On the other hand, in our opinion the question regarding the nature of the modification to be effected to the production bonus scheme has to be considered by the Tribunal having due regard to the scheme as it exists as well as to the various suggestions that may be made by the parties, namely, the employer and the employee. If the employer had relied on the scheme evolved by M/s Ibcon Pvt. Ltd., it was certainly competent for the tribunal to consider how far that scheme could be adopted in this particular case. This aspect could have been considered by the Tribunal, because it is "connected with or relevant to the dispute No. 3" relating to Bonus.11. We are not inclined to accept the view of the High Court that the reference dated January 18, 1964 in any manner interferes with the powers of the Tribunal in adjudicating upon the demand No. 3 covered by the reference dated December 19, 1962. In fact, in our view, the question that has been further referred by order dated January 18, 1964, is really a matter connected with or relevant to dispute No. 2 already pending adjudication before the Tribunal. The Tribunal had full jurisdiction when dealing with demand No. 3 covered by the order dated December 19, 1962, to consider the report mentioned in the subsequent reference dated January 18, 1964. It had full power to consider as to in what manner and to what extent the modification is to be effected in the Incentive Scheme obtaining in the company. In fact, even without the second reference, the Tribunal, when dealing with demand No. 8 of the 1st reference, could have also considered the question of adopting the scheme evolved by Ibcon Private Limited, because it was a relevant matter, and also connected with the Production Bonus Scheme. When it was so open to the Tribunal to consider the Scheme of Ibcon, the fact that the Government specifically referred for consideration the said Scheme, makes no difference. At any rate the question covered by the 2nd Reference was a matter "connected with or relevant" to dispute No. 3 of the 1st Reference and hence the State was well within its jurisdiction under Section 10 (1) (d) of the Industrial Disputes Act in passing the order dated January 18, 1964.The High Court has referred to various decisions regarding the powers of the Government, when making a reference; which, in our opinion, it is not necessary to consider, in the view that we take regarding the nature of the reference dated January 18, 1964.
### Response:
1
### Explanation:
10. We are of the opinion that the contentions of Mr. Bhandare have to be accepted. We are not able to appreciate the reasoning of the learned judges that the order dated January 18, 1964, has the effect of withdrawing or superseding the reference already made on December l9, 1962. There will be withdrawal of a reference, when the dispute referred is taken out of the purview of the Tribunal. There will be supersession of a previous reference, when the second Reference comprises matters or disputes totally unconnected with or different from the disputes originally referred. Neither is the case here. On the other hand, in our opinion the question regarding the nature of the modification to be effected to the production bonus scheme has to be considered by the Tribunal having due regard to the scheme as it exists as well as to the various suggestions that may be made by the parties, namely, the employer and the employee. If the employer had relied on the scheme evolved by M/s Ibcon Pvt. Ltd., it was certainly competent for the tribunal to consider how far that scheme could be adopted in this particular case. This aspect could have been considered by the Tribunal, because it is "connected with or relevant to the dispute No. 3" relating to Bonus.11. We are not inclined to accept the view of the High Court that the reference dated January 18, 1964 in any manner interferes with the powers of the Tribunal in adjudicating upon the demand No. 3 covered by the reference dated December 19, 1962. In fact, in our view, the question that has been further referred by order dated January 18, 1964, is really a matter connected with or relevant to dispute No. 2 already pending adjudication before the Tribunal. The Tribunal had full jurisdiction when dealing with demand No. 3 covered by the order dated December 19, 1962, to consider the report mentioned in the subsequent reference dated January 18, 1964. It had full power to consider as to in what manner and to what extent the modification is to be effected in the Incentive Scheme obtaining in the company. In fact, even without the second reference, the Tribunal, when dealing with demand No. 8 of the 1st reference, could have also considered the question of adopting the scheme evolved by Ibcon Private Limited, because it was a relevant matter, and also connected with the Production Bonus Scheme. When it was so open to the Tribunal to consider the Scheme of Ibcon, the fact that the Government specifically referred for consideration the said Scheme, makes no difference. At any rate the question covered by the 2nd Reference was a matter "connected with or relevant" to dispute No. 3 of the 1st Reference and hence the State was well within its jurisdiction under Section 10 (1) (d) of the Industrial Disputes Act in passing the order dated January 18, 1964.The High Court has referred to various decisions regarding the powers of the Government, when making a reference; which, in our opinion, it is not necessary to consider, in the view that we take regarding the nature of the reference dated January 18, 1964.
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Village Officer and others Vs. Chunayamakkal Joseph and another | inter alia, the lands which are used principally for the cultivation of tea, coffee, cocoa, rubber etc. and lands used for any purpose ancillary to the cultivation of such crops or for the preparation of the same for the market. It is submitted that as per section 8 if there is any dispute as to whether the land is a private forest or any private forest or any portion thereof has vested in the Government or not, the concerned person may apply to the Forest Tribunal. It is submitted that in the two OAs filed by the respondents, the Divisional Forest Officer (Custodian of vested forests) filed two separate counter affidavits in which he specifically admitted the possession of the respondents. It is therefore submitted that the High Court has rightly relied upon the aforesaid two counter affidavits filed by the Divisional Forest Officer and has rightly directed the revenue authorities - Village Officer to accept the basic tax payable under the 1961 Act from the respondents. 4.4 It is submitted that once the appellants herein admitted in their counter affidavits filed before the Forest Tribunal that there are certificates of purchase in favour of the respondents and that they are in possession of 12 acres each and that the department does not have a claim over the said properties, there is no dispute for settlement so as to be raised or settled under section 8 of the 1971 Act and therefore the dismissal of the two OAs by the Forest Tribunal on the ground of limitation is inconsequential. 4.5 Making the above submissions, it is prayed to dismiss the present appeal. 5. We have heard learned counsel for the respective parties at length. 5.1 At the outset, it is required to be noted that the respondents herein filed writ petition before the learned Single Judge for a writ of mandamus directing the revenue authorities and more particularly the Village Officer to accept the basic tax leviable under section 5 of the 1961 Act with respect to the lands in question. The said writ petition was filed on the premise that they are the owner and in possession of the disputed land and jenmam rights and purchase certificates were issued in their favour and that their possession and ownership have been admitted by the Divisional Forest Officer in the two counter affidavits filed before the Tribunal in OA Nos. 13 & 14 of 1986. The High Court has accepted the same and issued a writ of mandamus directing the revenue authorities – Village Officer to accept the basic tax from the respondents herein. That the said judgment and order passed by the learned Single Judge has been affirmed by the Division Bench of the High Court, by the impugned judgment and order. 5.2 However, the High Court has not at all appreciated and/or considered the fact that as such the jenmam rights and purchase certificates which were earlier issued in the years 1975 & 1979 in favour of the respondents have been cancelled by the appropriate authority. The High Court has also not appreciated the fact that as such a notification has been issued under Rule 2A of the Kerala Private Forest (Tribunal) Rules, 1972 (hereinafter referred to as the 1972 Rules) and the lands in question have been declared as a private forest land, vide notification issued in the year 1977. It is to be noted that the private respondent nos. 1 & 2 herein filed an application under Section 8 of the 1971 Act challenging the said notification and vesting of the lands in question as a private forest land and declaring the same as a forest land, however, the said application came to be dismissed by the Forest Tribunal, vide order dated 12.3.1990 and thereafter there is no challenge to the aforesaid notification including the land in question as a vested forest land. 6. The High Court has also not appreciated that in order dated 16.4.2002 passed by the Land Tribunal cancelling the order of assignment of jenmam rights and certificates of purchase, the Land Tribunal specifically observed that OA applicants failed to establish tenancy rights claimed by them and the survey plan clearly shows that the lands in question are covered by the vested forest land of the government. Thus, as per the Land Tribunal, respondent nos. 1 & 2 herein cannot claim any right over the disputed lands in question. Once the notification issued under Section 2A of the 1972 Rules declaring the lands in question as vested forest land stands and as on today there is no jenmam rights and/or purchase certificates in favour of the respondents herein with respect to the lands in question, respondent nos. 1 & 2 herein cannot be said to be the owner and/or cannot be said to be having a valid title in their favour and therefore there is no question of any acceptance of basic tax from them, leviable under the 1961 Act. It appears that by asking such a relief of writ of mandamus directing the Village Officer/revenue authorities to accept the basic tax from them, the original writ petitioners – respondents herein want to create title/ownership in their favour. Any dispute with respect to the forest land can only be settled under Section 8 of the 1971 Act. Therefore, the High Court has not properly appreciated the mala fide intention on the part of the respondents to pray for such a writ of mandamus and indirectly establishing their right, title and ownership over the disputed lands in question which, as such, is declared as a vested forest land as far back as in the years 1975/1977, pursuant to the notification issued under Rule 2A of the 1972 Rules. 7. In view of the above and for the reasons stated above, the impugned judgments and orders passed by the Division Bench of the High Court as well as by the learned Single Judge are not sustainable and the same deserve to be quashed and set aside. | 1[ds]5.1 At the outset, it is required to be noted that the respondents herein filed writ petition before the learned Single Judge for a writ of mandamus directing the revenue authorities and more particularly the Village Officer to accept the basic tax leviable under section 5 of the 1961 Act with respect to the lands in question. The said writ petition was filed on the premise that they are the owner and in possession of the disputed land and jenmam rights and purchase certificates were issued in their favour and that their possession and ownership have been admitted by the Divisional Forest Officer in the two counter affidavits filed before the Tribunal in OA Nos. 13 & 14 of 1986. The High Court has accepted the same and issued a writ of mandamus directing the revenue authorities – Village Officer to accept the basic tax from the respondents herein. That the said judgment and order passed by the learned Single Judge has been affirmed by the Division Bench of the High Court, by the impugned judgment and order.5.2 However, the High Court has not at all appreciated and/or considered the fact that as such the jenmam rights and purchase certificates which were earlier issued in the years 1975 & 1979 in favour of the respondents have been cancelled by the appropriate authority. The High Court has also not appreciated the fact that as such a notification has been issued under Rule 2A of the Kerala Private Forest (Tribunal) Rules, 1972 (hereinafter referred to as the 1972 Rules) and the lands in question have been declared as a private forest land, vide notification issued in the year 1977. It is to be noted that the private respondent nos. 1 & 2 herein filed an application under Section 8 of the 1971 Act challenging the said notification and vesting of the lands in question as a private forest land and declaring the same as a forest land, however, the said application came to be dismissed by the Forest Tribunal, vide order dated 12.3.1990 and thereafter there is no challenge to the aforesaid notification including the land in question as a vested forest land.6. The High Court has also not appreciated that in order dated 16.4.2002 passed by the Land Tribunal cancelling the order of assignment of jenmam rights and certificates of purchase, the Land Tribunal specifically observed that OA applicants failed to establish tenancy rights claimed by them and the survey plan clearly shows that the lands in question are covered by the vested forest land of the government. Thus, as per the Land Tribunal, respondent nos. 1 & 2 herein cannot claim any right over the disputed lands in question. Once the notification issued under Section 2A of the 1972 Rules declaring the lands in question as vested forest land stands and as on today there is no jenmam rights and/or purchase certificates in favour of the respondents herein with respect to the lands in question, respondent nos. 1 & 2 herein cannot be said to be the owner and/or cannot be said to be having a valid title in their favour and therefore there is no question of any acceptance of basic tax from them, leviable under the 1961 Act. It appears that by asking such a relief of writ of mandamus directing the Village Officer/revenue authorities to accept the basic tax from them, the original writ petitioners – respondents herein want to create title/ownership in their favour. Any dispute with respect to the forest land can only be settled under Section 8 of the 1971 Act. Therefore, the High Court has not properly appreciated the mala fide intention on the part of the respondents to pray for such a writ of mandamus and indirectly establishing their right, title and ownership over the disputed lands in question which, as such, is declared as a vested forest land as far back as in the years 1975/1977, pursuant to the notification issued under Rule 2A of the 1972 Rules.7. In view of the above and for the reasons stated above, the impugned judgments and orders passed by the Division Bench of the High Court as well as by the learned Single Judge are not sustainable and the same deserve to be quashed and set aside. | 1 | 3,246 | 761 | ### 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:
inter alia, the lands which are used principally for the cultivation of tea, coffee, cocoa, rubber etc. and lands used for any purpose ancillary to the cultivation of such crops or for the preparation of the same for the market. It is submitted that as per section 8 if there is any dispute as to whether the land is a private forest or any private forest or any portion thereof has vested in the Government or not, the concerned person may apply to the Forest Tribunal. It is submitted that in the two OAs filed by the respondents, the Divisional Forest Officer (Custodian of vested forests) filed two separate counter affidavits in which he specifically admitted the possession of the respondents. It is therefore submitted that the High Court has rightly relied upon the aforesaid two counter affidavits filed by the Divisional Forest Officer and has rightly directed the revenue authorities - Village Officer to accept the basic tax payable under the 1961 Act from the respondents. 4.4 It is submitted that once the appellants herein admitted in their counter affidavits filed before the Forest Tribunal that there are certificates of purchase in favour of the respondents and that they are in possession of 12 acres each and that the department does not have a claim over the said properties, there is no dispute for settlement so as to be raised or settled under section 8 of the 1971 Act and therefore the dismissal of the two OAs by the Forest Tribunal on the ground of limitation is inconsequential. 4.5 Making the above submissions, it is prayed to dismiss the present appeal. 5. We have heard learned counsel for the respective parties at length. 5.1 At the outset, it is required to be noted that the respondents herein filed writ petition before the learned Single Judge for a writ of mandamus directing the revenue authorities and more particularly the Village Officer to accept the basic tax leviable under section 5 of the 1961 Act with respect to the lands in question. The said writ petition was filed on the premise that they are the owner and in possession of the disputed land and jenmam rights and purchase certificates were issued in their favour and that their possession and ownership have been admitted by the Divisional Forest Officer in the two counter affidavits filed before the Tribunal in OA Nos. 13 & 14 of 1986. The High Court has accepted the same and issued a writ of mandamus directing the revenue authorities – Village Officer to accept the basic tax from the respondents herein. That the said judgment and order passed by the learned Single Judge has been affirmed by the Division Bench of the High Court, by the impugned judgment and order. 5.2 However, the High Court has not at all appreciated and/or considered the fact that as such the jenmam rights and purchase certificates which were earlier issued in the years 1975 & 1979 in favour of the respondents have been cancelled by the appropriate authority. The High Court has also not appreciated the fact that as such a notification has been issued under Rule 2A of the Kerala Private Forest (Tribunal) Rules, 1972 (hereinafter referred to as the 1972 Rules) and the lands in question have been declared as a private forest land, vide notification issued in the year 1977. It is to be noted that the private respondent nos. 1 & 2 herein filed an application under Section 8 of the 1971 Act challenging the said notification and vesting of the lands in question as a private forest land and declaring the same as a forest land, however, the said application came to be dismissed by the Forest Tribunal, vide order dated 12.3.1990 and thereafter there is no challenge to the aforesaid notification including the land in question as a vested forest land. 6. The High Court has also not appreciated that in order dated 16.4.2002 passed by the Land Tribunal cancelling the order of assignment of jenmam rights and certificates of purchase, the Land Tribunal specifically observed that OA applicants failed to establish tenancy rights claimed by them and the survey plan clearly shows that the lands in question are covered by the vested forest land of the government. Thus, as per the Land Tribunal, respondent nos. 1 & 2 herein cannot claim any right over the disputed lands in question. Once the notification issued under Section 2A of the 1972 Rules declaring the lands in question as vested forest land stands and as on today there is no jenmam rights and/or purchase certificates in favour of the respondents herein with respect to the lands in question, respondent nos. 1 & 2 herein cannot be said to be the owner and/or cannot be said to be having a valid title in their favour and therefore there is no question of any acceptance of basic tax from them, leviable under the 1961 Act. It appears that by asking such a relief of writ of mandamus directing the Village Officer/revenue authorities to accept the basic tax from them, the original writ petitioners – respondents herein want to create title/ownership in their favour. Any dispute with respect to the forest land can only be settled under Section 8 of the 1971 Act. Therefore, the High Court has not properly appreciated the mala fide intention on the part of the respondents to pray for such a writ of mandamus and indirectly establishing their right, title and ownership over the disputed lands in question which, as such, is declared as a vested forest land as far back as in the years 1975/1977, pursuant to the notification issued under Rule 2A of the 1972 Rules. 7. In view of the above and for the reasons stated above, the impugned judgments and orders passed by the Division Bench of the High Court as well as by the learned Single Judge are not sustainable and the same deserve to be quashed and set aside.
### Response:
1
### Explanation:
5.1 At the outset, it is required to be noted that the respondents herein filed writ petition before the learned Single Judge for a writ of mandamus directing the revenue authorities and more particularly the Village Officer to accept the basic tax leviable under section 5 of the 1961 Act with respect to the lands in question. The said writ petition was filed on the premise that they are the owner and in possession of the disputed land and jenmam rights and purchase certificates were issued in their favour and that their possession and ownership have been admitted by the Divisional Forest Officer in the two counter affidavits filed before the Tribunal in OA Nos. 13 & 14 of 1986. The High Court has accepted the same and issued a writ of mandamus directing the revenue authorities – Village Officer to accept the basic tax from the respondents herein. That the said judgment and order passed by the learned Single Judge has been affirmed by the Division Bench of the High Court, by the impugned judgment and order.5.2 However, the High Court has not at all appreciated and/or considered the fact that as such the jenmam rights and purchase certificates which were earlier issued in the years 1975 & 1979 in favour of the respondents have been cancelled by the appropriate authority. The High Court has also not appreciated the fact that as such a notification has been issued under Rule 2A of the Kerala Private Forest (Tribunal) Rules, 1972 (hereinafter referred to as the 1972 Rules) and the lands in question have been declared as a private forest land, vide notification issued in the year 1977. It is to be noted that the private respondent nos. 1 & 2 herein filed an application under Section 8 of the 1971 Act challenging the said notification and vesting of the lands in question as a private forest land and declaring the same as a forest land, however, the said application came to be dismissed by the Forest Tribunal, vide order dated 12.3.1990 and thereafter there is no challenge to the aforesaid notification including the land in question as a vested forest land.6. The High Court has also not appreciated that in order dated 16.4.2002 passed by the Land Tribunal cancelling the order of assignment of jenmam rights and certificates of purchase, the Land Tribunal specifically observed that OA applicants failed to establish tenancy rights claimed by them and the survey plan clearly shows that the lands in question are covered by the vested forest land of the government. Thus, as per the Land Tribunal, respondent nos. 1 & 2 herein cannot claim any right over the disputed lands in question. Once the notification issued under Section 2A of the 1972 Rules declaring the lands in question as vested forest land stands and as on today there is no jenmam rights and/or purchase certificates in favour of the respondents herein with respect to the lands in question, respondent nos. 1 & 2 herein cannot be said to be the owner and/or cannot be said to be having a valid title in their favour and therefore there is no question of any acceptance of basic tax from them, leviable under the 1961 Act. It appears that by asking such a relief of writ of mandamus directing the Village Officer/revenue authorities to accept the basic tax from them, the original writ petitioners – respondents herein want to create title/ownership in their favour. Any dispute with respect to the forest land can only be settled under Section 8 of the 1971 Act. Therefore, the High Court has not properly appreciated the mala fide intention on the part of the respondents to pray for such a writ of mandamus and indirectly establishing their right, title and ownership over the disputed lands in question which, as such, is declared as a vested forest land as far back as in the years 1975/1977, pursuant to the notification issued under Rule 2A of the 1972 Rules.7. In view of the above and for the reasons stated above, the impugned judgments and orders passed by the Division Bench of the High Court as well as by the learned Single Judge are not sustainable and the same deserve to be quashed and set aside.
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Tebha Bai and Ors Vs. Raj Kumar Keshwani and Ors | Abhay Manohar Sapre, J.1. Leave granted.2. This appeal is directed against the final judgment and order dated 18.04.2016 passed by the High Court of Chhattisgarh, Bilaspur in Misc. Appeal No. 691 of 2015 by which the Division Bench of the High Court dismissed the appeal filed by the Appellants and affirmed the order dated 29.11.2011 passed by the Commissioner for Workmen Compensation, Labour Court, Raipur in Case No. 217/WC Act/05 FATAL whereby the claim of the Appellants herein was rejected inter alia on the ground that the deceased was not in the employment of Respondent No. 1 and that he did not die in an accident while he was on duty.3. The appeal involves a short question. However, in order to appreciate the same, few relevant facts need to be mentioned hereinbelow.4. One Shankar Pradhan (husband of Smt. Tebha Bai-Appellant No. 1) was in the employment of Late Mangu Ram Keshwani-father of Respondent Nos. 1-3 as his driver. He used to drive a Truck bearing No. CIR 8214, which was registered in the name of Mangu Ram Keshwani. The Truck was insured with the United India Insurance Company (Respondent No. 4 herein) at the relevant time.5. On 26.06.1989, Shankar Pradhan while driving the said Truck from Raipur to Nagpur met with an accident and died on the spot. The deceased was aged 50 years and was earning around Rs. 2000/- by way of monthly salary.6. Appellant No. 1 is wife of the deceased whereas Appellant No. 2 is deceaseds daughter and Appellant No. 3 is deceaseds son. The Appellants being the legal representatives of the deceased filed a claim petition (156/1989) Under Section 166 of the Motor Vehicle Act before MACT, Bhandara (Maharashtra) on 22.12.1989 seeking compensation for the death of their bread earner-Shankar Pradhan. Respondent No. 4-Insurance Company was arrayed as one of the non-applicants in the claim petition. The Appellants prosecuted their claim petition till 02.07.2005 and thereafter, as advised, they withdrew the claim petition on 02.07.2005 with liberty to file an application before the Commissioner, Workman Compensation at Raipur (CH) under the Workman Compensation Act for claiming compensation against the Respondents. This liberty was accordingly granted to them.7. The Appellants accordingly filed an application (Case No. 217/WC Act/05 FATAL) before the Commissioner, Workman Compensation, Labour Court, Raipur against the Respondents and claimed compensation for the death of Shankar Pradhan. It was inter alia alleged that the deceased was in the employment of father of Respondent Nos. 1-3 as driver, that the deceased used to get Rs. 2000/- by way of monthly salary from the father of Respondent Nos. 1-3, that the deceased while driving the offending Truck met with an accident on 26.06.1989 and died in the said accident, that the offending truck on the date of accident was insured with the Insurance Company (Respondent No. 4) and, therefore, the Respondents are jointly and severally liable to pay the compensation to the Appellants keeping in view the provisions of the Workmen Compensation Act.8. The Respondents filed their separate written statements. They denied the entire claim of the Appellants contending inter alia that the deceased was not in the employment of father of Respondent Nos. 1-3, that the deceased was neither involved in the accident and nor died in the said accident and that the application is barred by limitation.9. Parties adduced their evidence. By award dated 29.11.2011, the Commissioner dismissed the application filed by the Appellants by upholding the objections raised by the Respondents.10. The Appellants felt aggrieved filed an appeal before the High Court. By impugned judgment, the High Court dismissed the appeal in limine giving rise to filing of the present appeal by way of special leave by the legal representatives of the deceased named above.11. Heard learned Counsel for the parties.12. 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 award reasonable compensation to the Appellants as indicated hereinbelow.13. We have perused the evidence adduced the parties. In our view, the sworn testimony of Appellant No. 1-wife of the deceased that her husband was in the employment of Late Mangu Ram Keshwani-father of Respondent Nos. 1-3, that he was being paid a monthly salary of Rs. 2000/- per month and that he died while driving the offending vehicle deserves to be accepted as in our opinion there is neither any contradiction in her examination-in-chief or in her cross-examination. Her evidence is throughout consistent. We also find that the Policy (Ex. P-1) issued by the Insurance Company (Respondent No. 4) was in force at the time of accident.14. Indeed, in our view, there is no reason as to why the Appellants would file a case on false grounds. The Appellants having lost their bread earner at the time when Appellant Nos. 2 and 3 were minors and for compensation they had to run from pillar to post.15. It is now almost 29 years that the Appellants are still fighting to get some reasonable compensation for the death of their bread earner. | 1[ds]12. 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 award reasonable compensation to the Appellants as indicated hereinbelow13. We have perused the evidence adduced the parties. In our view, the sworn testimony of Appellant No. 1-wife of the deceased that her husband was in the employment of Late Mangu Ram Keshwani-father of Respondent Nos. 1-3, that he was being paid a monthly salary of Rs. 2000/- per month and that he died while driving the offending vehicle deserves to be accepted as in our opinion there is neither any contradiction in her examination-in-chief or in her cross-examination. Her evidence is throughout consistent. We also find that the Policy (Ex. P-1) issued by the Insurance Company (Respondent No. 4) was in force at the time of accident14. Indeed, in our view, there is no reason as to why the Appellants would file a case on false grounds. The Appellants having lost their bread earner at the time when Appellant Nos. 2 and 3 were minors and for compensation they had to run from pillar to post15. It is now almost 29 years that the Appellants are still fighting to get some reasonable compensation for the death of their bread earner. | 1 | 946 | 244 | ### 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:
Abhay Manohar Sapre, J.1. Leave granted.2. This appeal is directed against the final judgment and order dated 18.04.2016 passed by the High Court of Chhattisgarh, Bilaspur in Misc. Appeal No. 691 of 2015 by which the Division Bench of the High Court dismissed the appeal filed by the Appellants and affirmed the order dated 29.11.2011 passed by the Commissioner for Workmen Compensation, Labour Court, Raipur in Case No. 217/WC Act/05 FATAL whereby the claim of the Appellants herein was rejected inter alia on the ground that the deceased was not in the employment of Respondent No. 1 and that he did not die in an accident while he was on duty.3. The appeal involves a short question. However, in order to appreciate the same, few relevant facts need to be mentioned hereinbelow.4. One Shankar Pradhan (husband of Smt. Tebha Bai-Appellant No. 1) was in the employment of Late Mangu Ram Keshwani-father of Respondent Nos. 1-3 as his driver. He used to drive a Truck bearing No. CIR 8214, which was registered in the name of Mangu Ram Keshwani. The Truck was insured with the United India Insurance Company (Respondent No. 4 herein) at the relevant time.5. On 26.06.1989, Shankar Pradhan while driving the said Truck from Raipur to Nagpur met with an accident and died on the spot. The deceased was aged 50 years and was earning around Rs. 2000/- by way of monthly salary.6. Appellant No. 1 is wife of the deceased whereas Appellant No. 2 is deceaseds daughter and Appellant No. 3 is deceaseds son. The Appellants being the legal representatives of the deceased filed a claim petition (156/1989) Under Section 166 of the Motor Vehicle Act before MACT, Bhandara (Maharashtra) on 22.12.1989 seeking compensation for the death of their bread earner-Shankar Pradhan. Respondent No. 4-Insurance Company was arrayed as one of the non-applicants in the claim petition. The Appellants prosecuted their claim petition till 02.07.2005 and thereafter, as advised, they withdrew the claim petition on 02.07.2005 with liberty to file an application before the Commissioner, Workman Compensation at Raipur (CH) under the Workman Compensation Act for claiming compensation against the Respondents. This liberty was accordingly granted to them.7. The Appellants accordingly filed an application (Case No. 217/WC Act/05 FATAL) before the Commissioner, Workman Compensation, Labour Court, Raipur against the Respondents and claimed compensation for the death of Shankar Pradhan. It was inter alia alleged that the deceased was in the employment of father of Respondent Nos. 1-3 as driver, that the deceased used to get Rs. 2000/- by way of monthly salary from the father of Respondent Nos. 1-3, that the deceased while driving the offending Truck met with an accident on 26.06.1989 and died in the said accident, that the offending truck on the date of accident was insured with the Insurance Company (Respondent No. 4) and, therefore, the Respondents are jointly and severally liable to pay the compensation to the Appellants keeping in view the provisions of the Workmen Compensation Act.8. The Respondents filed their separate written statements. They denied the entire claim of the Appellants contending inter alia that the deceased was not in the employment of father of Respondent Nos. 1-3, that the deceased was neither involved in the accident and nor died in the said accident and that the application is barred by limitation.9. Parties adduced their evidence. By award dated 29.11.2011, the Commissioner dismissed the application filed by the Appellants by upholding the objections raised by the Respondents.10. The Appellants felt aggrieved filed an appeal before the High Court. By impugned judgment, the High Court dismissed the appeal in limine giving rise to filing of the present appeal by way of special leave by the legal representatives of the deceased named above.11. Heard learned Counsel for the parties.12. 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 award reasonable compensation to the Appellants as indicated hereinbelow.13. We have perused the evidence adduced the parties. In our view, the sworn testimony of Appellant No. 1-wife of the deceased that her husband was in the employment of Late Mangu Ram Keshwani-father of Respondent Nos. 1-3, that he was being paid a monthly salary of Rs. 2000/- per month and that he died while driving the offending vehicle deserves to be accepted as in our opinion there is neither any contradiction in her examination-in-chief or in her cross-examination. Her evidence is throughout consistent. We also find that the Policy (Ex. P-1) issued by the Insurance Company (Respondent No. 4) was in force at the time of accident.14. Indeed, in our view, there is no reason as to why the Appellants would file a case on false grounds. The Appellants having lost their bread earner at the time when Appellant Nos. 2 and 3 were minors and for compensation they had to run from pillar to post.15. It is now almost 29 years that the Appellants are still fighting to get some reasonable compensation for the death of their bread earner.
### Response:
1
### Explanation:
12. 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 award reasonable compensation to the Appellants as indicated hereinbelow13. We have perused the evidence adduced the parties. In our view, the sworn testimony of Appellant No. 1-wife of the deceased that her husband was in the employment of Late Mangu Ram Keshwani-father of Respondent Nos. 1-3, that he was being paid a monthly salary of Rs. 2000/- per month and that he died while driving the offending vehicle deserves to be accepted as in our opinion there is neither any contradiction in her examination-in-chief or in her cross-examination. Her evidence is throughout consistent. We also find that the Policy (Ex. P-1) issued by the Insurance Company (Respondent No. 4) was in force at the time of accident14. Indeed, in our view, there is no reason as to why the Appellants would file a case on false grounds. The Appellants having lost their bread earner at the time when Appellant Nos. 2 and 3 were minors and for compensation they had to run from pillar to post15. It is now almost 29 years that the Appellants are still fighting to get some reasonable compensation for the death of their bread earner.
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The Collector of Darrang Vs. Assam Industries (P) Ltd | by which the compensation for the that land has been fixed at Rs. 15, 000/- per bigha whereas the company has appealed against the compensation awarded for the entire area of 19 bighas, 1 katha and 4 latchas.3. As regards the hat area of 6 bighas, 2 kathas and 17 latchas evidence of three sales was adduced. The first sale took place on February 14, 1955. An area of 6 latchas of land was sold for Rs. 1, 500/-. It may be mentioned that 100 latchas make 1 bigha. In the sale deed certain houses were also shown to be standing on the land sold. The other two sales took place after the date of the notification under Section 4 which is the relevant date for the purpose of assessing the compensation. On October 30, 1956, 3 latchas were sold for Rs. 700/-. On September 27, 1955, 12 latchas were sold for Rs. 1, 000/-. The ownership rights were not transferred by these sales but it were occupancy rights which were sold. The principal criticism on behalf of the Collector is that the sales subsequent to March 11, 1955 which was the date of the notification under Section 4 of the Act were irrelevant and should not have been taken into consideration and so far as the first sale is concerned it also included the transfer of some houses and no evidence had been led to show what the value of the house was. On the other hand it is maintained by the learned counsel for the company that the land of 6 bighas odd has been very much undervalued as its user for a number of years as that or bazar should have been taken into consideration and higher valuation should have been fixed even on the basis of the first sale because it related to occupancy rights only. It has been pointed out that the land of 6 bighas odd was being leased out from time to time for the purpose of holding a bazar and that in 1953-54 an area of about 5 bighas fetched a rent of Rs. 6, 501/-. In the year 1954-55 it was rented for Rs. 8752/-. In subsequent years i.e. 1955-56 and 1956-57 the rent went up to Rs. 12, 000/- and over. Even if the rent for the year 1954-55 alone is taken into consideration the capital value would work out at a much higher figure than what has been awarded. Moreover the potential value has been completely ignored by the High Court.4. The High Court was of the view that the company was not entitled to get the capitalised value of the lease money which it was getting annually because the income was fluctuating and there was no material to show how much expense the company had incurred in order to maintain the staff for making the collection, etc. In our opinion the decision of the High Court with regard to the compensation fixed in respect of the land at the rate of Rs. 15, 000/- per Bigha does not call for any interference. Even on the assumption that the sales subsequent to the date of the notification under Section 4 should have been excluded from consideration the sale which took place prior to it was at the rate of Rs. 250/- per latcha which would work out to Rs. 25, 000/- per Bigha. Since the area sold was small it would be legitimate to take the figure of Rs. 15, 000/- per bigha as the correct price for a larger area like the one in question. It can hardly be disputed that this sale was of considerable importance as the land covered by it was either adjacent to or in the immediate neighbourhood of the hat land. Moreover the rent which the land was fetching could not be completlely ignored. In view of the entire circumstances relating to the importance of the village or the town where the land was situate the capitalised value at the rate of 12 years rental would be a little more than the amount actually awarded. That would not, however, justify interference in proceedings relating to fixation of compensation which partakes more of character of arbitration as to the value of land taken for public purpose.5. As regards the remaining area of 12 bighas, 3 kathas and 7 latchas for which compensation has been awarded at the rate of Rs. 300/- per bigha that admittedly was not that land nor was it ever used for purposes of a bazar. Reliance has been placed on behalf of the Company on the rent of certain portions of it which were leased out. The first lease was of the year 1952 by which 6 latchas were leased out at monthly rental of Rs. 4-4 As. for a period of 20 years. It was stipulated in the lease that the tenant would not claim any compensation if the property was acquired by the Government. There are a number of subsequent leases which have been considered by the High Court. The District Judge had expressed the view that these leases were collusive transactions and the documents had been executed only for the purpose of creating evidence. The same suggestion has been pressed before us on behalf of the Collector. It has been suggested that it must have been known in 1952 that land in question was likely to be acquired and therefore therefore the first lease came into existence. Even though there may be some suspicious features about the lease of 1952 no question was asked in cross-examination suggesting collusion or creation of evidence for the purpose of claiming compensation in acquisition proceedings. Keeping in view this evidence which relates only to a small portion of the land and the other evidence which has been read to us we are inclined to the view that the proper compensation which should have been awarded for the aforesaid area should have been at the rate of Rs. 1, 000/- per Bigha. | 0[ds]4. The High Court was of the view that the company was not entitled to get the capitalised value of the lease money which it was getting annually because the income was fluctuating and there was no material to show how much expense the company had incurred in order to maintain the staff for making the collection, etc.In our opinion the decision of the High Court with regard to the compensation fixed in respect of the land at the rate of Rs. 15, 000/per Bigha does not call for any interference. Even on the assumption that the sales subsequent to the date of the notification under Section 4 should have been excluded from consideration the sale which took place prior to it was at the rate of Rs. 250/per latcha which would work out to Rs. 25, 000/per Bigha. Since the area sold was small it would be legitimate to take the figure of Rs. 15, 000/per bigha as the correct price for a larger area like the one in question. It can hardly be disputed that this sale was of considerable importance as the land covered by it was either adjacent to or in the immediate neighbourhood of the hat land. Moreover the rent which the land was fetching could not be completlely ignored. In view of the entire circumstances relating to the importance of the village or the town where the land was situate the capitalised value at the rate of 12 years rental would be a little more than the amount actually awarded. That would not, however, justify interference in proceedings relating to fixation of compensation which partakes more of character of arbitration as to the value of land taken for public purpose.5. As regards the remaining area of 12 bighas, 3 kathas and 7 latchas for which compensation has been awarded at the rate of Rs. 300/per bigha that admittedly was not that land nor was it ever used for purposes of a bazar. Reliance has been placed on behalf of the Company on the rent of certain portions of it which were leased out. The first lease was of the year 1952 by which 6 latchas were leased out at monthly rental of Rs.As. for a period of 20 years. It was stipulated in the lease that the tenant would not claim any compensation if the property was acquired by the Government. There are a number of subsequent leases which have been considered by the High Court. The District Judge had expressed the view that these leases were collusive transactions and the documents had been executed only for the purpose of creating evidence. The same suggestion has been pressed before us on behalf of the Collector. It has been suggested that it must have been known in 1952 that land in question was likely to be acquired and therefore therefore the first lease came into existence. Even though there may be some suspicious features about the lease of 1952 no question was asked insuggesting collusion or creation of evidence for the purpose of claiming compensation in acquisition proceedings. Keeping in view this evidence which relates only to a small portion of the land and the other evidence which has been read to us we are inclined to the view that the proper compensation which should have been awarded for the aforesaid area should have been at the rate of Rs. 1, 000/ | 0 | 1,317 | 603 | ### 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:
by which the compensation for the that land has been fixed at Rs. 15, 000/- per bigha whereas the company has appealed against the compensation awarded for the entire area of 19 bighas, 1 katha and 4 latchas.3. As regards the hat area of 6 bighas, 2 kathas and 17 latchas evidence of three sales was adduced. The first sale took place on February 14, 1955. An area of 6 latchas of land was sold for Rs. 1, 500/-. It may be mentioned that 100 latchas make 1 bigha. In the sale deed certain houses were also shown to be standing on the land sold. The other two sales took place after the date of the notification under Section 4 which is the relevant date for the purpose of assessing the compensation. On October 30, 1956, 3 latchas were sold for Rs. 700/-. On September 27, 1955, 12 latchas were sold for Rs. 1, 000/-. The ownership rights were not transferred by these sales but it were occupancy rights which were sold. The principal criticism on behalf of the Collector is that the sales subsequent to March 11, 1955 which was the date of the notification under Section 4 of the Act were irrelevant and should not have been taken into consideration and so far as the first sale is concerned it also included the transfer of some houses and no evidence had been led to show what the value of the house was. On the other hand it is maintained by the learned counsel for the company that the land of 6 bighas odd has been very much undervalued as its user for a number of years as that or bazar should have been taken into consideration and higher valuation should have been fixed even on the basis of the first sale because it related to occupancy rights only. It has been pointed out that the land of 6 bighas odd was being leased out from time to time for the purpose of holding a bazar and that in 1953-54 an area of about 5 bighas fetched a rent of Rs. 6, 501/-. In the year 1954-55 it was rented for Rs. 8752/-. In subsequent years i.e. 1955-56 and 1956-57 the rent went up to Rs. 12, 000/- and over. Even if the rent for the year 1954-55 alone is taken into consideration the capital value would work out at a much higher figure than what has been awarded. Moreover the potential value has been completely ignored by the High Court.4. The High Court was of the view that the company was not entitled to get the capitalised value of the lease money which it was getting annually because the income was fluctuating and there was no material to show how much expense the company had incurred in order to maintain the staff for making the collection, etc. In our opinion the decision of the High Court with regard to the compensation fixed in respect of the land at the rate of Rs. 15, 000/- per Bigha does not call for any interference. Even on the assumption that the sales subsequent to the date of the notification under Section 4 should have been excluded from consideration the sale which took place prior to it was at the rate of Rs. 250/- per latcha which would work out to Rs. 25, 000/- per Bigha. Since the area sold was small it would be legitimate to take the figure of Rs. 15, 000/- per bigha as the correct price for a larger area like the one in question. It can hardly be disputed that this sale was of considerable importance as the land covered by it was either adjacent to or in the immediate neighbourhood of the hat land. Moreover the rent which the land was fetching could not be completlely ignored. In view of the entire circumstances relating to the importance of the village or the town where the land was situate the capitalised value at the rate of 12 years rental would be a little more than the amount actually awarded. That would not, however, justify interference in proceedings relating to fixation of compensation which partakes more of character of arbitration as to the value of land taken for public purpose.5. As regards the remaining area of 12 bighas, 3 kathas and 7 latchas for which compensation has been awarded at the rate of Rs. 300/- per bigha that admittedly was not that land nor was it ever used for purposes of a bazar. Reliance has been placed on behalf of the Company on the rent of certain portions of it which were leased out. The first lease was of the year 1952 by which 6 latchas were leased out at monthly rental of Rs. 4-4 As. for a period of 20 years. It was stipulated in the lease that the tenant would not claim any compensation if the property was acquired by the Government. There are a number of subsequent leases which have been considered by the High Court. The District Judge had expressed the view that these leases were collusive transactions and the documents had been executed only for the purpose of creating evidence. The same suggestion has been pressed before us on behalf of the Collector. It has been suggested that it must have been known in 1952 that land in question was likely to be acquired and therefore therefore the first lease came into existence. Even though there may be some suspicious features about the lease of 1952 no question was asked in cross-examination suggesting collusion or creation of evidence for the purpose of claiming compensation in acquisition proceedings. Keeping in view this evidence which relates only to a small portion of the land and the other evidence which has been read to us we are inclined to the view that the proper compensation which should have been awarded for the aforesaid area should have been at the rate of Rs. 1, 000/- per Bigha.
### Response:
0
### Explanation:
4. The High Court was of the view that the company was not entitled to get the capitalised value of the lease money which it was getting annually because the income was fluctuating and there was no material to show how much expense the company had incurred in order to maintain the staff for making the collection, etc.In our opinion the decision of the High Court with regard to the compensation fixed in respect of the land at the rate of Rs. 15, 000/per Bigha does not call for any interference. Even on the assumption that the sales subsequent to the date of the notification under Section 4 should have been excluded from consideration the sale which took place prior to it was at the rate of Rs. 250/per latcha which would work out to Rs. 25, 000/per Bigha. Since the area sold was small it would be legitimate to take the figure of Rs. 15, 000/per bigha as the correct price for a larger area like the one in question. It can hardly be disputed that this sale was of considerable importance as the land covered by it was either adjacent to or in the immediate neighbourhood of the hat land. Moreover the rent which the land was fetching could not be completlely ignored. In view of the entire circumstances relating to the importance of the village or the town where the land was situate the capitalised value at the rate of 12 years rental would be a little more than the amount actually awarded. That would not, however, justify interference in proceedings relating to fixation of compensation which partakes more of character of arbitration as to the value of land taken for public purpose.5. As regards the remaining area of 12 bighas, 3 kathas and 7 latchas for which compensation has been awarded at the rate of Rs. 300/per bigha that admittedly was not that land nor was it ever used for purposes of a bazar. Reliance has been placed on behalf of the Company on the rent of certain portions of it which were leased out. The first lease was of the year 1952 by which 6 latchas were leased out at monthly rental of Rs.As. for a period of 20 years. It was stipulated in the lease that the tenant would not claim any compensation if the property was acquired by the Government. There are a number of subsequent leases which have been considered by the High Court. The District Judge had expressed the view that these leases were collusive transactions and the documents had been executed only for the purpose of creating evidence. The same suggestion has been pressed before us on behalf of the Collector. It has been suggested that it must have been known in 1952 that land in question was likely to be acquired and therefore therefore the first lease came into existence. Even though there may be some suspicious features about the lease of 1952 no question was asked insuggesting collusion or creation of evidence for the purpose of claiming compensation in acquisition proceedings. Keeping in view this evidence which relates only to a small portion of the land and the other evidence which has been read to us we are inclined to the view that the proper compensation which should have been awarded for the aforesaid area should have been at the rate of Rs. 1, 000/
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Dhropadabai Vs. M/S. Technocraft Toolings | on the basis of the decision rendered by this Court in A. Trehan vs. Associated Electrical Agencies and Another (1996) 4 SCC 255 )that the legal heirs would not be entitled to get compensation under the 1923 Act as he was an insured person. 7. We have heard Mr. Sandeep Singh Tiwari, learned counsel for the appellants and Mr. Shashibhushan P. Adgaonkar, learned counsel for the respondent. 8. The status of the employee and the factum of his breathing last during the course of employment, cannot be called in question as it hinges on the facts and we find that the approach of the labour Court, as well as of the High Court on this score is absolutely infallible. Therefore, the only question that remains for consideration is whether the High Court is justified in denying the benefit under the 1923 Act. In this context, we may refer to Section 53 of the 1948 Act, which reads as under: 53. Bar against receiving or recovery of compensation or damages under any other law.- An insured person or his dependents shall not be entitled to receive or recover, whether from the employer of the insured person or from any other person, any compensation or damages under the Workmens Compensation Act, 1923 (8 of 1923), or any other law for the time being in force or otherwise, in respect of an employment injury sustained by the insured person as an employment injury sustained by the insured person as an employee under this Act. 9. The aforesaid provision came to be interpreted by a two-Judge Bench in A. Trehans case, wherein the Court after reproducing the said provision and taking note of the definition of workman as provided under Section 2(1)(n) of the 1923 Act, came to hold as follows: A comparison of the relevant provisions of the two Acts makes it clear that both the Acts provide for compensation to a workman/employee for personal injury caused to him by accident arising out of and in the course of his employment. The ESI is a later Act and has a wider coverage. It is more comprehensive. It also provides for more compensation than what a workman would get under the Workmens Compensation Act. The benefits which an employee can get under the ESI Act are more substantial than the benefits which he can get under the Workmens Compensation Act. The only disadvantage, if at all it can be called a disadvantage, is that he will get compensation under the ESI Act by way of periodical payments and not in a lump sum as under the Workmens Compensation Act. If the Legislature in its wisdom thought it better to provide for periodical payments rather than lump sum compensation its wisdom cannot be doubted. Even if it is assured that the workmen had a better right under the Workmans Compensation Act in this behalf it was open to the Legislature to take away or modify that right. While enacting the ESI Act the intention of the Legislature could not have been to create another remedy and a forum for claiming compensation for an injury received by the employee by accident arising out of and in the course of his employment. 10. Be it noted, the Court distinguished the decision rendered in Regional Director, ESI Corporation vs. Francis De Cost a ((1993) Supp. 4 SCC 100), and overruled the Full Bench decision of the High Court of Kerala in P. Asokan vs. Western Indian Plywoods Ltd., Cannanore (AIR 1987 Kerala 103). In Bharagath Engineering vs. R. Ranganayaki and Another ((2003) 2 SCC 138 ), a two-Judge Bench has ruled thus: The deceased employee was clearly an insured person, as defined in the Act. As the deceased employee has suffered an employment injury as defined under Section 2(8) of the Act and there is no dispute that he was in employment of the employer, by operation of Section 53 of the Act, proceedings under the Compensation Act were excluded statutorily. The High Court was not justified in holding otherwise. We find that the Corporation has filed an affidavit indicating that the benefits under the Act shall be extended to the persons entitled under the Act. The benefits shall be worked out by the Corporation and shall be extended to the eligible persons. 11. n National Insurance Company Ltd. vs. Hamida Khatoon and Others (2009) 13 SCC 361 ), reference has been made to A. Trehans case, as well as Bharagath Engineerings (supra) and as it appears to us, the later Bench has concurred with the view expressed in the earlier case. 12. The aforesaid authorities make it eminently clear that once an employee is an insured person under Section 2(14) of the 1948 Act, neither he nor his dependents would be entitled to get any compensation or damages from the employer under the 1923 Act. We are obliged to hold so as the plain language used in the Act clearly conveys so. Therefore, we do not find any flaw in the view expressed by the High Court. At this juncture, we may state that while this Court granted leave on 22nd February, 2014, had directed the respondent to deposit Rs.4 lacs in the Registry of this court within four weeks and permitted the appellants to withdraw the said sum on furnishing a personal bond. We have been apprised that the amount has been deposited by the employer and also has been withdrawn by the legal heirs of the deceased employee. Though the respondent is getting the benefits under the 1948 Act, yet we do not intend that the amount that has already been withdrawn by the legal heirs of the deceased-employee, should be recovered by the employer by way of deducting the periodical sum that is paid to the family members of the deceased employee. We have passed this order as we are compelled to feel that the cause of justice should be best sub-served as the appellants have been fighting the litigation since a decade. 13. | 0[ds]The aforesaid authorities make it eminently clear that once an employee is an insured person under Section 2(14) of the 1948 Act, neither he nor his dependents would be entitled to get any compensation or damages from the employer under the 1923 Act. We are obliged to hold so as the plain language used in the Act clearly conveys so. Therefore, we do not find any flaw in the view expressed by the High Court. At this juncture, we may state that while this Court granted leave on 22nd February, 2014, had directed the respondent to deposit Rs.4 lacs in the Registry of this court within four weeks and permitted the appellants to withdraw the said sum on furnishing a personal bond. We have been apprised that the amount has been deposited by the employer and also has been withdrawn by the legal heirs of the deceased employee. Though the respondent is getting the benefits under the 1948 Act, yet we do not intend that the amount that has already been withdrawn by the legal heirs of the deceased-employee, should be recovered by the employer by way of deducting the periodical sum that is paid to the family members of the deceased employee. We have passed this order as we are compelled to feel that the cause of justice should be best sub-served as the appellants have been fighting the litigation since a decade. | 0 | 1,790 | 255 | ### Instruction:
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on the basis of the decision rendered by this Court in A. Trehan vs. Associated Electrical Agencies and Another (1996) 4 SCC 255 )that the legal heirs would not be entitled to get compensation under the 1923 Act as he was an insured person. 7. We have heard Mr. Sandeep Singh Tiwari, learned counsel for the appellants and Mr. Shashibhushan P. Adgaonkar, learned counsel for the respondent. 8. The status of the employee and the factum of his breathing last during the course of employment, cannot be called in question as it hinges on the facts and we find that the approach of the labour Court, as well as of the High Court on this score is absolutely infallible. Therefore, the only question that remains for consideration is whether the High Court is justified in denying the benefit under the 1923 Act. In this context, we may refer to Section 53 of the 1948 Act, which reads as under: 53. Bar against receiving or recovery of compensation or damages under any other law.- An insured person or his dependents shall not be entitled to receive or recover, whether from the employer of the insured person or from any other person, any compensation or damages under the Workmens Compensation Act, 1923 (8 of 1923), or any other law for the time being in force or otherwise, in respect of an employment injury sustained by the insured person as an employment injury sustained by the insured person as an employee under this Act. 9. The aforesaid provision came to be interpreted by a two-Judge Bench in A. Trehans case, wherein the Court after reproducing the said provision and taking note of the definition of workman as provided under Section 2(1)(n) of the 1923 Act, came to hold as follows: A comparison of the relevant provisions of the two Acts makes it clear that both the Acts provide for compensation to a workman/employee for personal injury caused to him by accident arising out of and in the course of his employment. The ESI is a later Act and has a wider coverage. It is more comprehensive. It also provides for more compensation than what a workman would get under the Workmens Compensation Act. The benefits which an employee can get under the ESI Act are more substantial than the benefits which he can get under the Workmens Compensation Act. The only disadvantage, if at all it can be called a disadvantage, is that he will get compensation under the ESI Act by way of periodical payments and not in a lump sum as under the Workmens Compensation Act. If the Legislature in its wisdom thought it better to provide for periodical payments rather than lump sum compensation its wisdom cannot be doubted. Even if it is assured that the workmen had a better right under the Workmans Compensation Act in this behalf it was open to the Legislature to take away or modify that right. While enacting the ESI Act the intention of the Legislature could not have been to create another remedy and a forum for claiming compensation for an injury received by the employee by accident arising out of and in the course of his employment. 10. Be it noted, the Court distinguished the decision rendered in Regional Director, ESI Corporation vs. Francis De Cost a ((1993) Supp. 4 SCC 100), and overruled the Full Bench decision of the High Court of Kerala in P. Asokan vs. Western Indian Plywoods Ltd., Cannanore (AIR 1987 Kerala 103). In Bharagath Engineering vs. R. Ranganayaki and Another ((2003) 2 SCC 138 ), a two-Judge Bench has ruled thus: The deceased employee was clearly an insured person, as defined in the Act. As the deceased employee has suffered an employment injury as defined under Section 2(8) of the Act and there is no dispute that he was in employment of the employer, by operation of Section 53 of the Act, proceedings under the Compensation Act were excluded statutorily. The High Court was not justified in holding otherwise. We find that the Corporation has filed an affidavit indicating that the benefits under the Act shall be extended to the persons entitled under the Act. The benefits shall be worked out by the Corporation and shall be extended to the eligible persons. 11. n National Insurance Company Ltd. vs. Hamida Khatoon and Others (2009) 13 SCC 361 ), reference has been made to A. Trehans case, as well as Bharagath Engineerings (supra) and as it appears to us, the later Bench has concurred with the view expressed in the earlier case. 12. The aforesaid authorities make it eminently clear that once an employee is an insured person under Section 2(14) of the 1948 Act, neither he nor his dependents would be entitled to get any compensation or damages from the employer under the 1923 Act. We are obliged to hold so as the plain language used in the Act clearly conveys so. Therefore, we do not find any flaw in the view expressed by the High Court. At this juncture, we may state that while this Court granted leave on 22nd February, 2014, had directed the respondent to deposit Rs.4 lacs in the Registry of this court within four weeks and permitted the appellants to withdraw the said sum on furnishing a personal bond. We have been apprised that the amount has been deposited by the employer and also has been withdrawn by the legal heirs of the deceased employee. Though the respondent is getting the benefits under the 1948 Act, yet we do not intend that the amount that has already been withdrawn by the legal heirs of the deceased-employee, should be recovered by the employer by way of deducting the periodical sum that is paid to the family members of the deceased employee. We have passed this order as we are compelled to feel that the cause of justice should be best sub-served as the appellants have been fighting the litigation since a decade. 13.
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The aforesaid authorities make it eminently clear that once an employee is an insured person under Section 2(14) of the 1948 Act, neither he nor his dependents would be entitled to get any compensation or damages from the employer under the 1923 Act. We are obliged to hold so as the plain language used in the Act clearly conveys so. Therefore, we do not find any flaw in the view expressed by the High Court. At this juncture, we may state that while this Court granted leave on 22nd February, 2014, had directed the respondent to deposit Rs.4 lacs in the Registry of this court within four weeks and permitted the appellants to withdraw the said sum on furnishing a personal bond. We have been apprised that the amount has been deposited by the employer and also has been withdrawn by the legal heirs of the deceased employee. Though the respondent is getting the benefits under the 1948 Act, yet we do not intend that the amount that has already been withdrawn by the legal heirs of the deceased-employee, should be recovered by the employer by way of deducting the periodical sum that is paid to the family members of the deceased employee. We have passed this order as we are compelled to feel that the cause of justice should be best sub-served as the appellants have been fighting the litigation since a decade.
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M/s. Sree Surya Developers and Promoters and Ors Vs. N. Sailesh Prasad and Ors | Finality of decisions is an underlying principle of all adjudicating forums. Thus, creation of further litigation should never be the basis of a compromise between the parties. Rule 3-A Order 23 CPC put a specific bar that no suit shall lie to set aside a decree on the ground that the compromise on which the decree is based was not lawful. The scheme of Order 23 Rule 3 CPC is to avoid multiplicity of litigation and permit parties to amicably come to a settlement which is lawful, is in writing and a voluntary act on the part of the parties. The court can be instrumental in having an agreed compromise effected and finality attached to the same. The court should never be party to imposition of a compromise upon an unwilling party, still open to be questioned on an application under the proviso to Order 23 Rule 3 CPC before the court. That thereafter it is specifically observed and held that a party to a consent decree based on a compromise to challenge the compromise decree on the ground that the decree was not lawful i.e., it was void or voidable has to approach the same court, which recorded the compromise and a separate suit challenging the consent decree has been held to be not maintainable. 9. In view of the above decisions of this Court, the Trial Court was absolutely justified in rejecting the plaint on the ground that the suit for the reliefs sought challenging the Compromise Decree would not be maintainable. 10. Now, so far as the submission on behalf of the plaintiff that in the suit the plaintiff has not specifically prayed for setting aside the Compromise Decree and what is prayed is to declare that the Compromise Decree is not binding on him and that for the other reliefs sought, the suit would not be barred and still the suit would be maintainable is concerned, the aforesaid cannot be accepted. 10.1 As held by this Court in a catena of decisions right from 1977 that a mere clever drafting would not permit the plaintiff to make the suit maintainable which otherwise would not be maintainable and/or barred by law. It has been consistently held by this Court that if clever drafting of the plaint has created the illusion of a cause of action, the court will nip it in the bud at the earliest so that bogus litigation will end at the earlier stage. 10.2 In the case of T. Arivandandam Vs. T.V. Satyapal, (1977) 4 SCC 467, it is observed and held as under;- 5. We have not the slightest hesitation in condemning the petitioner for the gross abuse of the process of the court repeatedly and unrepentantly resorted to. From the statement of the facts found in the judgment of the High Court, it is perfectly plain that the suit now pending before the First Munsifs Court, Bangalore, is a flagrant misuse of the mercies of the law in receiving plaints. The learned Munsif must remember that if on a meaningful — not formal — reading of the plaint it is manifestly vexatious, and meritless, in the sense of not disclosing a clear right to sue, he should exercise his power under Order 7 Rule 11 CPC taking care to see that the ground mentioned therein is fulfilled. And, if clever drafting has created the illusion of a cause of action, nip it in the bud at the first hearing by examining the party searchingly under Order 10 CPC. An activist Judge is the answer to irresponsible law suits. 10.3 In the case of Ram Singh v. Gram Panchayat Mehal Kalan, (1986) 4 SCC 364, this Court has observed and held that when the suit is barred by any law, the plaintiff cannot be allowed to circumvent that provision by means of clever drafting so as to avoid mention of those circumstances, by which the suit is barred by law of limitation. 11. If we consider the reliefs of declaration of title, recovery of possession, cancellation of revocation of Gift Deed, declaration for DGPA and Deed of Assignment-cum-DGPA, the said reliefs can be granted only if the Compromise Decree dated 13.01.2016 passed in O.S. No.1750 of 2015 is set aside. Therefore, by asking such multiple reliefs, the plaintiff by clever drafting wants to get his suit maintainable, which otherwise would not be maintainable questioning the Compromise Decree. All the aforesaid reliefs were subject matter of earlier suits and thereafter also subject matter of O.S. No.1750 of 2015 in which the Compromise Decree has been passed. Therefore, it is rightly held by the Trial Court that the suit in the present form and for the reliefs sought would be barred under Order XXIII Rule 3A CPC and therefore the Trial Court rightly rejected the plaint in exercise of powers under Order VII Rule 11(d) of the CPC. The High Court has erred in setting aside the said order by entering into the merits of the validity of the Compromise Decree on the ground that the same was hit by Order XXXII Rule 7 CPC, which was not permissible at this stage of deciding the application under Order VII Rule 11 CPC and the only issue which was required to be considered by the High Court was whether the suit challenging the Compromise Decree would be maintainable or not. 12. As observed hereinabove and it is not in dispute that as such the respondent No.1 – original plaintiff has already moved an appropriate application before the concerned Court, which passed the decree setting aside the compromise Decree by submitting an application under Order XXIII Rule 3A CPC therefore the said application will have to be decided and disposed of in accordance with law in which all the defences / contentions which may have been available to the respective parties on the validity of the Compromise Decree would have to be gone into by the concerned court in accordance with law and on its own merits. | 1[ds]3.7 Number of other submissions have been made by learned counsel appearing on behalf of the appellant on the validity of the Compromise Decree.However, for the reasons stated hereinbelow, we propose to consider the only issue with respect to maintainability of the suitand the issue before this Court is not on the validity of the Compromise Decree, therefore, we do not propose to deal with any of the submissions on merits on the validity of the Compromise Decree.6. At the outset, it is required to be noted that in the present case, the Trial Court rejected the plaint of O.S. No.537 of 2018 in exercise of powers under Order VII Rule 11 CPC on the ground that the said suit would not be maintainable in view of specific bar under Order XXIII Rule 3A CPC. The High Court by the impugned judgment and order has set aside the said order and has remanded the matter to the Trial Court by observing that while passing the order rejecting the plaint, the Trial Court had not considered the provisions of Order XXXII Rules 1 to 7 CPC. However, it is required to be noted that while passing the impugned judgment and order, the High Court has not at all dealt with and considered the provisions of Order XXIII Rule 3A CPC and has not considered at all whether in fact the suit challenging the Compromise Decree and/or for the reliefs sought in the suit would be maintainable or not. What was required to be considered by the High Court was whether the independent suit questioning the Compromise Decree would be maintainable or not. The aforesaid crucial aspect has not been dealt with by the High Court at all and High Court has gone into the validity of the Compromise Decree in view of Order XXXII Rule 7 CPC. At the stage of deciding the application under Order VII Rule 11 CPC, the only thing which was required to be considered by the High Court was whether the suit would be maintainable or not and that the suit challenging the Compromise Decree would be maintainable or not in view of Order XXIII Rule 3A CPC and at this stage, the High Court / Court was not required to consider on merits the validity of the Compromise Decree.7. Now, so far as the main issue whether the Trial Court rightly rejected the plaint in exercise of powers under Order VII Rule 11 CPC on the ground that an independent suit challenging the Compromise Decree would be barred in view of Order XXIII Rule 3A CPC is concerned, on plain reading of Order XXIII Rule 3A CPC, the Trial Court was justified in rejecting the plaint.8. Therefore, on plain reading of Order XXIII Rule 3A CPC, no suit shall lie to set aside a decree on the ground that the compromise on which the decree is based was not lawful. Identical question came to be considered by this Court in the case of R. Janakiammal (supra). It is observed and held by this Court that Rule 3A of Order XXIII bars the suit to set aside the decree on the ground that the compromise on which decree was passed was not lawful. It is further observed and held that an agreement or compromise which is clearly void or voidable shall not be deemed to be lawful and the bar under Rule 3A shall be attracted if compromise on the basis of which the decree was passed was void or voidable. In this case, this Court had occasion to consider in detail Order XXIII Rule 3 as well as Rule 3A. The earlier decisions of this Court have also been dealt with by this Court in paragraphs 53 to 57 as under:-53. Order 23 Rule 3 as well as Rule 3-A came for consideration before this Court in large number of cases and we need to refer to a few of them to find out the ratio of judgments of this Court in context of Rule 3 and Rule 3- A. In Banwari Lal v. Chando Devi, (1993) 1 SCC 581, this Court considered Rule 3 as well as Rule 3-A of Order 23. This Court held that the object of the Amendment Act, 1976 is to compel the party challenging the compromise to question the court which has recorded the compromise. In paras 6 and 7, the following was laid down: (SCC pp. 584-85)6. The experience of the courts has been that on many occasions parties having filed petitions of compromise on basis of which decrees are prepared, later for one reason or other challenge the validity of such compromise. For setting aside such decrees suits used to be filed which dragged on for years including appeals to different courts. Keeping in view the predicament of the courts and the public, several amendments have been introduced in Order 23 of the Code which contain provisions relating to withdrawal and adjustment of suit by the Civil Procedure Code (Amendment) Act, 1976. Rule 1 Order 23 of the Code prescribes that at any time after the institution of the suit, the plaintiff may abandon his suit or abandon a part of his claim. Rule 1(3) provides that 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 such suit with liberty to institute a fresh suit. In view of Rule 1(4) if the plaintiff abandons his suit or withdraws such suit without permission referred to above, he shall be precluded from instituting any such suit in respect of such subject-matter. Rule 3 Order 23 which contained the procedure regarding compromise of the suit was also amended to curtail vexatious and tiring litigation while challenging a compromise decree. Not only in Rule 3 some special requirements were introduced before a compromise is recorded by the court including that the lawful agreement or a compromise must be in writing and signed by the parties, a proviso with an Explanation was also added which is as follows:Provided that where it is alleged by one party and denied by the other that an adjustment or satisfaction has been arrived at, the Court shall decide the question; but no adjournment shall be granted for the purpose of deciding the question, unless the Court, for reasons to be recorded, thinks fit to grant such adjournment.Explanation. — An agreement or compromise which is void or voidable under the Indian Contract Act, 1872 (9 of 1872), shall not be deemed to be lawful within the meaning of this Rule.7. By adding the proviso along with an Explanation the purpose and the object of the amending Act appears to be to compel the party challenging the compromise to question the same before the court which had recorded the compromise in question. That court was enjoined to decide the controversy whether the parties have arrived at an adjustment in a lawful manner. The Explanation made it clear that an agreement or a compromise which is void or voidable under the Contract Act shall not be deemed to be lawful within the meaning of the said Rule. Having introduced the proviso along with the Explanation in Rule 3 in order to avoid multiplicity of suit and prolonged litigation, a specific bar was prescribed by Rule 3-A in respect of institution of a separate suit for setting aside a decree on the basis of a compromise saying:3-A. Bar to suit. — No suit shall lie to set aside a decree on the ground that the compromise on which the decree is based was not lawful.54. The next judgment to be noted is Pushpa Devi Bhagat v. Rajinder Singh, (2006) 5 SCC 566, R.V. Raveendran, J. speaking for the Court noted the provisions of Order 23 Rule 3 and Rule 3-A and recorded his conclusions in para 17 in the following words: (SCC p. 576)17. The position that emerges from the amended provisions of Order 23 can be summed up thus:(i) No appeal is maintainable against a consent decree having regard to the specific bar contained in Section 96(3) CPC.(ii) No appeal is maintainable against the order of the court recording the compromise (or refusing to record a compromise) in view of the deletion of clause (m) of Rule 1 Order 43.(iii) No independent suit can be filed for setting aside a compromise decree on the ground that the compromise was not lawful in view of the bar contained in Rule 3-A.(iv) A consent decree operates as an estoppel and is valid and binding unless it is set aside by the court which passed the consent decree, by an order on an application under the proviso to Rule 3 Order 23.Therefore, the only remedy available to a party to a consent decree to avoid such consent decree, is to approach the court which recorded the compromise and made a decree in terms of it, and establish that there was no compromise. In that event, the court which recorded the compromise will itself consider and decide the question as to whether there was a valid compromise or not. This is so because a consent decree is nothing but contract between parties superimposed with the seal of approval of the court. The validity of a consent decree depends wholly on the validity of the agreement or compromise on which it is made. The second defendant, who challenged the consent compromise decree was fully aware of this position as she filed an application for setting aside the consent decree on 21-8-2001 by alleging that there was no valid compromise in accordance with law. Significantly, none of the other defendants challenged the consent decree. For reasons best known to herself, the second defendant within a few days thereafter (that is on 27-8-2001) filed an appeal and chose not to pursue the application filed before the court which passed the consent decree. Such an appeal by the second defendant was not maintainable, having regard to the express bar contained in Section 96(3) of the Code.55. The next judgment is R. Rajanna v. S.R. Venkataswamy, (2014) 15 SCC 471 in which the provisions of Order 23 Rule 3 and Rule 3-A were again considered. After extracting the aforesaid provisions, the following was held by this Court in para 11: (SCC p. 474)11. It is manifest from a plain reading of the above that in terms of the proviso to Order 23 Rule 3 where one party alleges and the other denies adjustment or satisfaction of any suit by a lawful agreement or compromise in writing and signed by the parties, the Court before whom such question is raised, shall decide the same. What is important is that in terms of Explanation to Order 23 Rule 3, the agreement or compromise shall not be deemed to be lawful within the meaning of the said Rule if the same is void or voidable under the Contract Act, 1872. It follows that in every case where the question arises whether or not there has been a lawful agreement or compromise in writing and signed by the parties, the question whether the agreement or compromise is lawful has to be determined by the court concerned. What is lawful will in turn depend upon whether the allegations suggest any infirmity in the compromise and the decree that would make the same void or voidable under the Contract Act. More importantly, Order 23 Rule 3-A clearly bars a suit to set aside a decree on the ground that the compromise on which the decree is based was not lawful. This implies that no sooner a question relating to lawfulness of the agreement or compromise is raised before the court that passed the decree on the basis of any such agreement or compromise, it is that court and that court alone who can examine and determine that question. The court cannot direct the parties to file a separate suit on the subject for no such suit will lie in view of the provisions of Order 23 Rule 3-A CPC. That is precisely what has happened in the case at hand. When the appellant filed OS No. 5326 of 2005 to challenge the validity of the compromise decree, the court before whom the suit came up rejected the plaint under Order 7 Rule 11 CPC on the application made by the respondents holding that such a suit was barred by the provisions of Order 23 Rule 3-A CPC. Having thus got the plaint rejected, the defendants (the respondents herein) could hardly be heard to argue that the plaintiff (the appellant herein) ought to pursue his remedy against the compromise decree in pursuance of OS No. 5326 of 2005 and if the plaint in the suit has been rejected to pursue his remedy against such rejection before a higher court.56. The judgments of Pushpa Devi [Pushpa Devi Bhagat v. Rajinder Singh, (2006) 5 SCC 566] as well as Banwari Lal [Banwari Lal v. Chando Devi, (1993) 1 SCC 581] were referred to and relied on by this Court. This Court held that no sooner a question relating to lawfulness of the agreement or compromise is raised before the court that passed the decree on the basis of any such agreement or compromise, it is that court and that court alone which can examine and determine that question.57. In subsequent judgment, Triloki Nath Singh v. Anirudh Singh, (2020) 6 SCC 629, this Court again referring to earlier judgments reiterated the same proposition i.e. the only remedy available to a party to a consent decree to avoid such consent decree is to approach the court which recorded the compromise and separate suit is not maintainable. In paras 17 and 18, the following has been laid down: (SCC p. 638)17. By introducing the amendment to the Civil Procedure Code (Amendment) Act, 1976 w.e.f. 1-2-1977, the legislature has brought into force Order 23 Rule 3-A, which creates bar to institute the suit to set aside a decree on the ground that the compromise on which decree is based was not lawful. The purpose of effecting a compromise between the parties is to put an end to the various disputes pending before the court of competent jurisdiction once and for all.18. Finality of decisions is an underlying principle of all adjudicating forums. Thus, creation of further litigation should never be the basis of a compromise between the parties. Rule 3-A Order 23 CPC put a specific bar that no suit shall lie to set aside a decree on the ground that the compromise on which the decree is based was not lawful. The scheme of Order 23 Rule 3 CPC is to avoid multiplicity of litigation and permit parties to amicably come to a settlement which is lawful, is in writing and a voluntary act on the part of the parties. The court can be instrumental in having an agreed compromise effected and finality attached to the same. The court should never be party to imposition of a compromise upon an unwilling party, still open to be questioned on an application under the proviso to Order 23 Rule 3 CPC before the court.That thereafter it is specifically observed and held that a party to a consent decree based on a compromise to challenge the compromise decree on the ground that the decree was not lawful i.e., it was void or voidable has to approach the same court, which recorded the compromise and a separate suit challenging the consent decree has been held to be not maintainable.9. In view of the above decisions of this Court, the Trial Court was absolutely justified in rejecting the plaint on the ground that the suit for the reliefs sought challenging the Compromise Decree would not be maintainable.10. Now, so far as the submission on behalf of the plaintiff that in the suit the plaintiff has not specifically prayed for setting aside the Compromise Decree and what is prayed is to declare that the Compromise Decree is not binding on him and that for the other reliefs sought, the suit would not be barred and still the suit would be maintainable is concerned, the aforesaid cannot be accepted.10.2 In the case of T. Arivandandam Vs. T.V. Satyapal, (1977) 4 SCC 467, it is observed and held as under;-5. We have not the slightest hesitation in condemning the petitioner for the gross abuse of the process of the court repeatedly and unrepentantly resorted to. From the statement of the facts found in the judgment of the High Court, it is perfectly plain that the suit now pending before the First Munsifs Court, Bangalore, is a flagrant misuse of the mercies of the law in receiving plaints. The learned Munsif must remember that if on a meaningful — not formal — reading of the plaint it is manifestly vexatious, and meritless, in the sense of not disclosing a clear right to sue, he should exercise his power under Order 7 Rule 11 CPC taking care to see that the ground mentioned therein is fulfilled. And, if clever drafting has created the illusion of a cause of action, nip it in the bud at the first hearing by examining the party searchingly under Order 10 CPC. An activist Judge is the answer to irresponsible law suits.10.3 In the case of Ram Singh v. Gram Panchayat Mehal Kalan, (1986) 4 SCC 364, this Court has observed and held that when the suit is barred by any law, the plaintiff cannot be allowed to circumvent that provision by means of clever drafting so as to avoid mention of those circumstances, by which the suit is barred by law of limitation.11. If we consider the reliefs of declaration of title, recovery of possession, cancellation of revocation of Gift Deed, declaration for DGPA and Deed of Assignment-cum-DGPA, the said reliefs can be granted only if the Compromise Decree dated 13.01.2016 passed in O.S. No.1750 of 2015 is set aside. Therefore, by asking such multiple reliefs, the plaintiff by clever drafting wants to get his suit maintainable, which otherwise would not be maintainable questioning the Compromise Decree. All the aforesaid reliefs were subject matter of earlier suits and thereafter also subject matter of O.S. No.1750 of 2015 in which the Compromise Decree has been passed. Therefore, it is rightly held by the Trial Court that the suit in the present form and for the reliefs sought would be barred under Order XXIII Rule 3A CPC and therefore the Trial Court rightly rejected the plaint in exercise of powers under Order VII Rule 11(d) of the CPC. The High Court has erred in setting aside the said order by entering into the merits of the validity of the Compromise Decree on the ground that the same was hit by Order XXXII Rule 7 CPC, which was not permissible at this stage of deciding the application under Order VII Rule 11 CPC and the only issue which was required to be considered by the High Court was whether the suit challenging the Compromise Decree would be maintainable or not.12. As observed hereinabove and it is not in dispute that as such the respondent No.1 – original plaintiff has already moved an appropriate application before the concerned Court, which passed the decree setting aside the compromise Decree by submitting an application under Order XXIII Rule 3A CPC therefore the said application will have to be decided and disposed of in accordance with law in which all the defences / contentions which may have been available to the respective parties on the validity of the Compromise Decree would have to be gone into by the concerned court in accordance with law and on its own merits. | 1 | 6,062 | 3,616 | ### 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:
Finality of decisions is an underlying principle of all adjudicating forums. Thus, creation of further litigation should never be the basis of a compromise between the parties. Rule 3-A Order 23 CPC put a specific bar that no suit shall lie to set aside a decree on the ground that the compromise on which the decree is based was not lawful. The scheme of Order 23 Rule 3 CPC is to avoid multiplicity of litigation and permit parties to amicably come to a settlement which is lawful, is in writing and a voluntary act on the part of the parties. The court can be instrumental in having an agreed compromise effected and finality attached to the same. The court should never be party to imposition of a compromise upon an unwilling party, still open to be questioned on an application under the proviso to Order 23 Rule 3 CPC before the court. That thereafter it is specifically observed and held that a party to a consent decree based on a compromise to challenge the compromise decree on the ground that the decree was not lawful i.e., it was void or voidable has to approach the same court, which recorded the compromise and a separate suit challenging the consent decree has been held to be not maintainable. 9. In view of the above decisions of this Court, the Trial Court was absolutely justified in rejecting the plaint on the ground that the suit for the reliefs sought challenging the Compromise Decree would not be maintainable. 10. Now, so far as the submission on behalf of the plaintiff that in the suit the plaintiff has not specifically prayed for setting aside the Compromise Decree and what is prayed is to declare that the Compromise Decree is not binding on him and that for the other reliefs sought, the suit would not be barred and still the suit would be maintainable is concerned, the aforesaid cannot be accepted. 10.1 As held by this Court in a catena of decisions right from 1977 that a mere clever drafting would not permit the plaintiff to make the suit maintainable which otherwise would not be maintainable and/or barred by law. It has been consistently held by this Court that if clever drafting of the plaint has created the illusion of a cause of action, the court will nip it in the bud at the earliest so that bogus litigation will end at the earlier stage. 10.2 In the case of T. Arivandandam Vs. T.V. Satyapal, (1977) 4 SCC 467, it is observed and held as under;- 5. We have not the slightest hesitation in condemning the petitioner for the gross abuse of the process of the court repeatedly and unrepentantly resorted to. From the statement of the facts found in the judgment of the High Court, it is perfectly plain that the suit now pending before the First Munsifs Court, Bangalore, is a flagrant misuse of the mercies of the law in receiving plaints. The learned Munsif must remember that if on a meaningful — not formal — reading of the plaint it is manifestly vexatious, and meritless, in the sense of not disclosing a clear right to sue, he should exercise his power under Order 7 Rule 11 CPC taking care to see that the ground mentioned therein is fulfilled. And, if clever drafting has created the illusion of a cause of action, nip it in the bud at the first hearing by examining the party searchingly under Order 10 CPC. An activist Judge is the answer to irresponsible law suits. 10.3 In the case of Ram Singh v. Gram Panchayat Mehal Kalan, (1986) 4 SCC 364, this Court has observed and held that when the suit is barred by any law, the plaintiff cannot be allowed to circumvent that provision by means of clever drafting so as to avoid mention of those circumstances, by which the suit is barred by law of limitation. 11. If we consider the reliefs of declaration of title, recovery of possession, cancellation of revocation of Gift Deed, declaration for DGPA and Deed of Assignment-cum-DGPA, the said reliefs can be granted only if the Compromise Decree dated 13.01.2016 passed in O.S. No.1750 of 2015 is set aside. Therefore, by asking such multiple reliefs, the plaintiff by clever drafting wants to get his suit maintainable, which otherwise would not be maintainable questioning the Compromise Decree. All the aforesaid reliefs were subject matter of earlier suits and thereafter also subject matter of O.S. No.1750 of 2015 in which the Compromise Decree has been passed. Therefore, it is rightly held by the Trial Court that the suit in the present form and for the reliefs sought would be barred under Order XXIII Rule 3A CPC and therefore the Trial Court rightly rejected the plaint in exercise of powers under Order VII Rule 11(d) of the CPC. The High Court has erred in setting aside the said order by entering into the merits of the validity of the Compromise Decree on the ground that the same was hit by Order XXXII Rule 7 CPC, which was not permissible at this stage of deciding the application under Order VII Rule 11 CPC and the only issue which was required to be considered by the High Court was whether the suit challenging the Compromise Decree would be maintainable or not. 12. As observed hereinabove and it is not in dispute that as such the respondent No.1 – original plaintiff has already moved an appropriate application before the concerned Court, which passed the decree setting aside the compromise Decree by submitting an application under Order XXIII Rule 3A CPC therefore the said application will have to be decided and disposed of in accordance with law in which all the defences / contentions which may have been available to the respective parties on the validity of the Compromise Decree would have to be gone into by the concerned court in accordance with law and on its own merits.
### Response:
1
### Explanation:
and 18, the following has been laid down: (SCC p. 638)17. By introducing the amendment to the Civil Procedure Code (Amendment) Act, 1976 w.e.f. 1-2-1977, the legislature has brought into force Order 23 Rule 3-A, which creates bar to institute the suit to set aside a decree on the ground that the compromise on which decree is based was not lawful. The purpose of effecting a compromise between the parties is to put an end to the various disputes pending before the court of competent jurisdiction once and for all.18. Finality of decisions is an underlying principle of all adjudicating forums. Thus, creation of further litigation should never be the basis of a compromise between the parties. Rule 3-A Order 23 CPC put a specific bar that no suit shall lie to set aside a decree on the ground that the compromise on which the decree is based was not lawful. The scheme of Order 23 Rule 3 CPC is to avoid multiplicity of litigation and permit parties to amicably come to a settlement which is lawful, is in writing and a voluntary act on the part of the parties. The court can be instrumental in having an agreed compromise effected and finality attached to the same. The court should never be party to imposition of a compromise upon an unwilling party, still open to be questioned on an application under the proviso to Order 23 Rule 3 CPC before the court.That thereafter it is specifically observed and held that a party to a consent decree based on a compromise to challenge the compromise decree on the ground that the decree was not lawful i.e., it was void or voidable has to approach the same court, which recorded the compromise and a separate suit challenging the consent decree has been held to be not maintainable.9. In view of the above decisions of this Court, the Trial Court was absolutely justified in rejecting the plaint on the ground that the suit for the reliefs sought challenging the Compromise Decree would not be maintainable.10. Now, so far as the submission on behalf of the plaintiff that in the suit the plaintiff has not specifically prayed for setting aside the Compromise Decree and what is prayed is to declare that the Compromise Decree is not binding on him and that for the other reliefs sought, the suit would not be barred and still the suit would be maintainable is concerned, the aforesaid cannot be accepted.10.2 In the case of T. Arivandandam Vs. T.V. Satyapal, (1977) 4 SCC 467, it is observed and held as under;-5. We have not the slightest hesitation in condemning the petitioner for the gross abuse of the process of the court repeatedly and unrepentantly resorted to. From the statement of the facts found in the judgment of the High Court, it is perfectly plain that the suit now pending before the First Munsifs Court, Bangalore, is a flagrant misuse of the mercies of the law in receiving plaints. The learned Munsif must remember that if on a meaningful — not formal — reading of the plaint it is manifestly vexatious, and meritless, in the sense of not disclosing a clear right to sue, he should exercise his power under Order 7 Rule 11 CPC taking care to see that the ground mentioned therein is fulfilled. And, if clever drafting has created the illusion of a cause of action, nip it in the bud at the first hearing by examining the party searchingly under Order 10 CPC. An activist Judge is the answer to irresponsible law suits.10.3 In the case of Ram Singh v. Gram Panchayat Mehal Kalan, (1986) 4 SCC 364, this Court has observed and held that when the suit is barred by any law, the plaintiff cannot be allowed to circumvent that provision by means of clever drafting so as to avoid mention of those circumstances, by which the suit is barred by law of limitation.11. If we consider the reliefs of declaration of title, recovery of possession, cancellation of revocation of Gift Deed, declaration for DGPA and Deed of Assignment-cum-DGPA, the said reliefs can be granted only if the Compromise Decree dated 13.01.2016 passed in O.S. No.1750 of 2015 is set aside. Therefore, by asking such multiple reliefs, the plaintiff by clever drafting wants to get his suit maintainable, which otherwise would not be maintainable questioning the Compromise Decree. All the aforesaid reliefs were subject matter of earlier suits and thereafter also subject matter of O.S. No.1750 of 2015 in which the Compromise Decree has been passed. Therefore, it is rightly held by the Trial Court that the suit in the present form and for the reliefs sought would be barred under Order XXIII Rule 3A CPC and therefore the Trial Court rightly rejected the plaint in exercise of powers under Order VII Rule 11(d) of the CPC. The High Court has erred in setting aside the said order by entering into the merits of the validity of the Compromise Decree on the ground that the same was hit by Order XXXII Rule 7 CPC, which was not permissible at this stage of deciding the application under Order VII Rule 11 CPC and the only issue which was required to be considered by the High Court was whether the suit challenging the Compromise Decree would be maintainable or not.12. As observed hereinabove and it is not in dispute that as such the respondent No.1 – original plaintiff has already moved an appropriate application before the concerned Court, which passed the decree setting aside the compromise Decree by submitting an application under Order XXIII Rule 3A CPC therefore the said application will have to be decided and disposed of in accordance with law in which all the defences / contentions which may have been available to the respective parties on the validity of the Compromise Decree would have to be gone into by the concerned court in accordance with law and on its own merits.
|
Delhi Cloth And General Mills Co. Ltd. Etc Vs. Commissioner Of Sales Tax, Indore | Act there is no such provision except S. 7-A which was introduced into the Act by Madhya Pradesh Act 23 of 1963. That provision would have relevance only in respect of the assessment for the year 1963 64. 9. Section 7-A says:"No dealer shall collect any amount, by way of sales-tax or purchase tax from a person who sells agricutural or horticulttiral produce grown by himself or grown on any land in which he has an interest, whether as owner, usufructuary mortgagee, tenant or otherwise, when such produce is sold in the form in which it was produced, without being subjected to any physical, chemical or other process for being made fit for consumption save mere dehusking, cleaning, grading or sorting." 10. In these appeals, it is not necessary to examine the relevance of that provision. But that provision does not, give any statutory power to collect sales tax as such from any class of buyers. There is no other provision in the Act which confers such a power on the dealers. Unless the price of an article is controlled, it is always open to the buyer and the seller to agree upon the price to be payable. While doing so it is open to the dealer to include in the price the tax payable by him to the government. If he does so, he cannot be said to be collecting he tax payable by him from his buyers. The levy and collection of tax is regulated by law and not by contract. So long as there is no law empowering the dealer to collect tax from his buyer or seller, there is no legal basis for saying that the dealer is entitled to collect the tax payable by him from his buyer or seller. Whatever collection that may be made by the dealer from his customers the same can only be considered as valuable consideration for the goods sold. 11. In M/s. George Oakes (Private) Ltd. v. State of Madras, 12 STC 476 = (AIR 1962 SC 1037 ) this Court was called upon to consider ,whether a dealer can pass on his tax liability as such to his customer. In that decision while rejecting the contention that the tax liability as such can be transferred to the buyers this Court referred to the observations of Lawrence J. in Paprika Ltd. v. Board of Trade, 1944-1 All ER 372 and Goddard L. J. in Love v. Norma Wright (Builders) Ltd. 1944-1 All ER 618. 12. In the former case Lawrence J. observed:"Whenever a sale attracts purchase tax, that tax presumably effects the price which the seller who is liable to pay the tax demands but is does not cease to be the price which the buyer has to pay even if the price is expressed as x plus purchase tax." In Loves case, 1944-1 All ER 618 (supra) Goddard L J, observed: "Where an article is taxed, whether by purchase tax, customs duty, or excise duty, the tax becomes part of the price which ordinarily the buyer will have to pay. The price of an ounce of tobacco is what it is because of the rate of tax, but on a sale there is only one consideration though made up of cost plus profit plus tax. So, if a seller offers goods for sale, it is for him to quote a price which includes the tax if he desires to pass it on to the buyer. If the buyer agrees to the price, it is not for him to consider how it is made up or whether the seller has included tax or not." 13. In that decision reference was also made to the decision of this Court in Tata Iron and Steel Co. Ltd. v. State of Bihar, 1958 SCII 1355 (AIR 1958 SC 452). Therein Das C. I. who delivered the majority judgment of the Court said:"The circumstance that the 1947 ct, after the amendment permitted the seller who was a registered dealer to collect the sales tax as a tax from the purchaser does not do away with the primary liability of the seller to pay the sales tax. This is further made clear by the fact that the registered dealer need not, if he so pleases or chooses, collect the tax from the purchaser and sometimes by reason of competition with other registered dealers he may find it profitable to sell his goods and to retain his old customers even at the sacrifice of the sales tax. This also makes it clear that the sales tax need not be passed on to the purchasers and this fact does not alter the real nature of the tax, which by the express provisions of the law, is cast upon the seller. The buyer is under no liability to pay sales tax in addition to the agreed sale price unless the contract specifically provides otherwise. See 1944-1 All ER 618." 14. From all these observations, it is clear that when the seller passes on his tax liability to the buyer, the amount recovered by the dealer is really part of the entire consideration paid by the buyer and the distinction between the two amounts, tax and price - loses all significance. 15. In support of his contention the appellant relied on the decision of the Madras High Court in The Deputy Commr, of Commercial Taxes, Coimbatore v. M. Krishnaswamy Mudaliar and Sons (1954) 5 STC 88 = (AIR 1954 Mad 856 ). Therein on an interpretation of the relevant provision of the Madras General Sales Tax Act, the court came to the conclusion that the sales tax which the dealer was authorised to collect from his customers was not a part of the sale price received by him. This conclusion was primarily based on S. 8 (b) (1) of the Madras General Sales Tax Act, 1939. There is no similar provision in the Act. Therefore it is not necessary for us to consider the correctness of that decision. | 0[ds]7. In view of the definition of sale price all that we have to see is whether the collection of sales tax by the dealer from his purchasers can be considered as valuable consideration received by him for the sale of goods8. Under S. 4 the liability to pay tax is that of the dealer. The purchaser has no liability to pay tax. There is no provision in the Act from which it can be gathered that the Act imposes any liability on the purchaser to pay the tax imposed on the dealer. If the dealer passes on his tax burden to his purchasers he can only do it by adding the tax in question to the price of the goods sold. In that event the. price fixed for the goods including the tax payable becomes the valuble consideration given by the purchaser for the goods purchased by him. If that be so, the tax collected by the dealer from his purchasers becomes a part of the sale price fixed, as defined in Section 2 (o).In some of the Sales Tax Acts power has been conferred on the dealers to pass on the incidence of tax to the purchasers subject to certain conditions. Those provisions may call for different consideration. In the Act there is no such provision except S. 7-A which was introduced into the Act by Madhya Pradesh Act 23 of 1963. That provision would have relevance only in respect of the assessment for the year 1963 6410. In these appeals, it is not necessary to examine the relevance of that provision. But that provision does not, give any statutory power to collect sales tax as such from any class of buyers. There is no other provision in the Act which confers such a power on the dealers. Unless the price of an article is controlled, it is always open to the buyer and the seller to agree upon the price to be payable. While doing so it is open to the dealer to include in the price the tax payable by him to the government. If he does so, he cannot be said to be collecting he tax payable by him from his buyers. The levy and collection of tax is regulated by law and not by contract. So long as there is no law empowering the dealer to collect tax from his buyer or seller, there is no legal basis for saying that the dealer is entitled to collect the tax payable by him from his buyer or seller. Whatever collection that may be made by the dealer from his customers the same can only be considered as valuable consideration for the goods sold14. From all these observations, it is clear that when the seller passes on his tax liability to the buyer, the amount recovered by the dealer is really part of the entire consideration paid by the buyer and the distinction between the two amounts, tax and price - loses all significance15. In support of his contention the appellant relied on the decision of the Madras High Court in The Deputy Commr, of Commercial Taxes, Coimbatore v. M. Krishnaswamy Mudaliar and Sons (1954) 5 STC 88 = (AIR 1954 Mad 856 ). Therein on an interpretation of the relevant provision of the Madras General Sales Tax Act, the court came to the conclusion that the sales tax which the dealer was authorised to collect from his customers was not a part of the sale price received by him. This conclusion was primarily based on S. 8 (b) (1) of the Madras General Sales Tax Act, 1939. There is no similar provision in the Act. Therefore it is not necessary for us to consider the correctness of that decision. | 0 | 2,135 | 680 | ### 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:
Act there is no such provision except S. 7-A which was introduced into the Act by Madhya Pradesh Act 23 of 1963. That provision would have relevance only in respect of the assessment for the year 1963 64. 9. Section 7-A says:"No dealer shall collect any amount, by way of sales-tax or purchase tax from a person who sells agricutural or horticulttiral produce grown by himself or grown on any land in which he has an interest, whether as owner, usufructuary mortgagee, tenant or otherwise, when such produce is sold in the form in which it was produced, without being subjected to any physical, chemical or other process for being made fit for consumption save mere dehusking, cleaning, grading or sorting." 10. In these appeals, it is not necessary to examine the relevance of that provision. But that provision does not, give any statutory power to collect sales tax as such from any class of buyers. There is no other provision in the Act which confers such a power on the dealers. Unless the price of an article is controlled, it is always open to the buyer and the seller to agree upon the price to be payable. While doing so it is open to the dealer to include in the price the tax payable by him to the government. If he does so, he cannot be said to be collecting he tax payable by him from his buyers. The levy and collection of tax is regulated by law and not by contract. So long as there is no law empowering the dealer to collect tax from his buyer or seller, there is no legal basis for saying that the dealer is entitled to collect the tax payable by him from his buyer or seller. Whatever collection that may be made by the dealer from his customers the same can only be considered as valuable consideration for the goods sold. 11. In M/s. George Oakes (Private) Ltd. v. State of Madras, 12 STC 476 = (AIR 1962 SC 1037 ) this Court was called upon to consider ,whether a dealer can pass on his tax liability as such to his customer. In that decision while rejecting the contention that the tax liability as such can be transferred to the buyers this Court referred to the observations of Lawrence J. in Paprika Ltd. v. Board of Trade, 1944-1 All ER 372 and Goddard L. J. in Love v. Norma Wright (Builders) Ltd. 1944-1 All ER 618. 12. In the former case Lawrence J. observed:"Whenever a sale attracts purchase tax, that tax presumably effects the price which the seller who is liable to pay the tax demands but is does not cease to be the price which the buyer has to pay even if the price is expressed as x plus purchase tax." In Loves case, 1944-1 All ER 618 (supra) Goddard L J, observed: "Where an article is taxed, whether by purchase tax, customs duty, or excise duty, the tax becomes part of the price which ordinarily the buyer will have to pay. The price of an ounce of tobacco is what it is because of the rate of tax, but on a sale there is only one consideration though made up of cost plus profit plus tax. So, if a seller offers goods for sale, it is for him to quote a price which includes the tax if he desires to pass it on to the buyer. If the buyer agrees to the price, it is not for him to consider how it is made up or whether the seller has included tax or not." 13. In that decision reference was also made to the decision of this Court in Tata Iron and Steel Co. Ltd. v. State of Bihar, 1958 SCII 1355 (AIR 1958 SC 452). Therein Das C. I. who delivered the majority judgment of the Court said:"The circumstance that the 1947 ct, after the amendment permitted the seller who was a registered dealer to collect the sales tax as a tax from the purchaser does not do away with the primary liability of the seller to pay the sales tax. This is further made clear by the fact that the registered dealer need not, if he so pleases or chooses, collect the tax from the purchaser and sometimes by reason of competition with other registered dealers he may find it profitable to sell his goods and to retain his old customers even at the sacrifice of the sales tax. This also makes it clear that the sales tax need not be passed on to the purchasers and this fact does not alter the real nature of the tax, which by the express provisions of the law, is cast upon the seller. The buyer is under no liability to pay sales tax in addition to the agreed sale price unless the contract specifically provides otherwise. See 1944-1 All ER 618." 14. From all these observations, it is clear that when the seller passes on his tax liability to the buyer, the amount recovered by the dealer is really part of the entire consideration paid by the buyer and the distinction between the two amounts, tax and price - loses all significance. 15. In support of his contention the appellant relied on the decision of the Madras High Court in The Deputy Commr, of Commercial Taxes, Coimbatore v. M. Krishnaswamy Mudaliar and Sons (1954) 5 STC 88 = (AIR 1954 Mad 856 ). Therein on an interpretation of the relevant provision of the Madras General Sales Tax Act, the court came to the conclusion that the sales tax which the dealer was authorised to collect from his customers was not a part of the sale price received by him. This conclusion was primarily based on S. 8 (b) (1) of the Madras General Sales Tax Act, 1939. There is no similar provision in the Act. Therefore it is not necessary for us to consider the correctness of that decision.
### Response:
0
### Explanation:
7. In view of the definition of sale price all that we have to see is whether the collection of sales tax by the dealer from his purchasers can be considered as valuable consideration received by him for the sale of goods8. Under S. 4 the liability to pay tax is that of the dealer. The purchaser has no liability to pay tax. There is no provision in the Act from which it can be gathered that the Act imposes any liability on the purchaser to pay the tax imposed on the dealer. If the dealer passes on his tax burden to his purchasers he can only do it by adding the tax in question to the price of the goods sold. In that event the. price fixed for the goods including the tax payable becomes the valuble consideration given by the purchaser for the goods purchased by him. If that be so, the tax collected by the dealer from his purchasers becomes a part of the sale price fixed, as defined in Section 2 (o).In some of the Sales Tax Acts power has been conferred on the dealers to pass on the incidence of tax to the purchasers subject to certain conditions. Those provisions may call for different consideration. In the Act there is no such provision except S. 7-A which was introduced into the Act by Madhya Pradesh Act 23 of 1963. That provision would have relevance only in respect of the assessment for the year 1963 6410. In these appeals, it is not necessary to examine the relevance of that provision. But that provision does not, give any statutory power to collect sales tax as such from any class of buyers. There is no other provision in the Act which confers such a power on the dealers. Unless the price of an article is controlled, it is always open to the buyer and the seller to agree upon the price to be payable. While doing so it is open to the dealer to include in the price the tax payable by him to the government. If he does so, he cannot be said to be collecting he tax payable by him from his buyers. The levy and collection of tax is regulated by law and not by contract. So long as there is no law empowering the dealer to collect tax from his buyer or seller, there is no legal basis for saying that the dealer is entitled to collect the tax payable by him from his buyer or seller. Whatever collection that may be made by the dealer from his customers the same can only be considered as valuable consideration for the goods sold14. From all these observations, it is clear that when the seller passes on his tax liability to the buyer, the amount recovered by the dealer is really part of the entire consideration paid by the buyer and the distinction between the two amounts, tax and price - loses all significance15. In support of his contention the appellant relied on the decision of the Madras High Court in The Deputy Commr, of Commercial Taxes, Coimbatore v. M. Krishnaswamy Mudaliar and Sons (1954) 5 STC 88 = (AIR 1954 Mad 856 ). Therein on an interpretation of the relevant provision of the Madras General Sales Tax Act, the court came to the conclusion that the sales tax which the dealer was authorised to collect from his customers was not a part of the sale price received by him. This conclusion was primarily based on S. 8 (b) (1) of the Madras General Sales Tax Act, 1939. There is no similar provision in the Act. Therefore it is not necessary for us to consider the correctness of that decision.
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Parshotam Lal & Another Vs. State Of Punjab | could not be traced. Appellants-accused were also found absent from their house. It seems that no report came to be made for five days and it was only on 26.10.1987, Puran Chand lodged a report to the police about the kidnapping of his daughter. The police then carried out search. On 4.11.1987, Tripta was found in the company of Parshotam Lal and Ved Parkash at Nakodar and they were arrested. It is alleged that during the elopement, the accused kept Tripta at Hoshiarpur where both of them committed rape on her. For some mysterious reasons which are beyond our comprehension, the accused were not charged with the offence under Section 376 I.P.C. All that we see in the judgment of the learned Sessions Judge is that the charge for the offence under Section 376 I.P.C. was dropped for want of territorial jurisdiction. We are completely at a loss to understand as to how the learned Sessions Judge lacked the territorial jurisdiction if the kidnapping of Tripta and her subsequent rape were part of one and the same transaction. 3. Be that as it may, the long and short of it is that the accused persons were never tried for the offence under Section 376 I.P.C. Here was the perfect scenario for conviction of the appellants for the offence under Section 376 I.P.C. because Tripta had not even attained the age of consent i.e. 16 years. She was medically examined after she was retrieved and it was found that she had been subjected to sexual inter-course and it was doctors opinion that her age was more than 15 years and less than 17 years. The prosecution in support of its case led the evidence of Tripta, her father Puran Chand, two doctors and the witnesses from the investigating agency. Accused Parshotam Lal examined Balwant Rai (DW1) in his defence who deposed that Parshotam Lal got married to Tripta. Photographs Ex. D6 & D7 relating to this marriage were also produced. 4. Learned Sessions Judge in his judgment held that Tripta was neither confronted with any plea of marriage nor with the photographs relating to the marriage. It was also held that Tripta had not attained the consenting age and from the evidence of Doctor, it was clear that she had been subjected to sexual inter course after she was kidnapped from the custody of her parents. On that account, learned Sessions Judge proceeded to convict both the accused persons and sentenced them to undergo rigorous imprisonment for four years and to pay a fine of Rs. 500/- each and in default of the payment of fine, further rigorous imprisonment for six months. 5. Aggrieved by the judgment of learned Sessions Judge, the appellants filed an appeal before the High Court. Before the High Court, it was tried to be suggested that Tripta was of the consenting age and accused No. 1 Parshotam Lal was married to her. No serious effort was made before the appellate court to get out of the conviction for the offence under Section 366 I.P.C. and it was tried to be suggested that accused Parshotam Lal had got married to Tripta and, therefore, Parshotam Lal had good intention on Tripta. 6. The High Court came to the conclusion that consent on the part of Tripta would be of no consequence and Tripta had not been confronted with the photographs D1 to D5 nor was any suggestion put to her that she got married to accused Parshotam Lal and that it was thereafter that the marriage was consummated. Since, there was no real challenge to the conviction, the High Court proceeded to dismiss the appeal. However, under the circumstances, the High Court reduced the sentence from four years to rigorous imprisonment of one year and six months. That is how, the appellants are before us. 7. We have heard learned counsel appearing for the parties and gone through the record. 8. During the pendency of appeal, three affidavits came to be filed one being that of Tripta who sworn that she had affair with Parshotam Lal and wanted to get married with him but her parents were not aggreable and, therefore, got her married to one Rajinder Kumar r/o Quarter No. 329, Sector II, Naya Nangal. She further stated in her affidavit that she was blessed with two issues and was happily enjoying her life with her husband and that she had no grudge or ill will against Parshotam Lal or his family members and did not want any kind of action against the appellants and the matter had been patched up with the intervention of the respectables. 9. Two other affidavits, which are on record, are sworn by one Harish Kumar s/o late Puran Chand r/o Mohd. Rishi Nagar, Nakodar and other by Kewal Singh Thakar, President M.C. Nakodar. Both of them have given a certificate of good character to Parshotam Lal and have certified that Parshotam Lal is a law abiding citizen and has committed no offence. It is only on this basis that the learned counsel appearing for the appellants has prayed for acquittal or alternatively some consideration in the sentence apprehending that if the accused are sent back to jail, it would affect the married life not only of their own but also of Tripta who is now living happily with her husband and children. 10. We are afraid we cannot accept such argument about the acquittal of the accused on the basis of the affidavits which we have referred to earlier. Section 366 I.P.C. is a non-compoundable offence and, therefore, the argument of learned counsel for the appellants cannot be accepted. This apart from the fact that inspite of her so called marriage with Parshotam Lal, Tripta ultimately married somebody else while Parshotam Lal and other accused Ved Parkash married somebody else. Under the circumstances, we do not feel that it will be worthwhile to allow this appeal on the question of sentence also as the sentence is already on the lenient side. | 0[ds]8. During the pendency of appeal, three affidavits came to be filed one being that of Tripta who sworn that she had affair with Parshotam Lal and wanted to get married with him but her parents were not aggreable and, therefore, got her married to one Rajinder Kumar r/o Quarter No. 329, Sector II, Naya Nangal. She further stated in her affidavit that she was blessed with two issues and was happily enjoying her life with her husband and that she had no grudge or ill will against Parshotam Lal or his family members and did not want any kind of action against the appellants and the matter had been patched up with the intervention of the respectables9. Two other affidavits, which are on record, are sworn by one Harish Kumar s/o late Puran Chand r/o Mohd. Rishi Nagar, Nakodar and other by Kewal Singh Thakar, President M.C. Nakodar. Both of them have given a certificate of good character to Parshotam Lal and have certified that Parshotam Lal is a law abiding citizen and has committed no offence. It is only on this basis that the learned counsel appearing for the appellants has prayed for acquittal or alternatively some consideration in the sentence apprehending that if the accused are sent back to jail, it would affect the married life not only of their own but also of Tripta who is now living happily with her husband and children10. We are afraid we cannot accept such argument about the acquittal of the accused on the basis of the affidavits which we have referred to earlier. Section 366 I.P.C. is ae offence and, therefore, the argument of learned counsel for the appellants cannot be accepted. This apart from the fact that inspite of her so called marriage with Parshotam Lal, Tripta ultimately married somebody else while Parshotam Lal and other accused Ved Parkash married somebody else. Under the circumstances, we do not feel that it will be worthwhile to allow this appeal on the question of sentence also as the sentence is already on the lenient side. | 0 | 1,195 | 379 | ### 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:
could not be traced. Appellants-accused were also found absent from their house. It seems that no report came to be made for five days and it was only on 26.10.1987, Puran Chand lodged a report to the police about the kidnapping of his daughter. The police then carried out search. On 4.11.1987, Tripta was found in the company of Parshotam Lal and Ved Parkash at Nakodar and they were arrested. It is alleged that during the elopement, the accused kept Tripta at Hoshiarpur where both of them committed rape on her. For some mysterious reasons which are beyond our comprehension, the accused were not charged with the offence under Section 376 I.P.C. All that we see in the judgment of the learned Sessions Judge is that the charge for the offence under Section 376 I.P.C. was dropped for want of territorial jurisdiction. We are completely at a loss to understand as to how the learned Sessions Judge lacked the territorial jurisdiction if the kidnapping of Tripta and her subsequent rape were part of one and the same transaction. 3. Be that as it may, the long and short of it is that the accused persons were never tried for the offence under Section 376 I.P.C. Here was the perfect scenario for conviction of the appellants for the offence under Section 376 I.P.C. because Tripta had not even attained the age of consent i.e. 16 years. She was medically examined after she was retrieved and it was found that she had been subjected to sexual inter-course and it was doctors opinion that her age was more than 15 years and less than 17 years. The prosecution in support of its case led the evidence of Tripta, her father Puran Chand, two doctors and the witnesses from the investigating agency. Accused Parshotam Lal examined Balwant Rai (DW1) in his defence who deposed that Parshotam Lal got married to Tripta. Photographs Ex. D6 & D7 relating to this marriage were also produced. 4. Learned Sessions Judge in his judgment held that Tripta was neither confronted with any plea of marriage nor with the photographs relating to the marriage. It was also held that Tripta had not attained the consenting age and from the evidence of Doctor, it was clear that she had been subjected to sexual inter course after she was kidnapped from the custody of her parents. On that account, learned Sessions Judge proceeded to convict both the accused persons and sentenced them to undergo rigorous imprisonment for four years and to pay a fine of Rs. 500/- each and in default of the payment of fine, further rigorous imprisonment for six months. 5. Aggrieved by the judgment of learned Sessions Judge, the appellants filed an appeal before the High Court. Before the High Court, it was tried to be suggested that Tripta was of the consenting age and accused No. 1 Parshotam Lal was married to her. No serious effort was made before the appellate court to get out of the conviction for the offence under Section 366 I.P.C. and it was tried to be suggested that accused Parshotam Lal had got married to Tripta and, therefore, Parshotam Lal had good intention on Tripta. 6. The High Court came to the conclusion that consent on the part of Tripta would be of no consequence and Tripta had not been confronted with the photographs D1 to D5 nor was any suggestion put to her that she got married to accused Parshotam Lal and that it was thereafter that the marriage was consummated. Since, there was no real challenge to the conviction, the High Court proceeded to dismiss the appeal. However, under the circumstances, the High Court reduced the sentence from four years to rigorous imprisonment of one year and six months. That is how, the appellants are before us. 7. We have heard learned counsel appearing for the parties and gone through the record. 8. During the pendency of appeal, three affidavits came to be filed one being that of Tripta who sworn that she had affair with Parshotam Lal and wanted to get married with him but her parents were not aggreable and, therefore, got her married to one Rajinder Kumar r/o Quarter No. 329, Sector II, Naya Nangal. She further stated in her affidavit that she was blessed with two issues and was happily enjoying her life with her husband and that she had no grudge or ill will against Parshotam Lal or his family members and did not want any kind of action against the appellants and the matter had been patched up with the intervention of the respectables. 9. Two other affidavits, which are on record, are sworn by one Harish Kumar s/o late Puran Chand r/o Mohd. Rishi Nagar, Nakodar and other by Kewal Singh Thakar, President M.C. Nakodar. Both of them have given a certificate of good character to Parshotam Lal and have certified that Parshotam Lal is a law abiding citizen and has committed no offence. It is only on this basis that the learned counsel appearing for the appellants has prayed for acquittal or alternatively some consideration in the sentence apprehending that if the accused are sent back to jail, it would affect the married life not only of their own but also of Tripta who is now living happily with her husband and children. 10. We are afraid we cannot accept such argument about the acquittal of the accused on the basis of the affidavits which we have referred to earlier. Section 366 I.P.C. is a non-compoundable offence and, therefore, the argument of learned counsel for the appellants cannot be accepted. This apart from the fact that inspite of her so called marriage with Parshotam Lal, Tripta ultimately married somebody else while Parshotam Lal and other accused Ved Parkash married somebody else. Under the circumstances, we do not feel that it will be worthwhile to allow this appeal on the question of sentence also as the sentence is already on the lenient side.
### Response:
0
### Explanation:
8. During the pendency of appeal, three affidavits came to be filed one being that of Tripta who sworn that she had affair with Parshotam Lal and wanted to get married with him but her parents were not aggreable and, therefore, got her married to one Rajinder Kumar r/o Quarter No. 329, Sector II, Naya Nangal. She further stated in her affidavit that she was blessed with two issues and was happily enjoying her life with her husband and that she had no grudge or ill will against Parshotam Lal or his family members and did not want any kind of action against the appellants and the matter had been patched up with the intervention of the respectables9. Two other affidavits, which are on record, are sworn by one Harish Kumar s/o late Puran Chand r/o Mohd. Rishi Nagar, Nakodar and other by Kewal Singh Thakar, President M.C. Nakodar. Both of them have given a certificate of good character to Parshotam Lal and have certified that Parshotam Lal is a law abiding citizen and has committed no offence. It is only on this basis that the learned counsel appearing for the appellants has prayed for acquittal or alternatively some consideration in the sentence apprehending that if the accused are sent back to jail, it would affect the married life not only of their own but also of Tripta who is now living happily with her husband and children10. We are afraid we cannot accept such argument about the acquittal of the accused on the basis of the affidavits which we have referred to earlier. Section 366 I.P.C. is ae offence and, therefore, the argument of learned counsel for the appellants cannot be accepted. This apart from the fact that inspite of her so called marriage with Parshotam Lal, Tripta ultimately married somebody else while Parshotam Lal and other accused Ved Parkash married somebody else. Under the circumstances, we do not feel that it will be worthwhile to allow this appeal on the question of sentence also as the sentence is already on the lenient side.
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Goodyear India Ltd Vs. Commissioner of Income Tax | 1. This appeal takes exception to the judgment and order dt. 28th April, 2008 passed by the High Court of Delhi at New Delhi in IT Appeal No. 223 of 2005, whereby the appeal filed by the Department was allowed and the issue of deletion of undisclosed income of the Assessee answered against the Appellant-Assessee. 2. After hearing learned Counsel for the parties and perusing the impugned judgment as well as the judgment of the AO and the Tribunal, we find that the Tribunal had analysed all the relevant facts, materials and documents to arrive at the conclusion that it was not a case of nondisclosure as assumed by the Department. 3. That decision was taken up in appeal by the Department before the High Court, which had framed the following question as substantial question of law: Whether the Tribunal was correct in law in deleting the undisclosed income of the Assessee as recorded by the Securities and Exchange Commission in USA? 4. The High Court, while analysing the stated question proceeded to reverse the finding of fact recorded by the Tribunal. For doing so, it recorded following reasons: The view taken by the Tribunal is completely unsustainable particularly when the parent company M/s. Goodyear Tyre & Rubber Co., USA made a full disclosure of the amounts kept outside the Assessees books of account in India without admitting the allegations made against it. Moreover, even the Assessee in India had given two letters wherein it has been mentioned that it is prepared to surrender the amount since it does not want any protracted litigation and prayed that penalty proceedings may not be launched against the Assessee. In view of the facts which have emerged from the complaint made by the SEC in USA as well as the letters sent by the Assessee to the IT Department in India, there can be no manner of doubt that the Assessee had certain amounts outside its books of accounts which were used for purposes that were not at all legitimate in as much as the Assessee was funding foreign trips by Indian Government officials and had made payments to the electricity undertaking for assuring continuous power supply to the factory premises of the Assessee. 5. The High Court essentially placed reliance on two letters written by the Assessee and assumed that it was in the form of admission of nondisclosure and an offer was given by the Assessee to pay the tax and penalty, as the case may be. 6. We have perused the two letters which had weighed with the High Court. Our analysis of the said letters is that, they had been in refutal of the allegations contained in the news items which were published around that time, when the communication was sent by the Assessee to the Department with an explanation and a without-prejudice offer. 7. In our opinion, such communication(s) cannot be treated as admission of non-disclosure as such. What is significant to note is that in the present case, the disclosure is attributed to Goodyear Tyre & Rubber Co., USA, filed by it in the proceedings in USA; and not by the Assessee as such. It is not the case of the Department that the amount referred to in the said disclosure has been received in the accounts of the Assessee or spent for and on behalf of the Appellant-Assessee under instruction, so as to be treated as undisclosed income of the Appellant. 8. As aforesaid, the two communications relied upon by the High Court cannot be taken as admission of non-disclosure nor being a case of unconditional offer to pay tax in that behalf. On the other hand, we find that the Tribunal had exhaustively analysed the entire evidence, including the two letters and taken a view which, in our opinion, is a possible view. That being purely a finding of fact, no interference was warranted. | 1[ds]2. After hearing learned Counsel for the parties and perusing the impugned judgment as well as the judgment of the AO and the Tribunal, we find that the Tribunal had analysed all the relevant facts, materials and documents to arrive at the conclusion that it was not a case of nondisclosure as assumed by the Department.6. We have perused the two letters which had weighed with the High Court. Our analysis of the said letters is that, they had been in refutal of the allegations contained in the news items which were published around that time, when the communication was sent by the Assessee to the Department with an explanation and a without-prejudice offer.7. In our opinion, such communication(s) cannot be treated as admission of non-disclosure as such. What is significant to note is that in the present case, the disclosure is attributed to Goodyear Tyre & Rubber Co., USA, filed by it in the proceedings in USA; and not by the Assessee as such. It is not the case of the Department that the amount referred to in the said disclosure has been received in the accounts of the Assessee or spent for and on behalf of the Appellant-Assessee under instruction, so as to be treated as undisclosed income of the Appellant.8. As aforesaid, the two communications relied upon by the High Court cannot be taken as admission of non-disclosure nor being a case of unconditional offer to pay tax in that behalf. On the other hand, we find that the Tribunal had exhaustively analysed the entire evidence, including the two letters and taken a view which, in our opinion, is a possible view. That being purely a finding of fact, no interference was warranted. | 1 | 708 | 321 | ### 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:
1. This appeal takes exception to the judgment and order dt. 28th April, 2008 passed by the High Court of Delhi at New Delhi in IT Appeal No. 223 of 2005, whereby the appeal filed by the Department was allowed and the issue of deletion of undisclosed income of the Assessee answered against the Appellant-Assessee. 2. After hearing learned Counsel for the parties and perusing the impugned judgment as well as the judgment of the AO and the Tribunal, we find that the Tribunal had analysed all the relevant facts, materials and documents to arrive at the conclusion that it was not a case of nondisclosure as assumed by the Department. 3. That decision was taken up in appeal by the Department before the High Court, which had framed the following question as substantial question of law: Whether the Tribunal was correct in law in deleting the undisclosed income of the Assessee as recorded by the Securities and Exchange Commission in USA? 4. The High Court, while analysing the stated question proceeded to reverse the finding of fact recorded by the Tribunal. For doing so, it recorded following reasons: The view taken by the Tribunal is completely unsustainable particularly when the parent company M/s. Goodyear Tyre & Rubber Co., USA made a full disclosure of the amounts kept outside the Assessees books of account in India without admitting the allegations made against it. Moreover, even the Assessee in India had given two letters wherein it has been mentioned that it is prepared to surrender the amount since it does not want any protracted litigation and prayed that penalty proceedings may not be launched against the Assessee. In view of the facts which have emerged from the complaint made by the SEC in USA as well as the letters sent by the Assessee to the IT Department in India, there can be no manner of doubt that the Assessee had certain amounts outside its books of accounts which were used for purposes that were not at all legitimate in as much as the Assessee was funding foreign trips by Indian Government officials and had made payments to the electricity undertaking for assuring continuous power supply to the factory premises of the Assessee. 5. The High Court essentially placed reliance on two letters written by the Assessee and assumed that it was in the form of admission of nondisclosure and an offer was given by the Assessee to pay the tax and penalty, as the case may be. 6. We have perused the two letters which had weighed with the High Court. Our analysis of the said letters is that, they had been in refutal of the allegations contained in the news items which were published around that time, when the communication was sent by the Assessee to the Department with an explanation and a without-prejudice offer. 7. In our opinion, such communication(s) cannot be treated as admission of non-disclosure as such. What is significant to note is that in the present case, the disclosure is attributed to Goodyear Tyre & Rubber Co., USA, filed by it in the proceedings in USA; and not by the Assessee as such. It is not the case of the Department that the amount referred to in the said disclosure has been received in the accounts of the Assessee or spent for and on behalf of the Appellant-Assessee under instruction, so as to be treated as undisclosed income of the Appellant. 8. As aforesaid, the two communications relied upon by the High Court cannot be taken as admission of non-disclosure nor being a case of unconditional offer to pay tax in that behalf. On the other hand, we find that the Tribunal had exhaustively analysed the entire evidence, including the two letters and taken a view which, in our opinion, is a possible view. That being purely a finding of fact, no interference was warranted.
### Response:
1
### Explanation:
2. After hearing learned Counsel for the parties and perusing the impugned judgment as well as the judgment of the AO and the Tribunal, we find that the Tribunal had analysed all the relevant facts, materials and documents to arrive at the conclusion that it was not a case of nondisclosure as assumed by the Department.6. We have perused the two letters which had weighed with the High Court. Our analysis of the said letters is that, they had been in refutal of the allegations contained in the news items which were published around that time, when the communication was sent by the Assessee to the Department with an explanation and a without-prejudice offer.7. In our opinion, such communication(s) cannot be treated as admission of non-disclosure as such. What is significant to note is that in the present case, the disclosure is attributed to Goodyear Tyre & Rubber Co., USA, filed by it in the proceedings in USA; and not by the Assessee as such. It is not the case of the Department that the amount referred to in the said disclosure has been received in the accounts of the Assessee or spent for and on behalf of the Appellant-Assessee under instruction, so as to be treated as undisclosed income of the Appellant.8. As aforesaid, the two communications relied upon by the High Court cannot be taken as admission of non-disclosure nor being a case of unconditional offer to pay tax in that behalf. On the other hand, we find that the Tribunal had exhaustively analysed the entire evidence, including the two letters and taken a view which, in our opinion, is a possible view. That being purely a finding of fact, no interference was warranted.
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Munshi Ram and Ors Vs. Municipal Committee, Chheharta | when the tax was imposed, a member of the Committee, the appeal sha ll lie to the Commissioner of the Division. Sub-section (2) is important. It provides:"84(2). If, on the hearing of an appeal under the section, any question as to the liability to, or the principle of assessment of, a tax arises, on which the officer hearing the appeal entertains reasonable dobut, he may, either of his own motion or on the application of any person interested, draw up a statement of the facts of the case and the point on which doubt is entertained, and refer the statement with his own opinion on the point for the decision of the High Court."Section 86 mandates that "no objection shall be taken to any valuation or assessment, nor shall the liability of any person to be assessed or taxed be questioned, in any other manner or by any other authority than is provided in this Act."13. From a conjoint reading of sections 84 and 86, it is plain that the Municipal Act, gives a special and particular remedy for the person aggrieved by an assessment of tax under this Act, irrespective of whether the grievance relates to the rate or quantum of tax or the principle of assessment. The Act further provides a particular forum and a specific mode of having this remedy which analogous to that provided in Section 66 (2) of the Indian Income-tax Act, 1922. Section 86 forbids in clear terms the person aggrieved by an assessment from seeking his remedy in any other forum or in any other manner than that provided in the Municipal Act.It is well recognised that where a Revenue Statute provides for a person aggrieved by an assessment thereunder, a particular remedy to be sought in a particular forum, in a particular way, it must be sought in that forum and in that manner, and all other forums and modes of seeking it are excluded. Construed in the light of this principle, it is clear that sections 84 and 86 of the Municipal Act bar, by inevitable implication" the jurisdiction of the Civil Court where the grievance of the party relates to an assessment or the principle of assessment under this Act.14. In the view we take, we are fortified by the decision of this Court in Firm Seth Radha Kishan v. Administrator, Municipal Committee, Ludhiana, (supra) wherein sections 84 and 86 of this very Punjab Municipal Act, 1911 came up for consideration. Therein, the Municipal Committee, Ludhiana, imposed a terminal tax on Sambhar salt and assessed the appellant, therein, to a sum of Rs. 5, 893/- towards that tax at the rate of Rs. 10/- per maund under item 69 of the Government Notification by which the terminal tax was imposed. The assessee filed a suit against the Municipal Committee in the Civil Court, contending that Sambhar salt ought to have been assessed at the rate of 3 pies per maund under item 68, that he had been illegally assessed under item 69 at the higher rate, and claimed refund of the amount paid by him, with interest. The Committee, inter alia, contended that Sambhar salt was not common salt, and the Civil Court had no jurisdiction to entertain the suit. The trial court held that Sambhar salt was common salt within the meaning of item 68 of the Schedule, that the imposition of tax on it under item 69 of the Schedule was illegal, and, therefore, the Civil Court had jurisdiction to hear and determine the suit by virtue of section 9 of the Code of Civil Procedure.On appeal, the High Court held that the Civil Court had no jurisdiction, and dismissed the suit.15. The assessee came in appeal to this Court by certificate granted by the High Court, and contended that since the impugned levy was not made under the Municipal Act but in derogation thereof, the Civil Court had jurisdiction to entertain and determine the suit.16. Delivering the judgment of the Court, Subba Rao, J. (as he then was) repelled this contention, observing that the rate of the tax to be levied depend ed upon the character of the salt, and it was not possible to say that in ascertaining this fact the authorities concerned travelled outside the provisions of the Municipal Act, even if they wrongly applied item 69 of the schedule; that the mistake in applying the wrong item of the Schedule to the tax could be corrected only in the manner prescribed by the Act, and the aggrieved person cannot file a suit in the Civil Court in that regard, the Civil Courts jurisdiction having been excluded by the provisions of Sections 84 and 86 of the Act.17. The Court distinguished that class of cases where the Municipal Committee in levying a tax or committing an Act, clearly acts outside or in abuse of its powers under the Municipal A ct, and explained that it is only in such cases, the bar to the jurisdiction of the Civil Court would not apply. Can the case before us be said to belong to that class of cases where the Municipal Committee in levying a Tax acts beyond or in abuse of its powers under the Act ? The answer to this question must be in the negative. By no stretch of imagination, can it be said in the facts and circumstances of the case, that in assessing the appellants, individually, and not collectively , to the tax in question, the Municipal Committee abused its powers under the Act. We have already discussed and held that in levying this tax, the Municipal Committee did not travel beyond or act contrary to the provisions of Section 61(1)(b ) of the Act. In short, the present case is one where the Municipal Committee acted "under the Act". It follows, therefore, that the Civil Courts jurisdiction to entertain and decide the suit was barred, even if the dispute raised therein relate d to the principle of assessment to be followed. | 0[ds]From a plain reading of the extracted provision, it is clear that a tax leviable under clause (b) is, in terms, a tax on "persons". The expression " persons" undoubtedly includes natural persons. The class of such taxable persons has been indicated by the Legislature with reference to their occupationalin order to be authorised, a tax under clause (b) of Section 61(1) must satisfy twoit must be a tax on "persons". Second such persons must be practising any profession or art or carrying on any trade or calling in thethe entire effort to import the definition of person given in the General Clauses Act, into Section 61(1)(b) of the Municipal Act, is directed to find a foundation for the argument, that the construction adopted by the High Court could lead to double taxation and even unconstitutional results. But in the instant case, nothing of this kind has happened. The firm has not been assessed. No question of double taxation or exceeding the Constitutional ceiling of Rs. 250/- fixed by Article 276(2) of the Constitution, arise s on the facts of the present case. The arguments advanced on behalf of the appellants on this aspect of the matter are merely hypothetical, anda conjoint reading of sections 84 and 86, it is plain that the Municipal Act, gives a special and particular remedy for the person aggrieved by an assessment of tax under this Act, irrespective of whether the grievance relates to the rate or quantum of tax or the principle of assessment. The Act further provides a particular forum and a specific mode of having this remedy which analogous to that provided in Section 66 (2) of the Indian Income-tax Act, 1922. Section 86 forbids in clear terms the person aggrieved by an assessment from seeking his remedy in any other forum or in any other manner than that provided in the Municipal Act.It is well recognised that where a Revenue Statute provides for a person aggrieved by an assessment thereunder, a particular remedy to be sought in a particular forum, in a particular way, it must be sought in that forum and in that manner, and all other forums and modes of seeking it are excluded. Construed in the light of this principle, it is clear that sections 84 and 86 of the Municipal Act bar, by inevitable implication" the jurisdiction of the Civil Court where the grievance of the party relates to an assessment or the principle of assessment under thisanswer to this question must be in the negative. By no stretch of imagination, can it be said in the facts and circumstances of the case, that in assessing the appellants, individually, and not collectively , to the tax in question, the Municipal Committee abused its powers under the Act. We have already discussed and held that in levying this tax, the Municipal Committee did not travel beyond or act contrary to the provisions of Section 61(1)(b ) of the Act. In short, the present case is one where the Municipal Committee acted "under the Act". It follows, therefore, that the Civil Courts jurisdiction to entertain and decide the suit was barred, even if the dispute raised therein relate d to the principle of assessment to be followed. | 0 | 3,662 | 620 | ### 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:
when the tax was imposed, a member of the Committee, the appeal sha ll lie to the Commissioner of the Division. Sub-section (2) is important. It provides:"84(2). If, on the hearing of an appeal under the section, any question as to the liability to, or the principle of assessment of, a tax arises, on which the officer hearing the appeal entertains reasonable dobut, he may, either of his own motion or on the application of any person interested, draw up a statement of the facts of the case and the point on which doubt is entertained, and refer the statement with his own opinion on the point for the decision of the High Court."Section 86 mandates that "no objection shall be taken to any valuation or assessment, nor shall the liability of any person to be assessed or taxed be questioned, in any other manner or by any other authority than is provided in this Act."13. From a conjoint reading of sections 84 and 86, it is plain that the Municipal Act, gives a special and particular remedy for the person aggrieved by an assessment of tax under this Act, irrespective of whether the grievance relates to the rate or quantum of tax or the principle of assessment. The Act further provides a particular forum and a specific mode of having this remedy which analogous to that provided in Section 66 (2) of the Indian Income-tax Act, 1922. Section 86 forbids in clear terms the person aggrieved by an assessment from seeking his remedy in any other forum or in any other manner than that provided in the Municipal Act.It is well recognised that where a Revenue Statute provides for a person aggrieved by an assessment thereunder, a particular remedy to be sought in a particular forum, in a particular way, it must be sought in that forum and in that manner, and all other forums and modes of seeking it are excluded. Construed in the light of this principle, it is clear that sections 84 and 86 of the Municipal Act bar, by inevitable implication" the jurisdiction of the Civil Court where the grievance of the party relates to an assessment or the principle of assessment under this Act.14. In the view we take, we are fortified by the decision of this Court in Firm Seth Radha Kishan v. Administrator, Municipal Committee, Ludhiana, (supra) wherein sections 84 and 86 of this very Punjab Municipal Act, 1911 came up for consideration. Therein, the Municipal Committee, Ludhiana, imposed a terminal tax on Sambhar salt and assessed the appellant, therein, to a sum of Rs. 5, 893/- towards that tax at the rate of Rs. 10/- per maund under item 69 of the Government Notification by which the terminal tax was imposed. The assessee filed a suit against the Municipal Committee in the Civil Court, contending that Sambhar salt ought to have been assessed at the rate of 3 pies per maund under item 68, that he had been illegally assessed under item 69 at the higher rate, and claimed refund of the amount paid by him, with interest. The Committee, inter alia, contended that Sambhar salt was not common salt, and the Civil Court had no jurisdiction to entertain the suit. The trial court held that Sambhar salt was common salt within the meaning of item 68 of the Schedule, that the imposition of tax on it under item 69 of the Schedule was illegal, and, therefore, the Civil Court had jurisdiction to hear and determine the suit by virtue of section 9 of the Code of Civil Procedure.On appeal, the High Court held that the Civil Court had no jurisdiction, and dismissed the suit.15. The assessee came in appeal to this Court by certificate granted by the High Court, and contended that since the impugned levy was not made under the Municipal Act but in derogation thereof, the Civil Court had jurisdiction to entertain and determine the suit.16. Delivering the judgment of the Court, Subba Rao, J. (as he then was) repelled this contention, observing that the rate of the tax to be levied depend ed upon the character of the salt, and it was not possible to say that in ascertaining this fact the authorities concerned travelled outside the provisions of the Municipal Act, even if they wrongly applied item 69 of the schedule; that the mistake in applying the wrong item of the Schedule to the tax could be corrected only in the manner prescribed by the Act, and the aggrieved person cannot file a suit in the Civil Court in that regard, the Civil Courts jurisdiction having been excluded by the provisions of Sections 84 and 86 of the Act.17. The Court distinguished that class of cases where the Municipal Committee in levying a tax or committing an Act, clearly acts outside or in abuse of its powers under the Municipal A ct, and explained that it is only in such cases, the bar to the jurisdiction of the Civil Court would not apply. Can the case before us be said to belong to that class of cases where the Municipal Committee in levying a Tax acts beyond or in abuse of its powers under the Act ? The answer to this question must be in the negative. By no stretch of imagination, can it be said in the facts and circumstances of the case, that in assessing the appellants, individually, and not collectively , to the tax in question, the Municipal Committee abused its powers under the Act. We have already discussed and held that in levying this tax, the Municipal Committee did not travel beyond or act contrary to the provisions of Section 61(1)(b ) of the Act. In short, the present case is one where the Municipal Committee acted "under the Act". It follows, therefore, that the Civil Courts jurisdiction to entertain and decide the suit was barred, even if the dispute raised therein relate d to the principle of assessment to be followed.
### Response:
0
### Explanation:
From a plain reading of the extracted provision, it is clear that a tax leviable under clause (b) is, in terms, a tax on "persons". The expression " persons" undoubtedly includes natural persons. The class of such taxable persons has been indicated by the Legislature with reference to their occupationalin order to be authorised, a tax under clause (b) of Section 61(1) must satisfy twoit must be a tax on "persons". Second such persons must be practising any profession or art or carrying on any trade or calling in thethe entire effort to import the definition of person given in the General Clauses Act, into Section 61(1)(b) of the Municipal Act, is directed to find a foundation for the argument, that the construction adopted by the High Court could lead to double taxation and even unconstitutional results. But in the instant case, nothing of this kind has happened. The firm has not been assessed. No question of double taxation or exceeding the Constitutional ceiling of Rs. 250/- fixed by Article 276(2) of the Constitution, arise s on the facts of the present case. The arguments advanced on behalf of the appellants on this aspect of the matter are merely hypothetical, anda conjoint reading of sections 84 and 86, it is plain that the Municipal Act, gives a special and particular remedy for the person aggrieved by an assessment of tax under this Act, irrespective of whether the grievance relates to the rate or quantum of tax or the principle of assessment. The Act further provides a particular forum and a specific mode of having this remedy which analogous to that provided in Section 66 (2) of the Indian Income-tax Act, 1922. Section 86 forbids in clear terms the person aggrieved by an assessment from seeking his remedy in any other forum or in any other manner than that provided in the Municipal Act.It is well recognised that where a Revenue Statute provides for a person aggrieved by an assessment thereunder, a particular remedy to be sought in a particular forum, in a particular way, it must be sought in that forum and in that manner, and all other forums and modes of seeking it are excluded. Construed in the light of this principle, it is clear that sections 84 and 86 of the Municipal Act bar, by inevitable implication" the jurisdiction of the Civil Court where the grievance of the party relates to an assessment or the principle of assessment under thisanswer to this question must be in the negative. By no stretch of imagination, can it be said in the facts and circumstances of the case, that in assessing the appellants, individually, and not collectively , to the tax in question, the Municipal Committee abused its powers under the Act. We have already discussed and held that in levying this tax, the Municipal Committee did not travel beyond or act contrary to the provisions of Section 61(1)(b ) of the Act. In short, the present case is one where the Municipal Committee acted "under the Act". It follows, therefore, that the Civil Courts jurisdiction to entertain and decide the suit was barred, even if the dispute raised therein relate d to the principle of assessment to be followed.
|
S.E.B.I Vs. Sujit Karkera | his own personal benefit but must account to his principal for any profits derived therefrom." Diamond v. Oreamuno, 24 N.Y.2d 494, 497, 301 N.Y.S.2d 78, 80, 248 N.E.2d 910, 912 (1969); see also Restatement (Second) of Agency §§ 388, Comment c, 396(c) (1958). We have little trouble in holding that the conspiracy here to trade on the Journals confidential information is not outside the reach of the mail and wire fraud statutes, provided the other elements of the offenses are satisfied. The Journals business information that it intended to be kept confidential was its property; the declaration to that effect in the employee manual merely removed any doubts on that score and made the finding of specific intent to defraud that much easier. Winans continued in the employ of the Journal, appropriating its confidential business information for his own use, all the while pretending to perform his duty of safeguarding it. In fact, he told his editors twice about leaks of confidential information not related to the stock-trading scheme, 612 F.Supp., at 831, demonstrating both his knowledge that the Journal viewed information concerning the "Heard" column as confidential and his deceit as he played the role of a loyal employee. 39. In Vincent F. Chiarella v. United States, 445 U.S. 222 (1980), the United States Supreme Court was seized of the matter relating to securities fraud under section 10b of the Securities Exchange Act, 1934. The Petitioner therein was a printer of some corporate takeover bids. Despite attempts by the companies to conceal the names of the takeover targets, Chiarella was able to deduce, and he traded shares of the companies he knew were involved. Consequently he was convicted by the lower forum as he traded in target companies without informing its shareholders of his knowledge of proposed takeover. The Supreme Court while reversing his conviction, observed as under- "the Petitioner employee could not be convicted on theory of failure to disclose his knowledge to stockholders or target companies as he was under no duty to speak, in that he had no prior dealings with the stockholders and was not their agent or fiduciary and was not a person in whom sellers had placed their trust and confidence, but dealt with them only through impersonal market transactions." On the issue of "General Duty between all participants (Tippees), the Court stated that: "Formulation of a general duty between all participants in market transactions for forego actions based on material, nonpublic information, so as to give rise to liability under section 10(b) of Securities Exchange Act for failure to disclose, would depart radically from established doctrine that a duty arises from a specific relationship between two parties and should not be undertaken absent some explicit evidence of congressional intent. Securities Exchange Act of 1934, § 10(b) as amended 15 U.S.C.A. § 78j(b)." 40. Although excessive reliance on foreign jurisprudence may not be necessary as we have starkly deviated in many aspects from American jurisprudence, but we need to keep in mind the developments which other countries have undertaken regarding this issue. 41. Now we come back to the regulations 3 and 4 (1) which bars persons from dealing in securities in a fraudulent manner or indulging in unfair trade practice. Fairness in financial markets is often expressed in terms of level playing field. A playing field may be uneven because of varied reasons such as inequalities in information etc. Possession of different information, which is a pervasive feature of markets, may not always be objectionable. Indeed, investors who invest resources in acquiring superior information are entitled to exploit this advantage, thereby making markets more efficient. The unequal possession of information is fraudulent only when the information has been acquired in bad faith and thereby inducing an inequitable result for others.42. The law of confidentiality has a bearing on this case instant. "Confidential information acquired or compiled by a corporation in the course and conduct of its business is a species of property to which the corporation has the exclusive right and benefit, and which a court of equity will protect through the injunctive process or other appropriate remedy." (3 W. Fletcher, Cyclopedia of Law of Private Corporations § 857.1, p. 260 (rev. ed. 1986) The information of possible trades that the company is going to undertake is the confidential information of the company concerned, which it has absolute liberty to deal with. Therefore, a person conveying confidential information to another person (tippee) breaches his duty prescribed by law and if the recipient of such information knows of the breach and trades, and there is an inducement to bring about an inequitable result, then the recipient tippee may be said to have committed the fraud.43. Accordingly, non-intermediary front running may be brought under the prohibition prescribed under regulations 3 and 4 (1), for being fraudulent or unfair trade practice, provided that the ingredients under those heads are satisfied as discussed above. From the above analysis, it is clear that in order to establish charges against tippee, under regulations 3 (a), (b), (c) and (d) and 4 (1) of FUTP 2003, one needs to prove that a person who had provided the tip was under a duty to keep the non-public information under confidence, further such breach of duty was known to the tippee and he still trades thereby defrauding the person, whose orders were front-runned, by inducing him to deal at the price he did.44. Taking into consideration the facts and circumstances of the case before us and the law laid down herein above and SEBI v. Kishore R. Ajmera (Supra) can only lead to one conclusion that concerned parties to the transaction were involved in an apparent fraudulent practice violating market integrity. The parting of information with regard to an imminent bulk purchase and the subsequent transaction thereto are so intrinsically connected that no other conclusion but one of joint liability of both the initiator of the fraudulent practice and the other party who had knowingly aided in the same is possible. | 1[ds]We disagree with the aforesaid contention urged by the learned counsel for the appellant. In the appeal(s) filed by the aggrieved person(s) against the order(s) of the Adjudicating Officer, the learned Appellate Tribunal was expected to record its own independent findings and arrive at its own conclusions for holding the respondent liable for the penalty imposed. It seems that the learned Appellate Tribunal has proceeded on the basis that the case of the respondent is same and similar to the case of Kanaiyalal Baldev Patel and Dipak Patel which, evidently, is not.From the line of decisions cited herein above, it can be inferred that as a matter of principle, while interpreting this regulation, the court must weigh against an interpretation which will protect unjust claims over just, fraud over legality and expediency over principle. Once this rule is clearly established, individual cases should not pose any problem.23. It is equally well settled that in interpreting a statute, effort should be made to give effect to each and every word used by the Legislature. The Courts should presume that the Legislature inserted every part for a purpose and the legislative intention is that every part of the statute should have effect. It must be kept in mind that whenever this Court is seized with a matter which requires judicial mind to be applied for interpreting a law, the effort must always be made to realize the true intention behind the law.Although unfair trade practice has not been defined under the regulation, various other legislations (Monopolies and Restrictive Trade Practices Act, 1969, Section 36A; The Consumer Protection Act, 1986, Section 2(1)(r); The Competition Act, 2002, Section 3; The Food Security and Standards Act, 2006, Section 24(2); Specific Relief Act, 1963, Section 20; Usurious Loans Act, 1918, Section 3.]) in India have defined the concept of unfair trade practice in different contexts. A clear cut generalized definition of the `unfair trade practice may not be possible to be culled out from the aforesaid definitions. Broadly trade practice is unfair if the conduct undermines the ethical standards and good faith dealings between parties engaged in business transactions. It is to be noted that unfair trade practices are not subject to a single definition; rather it requires adjudication on case to case basis. Whether an act or practice is unfair is to be determined by all the facts and circumstances surrounding the transaction. In the context of this regulation a trade practice may be unfair, if the conduct undermines the good faith dealings involved in the transaction. Moreover the concept of `unfairness appears to be broader than and includes the concept of `deception or `fraud.30. Although learned counsel for SEBI has admitted that there is no difference between fraud and unfair trade practice under regulation 4 (1), but we are of the opinion that such submission may not be conclusive. As these cases do not require further investigation, the question regarding the scope of prosecution for unfair trade practice is kept open.The reliance on `expressio unius est exclusio alterius may not be appropriate in this case instant as the intention of the regulation is apparent in this case. Moreover, it has been well established that `expressio unius est exclusio alterius is not a rule of law but a tool of interpretation which must be cautiously applied.v. Brooks, (1887) 19 Q.B.D. 400; Lowe v. Darling & Sons, (1906) 2 K. B.772) In light of the above discussion, this rule of interpretation does not help the case of the violators.36. A crucial aspect which needs to be observed at this point is the element of causation which is embedded under regulation 2(1)(c) read with regulations 3 and 4. In order to establish the aforesaid charges in this case, it is required by the SEBI to establish that the harm was induced by the materialization of a risk that was not disclosed because of the tippees fraudulent practice. Further the charges under the FUTP 2003 needs to be established as per the applicable standards rather than on mere conjectures and surmises.37. It should be noted that the provisions of regulations 3 (a), (b), (c), (d) and 4(1) are couched in general terms to cover diverse situations and possibilities. Once a conclusion, that fraud has been committed while dealing in securities, is arrived at, all these provisions get attracted in a situation like the one under consideration. We are not inclined to agree with the submission that SEBI should have identified as to which particular provision of FUTP 2003 regulations has been violated. Aapproach may not be applicable in this case instant.38. Before we conclude, it would be useful to have a look at American jurisprudence which has developed around Title 17, Code of Federal Regulations, Part 240, Rule(Prohibition of use of manipulative or deceptive devices or contrivances with respect to certain securities exempted from registration). It is to be noted that much of Indian securities laws have similar provisions and a brief survey of jurisprudence might be useful for the discussion herein. The complexity of the subject we are dealing is reflected even in the American jurisprudence as the U.S Supreme Court seems to have accepted the aforesaid provision to be the most litigated ones. (Securitiesand Exchange Commission v. National Securities, Inc., et al., 393 U.S. 453(1969)`Although section 10(b) and 10may well be the most litigated provisions in the federal securities laws, this is the first time this Court has found it necessary to interpret them. We eneter the virgin territory cautiously...]) In David Carpenter, Kenneth P. Felis and R. Foster Winans, v. United States, 484 U.S. 19, the United States Supreme Court dealt with the matter of fraud under section 10(b). In this case, the Petitioner, who was ain a Journals investment advice column, entered into a deal with a stock broker wherein he providedinformation on the content of the column. Further the stockbroker bought and sold shares based on such information and shared the profits made therein with the Petitioner. The Court, while convicting the Petitioner, elaborated the meaning of fraud in followingNow we come back to the regulations 3 and 4 (1) which bars persons from dealing in securities in a fraudulent manner or indulging in unfair trade practice. Fairness in financial markets is often expressed in terms of level playing field. A playing field may be uneven because of varied reasons such as inequalities in information etc. Possession of different information, which is a pervasive feature of markets, may not always be objectionable. Indeed, investors who invest resources in acquiring superior information are entitled to exploit this advantage, thereby making markets more efficient. The unequal possession of information is fraudulent only when the information has been acquired in bad faith and thereby inducing an inequitable result for others.42. The law of confidentiality has a bearing on this case instant. "Confidential information acquired or compiled by a corporation in the course and conduct of its business is a species of property to which the corporation has the exclusive right and benefit, and which a court of equity will protect through the injunctive process or other appropriate remedy." (3 W. Fletcher, Cyclopedia of Law of Private Corporations § 857.1, p. 260 (rev. ed. 1986) The information of possible trades that the company is going to undertake is the confidential information of the company concerned, which it has absolute liberty to deal with. Therefore, a person conveying confidential information to another person (tippee) breaches his duty prescribed by law and if the recipient of such information knows of the breach and trades, and there is an inducement to bring about an inequitable result, then the recipient tippee may be said to have committed the fraud.43. Accordingly,front running may be brought under the prohibition prescribed under regulations 3 and 4 (1), for being fraudulent or unfair trade practice, provided that the ingredients under those heads are satisfied as discussed above. From the above analysis, it is clear that in order to establish charges against tippee, under regulations 3 (a), (b), (c) and (d) and 4 (1) of FUTP 2003, one needs to prove that a person who had provided the tip was under a duty to keep theinformation under confidence, further such breach of duty was known to the tippee and he still trades thereby defrauding the person, whose orders wereby inducing him to deal at the price he did.44. Taking into consideration the facts and circumstances of the case before us and the law laid down herein above and SEBI v. Kishore R. Ajmera (Supra) can only lead to one conclusion that concerned parties to the transaction were involved in an apparent fraudulent practice violating market integrity. The parting of information with regard to an imminent bulk purchase and the subsequent transaction thereto are so intrinsically connected that no other conclusion but one of joint liability of both the initiator of the fraudulent practice and the other party who had knowingly aided in the same is | 1 | 8,873 | 1,716 | ### 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:
his own personal benefit but must account to his principal for any profits derived therefrom." Diamond v. Oreamuno, 24 N.Y.2d 494, 497, 301 N.Y.S.2d 78, 80, 248 N.E.2d 910, 912 (1969); see also Restatement (Second) of Agency §§ 388, Comment c, 396(c) (1958). We have little trouble in holding that the conspiracy here to trade on the Journals confidential information is not outside the reach of the mail and wire fraud statutes, provided the other elements of the offenses are satisfied. The Journals business information that it intended to be kept confidential was its property; the declaration to that effect in the employee manual merely removed any doubts on that score and made the finding of specific intent to defraud that much easier. Winans continued in the employ of the Journal, appropriating its confidential business information for his own use, all the while pretending to perform his duty of safeguarding it. In fact, he told his editors twice about leaks of confidential information not related to the stock-trading scheme, 612 F.Supp., at 831, demonstrating both his knowledge that the Journal viewed information concerning the "Heard" column as confidential and his deceit as he played the role of a loyal employee. 39. In Vincent F. Chiarella v. United States, 445 U.S. 222 (1980), the United States Supreme Court was seized of the matter relating to securities fraud under section 10b of the Securities Exchange Act, 1934. The Petitioner therein was a printer of some corporate takeover bids. Despite attempts by the companies to conceal the names of the takeover targets, Chiarella was able to deduce, and he traded shares of the companies he knew were involved. Consequently he was convicted by the lower forum as he traded in target companies without informing its shareholders of his knowledge of proposed takeover. The Supreme Court while reversing his conviction, observed as under- "the Petitioner employee could not be convicted on theory of failure to disclose his knowledge to stockholders or target companies as he was under no duty to speak, in that he had no prior dealings with the stockholders and was not their agent or fiduciary and was not a person in whom sellers had placed their trust and confidence, but dealt with them only through impersonal market transactions." On the issue of "General Duty between all participants (Tippees), the Court stated that: "Formulation of a general duty between all participants in market transactions for forego actions based on material, nonpublic information, so as to give rise to liability under section 10(b) of Securities Exchange Act for failure to disclose, would depart radically from established doctrine that a duty arises from a specific relationship between two parties and should not be undertaken absent some explicit evidence of congressional intent. Securities Exchange Act of 1934, § 10(b) as amended 15 U.S.C.A. § 78j(b)." 40. Although excessive reliance on foreign jurisprudence may not be necessary as we have starkly deviated in many aspects from American jurisprudence, but we need to keep in mind the developments which other countries have undertaken regarding this issue. 41. Now we come back to the regulations 3 and 4 (1) which bars persons from dealing in securities in a fraudulent manner or indulging in unfair trade practice. Fairness in financial markets is often expressed in terms of level playing field. A playing field may be uneven because of varied reasons such as inequalities in information etc. Possession of different information, which is a pervasive feature of markets, may not always be objectionable. Indeed, investors who invest resources in acquiring superior information are entitled to exploit this advantage, thereby making markets more efficient. The unequal possession of information is fraudulent only when the information has been acquired in bad faith and thereby inducing an inequitable result for others.42. The law of confidentiality has a bearing on this case instant. "Confidential information acquired or compiled by a corporation in the course and conduct of its business is a species of property to which the corporation has the exclusive right and benefit, and which a court of equity will protect through the injunctive process or other appropriate remedy." (3 W. Fletcher, Cyclopedia of Law of Private Corporations § 857.1, p. 260 (rev. ed. 1986) The information of possible trades that the company is going to undertake is the confidential information of the company concerned, which it has absolute liberty to deal with. Therefore, a person conveying confidential information to another person (tippee) breaches his duty prescribed by law and if the recipient of such information knows of the breach and trades, and there is an inducement to bring about an inequitable result, then the recipient tippee may be said to have committed the fraud.43. Accordingly, non-intermediary front running may be brought under the prohibition prescribed under regulations 3 and 4 (1), for being fraudulent or unfair trade practice, provided that the ingredients under those heads are satisfied as discussed above. From the above analysis, it is clear that in order to establish charges against tippee, under regulations 3 (a), (b), (c) and (d) and 4 (1) of FUTP 2003, one needs to prove that a person who had provided the tip was under a duty to keep the non-public information under confidence, further such breach of duty was known to the tippee and he still trades thereby defrauding the person, whose orders were front-runned, by inducing him to deal at the price he did.44. Taking into consideration the facts and circumstances of the case before us and the law laid down herein above and SEBI v. Kishore R. Ajmera (Supra) can only lead to one conclusion that concerned parties to the transaction were involved in an apparent fraudulent practice violating market integrity. The parting of information with regard to an imminent bulk purchase and the subsequent transaction thereto are so intrinsically connected that no other conclusion but one of joint liability of both the initiator of the fraudulent practice and the other party who had knowingly aided in the same is possible.
### Response:
1
### Explanation:
prosecution for unfair trade practice is kept open.The reliance on `expressio unius est exclusio alterius may not be appropriate in this case instant as the intention of the regulation is apparent in this case. Moreover, it has been well established that `expressio unius est exclusio alterius is not a rule of law but a tool of interpretation which must be cautiously applied.v. Brooks, (1887) 19 Q.B.D. 400; Lowe v. Darling & Sons, (1906) 2 K. B.772) In light of the above discussion, this rule of interpretation does not help the case of the violators.36. A crucial aspect which needs to be observed at this point is the element of causation which is embedded under regulation 2(1)(c) read with regulations 3 and 4. In order to establish the aforesaid charges in this case, it is required by the SEBI to establish that the harm was induced by the materialization of a risk that was not disclosed because of the tippees fraudulent practice. Further the charges under the FUTP 2003 needs to be established as per the applicable standards rather than on mere conjectures and surmises.37. It should be noted that the provisions of regulations 3 (a), (b), (c), (d) and 4(1) are couched in general terms to cover diverse situations and possibilities. Once a conclusion, that fraud has been committed while dealing in securities, is arrived at, all these provisions get attracted in a situation like the one under consideration. We are not inclined to agree with the submission that SEBI should have identified as to which particular provision of FUTP 2003 regulations has been violated. Aapproach may not be applicable in this case instant.38. Before we conclude, it would be useful to have a look at American jurisprudence which has developed around Title 17, Code of Federal Regulations, Part 240, Rule(Prohibition of use of manipulative or deceptive devices or contrivances with respect to certain securities exempted from registration). It is to be noted that much of Indian securities laws have similar provisions and a brief survey of jurisprudence might be useful for the discussion herein. The complexity of the subject we are dealing is reflected even in the American jurisprudence as the U.S Supreme Court seems to have accepted the aforesaid provision to be the most litigated ones. (Securitiesand Exchange Commission v. National Securities, Inc., et al., 393 U.S. 453(1969)`Although section 10(b) and 10may well be the most litigated provisions in the federal securities laws, this is the first time this Court has found it necessary to interpret them. We eneter the virgin territory cautiously...]) In David Carpenter, Kenneth P. Felis and R. Foster Winans, v. United States, 484 U.S. 19, the United States Supreme Court dealt with the matter of fraud under section 10(b). In this case, the Petitioner, who was ain a Journals investment advice column, entered into a deal with a stock broker wherein he providedinformation on the content of the column. Further the stockbroker bought and sold shares based on such information and shared the profits made therein with the Petitioner. The Court, while convicting the Petitioner, elaborated the meaning of fraud in followingNow we come back to the regulations 3 and 4 (1) which bars persons from dealing in securities in a fraudulent manner or indulging in unfair trade practice. Fairness in financial markets is often expressed in terms of level playing field. A playing field may be uneven because of varied reasons such as inequalities in information etc. Possession of different information, which is a pervasive feature of markets, may not always be objectionable. Indeed, investors who invest resources in acquiring superior information are entitled to exploit this advantage, thereby making markets more efficient. The unequal possession of information is fraudulent only when the information has been acquired in bad faith and thereby inducing an inequitable result for others.42. The law of confidentiality has a bearing on this case instant. "Confidential information acquired or compiled by a corporation in the course and conduct of its business is a species of property to which the corporation has the exclusive right and benefit, and which a court of equity will protect through the injunctive process or other appropriate remedy." (3 W. Fletcher, Cyclopedia of Law of Private Corporations § 857.1, p. 260 (rev. ed. 1986) The information of possible trades that the company is going to undertake is the confidential information of the company concerned, which it has absolute liberty to deal with. Therefore, a person conveying confidential information to another person (tippee) breaches his duty prescribed by law and if the recipient of such information knows of the breach and trades, and there is an inducement to bring about an inequitable result, then the recipient tippee may be said to have committed the fraud.43. Accordingly,front running may be brought under the prohibition prescribed under regulations 3 and 4 (1), for being fraudulent or unfair trade practice, provided that the ingredients under those heads are satisfied as discussed above. From the above analysis, it is clear that in order to establish charges against tippee, under regulations 3 (a), (b), (c) and (d) and 4 (1) of FUTP 2003, one needs to prove that a person who had provided the tip was under a duty to keep theinformation under confidence, further such breach of duty was known to the tippee and he still trades thereby defrauding the person, whose orders wereby inducing him to deal at the price he did.44. Taking into consideration the facts and circumstances of the case before us and the law laid down herein above and SEBI v. Kishore R. Ajmera (Supra) can only lead to one conclusion that concerned parties to the transaction were involved in an apparent fraudulent practice violating market integrity. The parting of information with regard to an imminent bulk purchase and the subsequent transaction thereto are so intrinsically connected that no other conclusion but one of joint liability of both the initiator of the fraudulent practice and the other party who had knowingly aided in the same is
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Union Of India Vs. Shri Gopal Chandra Misra And Ors | of the parish and in mercy to the Vicar, the Vicar on the 2nd of June executed before witnesses, but not before a notary, an unconditional deed of resignation and sent it to the Bishops Secretary on the understanding that the Bishop would postpone formal acceptance until the 1st of October. On the 10th June the Vicar executed a deed cancelling and revoking the deed of resignation, and on the 16th of July he communicated the fact to the Bishops Secretary. The Bishop after the revocation, signed a document dated the 1st of October accepting the resignation and declaring the vicarage void.The Vicar brought an action against the Bishop and the patrons of the benefice, claiming a declaration that he was Vicar, the resignation was void, and an injunction to restraint the defendants from treating the benefice as vacant. The House of Lords, affirming the decision of the Court of Appeal (35 Ch.D. 48), held that the resignation was voluntary, absolute, validly executed and irrevocable and that the action could not be maintained. The principal contention canvassed before the House of Lords by the appellant Vicar was that assuming the resignation to be valid, it was sought without the Bishops acceptance. The acceptance of the ordinary is absolutely necessary to avoid a living. Until acceptance the effect of the incumbents resignation is to make the benefice voidable, not void; he remains incumbent with all his powers and rights, including the power of revocation; he is in the position (at the utmost) of one who has made a contract to resign. 61. The Noble Lords rejected this contention. Lord Halsbury L.C., observed :"The arrangements for resignation on the one side and acceptance on the other seem to me to have been consummated before the supposed withdrawal of the resignation of Mr. Reichal. It is true the Bishop agreed not to execute the formal document to declare the benefice vacant till the following 1st of October; but I decline to decide that when a perfectly voluntary and proper resignation has once been made and by arrangement a formal declaration of it is to be postponed, that is not a perfectly binding transaction upon both the parties to it; and I doubt whether in any view of the law such an arrangement could have been put an end to at the option of only one of the parties". Lord Watson further amplified :"His resignation was delivered in pursuance of a mutual agreement which rendered formal or other acceptance altogether unnecessary; the terms of the agreement showing plainly that the Bishop not merely was ready to accept, but insisted upon having it, in order that it might receive full effect upon the 1st of October following. The agreement was perfectly lawful, it being entirely within the discretion of the Bishop to judge whether the adoption of proceedings against the appellant, or his unconditional resignation as from a future date, would most conduce to the spiritual interest of the parish. The appellant assented to the arrangement, and on the 2nd of June, 1886 did all that lay in his power to complete it ... He cannot in my opinion be permitted to upset the agreement into which he voluntarily agreed ... upon the allegation that there was no formal acceptance of his resignation till 1st of October, 1886". Lord Herschell opined :"I do not think the word acceptance means more than the assent of the Bishop, or that it need take any particular form. Now, in the present case, the Bishop had intimated to the plaintiff that he was willing to assent to his resignation, and it was in pursuance of his intimation that the resignation was placed in the hands of the Bishop. At the time ... the Bishop received it, and thence forward down to and after the time of the alleged revocation, the Bishop was an assenting party to the resignation". 62. While declining the contention of the appellant, the Noble Lord closed the discussion on the point with this significant reservation :"It is, however, unnecessary in the present case to go to the length of saying that a resignation can never be withdrawn without the consent of the Bishop, for I am of opinion that it certainly cannot be so under circumstances such as those to which I have drawn attention". 63. Reichal is no authority for the proposition that on unconditional prospective resignation, without more normally becomes absolute and operative the moment it is conveyed to the appropriate authority. The special feature of the case was that Reichal had, of his own free will, entered into a "perfectly binding agreement" with the Bishop, according to which, the Bishop had agreed to abstain from commencing an inquiry into the serious charges against Reichal if the latter tendered his resignation. In pursuance of that lawful agreement, Reichal tendered his resignation and did all to complete it, and the Bishop also at the other end, abstained from instituting proceedings against him in the Ecclesiastical Court. The agreement was thus not a nudam poctum but for good consideration and had been acted upon and "consummated before the supposed withdrawal of the resignation of Mr. Reichal", who could not, therefore, be permitted "to upset the agreement" at his unilateral option and withdraw the resignation "without the consent of the Bishop". It was in view of these exceptional circumstances, their Lordships held Reichals resignation had become absolute and irrevocable. No extraordinary circumstances of this nature exist in the instant case. 64. In the light of all that has been said above, we hold that the letter, dated May 7, 1977 addressed by appellant 2 to the President, both in point of law and substance, amounts but to a proposal or notice of intention to resign at a future date (1-8-1977) and not being an absolute, complete resignation operative with immediate effect, could be and, in fact, had been validly withdrawn by the said appellant through his letter, dated July 15, 1977, conveyed to the President. 65. | 1[ds]We find no merit in this objectionMr. Soli Sorabji, Additional Solicitor-General addressed arguments before the High Court on behalf of the Union of India. No objection to the locus standi of the Union of India to contest the writ petition was raised, at any stage, before the High Court. It is, therefore, not correct to say that the Union of India was not a contesting party in the Court belowAs rightly pointed out by the learned Attorney-General, the Union of India is vitally interested in the case. It is the President of India who had appointed appellant as a Judge, and the stand of the Union of India throughout has been that the withdrawal of the intimation to resign by the Judge, is valid and, therefore, he continues to hold the office of a Judge even after August 1, 1977, but the High Court had held otherwise. The Union of India, therefore, has reason to feel aggrieved by the decision of the High CourtIn order to give a person locus standi to appeal on a certificate granted under any clause of these articles, it is necessary that he was a "party in the case before the High Court". The Union of India was admittedly such a party having a stake in the dispute. The substantial question of law involved in the case, is of general importance and concerns the interpretation of the ConstitutionWe are not concerned with the matter of incurring expenditure by the Union of India; whether it is justified, proper or not. We are surely of the view that the Union had a substantial interest in this proceeding. Thus, from every point of view, the Union of India is entitled to come in appeal to this Court and question the correctness of the High Courts finding on the question of law involved. We, therefore, overruled the preliminary objection, and requested the learned Attorney-General to proceed with his addressIn the instant case, there can be no dispute about the performance of the first two, namely : (i) he wrote a letter under his hand, (ii) addressed to the President. Thus, the first two pillars of the ratiocinative edifice raised by the High Court rest on sound foundationsIf the answer to this question is found in the affirmative, the appeals must fail. If it be in the negative, the foundation for the reasoning of the High Court will fail and the appeals succeedIn the general juristic sense, also, the meaning of "resigning office" is not different. There also, as a rule, both the intention to give up or relinquish the office and the concomitant act of its relinquishment, are necessary to constitute a complete and operative resignation (see e.g., American Jurisprudence, 2nd edn., Vol. 15A, page 80), although the act of relinquishment may take different forms or assume a unilateral or bilateral character, depending on the nature of the office and the conditions governing it. Thus, resigning office necessarily involves relinquishment of the office which implies cessation or termination of, or cutting as under from the office. Indeed, the completion of the resignation and the vacation of the office are the casual and effectual aspects of one and the same eventsFrom the above dissertation, it emerges that a complete and effective act of resigning office is, one which severs the link of the resignor with his officer and terminates its tenure. In the context of Art. 217(1) this test assumes the character of a devisive test, because the expression "resign his office" the construction of which is under consideration occurs in a proviso which excepts or qualifies the substantive clause fixing the office-tenure of a Judge upto the age of 62 yearsThus tested, sending of the letter dated May 7, 1977 by the appellant 2 to the President, did not constitute a complete and operative resignation within the contemplation of the expression "resign his office" used in proviso (a) to Art. 217(1). Before the arrival of the indicated future date (August 1, 1977), it was wholly inert, inoperative and ineffective, and could not, and in fact did not cause any jural effectWith respect, we venture to say that this reasoning is convoluted logic spiralled up round a fiction for which there is no foundation in the statute. To say that the resignation or the relinquishment of his office by the Judge could not take place before 1-8-1977, and yet, the factum of resignation became complete on 7-5-77, would be a contradiction in terms. To get over this inherent contradiction, the High Court (by majority) has introduced a two-fold fiction; (1) That if in a written communication to the President, the Judge chooses to resign his office from a future date, the resignation will be deemed to be effective and complete from the moment the communication is sent to the President and received by him. (2) That since it has not been provided in proviso (a) or elsewhere in the Constitution, that such communication of a "prospective" resignation can be withdrawn, its withdrawal would be deemed to have been prohibited, on the maxim expressum facit cessare tacitumNo. (1) is manifestly imcompatible with the letter and intendment of Art. 217(1), since by deeming the resignation to have taken place on a date different from the date chosen by the Judge, it subverts his exclusive constitutional right to resign his office with effect from a date of his choosing. No. 2 is equally unjustified. There is nothing in proviso (a) or elsewhere in the Constitution which expressly or impliedly forbids the withdrawal of a communication by the Judge to resign his office before the arrival of the date on which it was intended to take effect. Indeed, such a futuristic communication or prospective resignation does not, before the indicated future date is reached, become a complete and operative act of "resigning his office" by the Judge within the contemplation of proviso (a) to Art. 217(1)Thus considered, it is clear that merely by writing the letter to the President on May 7, 1977 proposing to resign with effect from August 1, 1977 the Judge had not done all which he was required to do to determinate his tenure, of his own volition, under proviso (a) to Art. 217(1). He had not, as yet, resigned his office on May 7, 1977, itself, he had not done everything which was necessary to complete the requirement of the expression "resign his office". He had not relinquished his office and thus delinked himself from it. He had not - as the learned Judges of the High Court have erroneously assumed - crossed the Rubicon - Rubicon was still afar, 85 days away in the hazy future. At any time, before the dead line (August 1, 1977) was reached, the Judge could change his mind and choose not to resign, and withdraw the communication dated May 7, 1977We have already seen that there is nothing in the Constitution or any other law which prohibits the withdrawal of a communication to resign from a future date, addressed by a Judge to the President, before it becomes operativeIf this Court evolves a principle - proceeded the argument - whereby it permits a Judge who is a constitutional functionaries would misuse such implied power of withdrawal or resignation. The President may hold the Parliament to ransom and make a farce of Parliamentary sovereignty and the functioning of the ConstitutionThe contention appears to be misconceived. 38. The argument assumes that a tender of prospective resignation is always motivated by sinister consideration and, therefore, to permit its withdrawal is never in the public interest. We are unable to concede this as a rule of universal application. Any number of cases are conceivable where a prospective resignation is tendered with the best of motives. A Judge renowned for his conscientiousness and forensic skill may send an intimation under his hand to the President proposing to resign from a future date, 2 months away, covering this interregnum by two months leave due to him, in the belief, founded on his doctors advice, that he is stricken with a malady which will progressively render him deal in two months time. The motive behind the tender is that the Judge feels that he will no longer be able to discharge his official duties to the entire satisfaction of his conscience. But before the date on which the prospective resignation is to take effect, a surgical operation completely and permanently cures him of the disease and restores his full hearing power, and the Judge immediately thereupon, sends a communication withdrawing the tender of his resignationThere are no circumstances, whatever, which would show that the withdrawal of the resignation by the appellant would cause harm to the public or even to an individual. The contention, therefore, is repelledWe are here considering the case of withdrawal of a "prospective resignation" by a Judge of the High Court and not of any other constitutional functionary. It may not be correct to say that whatever principle we evolve with reference to the interpretation of Art. 217(1), proviso (a), will automatically govern the withdrawal of such a prospective resignation by the President of India because the provisions of Art. 256 relating to a resignation by the President are not, in all respect, identical with those of Art. 217. There is no provision in Art. 217 corresponding to cl. (2) or cl. (1)(c) of Art. 56, and in this case in accordance with the well-settled practice of the Court, we refrain from expressing any opinion with regard to the interpretation and effect of those distinctive provisions in Art. 56We are also unable to agree with the High Court that mere sending of the letter, dated May 7, 1977 by the Judge to the President and its receipt by the latter, constituted a complete juristic act. By itself, it did not operate to terminate the office tenure of the Judge, and as such, did not bring into existence any legal effect. For the same reason, the principle underlying S.19 of the Transfer of Property Act is not attractedThe general principle that emerges from the foregoing conspectus, is that in the absence of anything to the contrary in the provisions governing the terms and conditions of the office post, and intimation in writing sent to the competent authority by the incumbent, of his intention or proposal to resign his office/post from a future specified date, can be withdrawn by him at any time before it becomes effective, i.e., before it effects termination of the tenure of the office/post or the employmentIn our opinion, none of the aforesaid reasons given by the High Court for getting out of the ratio of Jai Rams case, is valid. Firstly, it was not a casual enunciation. It was necessary to dispose of effectually and completely the second point that had been canvassed on behalf of Jai Ram. Moreover, the same principle was reiterated pointedly in 1968 in Rai Kumars case. Secondly, a proposal to retire from service/office and a tender to resign office from a future date, for the purpose of the point under discussion stand on the same footing. Thirdly, the distinction between a case where the resignation is required to be accepted and the one where no acceptance is required, makes no difference to the applicability of the rule in Jai Rams caseIt will bear repetition that the general principle is that in the absence of a legal, constitutional Bar, a "prospective" resignation can be withdrawn at any time before it becomes effective, and it becomes effective when it operates to terminate the employment or the office tenure of the resignor. This general rule is equally applicable to Government servants and constitutional functionaries. In the case a Government servant/or functionary who cannot under the conditions of his service/or office, by his own unilateral act of tendering resignation, given up his service/or office, normally, the tender of resignation becomes effective and his service/or office-tenure terminated, when it is accepted by the competent authority. In the case of a Judge of a High Court, who is a constitutional functionary and under proviso (a) to Art 217(1) has a unilateral right or privilege to resign his office, his resignation becomes effective and tenure terminated on the date from which he, of his own volition, chooses to quit office. If in terms of the writing under his hand addressed to the President, he resigns in praesenti, the resignation terminates his office-tenure forthwith, and cannot, therefore, be withdrawn or revoked thereafter. But, if he by such writing chooses to resign from a future date, the act of resigning office is not complete because it does not terminate his tenure before such date and the Judge can at any time before the arrival of that prospective date on which it was intended to be effective, withdraw it, because the Constitution does not bar such withdrawal49. Thelearned Attorney-General has cited authorities of the Allahabad, Kerala, Delhi and Madhya Pradesh High Courts, wherein the rule in Jai Rams case was followed. The High Court has tried to distinguish these cases and in regard to some of them, said that they were not rightly decided. We do not want to burden this judgment with a discussion of all those decisions. It will be sufficient to notice two of them, in which issues analogous to those which arise before us, were pointedly discussed56. Inour opinion, what has been extracted above from the decision in the Kerala case, correctly enunciates the principle that a prospective resignation remains mute and inoperative till the date on which it was intended to take effect is reached, and can be withdrawn and rendered non est at any time before such dateThe approach adopted to the problem by the Delhi High Court appears to be correct in principle, and meets our approvalWe do not want to add more to the volume of our judgment by noticing the numerous decisions of the English and American Courts that have been referred to by the High Court in its judgmentIn the light of all that has been said above, we hold that the letter, dated May 7, 1977 addressed by appellant 2 to the President, both in point of law and substance, amounts but to a proposal or notice of intention to resign at a future date (1-8-1977) and not being an absolute, complete resignation operative with immediate effect, could be and, in fact, had been validly withdrawn by the said appellant through his letter, dated July 15, 1977, conveyed to the President. | 1 | 10,375 | 2,746 | ### Instruction:
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of the parish and in mercy to the Vicar, the Vicar on the 2nd of June executed before witnesses, but not before a notary, an unconditional deed of resignation and sent it to the Bishops Secretary on the understanding that the Bishop would postpone formal acceptance until the 1st of October. On the 10th June the Vicar executed a deed cancelling and revoking the deed of resignation, and on the 16th of July he communicated the fact to the Bishops Secretary. The Bishop after the revocation, signed a document dated the 1st of October accepting the resignation and declaring the vicarage void.The Vicar brought an action against the Bishop and the patrons of the benefice, claiming a declaration that he was Vicar, the resignation was void, and an injunction to restraint the defendants from treating the benefice as vacant. The House of Lords, affirming the decision of the Court of Appeal (35 Ch.D. 48), held that the resignation was voluntary, absolute, validly executed and irrevocable and that the action could not be maintained. The principal contention canvassed before the House of Lords by the appellant Vicar was that assuming the resignation to be valid, it was sought without the Bishops acceptance. The acceptance of the ordinary is absolutely necessary to avoid a living. Until acceptance the effect of the incumbents resignation is to make the benefice voidable, not void; he remains incumbent with all his powers and rights, including the power of revocation; he is in the position (at the utmost) of one who has made a contract to resign. 61. The Noble Lords rejected this contention. Lord Halsbury L.C., observed :"The arrangements for resignation on the one side and acceptance on the other seem to me to have been consummated before the supposed withdrawal of the resignation of Mr. Reichal. It is true the Bishop agreed not to execute the formal document to declare the benefice vacant till the following 1st of October; but I decline to decide that when a perfectly voluntary and proper resignation has once been made and by arrangement a formal declaration of it is to be postponed, that is not a perfectly binding transaction upon both the parties to it; and I doubt whether in any view of the law such an arrangement could have been put an end to at the option of only one of the parties". Lord Watson further amplified :"His resignation was delivered in pursuance of a mutual agreement which rendered formal or other acceptance altogether unnecessary; the terms of the agreement showing plainly that the Bishop not merely was ready to accept, but insisted upon having it, in order that it might receive full effect upon the 1st of October following. The agreement was perfectly lawful, it being entirely within the discretion of the Bishop to judge whether the adoption of proceedings against the appellant, or his unconditional resignation as from a future date, would most conduce to the spiritual interest of the parish. The appellant assented to the arrangement, and on the 2nd of June, 1886 did all that lay in his power to complete it ... He cannot in my opinion be permitted to upset the agreement into which he voluntarily agreed ... upon the allegation that there was no formal acceptance of his resignation till 1st of October, 1886". Lord Herschell opined :"I do not think the word acceptance means more than the assent of the Bishop, or that it need take any particular form. Now, in the present case, the Bishop had intimated to the plaintiff that he was willing to assent to his resignation, and it was in pursuance of his intimation that the resignation was placed in the hands of the Bishop. At the time ... the Bishop received it, and thence forward down to and after the time of the alleged revocation, the Bishop was an assenting party to the resignation". 62. While declining the contention of the appellant, the Noble Lord closed the discussion on the point with this significant reservation :"It is, however, unnecessary in the present case to go to the length of saying that a resignation can never be withdrawn without the consent of the Bishop, for I am of opinion that it certainly cannot be so under circumstances such as those to which I have drawn attention". 63. Reichal is no authority for the proposition that on unconditional prospective resignation, without more normally becomes absolute and operative the moment it is conveyed to the appropriate authority. The special feature of the case was that Reichal had, of his own free will, entered into a "perfectly binding agreement" with the Bishop, according to which, the Bishop had agreed to abstain from commencing an inquiry into the serious charges against Reichal if the latter tendered his resignation. In pursuance of that lawful agreement, Reichal tendered his resignation and did all to complete it, and the Bishop also at the other end, abstained from instituting proceedings against him in the Ecclesiastical Court. The agreement was thus not a nudam poctum but for good consideration and had been acted upon and "consummated before the supposed withdrawal of the resignation of Mr. Reichal", who could not, therefore, be permitted "to upset the agreement" at his unilateral option and withdraw the resignation "without the consent of the Bishop". It was in view of these exceptional circumstances, their Lordships held Reichals resignation had become absolute and irrevocable. No extraordinary circumstances of this nature exist in the instant case. 64. In the light of all that has been said above, we hold that the letter, dated May 7, 1977 addressed by appellant 2 to the President, both in point of law and substance, amounts but to a proposal or notice of intention to resign at a future date (1-8-1977) and not being an absolute, complete resignation operative with immediate effect, could be and, in fact, had been validly withdrawn by the said appellant through his letter, dated July 15, 1977, conveyed to the President. 65.
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immediately thereupon, sends a communication withdrawing the tender of his resignationThere are no circumstances, whatever, which would show that the withdrawal of the resignation by the appellant would cause harm to the public or even to an individual. The contention, therefore, is repelledWe are here considering the case of withdrawal of a "prospective resignation" by a Judge of the High Court and not of any other constitutional functionary. It may not be correct to say that whatever principle we evolve with reference to the interpretation of Art. 217(1), proviso (a), will automatically govern the withdrawal of such a prospective resignation by the President of India because the provisions of Art. 256 relating to a resignation by the President are not, in all respect, identical with those of Art. 217. There is no provision in Art. 217 corresponding to cl. (2) or cl. (1)(c) of Art. 56, and in this case in accordance with the well-settled practice of the Court, we refrain from expressing any opinion with regard to the interpretation and effect of those distinctive provisions in Art. 56We are also unable to agree with the High Court that mere sending of the letter, dated May 7, 1977 by the Judge to the President and its receipt by the latter, constituted a complete juristic act. By itself, it did not operate to terminate the office tenure of the Judge, and as such, did not bring into existence any legal effect. For the same reason, the principle underlying S.19 of the Transfer of Property Act is not attractedThe general principle that emerges from the foregoing conspectus, is that in the absence of anything to the contrary in the provisions governing the terms and conditions of the office post, and intimation in writing sent to the competent authority by the incumbent, of his intention or proposal to resign his office/post from a future specified date, can be withdrawn by him at any time before it becomes effective, i.e., before it effects termination of the tenure of the office/post or the employmentIn our opinion, none of the aforesaid reasons given by the High Court for getting out of the ratio of Jai Rams case, is valid. Firstly, it was not a casual enunciation. It was necessary to dispose of effectually and completely the second point that had been canvassed on behalf of Jai Ram. Moreover, the same principle was reiterated pointedly in 1968 in Rai Kumars case. Secondly, a proposal to retire from service/office and a tender to resign office from a future date, for the purpose of the point under discussion stand on the same footing. Thirdly, the distinction between a case where the resignation is required to be accepted and the one where no acceptance is required, makes no difference to the applicability of the rule in Jai Rams caseIt will bear repetition that the general principle is that in the absence of a legal, constitutional Bar, a "prospective" resignation can be withdrawn at any time before it becomes effective, and it becomes effective when it operates to terminate the employment or the office tenure of the resignor. This general rule is equally applicable to Government servants and constitutional functionaries. In the case a Government servant/or functionary who cannot under the conditions of his service/or office, by his own unilateral act of tendering resignation, given up his service/or office, normally, the tender of resignation becomes effective and his service/or office-tenure terminated, when it is accepted by the competent authority. In the case of a Judge of a High Court, who is a constitutional functionary and under proviso (a) to Art 217(1) has a unilateral right or privilege to resign his office, his resignation becomes effective and tenure terminated on the date from which he, of his own volition, chooses to quit office. If in terms of the writing under his hand addressed to the President, he resigns in praesenti, the resignation terminates his office-tenure forthwith, and cannot, therefore, be withdrawn or revoked thereafter. But, if he by such writing chooses to resign from a future date, the act of resigning office is not complete because it does not terminate his tenure before such date and the Judge can at any time before the arrival of that prospective date on which it was intended to be effective, withdraw it, because the Constitution does not bar such withdrawal49. Thelearned Attorney-General has cited authorities of the Allahabad, Kerala, Delhi and Madhya Pradesh High Courts, wherein the rule in Jai Rams case was followed. The High Court has tried to distinguish these cases and in regard to some of them, said that they were not rightly decided. We do not want to burden this judgment with a discussion of all those decisions. It will be sufficient to notice two of them, in which issues analogous to those which arise before us, were pointedly discussed56. Inour opinion, what has been extracted above from the decision in the Kerala case, correctly enunciates the principle that a prospective resignation remains mute and inoperative till the date on which it was intended to take effect is reached, and can be withdrawn and rendered non est at any time before such dateThe approach adopted to the problem by the Delhi High Court appears to be correct in principle, and meets our approvalWe do not want to add more to the volume of our judgment by noticing the numerous decisions of the English and American Courts that have been referred to by the High Court in its judgmentIn the light of all that has been said above, we hold that the letter, dated May 7, 1977 addressed by appellant 2 to the President, both in point of law and substance, amounts but to a proposal or notice of intention to resign at a future date (1-8-1977) and not being an absolute, complete resignation operative with immediate effect, could be and, in fact, had been validly withdrawn by the said appellant through his letter, dated July 15, 1977, conveyed to the President.
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Union of India & Others Vs. Bodupalli Gopalaswami & Others | the supplier of the animals. The government had entered into a contract with that supplier and clause 51(a) of Special Conditions is an undertaking by the Contractor which reads thus : “I/We shall maintain complete at all time from/upto .......... as reserve of not less than three days supply animals (sheep/goat) based on the average number of animals to be slaughtered as meat on hoof daily”. 30. Contract also provided (vide clause 52) that if the contractor failed to do so, the supply officer shall be at liberty to effect risk purchase be effected at the cost of the contractor and also take other steps. Therefore, failure to maintain reserve stocks of animals was not an omission on the part of any person in charge or overall charge of the butchery, but a breach by the contractor. The omission that could be attributed to the officer in-charge of the butchery or the first respondent is that when the contractor failed to maintain reserves failure to bring it to the contractors notice or failure to take action to make risk purchase and other steps in terms of the contract. But the charge is not that risk purchase was not effected or that the first respondent failed to take necessary remedial steps. The evidence showed that arrangements were made to procure the animals required for slaughter on day to day basis to ensure no breaks in supply of meat. It has also come in evidence that ever since 1989, the first respondent had been informing and complaining to his higher ups that the Ambala area where the supply depot was situated, had a shortage of stock of animals, that the contractor was not in a position to maintain the required reserves and therefore, suggesting that tenders should be invited from contractors in Delhi where there was an abundance of stocks. Therefore, an omission of the contractor cannot be considered to be an omission on part of the Contract Operating Officer, particularly when he had pointed out deficiencies, and taken remedial steps. Therefore, the effect of the finding in regard to charge (4) is that the contractor did not keep any animals as reserve between 11.3.1990 and 22.3.1990 as undertaken by it under clause 51(a) of the Special Conditions. The failure attributed to the supervisory staff of butchery and the first respondent who was in overall charge was that they failed to ensure that the contractor performed his obligations. What is established against first respondent under charge (4) is therefore, only a technical lapse. 31. Charge 5(c) is that the appellant failed to implement the standard operating procedure for butchery which required passed animals to be segregated and not allowed to mix with the other animals of the contractor. Animals that were branded and accepted for supply were the `passed animals. The evidence was not that passed animals and other animals were being kept together. The evidence was that on a particular day when the surprise inspection took place, the passed animals had not been segregated from the other animals of the contractor which were yet to be branded and passed. It was also not disputed that there was no specific directive relating to segregation. Even if there was any lapse, it was a lapse of the JCO as per the standard procedure for the butchery and not the Commandant of the supply depot. The omission that could be attributed is at best would be a technical lapse as far as the first respondent is concerned. 32. The omissions attributed to first respondent in regard to charges 4 and 5(c) were actually omissions by his sub-ordinates and those sub- ordinates were charge-sheeted. In regard to the subject of charges (1) and (4), the supervisory officer Capt. Paramjeet Singh Malhotra was cashiered and sentenced to undergo rigorous imprisonment for 30 months and the Veterinary Officer Lt. Capt. G. S. Srivastava was punished with forfeiture of eight years past service for the purpose of pension and severely reprimanded. In regard to the subject of charges (4) and 5(c), the Supervisory Officer Capt. Paramjeet Singh Malhotra was punished. The role of the appellant being that of an overall controlling officer of the supply depot was limited and the charges in so far as the first respondent were technical in nature. But for the limitation of interference with regard to findings of fact in judicial review, this might even be a case for interference with the findings of guilt recorded. Be that as it may. 33. In the circumstances, the punishment of dismissal from service is shockingly disproportionate to the gravity of the offences held to be proved. While we may not interfere with the findings of guilt, in a case of this nature, having regard to the nature of offences, we may consider the proportionality of punishment to find out whether it is perverse and irrational. Even accepting the said findings of guilt regarding charges (1), (4) and 5(c), it is clearly a case of shockingly disproportionate punishment being meted out to the Commandant for offering an alternative interpretation to clause (86), for the lapses of his supervisory officer and for the breach committed by the contractor. In the normal course, we would have set aside the punishment and referred the matter back for consideration and imposition of a lesser punishment. But having regard to the fact that the matter is more than 20 years old and the first respondent reached the age of superannuation long ago, no purpose would be served, by referring it back to the appellants. We are of the view on the facts and circumstances, interests of justice would be served if the punishment of dismissal is substituted by the following punishment : (a) forfeiture of eight years of service for the purpose of pension; and (b) Severe reprimand. As a consequence, the order forfeiting pension requires to be set aside as pension can be denied under Pension Regulation 16(a) only to the officers who are cashiered, dismissed or removed from service.34. | 1[ds]11. The direction of the High Court to reconsider the matter in the light of the legal principles laid down by the Full Bench of the Delhi High Court in Brig. A.K. Malhotra is no longer valid in view of the fact that the decision in Brig. A.K. Malhotra was reversed by this Court in Union of India v. P.D. Yadav - 2002 (1) SCC 405. This Court held that even if the GCM while imposing punishment, does not direct forfeiture of service or forfeiture of pension under section 71 of the Act having regard to Regulation 16(a) of the Pension Regulations, it is permissible for the President of India to direct forfeiture of pension in regard to a person dismissed or cashiered consequent to a trial by the GCM. This Court also held that for passing an order for forfeiture of pension under Regulation 16(a), all that was necessary was that cashiering or dismissal of the officer from service and there was no further need, either to assign reasons for forfeiture or to consider whether the merit of his prior service warranted any relaxation or relief againstheld that the proceedings of the GCM was proper and findings of guilt did not suffer from any infirmity and the punishment of dismissal did not call for any interference, the High Court could not have interfered with the power and discretion exercised under Pension Regulation 16(a). If there is no violation of rules in conducting the GCM and if there is no infirmity in the award of punishment, having regard to the decision of this Court in P.D. Yadav, the forfeiture of pension was not required to be supported by any other independent reasons nor was it necessary to consider the previous service or gravity of the offence or other circumstances. The High Court therefore committed an error in quashing the order dated 22.12.1995 passed by the President of India, forfeiting the pension of the appellant. The appeal by the appellants (Criminal Appeal No.876 of 2003) is bound to succeed. But this is, however, subject to the decision in the appeal, preferred by the first respondent. If the first respondent is able to demonstrate in his appeal that either the proceedings of the GCM violated the provisions of the Act/Rules/the procedure prescribed, or that the findings of guilt were perverse and unsustainable, or that the punishment was shockingly disproportionate to the gravity of the proved offences and warranted interference, and if this Court accepting his contentions allows his appeal, and sets aside the order of dismissal or reduces the punishment, then the very basis for issue of the order of forfeiture of pension under Pension Regulation 16(a) will disappear and consequently, that order of forfeiture also will not survive. Therefore, we may now examine the contentions of the first respondent challenging the validity of the proceedings of the GCM and imposition ofto first respondent, the Presiding Officer of the Court Martial - Brig. S.K. Kaushal had earlier summarily tried two prosecution witnesses - Sub. Baryam Singh and Sub. Harjinder Singh (who had drawn meat for their units on 14.2.1990) for drawing less quantity of meat and awarded the reprimand for negligent performance of duties. As the summary trials were in regard to the same incident when the prosecutor disclosed the said fact on 15.4.1990, the first respondent raised a challenge objecting to Brig. S.K.Kaushal being the Presiding Officer, as he was disqualified from serving on a GCM having regard to clause (c) of sub-rule (2) of Rule 39 of the Army Rules 1954 (`Rules for short). He further alleged that the Presiding Officer would have formulated an opinion in regard to the incident and consequently, be biased. In spite of it, the Convening Authority wrongly directed the GCM to proceed, overruling his objection under section 130 of the Act read with rule 44 of the Rules. He submits that participation by the Presiding Officer vitiated the entire proceedings, rendering the same invalid andHigh Court after exhaustive consideration found that the trial was conducted in accordance with the rules and there was no violation of the procedure or principles of natural justice. On behalf of the prosecution, as many as 13 witnesses were examined. A large number of documents (marked A to Z, AA to ZZ and AAA to ZZZ and AAAA to GGGG), apart from three material objects (ME1 to ME 3) were exhibited. The first respondent was supplied with complete set of proceedings including all exhibits. He was permitted to have the assistance of a legal practitioner. He was given due opportunity to cross examine the witnesses and lead his own evidence. After completion of evidence, the General Court Martial put questions to the accused with reference to the evidence and gave him an opportunity to explain his position. Detailed submissions on behalf of the prosecution and the defence were heard. It was thereafter that the Court Martial gave its findings and imposed the punishment. This is not a case of no-evidence. Inadequacy and unreliability of evidence are not grounds for interference. The Court Martial had jurisdiction. Violation of prescribed procedure has not been made out. In exercise of power of judicial review, it is not possible to re-assess the evidence or sit in judgment over the finding of guilt recorded by the Military Tribunal. The scope of interference with the findings of the GCM is very narrow and should be exercised in rare cases. This is not one of them. We, therefore, find no reason to interfere with findings of guilt regarding changes 1, 4 andcharges that are held to be proved against the first respondent, are:(i) Being the Contract Operating Officer for dressed meat, the first respondent with intent to defraud, caused the acceptance of meat from the contractor with `heart as part of the meat knowing that the same was not acceptable part of carcasses as per para 86 of special conditions of the contract (vide first charge);(ii) The first respondent, as the Commandant incharge of the Supply Depot failed to ensure that required stocks were maintained as reserve, in the Butchery as required by para 51(a) of the special conditions of contract (vide fourth charge);(iii) The first respondent as the Commandant responsible for the overall control of the operation of the Butchery improperly failed to implement the standard operating procedure for Butchery resulting in `passed animals not being segregated and being allowed to mix with the other animals of the contractor.According to the charge-sheet, the first charge was an offence falling under section 52(f) of the Act which provides that subject to the provisions of the Act, any person who does anything with intent to defraud, or to cause wrongful gain to one person or wrongful loss to another person, shall, on conviction by court martial, be liable to suffer imprisonment for a term which may extend to ten years or such less punishment as is mentioned in the Act. The other two charges which are held to be proved relate to acts or omissions which are said to beto good order and militarypunishable under section 63 of the Act on conviction by Court Martial, with imprisonment for a term which may extend to seven years or such less punishment as is mentioned in the Act. We may now consider the nature and content of the charges proved. Section 52(f) and section 63 are very broadly and generally worded and deal with residuary offences, (one dealing with property and another dealing with discipline) to provide for and cover offences which are not specifically provided in sections 34 to 64 of the Act. The offences under these residuary provisions may fall under a wide spectrum, ranging from the mildest technical violations to the severest offences relating to fraud or gross indiscipline. It is therefore necessary to find the degree of gravity of the offence when a person is found guilty of offences under section 52(f) or section 63. Only then, the court can consider whether the punishment is so disproportionate to the gravity of the proved offences that it shocks the conscience of the court or is so perverse or irrational that it cannot be allowed to stand. As held by this Court repeatedly, there could be no judicial review merely because the court feels that the punishment should have been lesser or on the ground of sympathy orcharge that has been held to have been proved is an offence under section 52(f) of the Act that is while commanding the supply depot, the first respondent being the Contract Operating Officer for dressed meat, with intent to defraud, caused the acceptance of meat from the contractor with heart as part of meat between 1.5.1989 and 31.3.1990, knowing that the same was not acceptable part of the carcass as per para 86 of the Special Conditions of Contract. What was established was that when the butchery was raided and the meat issued to units were inspected on 14.2.1990, it was found that out of the dressed meat weighing 1411.2 kgs. that was issued to various units, the weight of hearts found as part of the meat was 14.5 kgs. The Supervisory Officer and Veterinary Officer have been charged and punished in this behalf. The case against the first respondent was not that he had instructed heart to be accepted as part of dressed meat nor is it the case that heart was being regularly accepted as part of dressed meat from the contractor. The case against first respondent was that when the butchery was being inspected on 14.2.1990, the first respondent as Commandant visited the butchery and during discussions with the inspecting officers made an observation that to the best of his knowledge, heart was an edible offal and could be issued on demand of units and also reiterated the said observation in his confidential report dated 15.2.1990. Making of the said remark has been interpreted as the first respondent accepting meat from the contractor with heart as part of the dressed meat, knowing well that heart was not acceptable part of carcass; to defraud the government. This charge depends upon the interpretation of para 86 of the special conditions of the contract and an inference that his understanding of para 86 amounted to causing acceptance of heart as part of the dressedthe circumstances, the punishment of dismissal from service is shockingly disproportionate to the gravity of the offences held to be proved. While we may not interfere with the findings of guilt, in a case of this nature, having regard to the nature of offences, we may consider the proportionality of punishment to find out whether it is perverse and irrational. Even accepting the said findings of guilt regarding charges (1), (4) and 5(c), it is clearly a case of shockingly disproportionate punishment being meted out to the Commandant for offering an alternative interpretation to clause (86), for the lapses of his supervisory officer and for the breach committed by the contractor. In the normal course, we would have set aside the punishment and referred the matter back for consideration and imposition of a lesser punishment. But having regard to the fact that the matter is more than 20 years old and the first respondent reached the age of superannuation long ago, no purpose would be served, by referring it back to the appellants. We are of the view on the facts and circumstances, interests of justice would be served if the punishment of dismissal is substituted by the following punishment : (a) forfeiture of eight years of service for the purpose of pension; and (b) Severe reprimand. As a consequence, the order forfeiting pension requires to be set aside as pension can be denied under Pension Regulation 16(a) only to the officers who are cashiered, dismissed or removed from service. | 1 | 9,269 | 2,182 | ### 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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the supplier of the animals. The government had entered into a contract with that supplier and clause 51(a) of Special Conditions is an undertaking by the Contractor which reads thus : “I/We shall maintain complete at all time from/upto .......... as reserve of not less than three days supply animals (sheep/goat) based on the average number of animals to be slaughtered as meat on hoof daily”. 30. Contract also provided (vide clause 52) that if the contractor failed to do so, the supply officer shall be at liberty to effect risk purchase be effected at the cost of the contractor and also take other steps. Therefore, failure to maintain reserve stocks of animals was not an omission on the part of any person in charge or overall charge of the butchery, but a breach by the contractor. The omission that could be attributed to the officer in-charge of the butchery or the first respondent is that when the contractor failed to maintain reserves failure to bring it to the contractors notice or failure to take action to make risk purchase and other steps in terms of the contract. But the charge is not that risk purchase was not effected or that the first respondent failed to take necessary remedial steps. The evidence showed that arrangements were made to procure the animals required for slaughter on day to day basis to ensure no breaks in supply of meat. It has also come in evidence that ever since 1989, the first respondent had been informing and complaining to his higher ups that the Ambala area where the supply depot was situated, had a shortage of stock of animals, that the contractor was not in a position to maintain the required reserves and therefore, suggesting that tenders should be invited from contractors in Delhi where there was an abundance of stocks. Therefore, an omission of the contractor cannot be considered to be an omission on part of the Contract Operating Officer, particularly when he had pointed out deficiencies, and taken remedial steps. Therefore, the effect of the finding in regard to charge (4) is that the contractor did not keep any animals as reserve between 11.3.1990 and 22.3.1990 as undertaken by it under clause 51(a) of the Special Conditions. The failure attributed to the supervisory staff of butchery and the first respondent who was in overall charge was that they failed to ensure that the contractor performed his obligations. What is established against first respondent under charge (4) is therefore, only a technical lapse. 31. Charge 5(c) is that the appellant failed to implement the standard operating procedure for butchery which required passed animals to be segregated and not allowed to mix with the other animals of the contractor. Animals that were branded and accepted for supply were the `passed animals. The evidence was not that passed animals and other animals were being kept together. The evidence was that on a particular day when the surprise inspection took place, the passed animals had not been segregated from the other animals of the contractor which were yet to be branded and passed. It was also not disputed that there was no specific directive relating to segregation. Even if there was any lapse, it was a lapse of the JCO as per the standard procedure for the butchery and not the Commandant of the supply depot. The omission that could be attributed is at best would be a technical lapse as far as the first respondent is concerned. 32. The omissions attributed to first respondent in regard to charges 4 and 5(c) were actually omissions by his sub-ordinates and those sub- ordinates were charge-sheeted. In regard to the subject of charges (1) and (4), the supervisory officer Capt. Paramjeet Singh Malhotra was cashiered and sentenced to undergo rigorous imprisonment for 30 months and the Veterinary Officer Lt. Capt. G. S. Srivastava was punished with forfeiture of eight years past service for the purpose of pension and severely reprimanded. In regard to the subject of charges (4) and 5(c), the Supervisory Officer Capt. Paramjeet Singh Malhotra was punished. The role of the appellant being that of an overall controlling officer of the supply depot was limited and the charges in so far as the first respondent were technical in nature. But for the limitation of interference with regard to findings of fact in judicial review, this might even be a case for interference with the findings of guilt recorded. Be that as it may. 33. In the circumstances, the punishment of dismissal from service is shockingly disproportionate to the gravity of the offences held to be proved. While we may not interfere with the findings of guilt, in a case of this nature, having regard to the nature of offences, we may consider the proportionality of punishment to find out whether it is perverse and irrational. Even accepting the said findings of guilt regarding charges (1), (4) and 5(c), it is clearly a case of shockingly disproportionate punishment being meted out to the Commandant for offering an alternative interpretation to clause (86), for the lapses of his supervisory officer and for the breach committed by the contractor. In the normal course, we would have set aside the punishment and referred the matter back for consideration and imposition of a lesser punishment. But having regard to the fact that the matter is more than 20 years old and the first respondent reached the age of superannuation long ago, no purpose would be served, by referring it back to the appellants. We are of the view on the facts and circumstances, interests of justice would be served if the punishment of dismissal is substituted by the following punishment : (a) forfeiture of eight years of service for the purpose of pension; and (b) Severe reprimand. As a consequence, the order forfeiting pension requires to be set aside as pension can be denied under Pension Regulation 16(a) only to the officers who are cashiered, dismissed or removed from service.34.
### Response:
1
### Explanation:
part of the meat knowing that the same was not acceptable part of carcasses as per para 86 of special conditions of the contract (vide first charge);(ii) The first respondent, as the Commandant incharge of the Supply Depot failed to ensure that required stocks were maintained as reserve, in the Butchery as required by para 51(a) of the special conditions of contract (vide fourth charge);(iii) The first respondent as the Commandant responsible for the overall control of the operation of the Butchery improperly failed to implement the standard operating procedure for Butchery resulting in `passed animals not being segregated and being allowed to mix with the other animals of the contractor.According to the charge-sheet, the first charge was an offence falling under section 52(f) of the Act which provides that subject to the provisions of the Act, any person who does anything with intent to defraud, or to cause wrongful gain to one person or wrongful loss to another person, shall, on conviction by court martial, be liable to suffer imprisonment for a term which may extend to ten years or such less punishment as is mentioned in the Act. The other two charges which are held to be proved relate to acts or omissions which are said to beto good order and militarypunishable under section 63 of the Act on conviction by Court Martial, with imprisonment for a term which may extend to seven years or such less punishment as is mentioned in the Act. We may now consider the nature and content of the charges proved. Section 52(f) and section 63 are very broadly and generally worded and deal with residuary offences, (one dealing with property and another dealing with discipline) to provide for and cover offences which are not specifically provided in sections 34 to 64 of the Act. The offences under these residuary provisions may fall under a wide spectrum, ranging from the mildest technical violations to the severest offences relating to fraud or gross indiscipline. It is therefore necessary to find the degree of gravity of the offence when a person is found guilty of offences under section 52(f) or section 63. Only then, the court can consider whether the punishment is so disproportionate to the gravity of the proved offences that it shocks the conscience of the court or is so perverse or irrational that it cannot be allowed to stand. As held by this Court repeatedly, there could be no judicial review merely because the court feels that the punishment should have been lesser or on the ground of sympathy orcharge that has been held to have been proved is an offence under section 52(f) of the Act that is while commanding the supply depot, the first respondent being the Contract Operating Officer for dressed meat, with intent to defraud, caused the acceptance of meat from the contractor with heart as part of meat between 1.5.1989 and 31.3.1990, knowing that the same was not acceptable part of the carcass as per para 86 of the Special Conditions of Contract. What was established was that when the butchery was raided and the meat issued to units were inspected on 14.2.1990, it was found that out of the dressed meat weighing 1411.2 kgs. that was issued to various units, the weight of hearts found as part of the meat was 14.5 kgs. The Supervisory Officer and Veterinary Officer have been charged and punished in this behalf. The case against the first respondent was not that he had instructed heart to be accepted as part of dressed meat nor is it the case that heart was being regularly accepted as part of dressed meat from the contractor. The case against first respondent was that when the butchery was being inspected on 14.2.1990, the first respondent as Commandant visited the butchery and during discussions with the inspecting officers made an observation that to the best of his knowledge, heart was an edible offal and could be issued on demand of units and also reiterated the said observation in his confidential report dated 15.2.1990. Making of the said remark has been interpreted as the first respondent accepting meat from the contractor with heart as part of the dressed meat, knowing well that heart was not acceptable part of carcass; to defraud the government. This charge depends upon the interpretation of para 86 of the special conditions of the contract and an inference that his understanding of para 86 amounted to causing acceptance of heart as part of the dressedthe circumstances, the punishment of dismissal from service is shockingly disproportionate to the gravity of the offences held to be proved. While we may not interfere with the findings of guilt, in a case of this nature, having regard to the nature of offences, we may consider the proportionality of punishment to find out whether it is perverse and irrational. Even accepting the said findings of guilt regarding charges (1), (4) and 5(c), it is clearly a case of shockingly disproportionate punishment being meted out to the Commandant for offering an alternative interpretation to clause (86), for the lapses of his supervisory officer and for the breach committed by the contractor. In the normal course, we would have set aside the punishment and referred the matter back for consideration and imposition of a lesser punishment. But having regard to the fact that the matter is more than 20 years old and the first respondent reached the age of superannuation long ago, no purpose would be served, by referring it back to the appellants. We are of the view on the facts and circumstances, interests of justice would be served if the punishment of dismissal is substituted by the following punishment : (a) forfeiture of eight years of service for the purpose of pension; and (b) Severe reprimand. As a consequence, the order forfeiting pension requires to be set aside as pension can be denied under Pension Regulation 16(a) only to the officers who are cashiered, dismissed or removed from service.
|
ASHWANI KUMAR MISHRA Vs. P. MUNIAM BABU AND OTHERS | evidence to show that the Appellant was at all employed anywhere at the time of the accident and in the absence of proof regarding his income, the amount of compensation cannot be enhanced. It is submitted that as the Appellant had claimed Rs. 2,90,919.15 and was awarded Rs. 2,25,000/- with interest, there is no justification for him to claim enhancement of the compensation amount. 3. The facts giving rise to the filing of the present appeal are that the Appellant who was 23 years of age had met with a accident and received severe injuries causing damages to his spinal cord. He remained under treatment for about 90 days and became permanently disabled. He had preferred a claim for Rs. 63,00,919.15 from the owner, driver and the insurer of the vehicle for injuries suffered by him in the motor accident. The Motor Accident Claim Tribunal (hereinafter referred to as the Tribunal) after appreciating the evidence led in the case held that the Appellant was travelling as an agent of the construction firm when he met with the accident and awarded him a compensation of Rs. 1,64,037/- with interest at the rate of 10 percent per annum. Both the Appellant and the insurance company preferred appeals before the High Court which were disposed by the impugned judgment holding the Appellant entitled to Rs. 2,25,000/- as compensation payable with interest at the rate of 12 percent per annum instead of 10 percent as awarded by the Tribunal. 4. It is not disputed that the Appellant had met with a road accident in which he was seriously injured, underwent operations of his spinal cord/kidney number of times and has become invalid for all practical purposes for the rest of his life. The Appellant had claimed that his income was Rs. 2,000/- per month at the time of accident when he was 23 years of age. He had prayed for applying the multiplier of 55 for granting him compensation in lieu of loss of income which he would have earned in the absence of accident in which he has admittedly been totally incapacitated. The Learned Counsel appearing for the insurance company submitted that there was no proof of his income and that he was not proved to have been employee of his father in the work where the vehicle was being utilised at the time of the accident. It is however, not disputed that at the time of the accident, the Appellant was assisting his father in the construction work of Sunita Construction at Deposit No. 40 in Township of Kailash Nagar for renewing of fencing in front of residential and non-residential quarters-providing C.C. coping with glasses for compound walls of Kailash Nagar when he met with the accident. He has claimed his income to be Rs. 2000/- per month. The Appellant, a young man cannot be disputed to be contributing and augmenting the income of his father. Some guess work has to be applied while assessing the loss. This Court in R.D. Hattangadi Vs. M/s. Pest Control (India) Pvt. Ltd. and Others, had held - Broadly speaking while fixing an amount of compensation payable to a victim of an accident, the damages have to be assessed separately as pecuniary damages and special damages. Pecuniary damages are those which the victim has actually incurred and which is capable of being calculated in terms of money; whereas non-pecuniary damages are those which are incapable of being assessed by arithmetical calculations. In order to appreciate two concepts pecuniary damages may include expense incurred by the claimant: (i) medical attendance; (ii) loss of earning of profit up to the date of trial; (iii) other material loss. So far non-pecuniary damages are concerned, they may include: (i) damages for mental and physical shock, pain suffering, already suffered or likely to be suffered in future; (ii) damages to compensate for the loss of amenities of life which may included a variety of matters, i.e. on account of injury the claimant may not be able to walk, run or sit; (iii) damages for the loss of expectation of life, i.e., on account of injury the normal lognevity of the person concerned is shortened; (iv) inconvenience, hardship, discomfort, disappointment, frustration and mental stress in life. It was further held that whenever a tribunal or court is required to fix the amount of compensation in cases of accident, it involves some guess work, some hypothetical consideration, some amount of sympathy linked with the nature of the disability caused. However all such elements are required to be viewed with objective standards. While assessing damage, the court cannot base its opinion merely on speculation or fancy though conjectures to some extent or inevitable. 5. In the instant case, the Appellant has been awarded Rs. 94037/- as expenses incurred on medical care, Rs. 20,000/- for special diet and expenses for attendant during treatment. For his becoming permanently disabled and paraplegic on account of the injury and damages caused to his spinal cord, the Appellant, who admittedly has been held permanently incapacitated has been granted only Rs. 1,00,000/- We are of the opinion that the Appellant was right in claiming his income at Rs. 2,000/- per month while working with his father at the time of the accident and even if we apply the multiplier of 16, he is entitled to the claim of Rs. 3,84,000/- on account of loss of expectation to life besides disappointment, frustration and mental stress particularly when he has to keep a permanent attendant to look after him in his rest of life. Adding this amount to the amount of Rs. 1,14,000/- to which the Appellant has rightly been held entitled on account of expenses incurred on medical care and for the pain suffering during the period of treatment, the Appellant is entitled to a total sum of Rs. 4,98,000/- which we round up to Rs. 5,00,000/- inclusive of costs of litigation. The aforesaid amount is liable to be paid by the Respondent-insurance company as was held by the High Court. | 1[ds]5. In the instant case, the Appellant has been awarded Rs. 94037/- as expenses incurred on medical care, Rs. 20,000/- for special diet and expenses for attendant during treatment. For his becoming permanently disabled and paraplegic on account of the injury and damages caused to his spinal cord, the Appellant, who admittedly has been held permanently incapacitated has been granted only Rs. 1,00,000/- We are of the opinion that the Appellant was right in claiming his income at Rs. 2,000/- per month while working with his father at the time of the accident and even if we apply the multiplier of 16, he is entitled to the claim of Rs. 3,84,000/- on account of loss of expectation to life besides disappointment, frustration and mental stress particularly when he has to keep a permanent attendant to look after him in his rest of life. Adding this amount to the amount of Rs. 1,14,000/- to which the Appellant has rightly been held entitled on account of expenses incurred on medical care and for the pain suffering during the period of treatment, the Appellant is entitled to a total sum of Rs. 4,98,000/- which we round up to Rs. 5,00,000/- inclusive of costs of litigation. The aforesaid amount is liable to be paid by the Respondent-insurance company as was held by the High Court. | 1 | 1,159 | 245 | ### 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:
evidence to show that the Appellant was at all employed anywhere at the time of the accident and in the absence of proof regarding his income, the amount of compensation cannot be enhanced. It is submitted that as the Appellant had claimed Rs. 2,90,919.15 and was awarded Rs. 2,25,000/- with interest, there is no justification for him to claim enhancement of the compensation amount. 3. The facts giving rise to the filing of the present appeal are that the Appellant who was 23 years of age had met with a accident and received severe injuries causing damages to his spinal cord. He remained under treatment for about 90 days and became permanently disabled. He had preferred a claim for Rs. 63,00,919.15 from the owner, driver and the insurer of the vehicle for injuries suffered by him in the motor accident. The Motor Accident Claim Tribunal (hereinafter referred to as the Tribunal) after appreciating the evidence led in the case held that the Appellant was travelling as an agent of the construction firm when he met with the accident and awarded him a compensation of Rs. 1,64,037/- with interest at the rate of 10 percent per annum. Both the Appellant and the insurance company preferred appeals before the High Court which were disposed by the impugned judgment holding the Appellant entitled to Rs. 2,25,000/- as compensation payable with interest at the rate of 12 percent per annum instead of 10 percent as awarded by the Tribunal. 4. It is not disputed that the Appellant had met with a road accident in which he was seriously injured, underwent operations of his spinal cord/kidney number of times and has become invalid for all practical purposes for the rest of his life. The Appellant had claimed that his income was Rs. 2,000/- per month at the time of accident when he was 23 years of age. He had prayed for applying the multiplier of 55 for granting him compensation in lieu of loss of income which he would have earned in the absence of accident in which he has admittedly been totally incapacitated. The Learned Counsel appearing for the insurance company submitted that there was no proof of his income and that he was not proved to have been employee of his father in the work where the vehicle was being utilised at the time of the accident. It is however, not disputed that at the time of the accident, the Appellant was assisting his father in the construction work of Sunita Construction at Deposit No. 40 in Township of Kailash Nagar for renewing of fencing in front of residential and non-residential quarters-providing C.C. coping with glasses for compound walls of Kailash Nagar when he met with the accident. He has claimed his income to be Rs. 2000/- per month. The Appellant, a young man cannot be disputed to be contributing and augmenting the income of his father. Some guess work has to be applied while assessing the loss. This Court in R.D. Hattangadi Vs. M/s. Pest Control (India) Pvt. Ltd. and Others, had held - Broadly speaking while fixing an amount of compensation payable to a victim of an accident, the damages have to be assessed separately as pecuniary damages and special damages. Pecuniary damages are those which the victim has actually incurred and which is capable of being calculated in terms of money; whereas non-pecuniary damages are those which are incapable of being assessed by arithmetical calculations. In order to appreciate two concepts pecuniary damages may include expense incurred by the claimant: (i) medical attendance; (ii) loss of earning of profit up to the date of trial; (iii) other material loss. So far non-pecuniary damages are concerned, they may include: (i) damages for mental and physical shock, pain suffering, already suffered or likely to be suffered in future; (ii) damages to compensate for the loss of amenities of life which may included a variety of matters, i.e. on account of injury the claimant may not be able to walk, run or sit; (iii) damages for the loss of expectation of life, i.e., on account of injury the normal lognevity of the person concerned is shortened; (iv) inconvenience, hardship, discomfort, disappointment, frustration and mental stress in life. It was further held that whenever a tribunal or court is required to fix the amount of compensation in cases of accident, it involves some guess work, some hypothetical consideration, some amount of sympathy linked with the nature of the disability caused. However all such elements are required to be viewed with objective standards. While assessing damage, the court cannot base its opinion merely on speculation or fancy though conjectures to some extent or inevitable. 5. In the instant case, the Appellant has been awarded Rs. 94037/- as expenses incurred on medical care, Rs. 20,000/- for special diet and expenses for attendant during treatment. For his becoming permanently disabled and paraplegic on account of the injury and damages caused to his spinal cord, the Appellant, who admittedly has been held permanently incapacitated has been granted only Rs. 1,00,000/- We are of the opinion that the Appellant was right in claiming his income at Rs. 2,000/- per month while working with his father at the time of the accident and even if we apply the multiplier of 16, he is entitled to the claim of Rs. 3,84,000/- on account of loss of expectation to life besides disappointment, frustration and mental stress particularly when he has to keep a permanent attendant to look after him in his rest of life. Adding this amount to the amount of Rs. 1,14,000/- to which the Appellant has rightly been held entitled on account of expenses incurred on medical care and for the pain suffering during the period of treatment, the Appellant is entitled to a total sum of Rs. 4,98,000/- which we round up to Rs. 5,00,000/- inclusive of costs of litigation. The aforesaid amount is liable to be paid by the Respondent-insurance company as was held by the High Court.
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5. In the instant case, the Appellant has been awarded Rs. 94037/- as expenses incurred on medical care, Rs. 20,000/- for special diet and expenses for attendant during treatment. For his becoming permanently disabled and paraplegic on account of the injury and damages caused to his spinal cord, the Appellant, who admittedly has been held permanently incapacitated has been granted only Rs. 1,00,000/- We are of the opinion that the Appellant was right in claiming his income at Rs. 2,000/- per month while working with his father at the time of the accident and even if we apply the multiplier of 16, he is entitled to the claim of Rs. 3,84,000/- on account of loss of expectation to life besides disappointment, frustration and mental stress particularly when he has to keep a permanent attendant to look after him in his rest of life. Adding this amount to the amount of Rs. 1,14,000/- to which the Appellant has rightly been held entitled on account of expenses incurred on medical care and for the pain suffering during the period of treatment, the Appellant is entitled to a total sum of Rs. 4,98,000/- which we round up to Rs. 5,00,000/- inclusive of costs of litigation. The aforesaid amount is liable to be paid by the Respondent-insurance company as was held by the High Court.
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Addagada Raghavamma And Anr Vs. Addagada Chenchamma And Anr | as nothing turns upon them, for in this appeal there are only two members in the joint family and it is not suggested that Subba Rao did not have the knowledge of the terms of the will after the death of Chimpirayya.34. The third question falls to be decided in this appeal. It is this : what is the date from which severance in status is deemed to have taken place? Is it the date of expression of intention or the date when it is brought to the knowledge of the other members? If it is the latter date, is it the date when one of the members first acquired knowledge or the date when the last of them acquired the said knowledge or the different dates on which each of the members of the family got knowledge of the intention so far as he is concerned? If the last alternative be accepted, the dividing member will be deemed to have been separated from each of the members on different dates on which each of the members of the family got knowledge of the intention so far as he is concerned? If the last alternative be accepted, the dividing member will be deemed to have been separated from each of the members on different dates. The acceptance of the said principle would inevitably lead to confusion. If the first alternative be accepted, it would be doing lip service to the doctrine of knowledge, for the member who gets knowledge of the intention first may in no sense of the term be a representative of the family. The second alternative may put off indefinitely the date of severance, as the whereabouts of one of the members may not be known at all or may be known after many years. The Hindu law texts do not provide any solution to meet these contingencies. The decided cases also do not suggest a way out. It is, therefore, open to this Court to evolve a reasonable and equitable solution without doing violence to the principles of Hindu law. The doctrine of relation back has already been recognized by Hindu Law as developed by Courts and applied in that branch of the law pertaining to adoption. There are two ingredients of a declaration of a members intention to separate. One is the expression of the intention and the other is brining that expression to the knowledge of the person or person affected. When once that knowledge is brought home-that depends upon the facts of each case-it relates back to the date when the intention is formed and expressed. But between the two dates, the person expressing the intention may lose his interest in the family property; he may withdraw his intention to divide; he may die before his intention to divide is conveyed to the other members of the family : with the result, his interest survives to the other members. A manager of a joint Hindu family may sell away the entire family property for debts binding on the family. There may be similar other instances. If the doctrine of relation back is invoked without any limitation thereon, vested rights so created will be affected and settled titles may be disturbed. Principles of equity require and commonsense demands that a limitation which avoids the confusion of titles must be placed on it. What would be more equitable and reasonable then to suggest that the doctrine should not affect vested rights? But imposing such a limitation we are not curtailing the scope of any well established Hindu law doctrine, but we are invoking only a principle by analogy subject to a limitation to meet a contingency. Further, the principle of retroactivity, unless a legislative intention is clearly to the contrary, saves vested rights. As the doctrine of relation back involves retroactivity by parity of reasoning, it cannot affect vested rights. It would follow that, though the date of severance is that of manifestation of the intention to separate the right accrued to others in the joint family property between the said manifestation and the knowledge of it by the other members would be saved.35. Applying the said principles to the present case, it will have to be held that on the death of Chimpirayya his interest devolved on Subbarao and, therefore, his will, even if it could be relied upon for ascertaining his intention to separate from the family, could not convey his interest in the family property, as it has not been established that Subbarao or his guardian had knowledge of the contents of the said will before Chimpirayya died.36. It is contended that first respondent, as the guardian of Subbarao, had knowledge of the contents of the Will and, therefore, the Will operates on the interest of Chimpirayya. Reliance is placed upon the evidence of P. W. 11, one Komanduri Singaracharyulu. He deposed that he was present at the time the Will was executed by Chimpirayya and that he signed it as an identifying witness. In the cross-examination he said that at the time of the execution of the Will the first defendant-respondent was inside the house. This evidence is worthless. The fact that she was inside the house cannot in itself impute to her the knowledge of the contents of the Will or even the fact that the will was registered that day. D. W. 4 is the first respondent hereself. She says in her evidence that she did not know whether the Sub-Registrar came to register the Will of Chimpirayya, and that she came to know of the Will only after the suit was filed. In that state of evidence it is not possible to hold that the first respondent as guardian of Subbararo, had knowledge of the contents of the Will.37. In this view, it is not necessary to consider the further question whether the Will coptained a clear and unambiguous declaration of intention on the part of the testator to divide himself from the member of the joint family. | 0[ds]9. Under Art. 133 of the Constitution the certificate issued by the High Court in the manner prescribed therein is afor the maintainability of an appeal to the Supreme Court. But the terms of the certificate do not circumscribe the scope of the appeal that is to say, once a proper certificate is granted, the Supreme Court has undoubtedly the power, as a Court of appeal, to consider the correctness of the decision appealed against from every standpoint, whether on question of fact or law. A successful party no doubt can question the maintainability of the appeal on the ground that the certificate was issued by the High Court in contravention of the provisions of Art. 133 of the Constitution, but once the certificate was good, the provisions of Art. 133 did not confine the scope of the appeal to the certificate. We, therefore, reject this preliminary objection.Article 133 of the Constitution does not in any way limit the scope of an appeal, provided a proper and valid certificate is issued by the High Court thereunder. This Court has undoubtedly the power to review the concurrent findings of fact arrived at by the lower Courts in appropriate cases. But it has been apractice of the Privy Council not to interfere with such findings based upon relevant evidence, except underThe reason for the practice is stated to be that when facts have been fairly tried by two Courts and the same conclusion has been reached by both, it is not in the public interest that the facts should be again examined by the ultimate Court of appeal. Whatever may be the reason for the rule, the practice has become fairly crystallized and this Court ordinarily will not interfere with concurrent findings of fact except in exceptional cases, where the findings are such that it "shocks the conscience of the Court or by disregard to the forms of legal process or some violation of some principles of natural justice or otherwise substantial and grave injustice has been done." It is not possible nor advisable to define those circumstances. It must necessarily be left to the discretion of this Court having regard to the facts of a particular case. We have heard learned counsel on merits and we do not think it is one of those exceptional cases where we should depart from the salutary practice adopted by thisargument in effect and substance means that the Courts below have not given due weight to particular pieces ofevidence. There is an essential distinction between burden of proof and onus of proof : burden of proof lies upon the person who has to prove a fact and it never shifts, but the onus of proof shifts, but the onus of proof shifts. The burden of proof in the present case undoubtedly lies upon the plaintiff to establish the factum of adoption and that of partition. The said circumstances do not alter the incidence of the burden of proof. Such considerations, having regard to the circumstances of a partition. The said circumstances do not alter the incidence of the burden of proof. Such considerations, having regard to the circumstances of a particular case, may shift the onus of proof. Such a shifting of onus is a continuous process in the evaluation of evidence. The criticism levelled against the judgment, of the lower Courts, therefore, only pertains to the domain of appreciation of evidence. We shall, therefore, broadly consider the evidence not for the purpose of revaluation, but to see whether the treatment of the case by the Courts below is such that it falls in the category of exceptional cases where this Court, in the interest of justice, should depart from its usualthis state of evidence when both the Courts found, on a careful consideration of oral and documentary evidence and the probabilities arising therefrom that the appellant on whom the burden of proof lay to establish that Venkayya was adopted to Pitchayya has failed to discharge it, we cannot say that the finding was vitiated by such errors that we should review the entire evidence over again and come to a conclusion of our own. We, therefore, accept the concurrent finding of that fact that there was no adoption.In this state of evidence it is not possible to say that there had been a consistent pattern of conduct from which a Court should draw the inference that the adoption must have takensaid suggestions made by learned counsel on both sides are only based on surmises and they cannot be made the basis for a Courts conclusion.Inthis state of evidence when both the Courts found, on a careful consideration of oral and documentary evidence and the probabilities arising therefrom that the appellant on whom the burden of proof lay to establish that Venkayya was adopted to Pitchayya has failed to discharge it, we cannot say that the finding was vitiated by such errors that we should review the entire evidence over again and come to a conclusion of our own. We, therefore, accept the concurrent finding of that fact that there was nopartition is alleged to have taken place in or about the year 1895; but no partition deed was executed to evidence the same. The burden is certainly on the appellant who sets up partition to prove the said fact. P.W. 1, though she says that Veeranna was alive when his sons effected the partition, admits that she was not present at the time of partition, but only heard about it, P. W. 2, the appellant, deposes that her husband and his brothers effected partition after she went to live with him; she adds that in that partition herlaw took about 4 acres of land described as Bangala Chenu subjects to the condition that after his death it should be taken by his four sons, that at the time of partition they drew up partition lists and recited that each should enjoy what was allotted to him and that the lists were written by one Manchella Narasinhayya; she also admits that the lists are in existence, but she has not taken any steps to have them produced in Court. She says that each of the brothers got pattas according to the partition, and that the pattas got for Pitchayyas share are in his house; yet she does not produce them. She says that she paid kist for the lands allotted to Pitchayyas share and obtained receipts; but the receipts are not filed. She admits that she has the account books; but they have not been filed in Court. On her own showing there is reliable evidence, such as accounts, Pattas, receipts, partition lists and that they are available; but they are not placed before the Court. Her interested evidence cannot obviously be acted upon when all the relevant evidence has beenevidence does not contain any admission that there was a partition inter se between the four brothers; indeed it only supports the case that there was partition between the children of Veeranna by his two wives. The division in four plots in respect of certain lands was only for an equitable distribution of the said lands between the sons of two wives. D. W. 10 in his evidence says that he does not know in what year the partition took place; that it went on for two months; that some of the lands were divided into four plots. His evidence is also consistent with the evidence of D. W. 8. There is no admission by defendants witnesses that the division was between the four brothers. The oral evidence, therefore, does not support the case of the appellant that there was a division inter se between Chimpirayya and Pitchayya.20. Now coming to the documentary evidence, as we have already indicated, all the relevant documents admitted to have been in existence have not been placed before the Court and an adverse inference has, therefore, to be drawn against the appellant. Even the documentary evidence filed in the case does not help theseries of documents support the case that there was no partition inter se between Chimpirayya and Pitchayya. So too, another land obtained by Veeranna under an oral sale in 1886 was formally sold by a registered sale in favour of Chimpirayya and Pannayya under Ex.in 1911. If Pitchayya had a share, Venkayya should have been one of the vendees. Exs. B 67 and B 68 are the assessment orders of the year 1933 and Chimpirayya was assessed as representing a Hindu undivided family. At the time of assessment if Venkayya was not a member of the Hindu joint family, there was no other male member in the family. The assessment could only be explained on the basis that Venkayya and Chimpirayya were members of a Joint Hindu family. Both the Courts, on the basis of the said evidence and other evidence, came to the conclusion that it has not been established that in the partition of 1895 there was a division inter se between Chimpirayya andthere is a partition in a Hindu joint family is, therefore, a question of fact; notwithstanding the fact that one or more of the members of the joint family were separated from the rest, the plaintiff who seeks to get a specified extent of land on the ground that it fell to the share of the testator has to prove that the said extent of land fell to his share; but when evidence has been adduced on both sides, the burden of proof ceases to have any practical importance. On the evidence adduced in this case, both the Courts below found that there was no partition between Chimpirayya and Pitchayya as alleged by the appellant. The finding is one of fact.We have broadly considered the evidence only for the purpose of ascertaining whether the said concurrent finding of fact is supported by evidence or whether it is in any way vitiated by errors of law. We find that there is ample evidence for the finding and it is not vitiated by any error of law.It is settled law that a member of a joint Hindu family can bring about his separation in status by a definite and unequivocal declaration of his intention to separate himself from the family and enjoy his share in severalty. Omitting the Will, the earlier documents filed in the case do not disclose any such clear intention. We have already held that there was no partition between Chimpirayya and Pitchayya. The register of changes on which reliance is placed does not indicate any such intention. The statement of Chimpirayya that his younger brothers son is a sharer in some lands and, therefore, his name should be included in the register, does not ex facie or by necessary implication indicate his unambiguous declaration to get divided in status from him. The conflicting descriptions in various documents introduce ambiguity rather then clarity in the matter of any such declaration of intention. Be it as it may, we cannot, therefore, hold that there is any such clear and unambiguous declaration of intention made by Chimpirayya to divide himself frontregret our inability to accept this view. Firstly, because, as we have pointed out earlier, the law has been well settled by the decisions of the Judicial Committee that the manifested intention should be made known to the other members of the family affected thereby; secondly, because there would be anomalies on the acceptation of either of the views.Thirdly, it is implicit in the doctrine of declaration of an intention that it should be declared to somebody and who can that somebody be except the one that is affected thereby.We agree with the learned Judge in so far as he held that there should be an intimation, indication or expression of the intention to become divided and that what form that manifestation should take would depend upon the circumstances of each case. But if the learned Judge meant that the said declaration without it being brought to the knowledge of the other members of the family in one way or other constitutes a severance in status, we find it difficult to accept it. In our view, it is implicit in the expression "declaration" that it should be to the knowledge of the person affected thereby. An uncommunicated declaration is no better than a mere formation or harbouring of an intention to separate. It becomes effective as a declaration only after its communication to the person or persons who would be affected thereby.32. It is, therefore, clear that Hindu Law texts suggested and Courts evolved, by a process of reasoning as well as by a pragmatic approach that, such a declaration to be effective should reach the person or persons affected by one process or other appropriate to a given situation.33. This view does not finally solve the problem. There is yet anotherquestions posed raise difficult problems in a fast changing society. What was adequate in a village polity when the doctrine was conceived and evolved can no longer meet the demands of a modern society. Difficult questions, such as the mode of service and its sufficiency, whether a service on a manager would be enough, whether service on the major members or a substantial body of them would suffice, whether notice should go to each one of them, how to give notice to minor members of the family, may arise for consideration. But, we need not express our opinion on the said questions, as nothing turns upon them, for in this appeal there are only two members in the joint family and it is not suggested that Subba Rao did not have the knowledge of the terms of the will after the death ofacceptance of the said principle would inevitably lead to confusion. If the first alternative be accepted, it would be doing lip service to the doctrine of knowledge, for the member who gets knowledge of the intention first may in no sense of the term be a representative of the family. The second alternative may put off indefinitely the date of severance, as the whereabouts of one of the members may not be known at all or may be known after many years. The Hindu law texts do not provide any solution to meet these contingencies. The decided cases also do not suggest a way out. It is, therefore, open to this Court to evolve a reasonable and equitable solution without doing violence to the principles of Hindu law. The doctrine of relation back has already been recognized by Hindu Law as developed by Courts and applied in that branch of the law pertaining to adoption. There are two ingredients of a declaration of a members intention to separate. One is the expression of the intention and the other is brining that expression to the knowledge of the person or person affected. When once that knowledge is broughtdepends upon the facts of eachrelates back to the date when the intention is formed and expressed. But between the two dates, the person expressing the intention may lose his interest in the family property; he may withdraw his intention to divide; he may die before his intention to divide is conveyed to the other members of the family : with the result, his interest survives to the other members. A manager of a joint Hindu family may sell away the entire family property for debts binding on the family. There may be similar other instances. If the doctrine of relation back is invoked without any limitation thereon, vested rights so created will be affected and settled titles may be disturbed. Principles of equity require and commonsense demands that a limitation which avoids the confusion of titles must be placed on it. What would be more equitable and reasonable then to suggest that the doctrine should not affect vested rights? But imposing such a limitation we are not curtailing the scope of any well established Hindu law doctrine, but we are invoking only a principle by analogy subject to a limitation to meet a contingency. Further, the principle of retroactivity, unless a legislative intention is clearly to the contrary, saves vested rights. As the doctrine of relation back involves retroactivity by parity of reasoning, it cannot affect vested rights. It would follow that, though the date of severance is that of manifestation of the intention to separate the right accrued to others in the joint family property between the said manifestation and the knowledge of it by the other members would be saved.35. Applying the said principles to the present case, it will have to be held that on the death of Chimpirayya his interest devolved on Subbarao and, therefore, his will, even if it could be relied upon for ascertaining his intention to separate from the family, could not convey his interest in the family property, as it has not been established that Subbarao or his guardian had knowledge of the contents of the said will before Chimpirayyaon hesaid that at the time of the execution of the Will the firsts inside thehouse. This evidence is worthless. The fact that sheuse cannot in itself impute to her the knowledge of the contents of the Will or even the fact that the will was registered that day. D. W. 4 is the first respondent hereself. She says in her evidence that she did not know whether thecame to register the Will of Chimpirayya, and that she came to know of the Will only after the suit was filed. In that state of evidence it is not possible to hold that the first respondent as guardian of Subbararo, had knowledge of the contents of the Will.37. In this view, it is not necessary to consider the further question whether the Will coptained a clear and unambiguous declaration of intention on the part of the testator to divide himself from the member of the joint family. | 0 | 12,011 | 3,219 | ### Instruction:
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as nothing turns upon them, for in this appeal there are only two members in the joint family and it is not suggested that Subba Rao did not have the knowledge of the terms of the will after the death of Chimpirayya.34. The third question falls to be decided in this appeal. It is this : what is the date from which severance in status is deemed to have taken place? Is it the date of expression of intention or the date when it is brought to the knowledge of the other members? If it is the latter date, is it the date when one of the members first acquired knowledge or the date when the last of them acquired the said knowledge or the different dates on which each of the members of the family got knowledge of the intention so far as he is concerned? If the last alternative be accepted, the dividing member will be deemed to have been separated from each of the members on different dates on which each of the members of the family got knowledge of the intention so far as he is concerned? If the last alternative be accepted, the dividing member will be deemed to have been separated from each of the members on different dates. The acceptance of the said principle would inevitably lead to confusion. If the first alternative be accepted, it would be doing lip service to the doctrine of knowledge, for the member who gets knowledge of the intention first may in no sense of the term be a representative of the family. The second alternative may put off indefinitely the date of severance, as the whereabouts of one of the members may not be known at all or may be known after many years. The Hindu law texts do not provide any solution to meet these contingencies. The decided cases also do not suggest a way out. It is, therefore, open to this Court to evolve a reasonable and equitable solution without doing violence to the principles of Hindu law. The doctrine of relation back has already been recognized by Hindu Law as developed by Courts and applied in that branch of the law pertaining to adoption. There are two ingredients of a declaration of a members intention to separate. One is the expression of the intention and the other is brining that expression to the knowledge of the person or person affected. When once that knowledge is brought home-that depends upon the facts of each case-it relates back to the date when the intention is formed and expressed. But between the two dates, the person expressing the intention may lose his interest in the family property; he may withdraw his intention to divide; he may die before his intention to divide is conveyed to the other members of the family : with the result, his interest survives to the other members. A manager of a joint Hindu family may sell away the entire family property for debts binding on the family. There may be similar other instances. If the doctrine of relation back is invoked without any limitation thereon, vested rights so created will be affected and settled titles may be disturbed. Principles of equity require and commonsense demands that a limitation which avoids the confusion of titles must be placed on it. What would be more equitable and reasonable then to suggest that the doctrine should not affect vested rights? But imposing such a limitation we are not curtailing the scope of any well established Hindu law doctrine, but we are invoking only a principle by analogy subject to a limitation to meet a contingency. Further, the principle of retroactivity, unless a legislative intention is clearly to the contrary, saves vested rights. As the doctrine of relation back involves retroactivity by parity of reasoning, it cannot affect vested rights. It would follow that, though the date of severance is that of manifestation of the intention to separate the right accrued to others in the joint family property between the said manifestation and the knowledge of it by the other members would be saved.35. Applying the said principles to the present case, it will have to be held that on the death of Chimpirayya his interest devolved on Subbarao and, therefore, his will, even if it could be relied upon for ascertaining his intention to separate from the family, could not convey his interest in the family property, as it has not been established that Subbarao or his guardian had knowledge of the contents of the said will before Chimpirayya died.36. It is contended that first respondent, as the guardian of Subbarao, had knowledge of the contents of the Will and, therefore, the Will operates on the interest of Chimpirayya. Reliance is placed upon the evidence of P. W. 11, one Komanduri Singaracharyulu. He deposed that he was present at the time the Will was executed by Chimpirayya and that he signed it as an identifying witness. In the cross-examination he said that at the time of the execution of the Will the first defendant-respondent was inside the house. This evidence is worthless. The fact that she was inside the house cannot in itself impute to her the knowledge of the contents of the Will or even the fact that the will was registered that day. D. W. 4 is the first respondent hereself. She says in her evidence that she did not know whether the Sub-Registrar came to register the Will of Chimpirayya, and that she came to know of the Will only after the suit was filed. In that state of evidence it is not possible to hold that the first respondent as guardian of Subbararo, had knowledge of the contents of the Will.37. In this view, it is not necessary to consider the further question whether the Will coptained a clear and unambiguous declaration of intention on the part of the testator to divide himself from the member of the joint family.
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if the learned Judge meant that the said declaration without it being brought to the knowledge of the other members of the family in one way or other constitutes a severance in status, we find it difficult to accept it. In our view, it is implicit in the expression "declaration" that it should be to the knowledge of the person affected thereby. An uncommunicated declaration is no better than a mere formation or harbouring of an intention to separate. It becomes effective as a declaration only after its communication to the person or persons who would be affected thereby.32. It is, therefore, clear that Hindu Law texts suggested and Courts evolved, by a process of reasoning as well as by a pragmatic approach that, such a declaration to be effective should reach the person or persons affected by one process or other appropriate to a given situation.33. This view does not finally solve the problem. There is yet anotherquestions posed raise difficult problems in a fast changing society. What was adequate in a village polity when the doctrine was conceived and evolved can no longer meet the demands of a modern society. Difficult questions, such as the mode of service and its sufficiency, whether a service on a manager would be enough, whether service on the major members or a substantial body of them would suffice, whether notice should go to each one of them, how to give notice to minor members of the family, may arise for consideration. But, we need not express our opinion on the said questions, as nothing turns upon them, for in this appeal there are only two members in the joint family and it is not suggested that Subba Rao did not have the knowledge of the terms of the will after the death ofacceptance of the said principle would inevitably lead to confusion. If the first alternative be accepted, it would be doing lip service to the doctrine of knowledge, for the member who gets knowledge of the intention first may in no sense of the term be a representative of the family. The second alternative may put off indefinitely the date of severance, as the whereabouts of one of the members may not be known at all or may be known after many years. The Hindu law texts do not provide any solution to meet these contingencies. The decided cases also do not suggest a way out. It is, therefore, open to this Court to evolve a reasonable and equitable solution without doing violence to the principles of Hindu law. The doctrine of relation back has already been recognized by Hindu Law as developed by Courts and applied in that branch of the law pertaining to adoption. There are two ingredients of a declaration of a members intention to separate. One is the expression of the intention and the other is brining that expression to the knowledge of the person or person affected. When once that knowledge is broughtdepends upon the facts of eachrelates back to the date when the intention is formed and expressed. But between the two dates, the person expressing the intention may lose his interest in the family property; he may withdraw his intention to divide; he may die before his intention to divide is conveyed to the other members of the family : with the result, his interest survives to the other members. A manager of a joint Hindu family may sell away the entire family property for debts binding on the family. There may be similar other instances. If the doctrine of relation back is invoked without any limitation thereon, vested rights so created will be affected and settled titles may be disturbed. Principles of equity require and commonsense demands that a limitation which avoids the confusion of titles must be placed on it. What would be more equitable and reasonable then to suggest that the doctrine should not affect vested rights? But imposing such a limitation we are not curtailing the scope of any well established Hindu law doctrine, but we are invoking only a principle by analogy subject to a limitation to meet a contingency. Further, the principle of retroactivity, unless a legislative intention is clearly to the contrary, saves vested rights. As the doctrine of relation back involves retroactivity by parity of reasoning, it cannot affect vested rights. It would follow that, though the date of severance is that of manifestation of the intention to separate the right accrued to others in the joint family property between the said manifestation and the knowledge of it by the other members would be saved.35. Applying the said principles to the present case, it will have to be held that on the death of Chimpirayya his interest devolved on Subbarao and, therefore, his will, even if it could be relied upon for ascertaining his intention to separate from the family, could not convey his interest in the family property, as it has not been established that Subbarao or his guardian had knowledge of the contents of the said will before Chimpirayyaon hesaid that at the time of the execution of the Will the firsts inside thehouse. This evidence is worthless. The fact that sheuse cannot in itself impute to her the knowledge of the contents of the Will or even the fact that the will was registered that day. D. W. 4 is the first respondent hereself. She says in her evidence that she did not know whether thecame to register the Will of Chimpirayya, and that she came to know of the Will only after the suit was filed. In that state of evidence it is not possible to hold that the first respondent as guardian of Subbararo, had knowledge of the contents of the Will.37. In this view, it is not necessary to consider the further question whether the Will coptained a clear and unambiguous declaration of intention on the part of the testator to divide himself from the member of the joint family.
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Prabha D. Kanan Vs. Indian Airlines Ltd. & Another | Bangalore exonerated Respondent.53. However, having regard to the fact that there was no evidence as to why she carried the suit case from Mumbai or she had been handed over the suitcase at Hyderabad and keeping in view the nature of investigation carried out by the Customs Authorities, the penalties imposed on her under Section 114 (i) of the Customs Act was held to be not sustainable stating: "Summing up, we find:-(i) The investigation into this episode is not very thorough;(ii) The reason for abandoning the currency has not been brought out;(iii) There is no evidence to establish that the Appellants made an attempt to export the currency.(iv) The statements do not appear to have been given voluntarily;(v) The currency was neither seized from the possession of the Appellants nor from the aircraft;(vi) The test to prove an attempt to illegally export as laid down in the case of Mohd. Yakub has not been proved." In the criminal case, no charge was framed. Respondent was discharged only on the ground that she had not been found liable in the civil proceedings.54. Appellant in the said proceedings had no role to play. We, therefore, are of the opinion that Regulation 13 is intra vires. We are bound by the decision of this Court in Ajit Kumar Nag (supra). The Board of Directors, in the aforementioned fact situation, must be held to have public interest in mind.55. In Kanhaiyalal Agrawal and Others v. Factory Manager, Gwalior Sugar Company Ltd. [(2001) 9 SCC 609] , whereupon Mr. Lalit placed strong reliance, this Court upheld the findings of the Industrial Court as also the High Court that the principles for invoking loss of confidence in the employee based on objective criteria , viz., (i) that the workman is holding a position of trust and confidence; (ii) by abusing such position, he commits acts which results in forfeiting the same; and (iii) to continue him in service would be embarrassing and inconvenient to the employer or would be detrimental to the discipline or security of the establishment; stood satisfied.56. True, loss of confidence cannot be subjective but there must be objective facts which would lead to a definite inference of apprehension in the mind of the employer regarding trustworthiness of the employee and which must be alleged and proved. But, then all the criteria mentioned therein are present in the instant case.57. The question which now arises is as to whether the Regulation 13 is applicable to the case of Respondent. Section 45 of the 1953 Act provides for regulation making power of the Corporation. It extends to the terms and conditions of service of officers and other employees of the Corporation other than the Managing Director and officers of any other categories referred to in Section 44 of the 1953 Act. Regulations were framed pursuant to or in furtherance of the said regulation making power. Regulation 13, as it stood earlier, did not contain any power in the Board of Directors to terminate the services of an employee. Regulation 13 speaks of lack of confidence. Regulation 13 came into force with effect from 1.3.1993. Respondent indisputably was appointed prior thereto.58. A question arose as to whether by reason of the repealing provisions contained in the 1994 Act, the Regulations framed under the 1953 Act survives and consequently the exercise of powers under Regulation 13 shall be void ab initio.59. Our attention has been drawn to a decision of this Court in Air India v. Union of India and Ors. [JT 1995 (5) SC 578 ] wherein it was held: "Section 8 of the 1994 Act does not in express terms save the said Regulations, nor does it mention them. Section 8 only protects the remuneration, terms and conditions and rights and privileges of those who were in Air Indias employment when the 1994 Act came into force. Such saving in undoubtedly "to quieten doubts" of those Air India employees who were then in service. What is enacted in Section 8 does not cover those employees who joined Air Indias service after the 1994 Act came into force. The limited saving enacted in Section 8 does not, in our opinion, extent to the said Regulations." 60. The said decision was rendered when a question was raised as to whether standing orders framed under Industrial Employment (Standing Orders) Act, 1946 survives the regulation making power. It was held that the regulations have ceased to be effective on 29th January, 1994 and, thus, regulation making power no longer survives.61. Mr. Bhasin would submit that the provisions of the Regulations would apply to Respondent as:(i) She never disputed the application of the Regulations.(ii) A Special Leave Petition covering the same area being SLP (C) No. 2230-31 of 2005 is pending before this Court.62. As at present advised, we do not intend to enter into the said controversy. The judgment of this Court in Air India (supra) is binding on us. We have, therefore, no other option but to hold that Regulation 13 would not apply to the case of Respondent. However, despite the same, we are of the opinion that the interest of justice would be subserved if the nature of relief to Respondent granted by the High Court is upheld.63. We, therefore, hold that although Regulation 13 is not unconstitutional but the same is not applicable in case of Respondent. However, we are furthermore of the opinion that in the peculiar facts and circumstances of this case and keeping in view the fact that she had put in 20 years of service she be paid eight years salary towards both back wages as well as for loss of employment in future. This will be on the basis of her last drawn basic pay and dearness allowance. The Corporation will pay Respondent the amount refunded by her towards the provident fund and gratuity at the rate of interest provided under the Statutes governing them. The relief granted to Respondent shall, in our opinion, subserve the interest of justice. | 1[ds]47. We may notice that keeping in view the situational changes and, particularly, outsourcing of the sovereign activities by the State, this Court has been expanding the scope of judicial review. It includes the misdirection in law, posing a wrong question or irrelevant question and failure to consider relevant question. On certain grounds judicial review on facts is also maintainable. Doctrine of unreasonableness has now given a way to doctrine of proportionality.Respondent was holding a post of trust and confidence. She had been issued a Red Airport Entry Pass which gave unrestricted access to all civil airports in India and flying to other countries on the network of Indian Airlines. Any doubt on the integrity of the person holding such a post of trust and confidence may shake the confidence of the employer. If such activities are permitted, the same in a given case may provide for risk not only to the aircraft but also to a large section of people. The subjective satisfaction of the Board of Directors was based on the confession she made and the evidences collected by the Directorate of Enforcement. The fact that subsequently she had been exonerated or she had been discharged from the criminal case may not be of much significance as the validity of the order must be judged having regard to the fact situation as was obtaining on the day on which the same was passed. We have noticed in the final order dated 13th December, 2005, the Custom Excise and Service Tax Appellate Tribunal, South Zonal Branch at Bangalore exonerated Respondent.53. However, having regard to the fact that there was no evidence as to why she carried the suit case from Mumbai or she had been handed over the suitcase at Hyderabad and keeping in view the nature of investigation carried out by the Customs Authorities, the penalties imposed on her under Section 114 (i) of the Customs Act was held to be not sustainableup, we find:-(i) The investigation into this episode is not very thorough;(ii) The reason for abandoning the currency has not been brought out;(iii) There is no evidence to establish that the Appellants made an attempt to export the currency.(iv) The statements do not appear to have been given voluntarily;(v) The currency was neither seized from the possession of the Appellants nor from the aircraft;(vi) The test to prove an attempt to illegally export as laid down in the case of Mohd. Yakub has not beenthe criminal case, no charge was framed. Respondent was discharged only on the ground that she had not been found liable in the civil proceedings.54. Appellant in the said proceedings had no role to play. We, therefore, are of the opinion that Regulation 13 is intra vires. We are bound by the decision of this Court in Ajit Kumar Nag (supra). The Board of Directors, in the aforementioned fact situation, must be held to have public interest in mind.55. In Kanhaiyalal Agrawal and Others v. Factory Manager, Gwalior Sugar Company Ltd. [(2001) 9 SCC 609] , whereupon Mr. Lalit placed strong reliance, this Court upheld the findings of the Industrial Court as also the High Court that the principles for invoking loss of confidence in the employee based on objective criteria , viz., (i) that the workman is holding a position of trust and confidence; (ii) by abusing such position, he commits acts which results in forfeiting the same; and (iii) to continue him in service would be embarrassing and inconvenient to the employer or would be detrimental to the discipline or security of the establishment; stood satisfied.56. True, loss of confidence cannot be subjective but there must be objective facts which would lead to a definite inference of apprehension in the mind of the employer regarding trustworthiness of the employee and which must be alleged and proved. But, then all the criteria mentioned therein are present in the instant case.57. The question which now arises is as to whether the Regulation 13 is applicable to the case of Respondent. Section 45 of the 1953 Act provides for regulation making power of the Corporation. It extends to the terms and conditions of service of officers and other employees of the Corporation other than the Managing Director and officers of any other categories referred to in Section 44 of the 1953 Act. Regulations were framed pursuant to or in furtherance of the said regulation making power. Regulation 13, as it stood earlier, did not contain any power in the Board of Directors to terminate the services of an employee. Regulation 13 speaks of lack of confidence. Regulation 13 came into force with effect from 1.3.1993. Respondent indisputably was appointed prior thereto.58. A question arose as to whether by reason of the repealing provisions contained in the 1994 Act, the Regulations framed under the 1953 Act survives and consequently the exercise of powers under Regulation 13 shall be void ab initio.59. Our attention has been drawn to a decision of this Court in Air India v. Union of India and Ors. [JT 1995 (5) SC 578 ] wherein it was8 of the 1994 Act does not in express terms save the said Regulations, nor does it mention them. Section 8 only protects the remuneration, terms and conditions and rights and privileges of those who were in Air Indias employment when the 1994 Act came into force. Such saving in undoubtedly "to quieten doubts" of those Air India employees who were then in service. What is enacted in Section 8 does not cover those employees who joined Air Indias service after the 1994 Act came into force. The limited saving enacted in Section 8 does not, in our opinion, extent to the said Regulations.The said decision was rendered when a question was raised as to whether standing orders framed under Industrial Employment (Standing Orders) Act, 1946 survives the regulation making power. It was held that the regulations have ceased to be effective on 29th January, 1994 and, thus, regulation making power no longer survives.61. Mr. Bhasin would submit that the provisions of the Regulations would apply to Respondent as:(i) She never disputed the application of the Regulations.(ii) A Special Leave Petition covering the same area being SLP (C) No. 2230-31 of 2005 is pending before this Court.62. As at present advised, we do not intend to enter into the said controversy. The judgment of this Court in Air India (supra) is binding on us. We have, therefore, no other option but to hold that Regulation 13 would not apply to the case of Respondent. However, despite the same, we are of the opinion that the interest of justice would be subserved if the nature of relief to Respondent granted by the High Court is upheld.63. We, therefore, hold that although Regulation 13 is not unconstitutional but the same is not applicable in case of Respondent. However, we are furthermore of the opinion that in the peculiar facts and circumstances of this case and keeping in view the fact that she had put in 20 years of service she be paid eight years salary towards both back wages as well as for loss of employment in future. This will be on the basis of her last drawn basic pay and dearness allowance. The Corporation will pay Respondent the amount refunded by her towards the provident fund and gratuity at the rate of interest provided under the Statutes governing them. The relief granted to Respondent shall, in our opinion, subserve the interest of justice. | 1 | 10,210 | 1,404 | ### Instruction:
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Bangalore exonerated Respondent.53. However, having regard to the fact that there was no evidence as to why she carried the suit case from Mumbai or she had been handed over the suitcase at Hyderabad and keeping in view the nature of investigation carried out by the Customs Authorities, the penalties imposed on her under Section 114 (i) of the Customs Act was held to be not sustainable stating: "Summing up, we find:-(i) The investigation into this episode is not very thorough;(ii) The reason for abandoning the currency has not been brought out;(iii) There is no evidence to establish that the Appellants made an attempt to export the currency.(iv) The statements do not appear to have been given voluntarily;(v) The currency was neither seized from the possession of the Appellants nor from the aircraft;(vi) The test to prove an attempt to illegally export as laid down in the case of Mohd. Yakub has not been proved." In the criminal case, no charge was framed. Respondent was discharged only on the ground that she had not been found liable in the civil proceedings.54. Appellant in the said proceedings had no role to play. We, therefore, are of the opinion that Regulation 13 is intra vires. We are bound by the decision of this Court in Ajit Kumar Nag (supra). The Board of Directors, in the aforementioned fact situation, must be held to have public interest in mind.55. In Kanhaiyalal Agrawal and Others v. Factory Manager, Gwalior Sugar Company Ltd. [(2001) 9 SCC 609] , whereupon Mr. Lalit placed strong reliance, this Court upheld the findings of the Industrial Court as also the High Court that the principles for invoking loss of confidence in the employee based on objective criteria , viz., (i) that the workman is holding a position of trust and confidence; (ii) by abusing such position, he commits acts which results in forfeiting the same; and (iii) to continue him in service would be embarrassing and inconvenient to the employer or would be detrimental to the discipline or security of the establishment; stood satisfied.56. True, loss of confidence cannot be subjective but there must be objective facts which would lead to a definite inference of apprehension in the mind of the employer regarding trustworthiness of the employee and which must be alleged and proved. But, then all the criteria mentioned therein are present in the instant case.57. The question which now arises is as to whether the Regulation 13 is applicable to the case of Respondent. Section 45 of the 1953 Act provides for regulation making power of the Corporation. It extends to the terms and conditions of service of officers and other employees of the Corporation other than the Managing Director and officers of any other categories referred to in Section 44 of the 1953 Act. Regulations were framed pursuant to or in furtherance of the said regulation making power. Regulation 13, as it stood earlier, did not contain any power in the Board of Directors to terminate the services of an employee. Regulation 13 speaks of lack of confidence. Regulation 13 came into force with effect from 1.3.1993. Respondent indisputably was appointed prior thereto.58. A question arose as to whether by reason of the repealing provisions contained in the 1994 Act, the Regulations framed under the 1953 Act survives and consequently the exercise of powers under Regulation 13 shall be void ab initio.59. Our attention has been drawn to a decision of this Court in Air India v. Union of India and Ors. [JT 1995 (5) SC 578 ] wherein it was held: "Section 8 of the 1994 Act does not in express terms save the said Regulations, nor does it mention them. Section 8 only protects the remuneration, terms and conditions and rights and privileges of those who were in Air Indias employment when the 1994 Act came into force. Such saving in undoubtedly "to quieten doubts" of those Air India employees who were then in service. What is enacted in Section 8 does not cover those employees who joined Air Indias service after the 1994 Act came into force. The limited saving enacted in Section 8 does not, in our opinion, extent to the said Regulations." 60. The said decision was rendered when a question was raised as to whether standing orders framed under Industrial Employment (Standing Orders) Act, 1946 survives the regulation making power. It was held that the regulations have ceased to be effective on 29th January, 1994 and, thus, regulation making power no longer survives.61. Mr. Bhasin would submit that the provisions of the Regulations would apply to Respondent as:(i) She never disputed the application of the Regulations.(ii) A Special Leave Petition covering the same area being SLP (C) No. 2230-31 of 2005 is pending before this Court.62. As at present advised, we do not intend to enter into the said controversy. The judgment of this Court in Air India (supra) is binding on us. We have, therefore, no other option but to hold that Regulation 13 would not apply to the case of Respondent. However, despite the same, we are of the opinion that the interest of justice would be subserved if the nature of relief to Respondent granted by the High Court is upheld.63. We, therefore, hold that although Regulation 13 is not unconstitutional but the same is not applicable in case of Respondent. However, we are furthermore of the opinion that in the peculiar facts and circumstances of this case and keeping in view the fact that she had put in 20 years of service she be paid eight years salary towards both back wages as well as for loss of employment in future. This will be on the basis of her last drawn basic pay and dearness allowance. The Corporation will pay Respondent the amount refunded by her towards the provident fund and gratuity at the rate of interest provided under the Statutes governing them. The relief granted to Respondent shall, in our opinion, subserve the interest of justice.
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Custom Excise and Service Tax Appellate Tribunal, South Zonal Branch at Bangalore exonerated Respondent.53. However, having regard to the fact that there was no evidence as to why she carried the suit case from Mumbai or she had been handed over the suitcase at Hyderabad and keeping in view the nature of investigation carried out by the Customs Authorities, the penalties imposed on her under Section 114 (i) of the Customs Act was held to be not sustainableup, we find:-(i) The investigation into this episode is not very thorough;(ii) The reason for abandoning the currency has not been brought out;(iii) There is no evidence to establish that the Appellants made an attempt to export the currency.(iv) The statements do not appear to have been given voluntarily;(v) The currency was neither seized from the possession of the Appellants nor from the aircraft;(vi) The test to prove an attempt to illegally export as laid down in the case of Mohd. Yakub has not beenthe criminal case, no charge was framed. Respondent was discharged only on the ground that she had not been found liable in the civil proceedings.54. Appellant in the said proceedings had no role to play. We, therefore, are of the opinion that Regulation 13 is intra vires. We are bound by the decision of this Court in Ajit Kumar Nag (supra). The Board of Directors, in the aforementioned fact situation, must be held to have public interest in mind.55. In Kanhaiyalal Agrawal and Others v. Factory Manager, Gwalior Sugar Company Ltd. [(2001) 9 SCC 609] , whereupon Mr. Lalit placed strong reliance, this Court upheld the findings of the Industrial Court as also the High Court that the principles for invoking loss of confidence in the employee based on objective criteria , viz., (i) that the workman is holding a position of trust and confidence; (ii) by abusing such position, he commits acts which results in forfeiting the same; and (iii) to continue him in service would be embarrassing and inconvenient to the employer or would be detrimental to the discipline or security of the establishment; stood satisfied.56. True, loss of confidence cannot be subjective but there must be objective facts which would lead to a definite inference of apprehension in the mind of the employer regarding trustworthiness of the employee and which must be alleged and proved. But, then all the criteria mentioned therein are present in the instant case.57. The question which now arises is as to whether the Regulation 13 is applicable to the case of Respondent. Section 45 of the 1953 Act provides for regulation making power of the Corporation. It extends to the terms and conditions of service of officers and other employees of the Corporation other than the Managing Director and officers of any other categories referred to in Section 44 of the 1953 Act. Regulations were framed pursuant to or in furtherance of the said regulation making power. Regulation 13, as it stood earlier, did not contain any power in the Board of Directors to terminate the services of an employee. Regulation 13 speaks of lack of confidence. Regulation 13 came into force with effect from 1.3.1993. Respondent indisputably was appointed prior thereto.58. A question arose as to whether by reason of the repealing provisions contained in the 1994 Act, the Regulations framed under the 1953 Act survives and consequently the exercise of powers under Regulation 13 shall be void ab initio.59. Our attention has been drawn to a decision of this Court in Air India v. Union of India and Ors. [JT 1995 (5) SC 578 ] wherein it was8 of the 1994 Act does not in express terms save the said Regulations, nor does it mention them. Section 8 only protects the remuneration, terms and conditions and rights and privileges of those who were in Air Indias employment when the 1994 Act came into force. Such saving in undoubtedly "to quieten doubts" of those Air India employees who were then in service. What is enacted in Section 8 does not cover those employees who joined Air Indias service after the 1994 Act came into force. The limited saving enacted in Section 8 does not, in our opinion, extent to the said Regulations.The said decision was rendered when a question was raised as to whether standing orders framed under Industrial Employment (Standing Orders) Act, 1946 survives the regulation making power. It was held that the regulations have ceased to be effective on 29th January, 1994 and, thus, regulation making power no longer survives.61. Mr. Bhasin would submit that the provisions of the Regulations would apply to Respondent as:(i) She never disputed the application of the Regulations.(ii) A Special Leave Petition covering the same area being SLP (C) No. 2230-31 of 2005 is pending before this Court.62. As at present advised, we do not intend to enter into the said controversy. The judgment of this Court in Air India (supra) is binding on us. We have, therefore, no other option but to hold that Regulation 13 would not apply to the case of Respondent. However, despite the same, we are of the opinion that the interest of justice would be subserved if the nature of relief to Respondent granted by the High Court is upheld.63. We, therefore, hold that although Regulation 13 is not unconstitutional but the same is not applicable in case of Respondent. However, we are furthermore of the opinion that in the peculiar facts and circumstances of this case and keeping in view the fact that she had put in 20 years of service she be paid eight years salary towards both back wages as well as for loss of employment in future. This will be on the basis of her last drawn basic pay and dearness allowance. The Corporation will pay Respondent the amount refunded by her towards the provident fund and gratuity at the rate of interest provided under the Statutes governing them. The relief granted to Respondent shall, in our opinion, subserve the interest of justice.
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Hazarimal K. Shah Vs. Collector of Customs, Madras | were two apparent errors of law in the Assistant Collectors order, in that, he had relied on (a) a warning in respect of the previous years consignment, and (b) a restriction on future imports of similar goods to the extent of 15% of the face value mentioned in the licence. The contention was that both these facts were not sustainable. As regards (a), there can be no doubt that the order of the Assistant Collector contained a warning inspite of the said clarification that in future import should not be made of similar goods under the licence possessed by Hazarimal. Inspite of the correspondence by Hazarimal with the Collector the warning was never withdrawn nor cancelled. The goods were allowed clearance presumably because of the said clarification but only as a "special case". Therefore, it was not as if there was no such warning in the order passed by the Customs in the previous year. But the real question before the High Court was not whether there was such a warning or not but whether the said clarification applied to goods in question. In other words, whether the goods were the same as the samples from the previous consignment on which the clarification was issued by the Chief Controller. In the absence of any proof that they were, the High Court obviously could not say that they were governed by the said clarification, and that, therefore, the goods did not fall under Entry 38A(e), as the Assistant Collector had ruled, or that there was any apparent error in that finding. It appears that except for relying on the said clarification no attempt was made at any time to establish that the goods were similar to those of the previous years imports and therefore, could not be classified as auto-bulbs. 9. As regards (b), assuming that the present goods were governed by the said clarification, the Chief Controller had stated therein that though the samples fell under Entry 38A(f), imports of such goods could be made only to the extent of 15% . The learned single Judge was of the view that the Assistant Collector could not rely on this restriction because the licence did not contain any such restriction, nor was such a restriction relied on in the show cause notice. The clarification clearly stated that in view of Clause (ii) of the remarks column in Entry 38A(f) import of goods to the extent of 15% only would be permissible. The licence, no doubt, did not contain any such restriction. But if the licence was in respect of goods falling under that entry, the restriction in, that entry would govern the licence as one of the conditions upon which import could be made under it. The restriction of 15% stated in the clarification could not be relied on in the show cause notice because the Customs case in the notice was that the goods were auto-bulbs falling under Entry 38A(e), for the import of which the licence did not apply. The question of restriction to the extent of 15% arose only when Hazarimal relied upon the said clarification in his explanation to the show cause notice. It was, therefore, that the Assistant Collector in his order stated that even if the goods were covered by that clarification, only 15% of the value stated in that licence could be imported. It is thus difficult to see how the impugned order suffered from either of the two errors of law apparent on the record. 10. The contention next was that the Division Bench was in error when it observed that the goods in question were not proved to be similar to those in respect of which the said clarification was obtained as the Assistant Collector in his order had clearly admitted that they were similar. This contention cannot be upheld, for, it is made on an erroneous construction of the impugned order. The order in the first place clearly held that the goods were auto-bulbs. Upon that finding there was no question of the said clarification being applicable to them. Alternatively, the order stated that even if the clarification were to apply on the footing that the goods were similar to those of the previous years import then the restriction of 15% import contained in the clarification would apply, and that, therefore, in either case the import could not be held valid. In view of such clear language in the impugned order the Division Bench cannot be said to have been in error as contended by Counsel. 11. Lastly, it was urged that the Assistant Collectors order was vitiated by his failure to observe that rules of natural justice, in that, he had omitted to place materials obtained by him on examination of the goods to the said Hazarimal in the proceedings before him. No such contention was raised either in the writ petition or before the High Court at any stage. There was, therefore, no opportunity to the Customs to reply to such a contention, and therefore, we could not allow Counsel to raise the point for the first time. It was then faintly argued that the Assistant Collector had no jurisdiction to hold the goods to be auto-bulbs in view of the said clarification that the goods of the previous years import were not auto-bulbs. Assuming for the moment that the said clarification was binding on the Assistant Collector, who is the competent authority under the Sea Customs Act, no evidence was adduced that the goods in question were similar to the goods imported in the previous year or answered the samples on which the clarification had been obtained. There was, therefore, no question of the clarification being binding on the Assistant Collector. 12. In our view none of the contentions to show that the Division Bench was in error can be sustained. No error of law apparent on the face of the record has been established which could justify us to interfere with the impugned order of the Customs. | 0[ds]6. As aforesaid, the writ petition was for a writ of certiorari to quash the said order on the ground that there was an error apparent on the face of the record.It was opposed on the ground that there was no such error and that the only real question involved in the writ petition was whether the classification of the imported goods by the Customs under Entry 38A(e) and not under Entry 38A(f) was correct.Such a question would be one of fact, and therefore, if the appellants were aggrieved by such a finding, their remedy would be an appeal provided under the ActThat circumstance is important because the said clarification was given on an examination of certain samples sent by Hazarimal to the Chief Controller and on which examination that authority had pronounced the goods to be covered by Entry 38A(f). That clarification, however, could not be determinative of the goods in question because there was no evidence at the time of the hearing of the writ petition that the goods in question were similar to those imported in the previous year or to the said samples. Strangely, the said Hazarimal did not this time obtain a similar clarification, which he could have obtained in view of the finding by the Customs that the goods were, and therefore, did not fall under Entry 38A(f). Indeed, the said Hazarimal had disabled himself from having any comparison made between the goods for which the said clarification was obtained in the previous year and the goods in question, for, as soon as he had the goods cleared on payment of the fine he had disposed them of without even retaining any samples. It was, therefore, not possible to say whether the goods in question were comparable with the goods in respect of which he had obtained clarification in the previous yearThe contention was that both these facts were not9. As regards (b), assuming that the present goods were governed by the said clarification, the Chief Controller had stated therein that though the samples fell under Entry 38A(f), imports of such goods could be made only to the extent of 15% . The learned single Judge was of the view that the Assistant Collector could not rely on this restriction because the licence did not contain any such restriction, nor was such a restriction relied on in the show cause notice. The clarification clearly stated that in view of Clause (ii) of the remarks column in Entry 38A(f) import of goods to the extent of 15% only would be permissible. The licence, no doubt, did not contain any such restriction. But if the licence was in respect of goods falling under that entry, the restriction in, that entry would govern the licence as one of the conditions upon which import could be made under it. The restriction of 15% stated in the clarification could not be relied on in the show cause notice because the Customs case in the notice was that the goods weres falling under Entry 38A(e), for the import of which the licence did not apply. The question of restriction to the extent of 15% arose only when Hazarimal relied upon the said clarification in his explanation to the show cause notice. It was, therefore, that the Assistant Collector in his order stated that even if the goods were covered by that clarification, only 15% of the value stated in that licence could be imported. It is thus difficult to see how the impugned order suffered from either of the two errors of law apparent on the recordThis contention cannot be upheld, for, it is made on an erroneous construction of the impugned order. The order in the first place clearly held that the goods were. Upon that finding there was no question of the said clarification being applicable to them. Alternatively, the order stated that even if the clarification were to apply on the footing that the goods were similar to those of the previous years import then the restriction of 15% import contained in the clarification would apply, and that, therefore, in either case the import could not be held valid. In view of such clear language in the impugned order the Division Bench cannot be said to have been in error as contended by CounselNo such contention was raised either in the writ petition or before the High Court at any stage. There was, therefore, no opportunity to the Customs to reply to such a contention, and therefore, we could not allow Counsel to raise the point for the first time. It was then faintly argued that the Assistant Collector had no jurisdiction to hold the goods to bes in view of the said clarification that the goods of the previous years import were not. Assuming for the moment that the said clarification was binding on the Assistant Collector, who is the competent authority under the Sea Customs Act, no evidence was adduced that the goods in question were similar to the goods imported in the previous year or answered the samples on which the clarification had been obtained. There was, therefore, no question of the clarification being binding on the Assistant Collector12. In our view none of the contentions to show that the Division Bench was in error can be sustained. No error of law apparent on the face of the record has been established which could justify us to interfere with the impugned order of the Customs. | 0 | 3,030 | 1,013 | ### Instruction:
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were two apparent errors of law in the Assistant Collectors order, in that, he had relied on (a) a warning in respect of the previous years consignment, and (b) a restriction on future imports of similar goods to the extent of 15% of the face value mentioned in the licence. The contention was that both these facts were not sustainable. As regards (a), there can be no doubt that the order of the Assistant Collector contained a warning inspite of the said clarification that in future import should not be made of similar goods under the licence possessed by Hazarimal. Inspite of the correspondence by Hazarimal with the Collector the warning was never withdrawn nor cancelled. The goods were allowed clearance presumably because of the said clarification but only as a "special case". Therefore, it was not as if there was no such warning in the order passed by the Customs in the previous year. But the real question before the High Court was not whether there was such a warning or not but whether the said clarification applied to goods in question. In other words, whether the goods were the same as the samples from the previous consignment on which the clarification was issued by the Chief Controller. In the absence of any proof that they were, the High Court obviously could not say that they were governed by the said clarification, and that, therefore, the goods did not fall under Entry 38A(e), as the Assistant Collector had ruled, or that there was any apparent error in that finding. It appears that except for relying on the said clarification no attempt was made at any time to establish that the goods were similar to those of the previous years imports and therefore, could not be classified as auto-bulbs. 9. As regards (b), assuming that the present goods were governed by the said clarification, the Chief Controller had stated therein that though the samples fell under Entry 38A(f), imports of such goods could be made only to the extent of 15% . The learned single Judge was of the view that the Assistant Collector could not rely on this restriction because the licence did not contain any such restriction, nor was such a restriction relied on in the show cause notice. The clarification clearly stated that in view of Clause (ii) of the remarks column in Entry 38A(f) import of goods to the extent of 15% only would be permissible. The licence, no doubt, did not contain any such restriction. But if the licence was in respect of goods falling under that entry, the restriction in, that entry would govern the licence as one of the conditions upon which import could be made under it. The restriction of 15% stated in the clarification could not be relied on in the show cause notice because the Customs case in the notice was that the goods were auto-bulbs falling under Entry 38A(e), for the import of which the licence did not apply. The question of restriction to the extent of 15% arose only when Hazarimal relied upon the said clarification in his explanation to the show cause notice. It was, therefore, that the Assistant Collector in his order stated that even if the goods were covered by that clarification, only 15% of the value stated in that licence could be imported. It is thus difficult to see how the impugned order suffered from either of the two errors of law apparent on the record. 10. The contention next was that the Division Bench was in error when it observed that the goods in question were not proved to be similar to those in respect of which the said clarification was obtained as the Assistant Collector in his order had clearly admitted that they were similar. This contention cannot be upheld, for, it is made on an erroneous construction of the impugned order. The order in the first place clearly held that the goods were auto-bulbs. Upon that finding there was no question of the said clarification being applicable to them. Alternatively, the order stated that even if the clarification were to apply on the footing that the goods were similar to those of the previous years import then the restriction of 15% import contained in the clarification would apply, and that, therefore, in either case the import could not be held valid. In view of such clear language in the impugned order the Division Bench cannot be said to have been in error as contended by Counsel. 11. Lastly, it was urged that the Assistant Collectors order was vitiated by his failure to observe that rules of natural justice, in that, he had omitted to place materials obtained by him on examination of the goods to the said Hazarimal in the proceedings before him. No such contention was raised either in the writ petition or before the High Court at any stage. There was, therefore, no opportunity to the Customs to reply to such a contention, and therefore, we could not allow Counsel to raise the point for the first time. It was then faintly argued that the Assistant Collector had no jurisdiction to hold the goods to be auto-bulbs in view of the said clarification that the goods of the previous years import were not auto-bulbs. Assuming for the moment that the said clarification was binding on the Assistant Collector, who is the competent authority under the Sea Customs Act, no evidence was adduced that the goods in question were similar to the goods imported in the previous year or answered the samples on which the clarification had been obtained. There was, therefore, no question of the clarification being binding on the Assistant Collector. 12. In our view none of the contentions to show that the Division Bench was in error can be sustained. No error of law apparent on the face of the record has been established which could justify us to interfere with the impugned order of the Customs.
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6. As aforesaid, the writ petition was for a writ of certiorari to quash the said order on the ground that there was an error apparent on the face of the record.It was opposed on the ground that there was no such error and that the only real question involved in the writ petition was whether the classification of the imported goods by the Customs under Entry 38A(e) and not under Entry 38A(f) was correct.Such a question would be one of fact, and therefore, if the appellants were aggrieved by such a finding, their remedy would be an appeal provided under the ActThat circumstance is important because the said clarification was given on an examination of certain samples sent by Hazarimal to the Chief Controller and on which examination that authority had pronounced the goods to be covered by Entry 38A(f). That clarification, however, could not be determinative of the goods in question because there was no evidence at the time of the hearing of the writ petition that the goods in question were similar to those imported in the previous year or to the said samples. Strangely, the said Hazarimal did not this time obtain a similar clarification, which he could have obtained in view of the finding by the Customs that the goods were, and therefore, did not fall under Entry 38A(f). Indeed, the said Hazarimal had disabled himself from having any comparison made between the goods for which the said clarification was obtained in the previous year and the goods in question, for, as soon as he had the goods cleared on payment of the fine he had disposed them of without even retaining any samples. It was, therefore, not possible to say whether the goods in question were comparable with the goods in respect of which he had obtained clarification in the previous yearThe contention was that both these facts were not9. As regards (b), assuming that the present goods were governed by the said clarification, the Chief Controller had stated therein that though the samples fell under Entry 38A(f), imports of such goods could be made only to the extent of 15% . The learned single Judge was of the view that the Assistant Collector could not rely on this restriction because the licence did not contain any such restriction, nor was such a restriction relied on in the show cause notice. The clarification clearly stated that in view of Clause (ii) of the remarks column in Entry 38A(f) import of goods to the extent of 15% only would be permissible. The licence, no doubt, did not contain any such restriction. But if the licence was in respect of goods falling under that entry, the restriction in, that entry would govern the licence as one of the conditions upon which import could be made under it. The restriction of 15% stated in the clarification could not be relied on in the show cause notice because the Customs case in the notice was that the goods weres falling under Entry 38A(e), for the import of which the licence did not apply. The question of restriction to the extent of 15% arose only when Hazarimal relied upon the said clarification in his explanation to the show cause notice. It was, therefore, that the Assistant Collector in his order stated that even if the goods were covered by that clarification, only 15% of the value stated in that licence could be imported. It is thus difficult to see how the impugned order suffered from either of the two errors of law apparent on the recordThis contention cannot be upheld, for, it is made on an erroneous construction of the impugned order. The order in the first place clearly held that the goods were. Upon that finding there was no question of the said clarification being applicable to them. Alternatively, the order stated that even if the clarification were to apply on the footing that the goods were similar to those of the previous years import then the restriction of 15% import contained in the clarification would apply, and that, therefore, in either case the import could not be held valid. In view of such clear language in the impugned order the Division Bench cannot be said to have been in error as contended by CounselNo such contention was raised either in the writ petition or before the High Court at any stage. There was, therefore, no opportunity to the Customs to reply to such a contention, and therefore, we could not allow Counsel to raise the point for the first time. It was then faintly argued that the Assistant Collector had no jurisdiction to hold the goods to bes in view of the said clarification that the goods of the previous years import were not. Assuming for the moment that the said clarification was binding on the Assistant Collector, who is the competent authority under the Sea Customs Act, no evidence was adduced that the goods in question were similar to the goods imported in the previous year or answered the samples on which the clarification had been obtained. There was, therefore, no question of the clarification being binding on the Assistant Collector12. In our view none of the contentions to show that the Division Bench was in error can be sustained. No error of law apparent on the face of the record has been established which could justify us to interfere with the impugned order of the Customs.
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Indian Drugs & Pharmaceuticals Vs. Indo Swiss Synthetic Gem Mfg. Co. | assist the respondents. On the other hand, the ratio of Kishorilal Gupta squarely applies. We, therefore, hold that clause 19 dealing with arbitration did survive despite the contract having come to an end with effect from 1.4.1984. 11. Whether the arbitration clause, if held to be operative, could be invoked for the purpose at hand ? On this, the contention of the respondent is that the clause 19 visualises arbitration on "any difference about the quality of the material", whereas in the present case the dispute is about the vials as filled up containing less quantity and not as per specification. As to this, the stand of the appellant is that if the quantity would be less and not as per specification, the quality would get affected. We do not propose to express any opinion on this aspect of the matter. Suffice to say in this proceeding that if the case of the appellant be correct the arbitration clause would get attracted. 12. Whether the Court of Sub-ordinate Judge at Coimbatore had jurisdict ion to entertain the application under section 33 of the Arbitration Act ?On the question of jurisdiction being raised by the appellant, a queer view was taken inasmuch as the court stated that the petitioner before him (who is respondent herein) having business at Coimbatore, the court there had jurisdiction. This has really put section 20 of the Code of Civil Procedure on its head, as it permits assumption of jurisdiction by that court where the opposite party carries o n business, and not the petitioner or plaintiff. The other point urged to sustain jurisdiction was that the respondents letter dated 27.11.1987 had been issued from Coimbatore. This fact could not have conferred jurisdiction because the fact of mere reply to the notice of the appellant did not give rise to any part of "cause of action" within the jurisdiction of Coimbatore court. We are, therefore, of the view that Coimbatore court had no jurisdiction. 13. Was t he reference to the arbitrator barred by limitation ? The plea of limitation had not been urged earlier. That, however, is not material as a plea of limitation can be raised virtually at any point of time because it is relatable to jurisdiction to entertain a matter. According to Shri Desai as the appellant had for the first time required the respondent to reimburse the supposed loss by its letter of 10.11.1987, which was after about 4 years of the supply, the invocation of arbitration clause was apparently barred by limitation, which period could at best at three years as provided by Article 137 of the Limitation Act, 1963. We are referred in this connection to a Bench decision of this Court to which one of us (K.Ramaswamy, J.) was a party- the same being in the case of Panchu Gopal Bose vs. Board of Trustees for Port of Calcutta, 1993 (4) SCC 338. This decision has held the Limitation Act applies to arbitration proceedings and the period visualised by different provisions of the Limitation Act would decide the question of limitation in an arbitration proceeding. 14. In reply, the learned Attorney General brings to our notice the averments finding place in the Rejoinder of the appellant. We are referred to the Rejoinder because the plea of limitation was raised for the first time in the counter-affidavit of the respondent in its para 14. The relevant reply in the Rejoinder is as below: "It is stated that the respondents were informed of the rejection of the frugs supplied by them as early as in 1985 on account of short filling of vials by reference to the complaints received from the customers particularly Defence Department. Following this, Shri Chander Sekharan of the Respondent Company visited the petitioners office at Madras on 3.5.1985 and 10.7.1985 for discussions in the matter. It is mutually agreed that a joint inspect ion of samples from all the batches should be conducted in the laboratory of IDPL at Madras. Accordingly, the reference samples from the respondents factory were brought for the purpose of joint inspection to the petitioners factory at Madras. However, the respondent did not sent any representative for participation in the joint inspection and ultimately after waiting for considerable time, the petitioner had to undertake inspection and tests on 22.7.1985 by itself and found that the drugs had not been filled as per the specifications and the weight verification was also not within the permissible limit." * 15. Thus, the complaint from the customers, particularly Defence Department, came to be known by the appellant in early 1985 whereafter the matter was taken up with the respondent and the tests ultimately were done in July, 1985. If these facts be correct, it has to be held that the cause of action to claim damages really accrued by July, 1985 which was thereafter made by a letter of November, 1987 followed by appointment of arbitrator in May, 1988. The arbitration was thus not "manifestly barred" as contended by Shri Desai. We do not propose to say anything more on this aspect at this stage.16. In the aforesaid premises, we do not find any threshold infirmity in the invocation of clause 19 and to the reference of the dispute to respondent No.3. Shri Desai submits that respondent No.3 may not be required to arbitrate inasmuch as he being an appointee of the Chairman and Managing Director of the appellant himself, respondents case may not be fairly examined. He prays that any retired High Court Judge may be appointed as an arbitrator by us. We have not felt inclined to accept this submission, because arbitration clause states categorically that the difference/dispute shall be referred "to an arbitrator appointed by the Chairman and Managing Director of IPDL" (Indian Drugs &Pharmaceutical Limited) who is the appellant. This provision in the arbitration clause cannot be given a go-bye merely at the askance of the respondent unless he challenged its binding nature in an appropriate proceeding which he did not do. | 1[ds]8. So, an arbitration clause, howsoever comprehensive in terms, can be operative only if the contract is in existence (vide point (2) above). Under point No.6, however, it has been stated that when a question of breach of contract, inter alia, is raised after the termination of the contract, it is the performance of the contract that comes to an end on termination of the contract, but the same remains in existence for certain purposes in respect of disputes arising under it or in connection with it. It was, therefore, stated under this point that as the contract subsist for certain purposes, the arbitration clause operates in respect of these purposes.This shows that the arbitration clause would perish in case where either there is substitution of a new contract, or rescission or alteration of the original contract. The present is apparently and admittedly not such a case. Therefore, what has been stated in this decision cannot assist the respondents. On the other hand, the ratio of Kishorilal Gupta squarely applies. We, therefore, hold that clause 19 dealing with arbitration did survive despite the contract having come to an end with effect fromdo not propose to express any opinion on this aspect of the matter. Suffice to say in this proceeding that if the case of the appellant be correct the arbitration clause would getthe question of jurisdiction being raised by the appellant, a queer view was taken inasmuch as the court stated that the petitioner before him (who is respondent herein) having business at Coimbatore, the court there had jurisdiction. This has really put section 20 of the Code of Civil Procedure on its head, as it permits assumption of jurisdiction by that court where the opposite party carries o n business, and not the petitioner or plaintiff. The other point urged to sustain jurisdiction was that the respondents letter dated 27.11.1987 had been issued from Coimbatore. This fact could not have conferred jurisdiction because the fact of mere reply to the notice of the appellant did not give rise to any part of "cause of action" within the jurisdiction of Coimbatore court. We are, therefore, of the view that Coimbatore court had noplea of limitation had not been urged earlier. That, however, is not material as a plea of limitation can be raised virtually at any point of time because it is relatable to jurisdiction to entertain a matter. According to Shri Desai as the appellant had for the first time required the respondent to reimburse the supposed loss by its letter of 10.11.1987, which was after about 4 years of the supply, the invocation of arbitration clause was apparently barred by limitation, which period could at best at three years as provided by Article 137 of the Limitation Act, 1963. We are referred in this connection to a Bench decision of this Court to which one of us (K.Ramaswamy, J.) was a party- the same being in the case of Panchu Gopal Bose vs. Board of Trustees for Port of Calcutta, 1993 (4) SCC 338. This decision has held the Limitation Act applies to arbitration proceedings and the period visualised by different provisions of the Limitation Act would decide the question of limitation in an arbitration proceeding.Thus, the complaint from the customers, particularly Defence Department, came to be known by the appellant in early 1985 whereafter the matter was taken up with the respondent and the tests ultimately were done in July, 1985. If these facts be correct, it has to be held that the cause of action to claim damages really accrued by July, 1985 which was thereafter made by a letter of November, 1987 followed by appointment of arbitrator in May, 1988. The arbitration was thus not "manifestly barred" as contended by Shri Desai. We do not propose to say anything more on this aspect at this stage.16. In the aforesaid premises, we do not find any threshold infirmity in the invocation of clause 19 and to the reference of the dispute to respondent No.3. Shri Desai submits that respondent No.3 may not be required to arbitrate inasmuch as he being an appointee of the Chairman and Managing Director of the appellant himself, respondents case may not be fairly examined. He prays that any retired High Court Judge may be appointed as an arbitrator by us. We have not felt inclined to accept this submission, because arbitration clause states categorically that the difference/dispute shall be referred "to an arbitrator appointed by the Chairman and Managing Director of IPDL" (Indian Drugs &Pharmaceutical Limited) who is the appellant. This provision in the arbitration clause cannot be given a go-bye merely at the askance of the respondent unless he challenged its binding nature in an appropriate proceeding which he did not do. | 1 | 2,730 | 886 | ### Instruction:
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assist the respondents. On the other hand, the ratio of Kishorilal Gupta squarely applies. We, therefore, hold that clause 19 dealing with arbitration did survive despite the contract having come to an end with effect from 1.4.1984. 11. Whether the arbitration clause, if held to be operative, could be invoked for the purpose at hand ? On this, the contention of the respondent is that the clause 19 visualises arbitration on "any difference about the quality of the material", whereas in the present case the dispute is about the vials as filled up containing less quantity and not as per specification. As to this, the stand of the appellant is that if the quantity would be less and not as per specification, the quality would get affected. We do not propose to express any opinion on this aspect of the matter. Suffice to say in this proceeding that if the case of the appellant be correct the arbitration clause would get attracted. 12. Whether the Court of Sub-ordinate Judge at Coimbatore had jurisdict ion to entertain the application under section 33 of the Arbitration Act ?On the question of jurisdiction being raised by the appellant, a queer view was taken inasmuch as the court stated that the petitioner before him (who is respondent herein) having business at Coimbatore, the court there had jurisdiction. This has really put section 20 of the Code of Civil Procedure on its head, as it permits assumption of jurisdiction by that court where the opposite party carries o n business, and not the petitioner or plaintiff. The other point urged to sustain jurisdiction was that the respondents letter dated 27.11.1987 had been issued from Coimbatore. This fact could not have conferred jurisdiction because the fact of mere reply to the notice of the appellant did not give rise to any part of "cause of action" within the jurisdiction of Coimbatore court. We are, therefore, of the view that Coimbatore court had no jurisdiction. 13. Was t he reference to the arbitrator barred by limitation ? The plea of limitation had not been urged earlier. That, however, is not material as a plea of limitation can be raised virtually at any point of time because it is relatable to jurisdiction to entertain a matter. According to Shri Desai as the appellant had for the first time required the respondent to reimburse the supposed loss by its letter of 10.11.1987, which was after about 4 years of the supply, the invocation of arbitration clause was apparently barred by limitation, which period could at best at three years as provided by Article 137 of the Limitation Act, 1963. We are referred in this connection to a Bench decision of this Court to which one of us (K.Ramaswamy, J.) was a party- the same being in the case of Panchu Gopal Bose vs. Board of Trustees for Port of Calcutta, 1993 (4) SCC 338. This decision has held the Limitation Act applies to arbitration proceedings and the period visualised by different provisions of the Limitation Act would decide the question of limitation in an arbitration proceeding. 14. In reply, the learned Attorney General brings to our notice the averments finding place in the Rejoinder of the appellant. We are referred to the Rejoinder because the plea of limitation was raised for the first time in the counter-affidavit of the respondent in its para 14. The relevant reply in the Rejoinder is as below: "It is stated that the respondents were informed of the rejection of the frugs supplied by them as early as in 1985 on account of short filling of vials by reference to the complaints received from the customers particularly Defence Department. Following this, Shri Chander Sekharan of the Respondent Company visited the petitioners office at Madras on 3.5.1985 and 10.7.1985 for discussions in the matter. It is mutually agreed that a joint inspect ion of samples from all the batches should be conducted in the laboratory of IDPL at Madras. Accordingly, the reference samples from the respondents factory were brought for the purpose of joint inspection to the petitioners factory at Madras. However, the respondent did not sent any representative for participation in the joint inspection and ultimately after waiting for considerable time, the petitioner had to undertake inspection and tests on 22.7.1985 by itself and found that the drugs had not been filled as per the specifications and the weight verification was also not within the permissible limit." * 15. Thus, the complaint from the customers, particularly Defence Department, came to be known by the appellant in early 1985 whereafter the matter was taken up with the respondent and the tests ultimately were done in July, 1985. If these facts be correct, it has to be held that the cause of action to claim damages really accrued by July, 1985 which was thereafter made by a letter of November, 1987 followed by appointment of arbitrator in May, 1988. The arbitration was thus not "manifestly barred" as contended by Shri Desai. We do not propose to say anything more on this aspect at this stage.16. In the aforesaid premises, we do not find any threshold infirmity in the invocation of clause 19 and to the reference of the dispute to respondent No.3. Shri Desai submits that respondent No.3 may not be required to arbitrate inasmuch as he being an appointee of the Chairman and Managing Director of the appellant himself, respondents case may not be fairly examined. He prays that any retired High Court Judge may be appointed as an arbitrator by us. We have not felt inclined to accept this submission, because arbitration clause states categorically that the difference/dispute shall be referred "to an arbitrator appointed by the Chairman and Managing Director of IPDL" (Indian Drugs &Pharmaceutical Limited) who is the appellant. This provision in the arbitration clause cannot be given a go-bye merely at the askance of the respondent unless he challenged its binding nature in an appropriate proceeding which he did not do.
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8. So, an arbitration clause, howsoever comprehensive in terms, can be operative only if the contract is in existence (vide point (2) above). Under point No.6, however, it has been stated that when a question of breach of contract, inter alia, is raised after the termination of the contract, it is the performance of the contract that comes to an end on termination of the contract, but the same remains in existence for certain purposes in respect of disputes arising under it or in connection with it. It was, therefore, stated under this point that as the contract subsist for certain purposes, the arbitration clause operates in respect of these purposes.This shows that the arbitration clause would perish in case where either there is substitution of a new contract, or rescission or alteration of the original contract. The present is apparently and admittedly not such a case. Therefore, what has been stated in this decision cannot assist the respondents. On the other hand, the ratio of Kishorilal Gupta squarely applies. We, therefore, hold that clause 19 dealing with arbitration did survive despite the contract having come to an end with effect fromdo not propose to express any opinion on this aspect of the matter. Suffice to say in this proceeding that if the case of the appellant be correct the arbitration clause would getthe question of jurisdiction being raised by the appellant, a queer view was taken inasmuch as the court stated that the petitioner before him (who is respondent herein) having business at Coimbatore, the court there had jurisdiction. This has really put section 20 of the Code of Civil Procedure on its head, as it permits assumption of jurisdiction by that court where the opposite party carries o n business, and not the petitioner or plaintiff. The other point urged to sustain jurisdiction was that the respondents letter dated 27.11.1987 had been issued from Coimbatore. This fact could not have conferred jurisdiction because the fact of mere reply to the notice of the appellant did not give rise to any part of "cause of action" within the jurisdiction of Coimbatore court. We are, therefore, of the view that Coimbatore court had noplea of limitation had not been urged earlier. That, however, is not material as a plea of limitation can be raised virtually at any point of time because it is relatable to jurisdiction to entertain a matter. According to Shri Desai as the appellant had for the first time required the respondent to reimburse the supposed loss by its letter of 10.11.1987, which was after about 4 years of the supply, the invocation of arbitration clause was apparently barred by limitation, which period could at best at three years as provided by Article 137 of the Limitation Act, 1963. We are referred in this connection to a Bench decision of this Court to which one of us (K.Ramaswamy, J.) was a party- the same being in the case of Panchu Gopal Bose vs. Board of Trustees for Port of Calcutta, 1993 (4) SCC 338. This decision has held the Limitation Act applies to arbitration proceedings and the period visualised by different provisions of the Limitation Act would decide the question of limitation in an arbitration proceeding.Thus, the complaint from the customers, particularly Defence Department, came to be known by the appellant in early 1985 whereafter the matter was taken up with the respondent and the tests ultimately were done in July, 1985. If these facts be correct, it has to be held that the cause of action to claim damages really accrued by July, 1985 which was thereafter made by a letter of November, 1987 followed by appointment of arbitrator in May, 1988. The arbitration was thus not "manifestly barred" as contended by Shri Desai. We do not propose to say anything more on this aspect at this stage.16. In the aforesaid premises, we do not find any threshold infirmity in the invocation of clause 19 and to the reference of the dispute to respondent No.3. Shri Desai submits that respondent No.3 may not be required to arbitrate inasmuch as he being an appointee of the Chairman and Managing Director of the appellant himself, respondents case may not be fairly examined. He prays that any retired High Court Judge may be appointed as an arbitrator by us. We have not felt inclined to accept this submission, because arbitration clause states categorically that the difference/dispute shall be referred "to an arbitrator appointed by the Chairman and Managing Director of IPDL" (Indian Drugs &Pharmaceutical Limited) who is the appellant. This provision in the arbitration clause cannot be given a go-bye merely at the askance of the respondent unless he challenged its binding nature in an appropriate proceeding which he did not do.
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Prithvinath Singh and Others Vs. Suraj Ahir and Others | the same date, that is on September 13, 1965, the Government Pleader, on behalf of the State, seems to have appeared before the High Court and made representation on the basis of which the High Court issued notice to the State under Section 4(ee) of the Act. The State entered appearance on September 20, 1965, and filed an application for getting impleaded as a party to the appeal. In the affidavit filed in support of the application, it has been stated that the suit lands had vested in the State of Bihar with effect from January 1, 1956, and that the plaintiffs, who were illegally in possession of the suit lands, have delivered possession of the same to the State of Bihar on August 22, 1965, and that the State was in lawful possession of the suit lands which was the subject of the appeal before the High Court since August 22, 1965. It was further averred that neither the plaintiffs not the defendants have any right, title or interest in the suit lands and that in particular the defendants are not entitled to claim restitution of the property which is in the lawful possession of the State. It was prayed that the State should be impleaded as a party and that the Court should hold that neither the plaintiffs not the defendants have any right, title or interest in the suit lands. This application was heard by the High Court on October 14, 1965, and the State was impleaded as a party to the appeal and also heard on merits. The affidavit on behalf of the State, unfortunately, has been sworn to by the Circle Inspector Anchal Sahar in the district of Shahabad. It is rather regrettable that in such an important matter, the State instead of having a proper affidavit filed by the Collector or any other responsible officer chose to file an affidavit sworn to by a Circle Inspector. The High Court in consequence felt suspicious about the conduct of the State and hence rejected its contention that no relief should be granted to either the plaintiffs or the defendants.19. We are of the opinion that the High Court was not justified in rejecting the claim made on behalf of the State. This Court, in the title suit proceedings, has categorically held that the estate had vested in the State and the right to possession, as well as rights to recover possession form a trespasser, also got vested in the State.20. Section 4(ee) makes it clear that the State is as of right entitled to be impleaded in the proceedings referred to therein and place its point of view before the Court. In this case the State has raised objection before the High Court that as the estate has vested in the State under the Act and as the Collector is deemed to have taken charge of the estate, from the date of vesting, there is no question of any claim for restitution surviving in the plaintiffs or the defendants in these proceedings. Apart form the fact that from January 1, 1956, the estate had vested in the State and the Collector under Section 4(f) shall be deemed to have taken charge of the estate from the date of vesting, there is categorical averment by the State that they have taken possession from the plaintiffs on August 22, 1965. The plaintiffs have also stated that they have surrendered possession to the State, So far as we cold see, the High Court has not rejected as false the claim made by the State. The High Court has proceeded on the basis that the question of restitution has to be considered only as between the plaintiffs and the defendants on the basis of the result of the title suit proceedings.21. As we have already pointed out even without the actual physical possession taken on August 22, 1965, in law the State must be considers to have been in possession from the date of vesting by virtue of Section 3 and 4, read with Section 4(f). We have already pointed out the difference between Section 4(f) as if originally stood and after its amendment in 1954 with retrospective effect. Apart from the fact that the Collector shall be deemed to have taken charge, the position if further strengthened by the State having actually taken possession from the plaintiffs on August 22, 1965. It is also significant that the defendants were prepared to restrict their claim before the High Court for mesne profits till August 22, 1965, the date on which the plaintiffs surrendered possession to the State.22. From what is stated above it follows that the defendants have no right to get possession from the plaintiffs after the estate had vested and possession delivered to the rightful party, namely, the State. Therefore, the order of restitution passed as against the plaintiffs was erroneous.23. The same principles will apply to the claim for mesne profits made by the defendants. The defendants have claimed mesne profits from May 6, 1959, the date when the plaintiffs took delivery of the suit lands by virtue of the High Courts decision, but long before i.e. January 1, 1956, the State had vested in the State under the Act. As we have held that the defendants are not entitled to get restitution, it follows that they will not also be entitled to claim mesne profits. Therefore, this claim also will have to be rejected.24. The claim made by the defendants for refunds of costs collected by the plaintiffs in the title suit proceedings has not resisted by the latter and that claim has been allowed by the High Court. That part of the order of the High Court will stand. Subject to the direction given above, the judgment of the High Court directing the plaintiffs to surrender possession of the suit lands to the defendants and pay mesne profits will stand set aside and the claim made by the defendants in this regard will stand dismissed. | 1[ds]10. Having due regard to the contentions places before us, we are of the opinion, that the claim for restitution and the further claim for mesne profits should not have been allowed in this case in favour of thethe outset we must point out that though the Act has come into force on September 25, 1950, and the estate including the suit lands had become vested in the State on January 1, 1956, and though the First Appeal No. 143 of 1948 in the High Court was pending during those material dates, no notice was given to the State nor was it impleaded as a party as is mandatory under Section 4(ee) of the Act. The result was that both the appeals in the High Court and the appeal in this Court were heard and decided without the State as a party and therefore it is only legitimate to infer that the rights of the plaintiffs and the defendants inter sea were alone dealt with and decided in those proceedings. In fact even if any finding had been recorded prejudicial to the State, those findings will not be binding on the State.From what is stated above, it will be seen that this Court in the above decision had no occasion to deal with the rights of the State as such. The effect of the Act was only considered for the purpose of finding out whether the plaintiffs had plaintiffs had subsisting title to prosecute their suit for recovery of possession. The sum and substance of the decision of this Court is that the plaintiffs had no right to recover possession of the suit lands and that the defendants has no right as mortgagees and that their possession many be as trespasser or in any other capacity. But it must be noted, that this Court had categorically held that after the estate vested in the State, the right to possession vested in the State and the right to recover possession from a trespasser also got vested in the State. The State had not been impleaded in those proceedings.13. We are not inclined to accept thecontention of Mr. Mehta that the dispute between the parties in the restitution proceedings has to be adjudicated merely on the basis of Section 144,ignoring the decision of this Court and the material provisions of thee was not in the original Act of 1950. It has been inserted in the year 1954 by the Bihar land Reforms (Amendment Act) 1953 (Bihar Act 20 of 1954). At any rate this provision was in force from May 17, 1954. That is why we have mentioned earlier that in the First Appeal No. 143 of 1948, which was pending before the Patna High Court, no steps were taken to issue notice to the State so as the enable it to appear and conduct or defend the proceedings before the High Court. Thatalso makes it clear that in the absence of sub notice, the decree or order passed in the suit, appeal or proceedings shall not be binding on the State Government. Therefore, it is clear that as the State was not made a party before the High Court or in the further appeal to this Court, the State had no occasion or opportunity to place its objection to the claims made by the parties in those proceedings.We do not think to refer to clause (g) of Section 4 as it originally stood or after its amendment in 1954 or as it stands at present as substituted in 1959 because it has no bearing in deciding the claim of the parties beforethe position in this case is that on January 1, 1956, the estate in which the suit lands are included vested in the State and from that date the Collector in law should be deemed to have taken the charge.We are of the opinion that the High Court was not justified in rejecting the claim made on behalf of the State. This Court, in the title suit proceedings, has categorically held that the estate had vested in the State and the right to possession, as well as rights to recover possession form a trespasser, also got vested in the State.20. Section 4(ee) makes it clear that the State is as of right entitled to be impleaded in the proceedings referred to therein and place its point of view before the Court. In this case the State has raised objection before the High Court that as the estate has vested in the State under the Act and as the Collector is deemed to have taken charge of the estate, from the date of vesting, there is no question of any claim for restitution surviving in the plaintiffs or the defendants in these proceedings. Apart form the fact that from January 1, 1956, the estate had vested in the State and the Collector under Section 4(f) shall be deemed to have taken charge of the estate from the date of vesting, there is categorical averment by the State that they have taken possession from the plaintiffs on August 22, 1965. The plaintiffs have also stated that they have surrendered possession to the State, So far as we cold see, the High Court has not rejected as false the claim made by the State. The High Court has proceeded on the basis that the question of restitution has to be considered only as between the plaintiffs and the defendants on the basis of the result of the title suit proceedings.21. As we have already pointed out even without the actual physical possession taken on August 22, 1965, in law the State must be considers to have been in possession from the date of vesting by virtue of Section 3 and 4, read with Section 4(f). We have already pointed out the difference between Section 4(f) as if originally stood and after its amendment in 1954 with retrospective effect. Apart from the fact that the Collector shall be deemed to have taken charge, the position if further strengthened by the State having actually taken possession from the plaintiffs on August 22, 1965. It is also significant that the defendants were prepared to restrict their claim before the High Court for mesne profits till August 22, 1965, the date on which the plaintiffs surrendered possession to the State.22. From what is stated above it follows that the defendants have no right to get possession from the plaintiffs after the estate had vested and possession delivered to the rightful party, namely, the State. Therefore, the order of restitution passed as against the plaintiffs was erroneous.23. The same principles will apply to the claim for mesne profits made by the defendants. The defendants have claimed mesne profits from May 6, 1959, the date when the plaintiffs took delivery of the suit lands by virtue of the High Courts decision, but long before i.e. January 1, 1956, the State had vested in the State under the Act. As we have held that the defendants are not entitled to get restitution, it follows that they will not also be entitled to claim mesne profits. Therefore, this claim also will have to be rejected.24. The claim made by the defendants for refunds of costs collected by the plaintiffs in the title suit proceedings has not resisted by the latter and that claim has been allowed by the High Court. That part of the order of the High Court will stand. Subject to the direction given above, the judgment of the High Court directing the plaintiffs to surrender possession of the suit lands to the defendants and pay mesne profits will stand set aside and the claim made by the defendants in this regard will stand dismissed. | 1 | 5,644 | 1,399 | ### Instruction:
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the same date, that is on September 13, 1965, the Government Pleader, on behalf of the State, seems to have appeared before the High Court and made representation on the basis of which the High Court issued notice to the State under Section 4(ee) of the Act. The State entered appearance on September 20, 1965, and filed an application for getting impleaded as a party to the appeal. In the affidavit filed in support of the application, it has been stated that the suit lands had vested in the State of Bihar with effect from January 1, 1956, and that the plaintiffs, who were illegally in possession of the suit lands, have delivered possession of the same to the State of Bihar on August 22, 1965, and that the State was in lawful possession of the suit lands which was the subject of the appeal before the High Court since August 22, 1965. It was further averred that neither the plaintiffs not the defendants have any right, title or interest in the suit lands and that in particular the defendants are not entitled to claim restitution of the property which is in the lawful possession of the State. It was prayed that the State should be impleaded as a party and that the Court should hold that neither the plaintiffs not the defendants have any right, title or interest in the suit lands. This application was heard by the High Court on October 14, 1965, and the State was impleaded as a party to the appeal and also heard on merits. The affidavit on behalf of the State, unfortunately, has been sworn to by the Circle Inspector Anchal Sahar in the district of Shahabad. It is rather regrettable that in such an important matter, the State instead of having a proper affidavit filed by the Collector or any other responsible officer chose to file an affidavit sworn to by a Circle Inspector. The High Court in consequence felt suspicious about the conduct of the State and hence rejected its contention that no relief should be granted to either the plaintiffs or the defendants.19. We are of the opinion that the High Court was not justified in rejecting the claim made on behalf of the State. This Court, in the title suit proceedings, has categorically held that the estate had vested in the State and the right to possession, as well as rights to recover possession form a trespasser, also got vested in the State.20. Section 4(ee) makes it clear that the State is as of right entitled to be impleaded in the proceedings referred to therein and place its point of view before the Court. In this case the State has raised objection before the High Court that as the estate has vested in the State under the Act and as the Collector is deemed to have taken charge of the estate, from the date of vesting, there is no question of any claim for restitution surviving in the plaintiffs or the defendants in these proceedings. Apart form the fact that from January 1, 1956, the estate had vested in the State and the Collector under Section 4(f) shall be deemed to have taken charge of the estate from the date of vesting, there is categorical averment by the State that they have taken possession from the plaintiffs on August 22, 1965. The plaintiffs have also stated that they have surrendered possession to the State, So far as we cold see, the High Court has not rejected as false the claim made by the State. The High Court has proceeded on the basis that the question of restitution has to be considered only as between the plaintiffs and the defendants on the basis of the result of the title suit proceedings.21. As we have already pointed out even without the actual physical possession taken on August 22, 1965, in law the State must be considers to have been in possession from the date of vesting by virtue of Section 3 and 4, read with Section 4(f). We have already pointed out the difference between Section 4(f) as if originally stood and after its amendment in 1954 with retrospective effect. Apart from the fact that the Collector shall be deemed to have taken charge, the position if further strengthened by the State having actually taken possession from the plaintiffs on August 22, 1965. It is also significant that the defendants were prepared to restrict their claim before the High Court for mesne profits till August 22, 1965, the date on which the plaintiffs surrendered possession to the State.22. From what is stated above it follows that the defendants have no right to get possession from the plaintiffs after the estate had vested and possession delivered to the rightful party, namely, the State. Therefore, the order of restitution passed as against the plaintiffs was erroneous.23. The same principles will apply to the claim for mesne profits made by the defendants. The defendants have claimed mesne profits from May 6, 1959, the date when the plaintiffs took delivery of the suit lands by virtue of the High Courts decision, but long before i.e. January 1, 1956, the State had vested in the State under the Act. As we have held that the defendants are not entitled to get restitution, it follows that they will not also be entitled to claim mesne profits. Therefore, this claim also will have to be rejected.24. The claim made by the defendants for refunds of costs collected by the plaintiffs in the title suit proceedings has not resisted by the latter and that claim has been allowed by the High Court. That part of the order of the High Court will stand. Subject to the direction given above, the judgment of the High Court directing the plaintiffs to surrender possession of the suit lands to the defendants and pay mesne profits will stand set aside and the claim made by the defendants in this regard will stand dismissed.
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possession many be as trespasser or in any other capacity. But it must be noted, that this Court had categorically held that after the estate vested in the State, the right to possession vested in the State and the right to recover possession from a trespasser also got vested in the State. The State had not been impleaded in those proceedings.13. We are not inclined to accept thecontention of Mr. Mehta that the dispute between the parties in the restitution proceedings has to be adjudicated merely on the basis of Section 144,ignoring the decision of this Court and the material provisions of thee was not in the original Act of 1950. It has been inserted in the year 1954 by the Bihar land Reforms (Amendment Act) 1953 (Bihar Act 20 of 1954). At any rate this provision was in force from May 17, 1954. That is why we have mentioned earlier that in the First Appeal No. 143 of 1948, which was pending before the Patna High Court, no steps were taken to issue notice to the State so as the enable it to appear and conduct or defend the proceedings before the High Court. Thatalso makes it clear that in the absence of sub notice, the decree or order passed in the suit, appeal or proceedings shall not be binding on the State Government. Therefore, it is clear that as the State was not made a party before the High Court or in the further appeal to this Court, the State had no occasion or opportunity to place its objection to the claims made by the parties in those proceedings.We do not think to refer to clause (g) of Section 4 as it originally stood or after its amendment in 1954 or as it stands at present as substituted in 1959 because it has no bearing in deciding the claim of the parties beforethe position in this case is that on January 1, 1956, the estate in which the suit lands are included vested in the State and from that date the Collector in law should be deemed to have taken the charge.We are of the opinion that the High Court was not justified in rejecting the claim made on behalf of the State. This Court, in the title suit proceedings, has categorically held that the estate had vested in the State and the right to possession, as well as rights to recover possession form a trespasser, also got vested in the State.20. Section 4(ee) makes it clear that the State is as of right entitled to be impleaded in the proceedings referred to therein and place its point of view before the Court. In this case the State has raised objection before the High Court that as the estate has vested in the State under the Act and as the Collector is deemed to have taken charge of the estate, from the date of vesting, there is no question of any claim for restitution surviving in the plaintiffs or the defendants in these proceedings. Apart form the fact that from January 1, 1956, the estate had vested in the State and the Collector under Section 4(f) shall be deemed to have taken charge of the estate from the date of vesting, there is categorical averment by the State that they have taken possession from the plaintiffs on August 22, 1965. The plaintiffs have also stated that they have surrendered possession to the State, So far as we cold see, the High Court has not rejected as false the claim made by the State. The High Court has proceeded on the basis that the question of restitution has to be considered only as between the plaintiffs and the defendants on the basis of the result of the title suit proceedings.21. As we have already pointed out even without the actual physical possession taken on August 22, 1965, in law the State must be considers to have been in possession from the date of vesting by virtue of Section 3 and 4, read with Section 4(f). We have already pointed out the difference between Section 4(f) as if originally stood and after its amendment in 1954 with retrospective effect. Apart from the fact that the Collector shall be deemed to have taken charge, the position if further strengthened by the State having actually taken possession from the plaintiffs on August 22, 1965. It is also significant that the defendants were prepared to restrict their claim before the High Court for mesne profits till August 22, 1965, the date on which the plaintiffs surrendered possession to the State.22. From what is stated above it follows that the defendants have no right to get possession from the plaintiffs after the estate had vested and possession delivered to the rightful party, namely, the State. Therefore, the order of restitution passed as against the plaintiffs was erroneous.23. The same principles will apply to the claim for mesne profits made by the defendants. The defendants have claimed mesne profits from May 6, 1959, the date when the plaintiffs took delivery of the suit lands by virtue of the High Courts decision, but long before i.e. January 1, 1956, the State had vested in the State under the Act. As we have held that the defendants are not entitled to get restitution, it follows that they will not also be entitled to claim mesne profits. Therefore, this claim also will have to be rejected.24. The claim made by the defendants for refunds of costs collected by the plaintiffs in the title suit proceedings has not resisted by the latter and that claim has been allowed by the High Court. That part of the order of the High Court will stand. Subject to the direction given above, the judgment of the High Court directing the plaintiffs to surrender possession of the suit lands to the defendants and pay mesne profits will stand set aside and the claim made by the defendants in this regard will stand dismissed.
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The Silk and Art Silk Mills' Association Ltd. & Another Vs. Mills Mazdoor Sabha | dearness allowance and similar conditions of service and in applying that principle Industrial Courts have to compare the wage scale or the dearness allowance prevailing in similar concerns in the region with which it is dealing, and generally speaking similar concerns would be those in the same line of business as the concern with respect to which the dispute is under consideration and further, even in the same line of business, it would not be proper to compare a small struggling concern with a large flourishing concern. In William Sons (India) Private Ltd. v. The Workmen, [1962 - I L.L.J. 302], the Court observed that the extent of business carried on by the concerns, the capital invested by them, the profits made by them, the nature of the business carried on by them, their standing, the strength of their labour force, the presence or absence and the extent of reserves, the dividends declared by them and the prospects about the future of their business and other relevant factors have to be borne in mind for the purpose of comparison. These observations were made to show how comparison should be made, even in the same line of business and were intended to lay down that a small concern cannot be compared even in the same line of business with a large concern. In Greaves Cotton and Co. and others v. Their Workmen, (1964) 5 S.C.R. 362 at pp. 367-369, the main argument was that the Tribunal went wrong in relying more on the region aspect of the industry-cum-region formula and not on the industry aspect when dealing with clerical and subordinate staff. The Court said that it was ordinarily desirable to have as much uniformity as possible in the wage-scales of different concerns of the same industry working in the same region, as this puts similar industries more or less on an equal footing in their production struggle. The Court then referred to the French Motor Car Co.s case, (1963) Supp. 2 S.C.R. 16 at pp. 20-21, and observed that in that case this Court held so far as clerical and subordinate staff are concerned that it may be possible to take into account even those concerns which are engaged in different lines of business for the work of clerical and subordinate staff is more or less the same in all kinds of concerns. The Court further observed that where there are a large number of industrial concerns of the same kind in the same region it would be proper to put greater emphasis on the industry part of the industry-cum-region principle as that would put all concerns on a more or less equal footing in the matter of production costs and, therefore, in the matter of competition in the market and this will equally apply to clerical and subordinate staff whose wages and dearness allowance also go into calculation of production costs; but where the number of comparable concerns is small in a particular region and, therefore, the competition aspect is not of the same importance, the region part of the industry-cum-region formula assumes greater importance particularly with reference to clerical and subordinate staff and this was what was emphasised in the French Motor Car Co.s case (supra) where that company was already paying the highest wages in the particular line of business and, therefore, comparison had to be made with as similar concerns as possible in different lines of business for the purpose of fixing wage scales and dearness allowance. According to the Court, the principle, therefore, which emerges from these two decisions is that in applying the industry-cum-region formula for fixing wage scales the Tribunal should lay stress on the industry part of the formula if there are a large number of concerns in the same region carrying on the same industry; in such a case in order that production cost may not be unequal and there may be equal competition, wages should generally be fixed on the basis of the comparable industries, namely, industries of the same kind. But where the number of industries of the same kind in a particular region is small it is the region part of the industry-cum-region formula which assumes importance particularly in the case of clerical and subordinate staff, for, as pointed out in the French Motor Car Co.s case (supra), there is not much difference in the work of this class of employees in different industries. 21. If the employer has the financial capacity, would it be just to reject the claim of the lowest paid workmen for an enhancement in dearness allowance to neutralize the rise in cost of living and thus to maintain their subsistence wage at its real level in terms of the purchasing capacity, merely because there is a comparable concern in the industry in the region in which workmen are paid dearness allowance at a low rate ? We do not think it necessary to answer this question for the purpose of deciding this case. 22. The association never wanted the Court to make any comparison with any other units in the same industry in the region. In the written statement of the association there was no averment that there were other comparable units in the same industry in the region. Nor did the association, at the time of argument before the Industrial Court, put forward the contention that there were comparable concerns in the same industry in the region and that the Court should make a comparison of the employer-units in question with those concerns to find out the extent of neutralization which could be granted. The association had a membership of 325 units in Greater Bombay on February 6, 1970, when the Miscellaneous Application (I.C.) No. 1 was filed. It was certainly in a position to tell the Court whether there were any other comparable units in the same industry in the region and the only inference from its conduct is that there were no comparable units in the industry in the region. | 0[ds]11. For reaching the conclusion that the industry is prosperous and has a bright future, the Court relied on the speech made by the Chairman of the Silk and Art Silk Mills Association at the 30th annual general meeting in 1969, in which he said that the man-made fibre industry had made remarkable progress during the last decade, that the production during the year 1969 exceeded the Third Plan target by over 25 per cent, that there was a rise in the per capita consumption of fabrics, that rapid progress was expected in the production of non-cellulosic yarn and that the total demand in relation to the year 1969 was likely to increase by 41 per cent by the year 1973-74 and by 110 per cent by the year 1978-79. The Court also relied upon the fact that actual export in 1970 exceeded the export in the previous three years, the fact that production has substantially increased in the first six months of 1970, that it was as much as 525.77 million metres compared to the total production of 892.67 million metres in 1969, and the fact that the total production of art silk yarn had reached the figure of 114.680 thousand kilograms compared to 106.480 thousand kilograms in 1969. The Court estimated that export of rayon fabrics and synthetic textiles will reach Rs. 26.50 crores a year by 1973-74. Although excise duty has been increased, the Court found that it had not adversely affected the industry in any substantial degree as the economic incidence of the burden of the excise duty was passed on to the consumer. As regards the financial capacity of the units, the Court relied on Exhibit U. 9 which is an analysis of the profit and loss accounts of the 28 mills and Exhibit U. 10, which is a consolidated statement showing the financial conditions of these mills and Exhibit U. 11, the statement regarding the bonus paid by the mills which did not file their balance-sheet and profit and loss accounts and Exhibit U. 12, a statement showing the interest paid by some of the units which had filed their balance-sheets and Exhibit U. 13, a statement showing the profitability ratio for art silk industry in Bombay and Exhibit U. 14, a comparative statement of the profitability ratio in cotton textiles, engineering and chemical industry. The Court found from Exhibit U. 9 that there was an increase in the paid up capital of Rs. 44.07 lakhs from 1965, an increase in the reserve amounting to Rs. 32.96 lakhs, an increase in the gross block amounting to Rs. 285.54 lakhs and an increase in the net block of Rs. 140.63 lakhs from 1965 to 1968. From the figures given in Exhibits U. 9 and U. 10, the Court found that, after providing for depreciation to the total paid up capital, the profit would work out at 40.02 per cent and that after providing for depreciation to the total paid up capital and reserve, it would work out at 21.10 per cent. From the large amount of interest paid by some of the units as disclosed in Exhibit U. 12, the Court inferred that these units are under-capitalised but that, at the same time, they preferred to borrow money at the current rate of interest. The Court also found from Exhibit U. 11 that 17 mills which did not file their balance-sheets or profit and loss accounts were in a position to pay bonus in excess of the 4 per cent which is the statutory minimum under the Payment of Bonus Act and, therefore, these units must have been making profits and, as their present financial position was not shown to have become worse, they had the financial capacity to bear the additional burden16. We think that the Industrial Court has carefully examined the financial position of the employer-units as also the position of the industry and its future prospects. The Court was fully aware of the nature of the demand and the extent of the burden which the employer-units will have to bear. A broad and overall view of the financial position of the employer-units was taken into account by the Court and it has tried to reconcile the natural and just claims of the employees for a higher rate of dearness allowance with the capacity of the employer to pay it and in that process it has made allowance for the legitimate desire of the employer to make reasonable profit. What is really material in assessing the financial capacity of the employer-units in this context is the extent of gross profits made by them. See Unichem Laboratories Ltd. v. Their Workmen, [1972 - I L.L.J. 567]. On the basis of Exhibit U. 9 which is an analysis of the balance-sheets and profit and loss accounts of the 28 units, the Court found that the 28 mills have been making good profits and that, on an average, the profit would work out at 40 and odd per cent of the capital. There was some decline in the profits made during the years 1966-67 and 1968, but the Court found that the industry was rallying round in 197019. We do not think that the Industrial Court went wrong in relying upon exhibit U. 8 or in granting 99 per cent neutralization on account of the steep rise in the cost of living. Exhibit U. 8 it may be recalled is a comparative table showing the minimum basic wages and dearness allowance paid in other industries in the region like the engineering, pharmaceuticals, etc. The court relied upon it only to show the trend in the region. The Court also relied upon the report of the Norms Committee which stated that the trend for the last decade in industrial adjudication as well as in settlements and awards, was to allow 100 per cent neutralization in the case of lowest-paid employees. The Court was of the view that if 80 per cent neutralization could be allowed in the industry under the settlement arrived at in 1957, there was no reason why 100 per cent neutralization should not be granted, in view of the steep rise in the cost of living from 1957, to the lowest-paid employees. We cannot agree with the contention of the appellant that the Industrial Court went wrong in relying upon Exhibit U. 8 or the report of the Norms Committee to find out the trend in the region as to the extent of neutralization to be allowed to the employees concerned. The question of the extent of neutralization to the workmen in the units does not depend solely upon the fact whether neutralization to that extent has been allowed to the employees in comparable concerns in the same industry in the same region. Much distinction cannot be made in this respect among the lowest-paid employees in the region merely because some of them are employed in other industries. In other words, for finding the trend or the norm in the region as regards the extent of neutralization for the lowest-paid employees, the Industrial Court cannot be said to have gone wrong in relying upon either the Norms Committee Report or on Exhibit U. 8The Court said that it was ordinarily desirable to have as much uniformity as possible in the wage-scales of different concerns of the same industry working in the same region, as this puts similar industries more or less on an equal footing in their production struggle. The Court then referred to the French Motor Car Co.s case, (1963) Supp. 2 S.C.R. 16 at pp. 20-21, and observed that in that case this Court held so far as clerical and subordinate staff are concerned that it may be possible to take into account even those concerns which are engaged in different lines of business for the work of clerical and subordinate staff is more or less the same in all kinds of concerns. The Court further observed that where there are a large number of industrial concerns of the same kind in the same region it would be proper to put greater emphasis on the industry part of the industry-cum-region principle as that would put all concerns on a more or less equal footing in the matter of production costs and, therefore, in the matter of competition in the market and this will equally apply to clerical and subordinate staff whose wages and dearness allowance also go into calculation of production costs; but where the number of comparable concerns is small in a particular region and, therefore, the competition aspect is not of the same importance, the region part of the industry-cum-region formula assumes greater importance particularly with reference to clerical and subordinate staff and this was what was emphasised in the French Motor Car Co.s case (supra) where that company was already paying the highest wages in the particular line of business and, therefore, comparison had to be made with as similar concerns as possible in different lines of business for the purpose of fixing wage scales and dearness allowance. According to the Court, the principle, therefore, which emerges from these two decisions is that in applying the industry-cum-region formula for fixing wage scales the Tribunal should lay stress on the industry part of the formula if there are a large number of concerns in the same region carrying on the same industry; in such a case in order that production cost may not be unequal and there may be equal competition, wages should generally be fixed on the basis of the comparable industries, namely, industries of the same kind. But where the number of industries of the same kind in a particular region is small it is the region part of the industry-cum-region formula which assumes importance particularly in the case of clerical and subordinate staff, for, as pointed out in the French Motor Car Co.s case (supra), there is not much difference in the work of this class of employees in different industries21. If the employer has the financial capacity, would it be just to reject the claim of the lowest paid workmen for an enhancement in dearness allowance to neutralize the rise in cost of living and thus to maintain their subsistence wage at its real level in terms of the purchasing capacity, merely because there is a comparable concern in the industry in the region in which workmen are paid dearness allowance at a low rate ? We do not think it necessary to answer this question for the purpose of deciding this case22. The association never wanted the Court to make any comparison with any other units in the same industry in the region. In the written statement of the association there was no averment that there were other comparable units in the same industry in the region. Nor did the association, at the time of argument before the Industrial Court, put forward the contention that there were comparable concerns in the same industry in the region and that the Court should make a comparison of the employer-units in question with those concerns to find out the extent of neutralization which could be granted. The association had a membership of 325 units in Greater Bombay on February 6, 1970, when the Miscellaneous Application (I.C.) No. 1 was filed. It was certainly in a position to tell the Court whether there were any other comparable units in the same industry in the region and the only inference from its conduct is that there were no comparable units in the industry in the region. | 0 | 6,213 | 2,075 | ### Instruction:
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dearness allowance and similar conditions of service and in applying that principle Industrial Courts have to compare the wage scale or the dearness allowance prevailing in similar concerns in the region with which it is dealing, and generally speaking similar concerns would be those in the same line of business as the concern with respect to which the dispute is under consideration and further, even in the same line of business, it would not be proper to compare a small struggling concern with a large flourishing concern. In William Sons (India) Private Ltd. v. The Workmen, [1962 - I L.L.J. 302], the Court observed that the extent of business carried on by the concerns, the capital invested by them, the profits made by them, the nature of the business carried on by them, their standing, the strength of their labour force, the presence or absence and the extent of reserves, the dividends declared by them and the prospects about the future of their business and other relevant factors have to be borne in mind for the purpose of comparison. These observations were made to show how comparison should be made, even in the same line of business and were intended to lay down that a small concern cannot be compared even in the same line of business with a large concern. In Greaves Cotton and Co. and others v. Their Workmen, (1964) 5 S.C.R. 362 at pp. 367-369, the main argument was that the Tribunal went wrong in relying more on the region aspect of the industry-cum-region formula and not on the industry aspect when dealing with clerical and subordinate staff. The Court said that it was ordinarily desirable to have as much uniformity as possible in the wage-scales of different concerns of the same industry working in the same region, as this puts similar industries more or less on an equal footing in their production struggle. The Court then referred to the French Motor Car Co.s case, (1963) Supp. 2 S.C.R. 16 at pp. 20-21, and observed that in that case this Court held so far as clerical and subordinate staff are concerned that it may be possible to take into account even those concerns which are engaged in different lines of business for the work of clerical and subordinate staff is more or less the same in all kinds of concerns. The Court further observed that where there are a large number of industrial concerns of the same kind in the same region it would be proper to put greater emphasis on the industry part of the industry-cum-region principle as that would put all concerns on a more or less equal footing in the matter of production costs and, therefore, in the matter of competition in the market and this will equally apply to clerical and subordinate staff whose wages and dearness allowance also go into calculation of production costs; but where the number of comparable concerns is small in a particular region and, therefore, the competition aspect is not of the same importance, the region part of the industry-cum-region formula assumes greater importance particularly with reference to clerical and subordinate staff and this was what was emphasised in the French Motor Car Co.s case (supra) where that company was already paying the highest wages in the particular line of business and, therefore, comparison had to be made with as similar concerns as possible in different lines of business for the purpose of fixing wage scales and dearness allowance. According to the Court, the principle, therefore, which emerges from these two decisions is that in applying the industry-cum-region formula for fixing wage scales the Tribunal should lay stress on the industry part of the formula if there are a large number of concerns in the same region carrying on the same industry; in such a case in order that production cost may not be unequal and there may be equal competition, wages should generally be fixed on the basis of the comparable industries, namely, industries of the same kind. But where the number of industries of the same kind in a particular region is small it is the region part of the industry-cum-region formula which assumes importance particularly in the case of clerical and subordinate staff, for, as pointed out in the French Motor Car Co.s case (supra), there is not much difference in the work of this class of employees in different industries. 21. If the employer has the financial capacity, would it be just to reject the claim of the lowest paid workmen for an enhancement in dearness allowance to neutralize the rise in cost of living and thus to maintain their subsistence wage at its real level in terms of the purchasing capacity, merely because there is a comparable concern in the industry in the region in which workmen are paid dearness allowance at a low rate ? We do not think it necessary to answer this question for the purpose of deciding this case. 22. The association never wanted the Court to make any comparison with any other units in the same industry in the region. In the written statement of the association there was no averment that there were other comparable units in the same industry in the region. Nor did the association, at the time of argument before the Industrial Court, put forward the contention that there were comparable concerns in the same industry in the region and that the Court should make a comparison of the employer-units in question with those concerns to find out the extent of neutralization which could be granted. The association had a membership of 325 units in Greater Bombay on February 6, 1970, when the Miscellaneous Application (I.C.) No. 1 was filed. It was certainly in a position to tell the Court whether there were any other comparable units in the same industry in the region and the only inference from its conduct is that there were no comparable units in the industry in the region.
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etc. The court relied upon it only to show the trend in the region. The Court also relied upon the report of the Norms Committee which stated that the trend for the last decade in industrial adjudication as well as in settlements and awards, was to allow 100 per cent neutralization in the case of lowest-paid employees. The Court was of the view that if 80 per cent neutralization could be allowed in the industry under the settlement arrived at in 1957, there was no reason why 100 per cent neutralization should not be granted, in view of the steep rise in the cost of living from 1957, to the lowest-paid employees. We cannot agree with the contention of the appellant that the Industrial Court went wrong in relying upon Exhibit U. 8 or the report of the Norms Committee to find out the trend in the region as to the extent of neutralization to be allowed to the employees concerned. The question of the extent of neutralization to the workmen in the units does not depend solely upon the fact whether neutralization to that extent has been allowed to the employees in comparable concerns in the same industry in the same region. Much distinction cannot be made in this respect among the lowest-paid employees in the region merely because some of them are employed in other industries. In other words, for finding the trend or the norm in the region as regards the extent of neutralization for the lowest-paid employees, the Industrial Court cannot be said to have gone wrong in relying upon either the Norms Committee Report or on Exhibit U. 8The Court said that it was ordinarily desirable to have as much uniformity as possible in the wage-scales of different concerns of the same industry working in the same region, as this puts similar industries more or less on an equal footing in their production struggle. The Court then referred to the French Motor Car Co.s case, (1963) Supp. 2 S.C.R. 16 at pp. 20-21, and observed that in that case this Court held so far as clerical and subordinate staff are concerned that it may be possible to take into account even those concerns which are engaged in different lines of business for the work of clerical and subordinate staff is more or less the same in all kinds of concerns. The Court further observed that where there are a large number of industrial concerns of the same kind in the same region it would be proper to put greater emphasis on the industry part of the industry-cum-region principle as that would put all concerns on a more or less equal footing in the matter of production costs and, therefore, in the matter of competition in the market and this will equally apply to clerical and subordinate staff whose wages and dearness allowance also go into calculation of production costs; but where the number of comparable concerns is small in a particular region and, therefore, the competition aspect is not of the same importance, the region part of the industry-cum-region formula assumes greater importance particularly with reference to clerical and subordinate staff and this was what was emphasised in the French Motor Car Co.s case (supra) where that company was already paying the highest wages in the particular line of business and, therefore, comparison had to be made with as similar concerns as possible in different lines of business for the purpose of fixing wage scales and dearness allowance. According to the Court, the principle, therefore, which emerges from these two decisions is that in applying the industry-cum-region formula for fixing wage scales the Tribunal should lay stress on the industry part of the formula if there are a large number of concerns in the same region carrying on the same industry; in such a case in order that production cost may not be unequal and there may be equal competition, wages should generally be fixed on the basis of the comparable industries, namely, industries of the same kind. But where the number of industries of the same kind in a particular region is small it is the region part of the industry-cum-region formula which assumes importance particularly in the case of clerical and subordinate staff, for, as pointed out in the French Motor Car Co.s case (supra), there is not much difference in the work of this class of employees in different industries21. If the employer has the financial capacity, would it be just to reject the claim of the lowest paid workmen for an enhancement in dearness allowance to neutralize the rise in cost of living and thus to maintain their subsistence wage at its real level in terms of the purchasing capacity, merely because there is a comparable concern in the industry in the region in which workmen are paid dearness allowance at a low rate ? We do not think it necessary to answer this question for the purpose of deciding this case22. The association never wanted the Court to make any comparison with any other units in the same industry in the region. In the written statement of the association there was no averment that there were other comparable units in the same industry in the region. Nor did the association, at the time of argument before the Industrial Court, put forward the contention that there were comparable concerns in the same industry in the region and that the Court should make a comparison of the employer-units in question with those concerns to find out the extent of neutralization which could be granted. The association had a membership of 325 units in Greater Bombay on February 6, 1970, when the Miscellaneous Application (I.C.) No. 1 was filed. It was certainly in a position to tell the Court whether there were any other comparable units in the same industry in the region and the only inference from its conduct is that there were no comparable units in the industry in the region.
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Madharao Rajeshwar Deshpande Vs. Shanker Singh & Ors | resumed would have been three family holdings and that also if he could prove that he bona fide required it for personal cultivation and was mainly dependent on the income of that land for his maintenance. The tenant was given the right to purchase the land in his tenancy from the landlord in accordance with Section 43. If he did not take steps to acquire the same he still became a statutory owner of that land by virtue of Section 46 with effect from April 1, 1961. Therefore even if the tenant did not apply for purchase of land held by him he became an owner with effect from April 1, 1961 subject to any other conditions as were laid down in the provisions of the Act. This vesting of ownership in the tenant was not affected by subsequent enactment of sub-section (14-A) by Act 2 of 1962 which did not have retrospective operation. 6. Thus, according to the tribunal, even if respondent No. 1 did not apply under the relevant provisions of the Act for purchasing the land comprising his tenancy he became an owner thereof by virtue of the provisions of Section 46 (1) and no tenancy rights were left which could be deemed to have been surrendered under Section 14-A which came into existence after April 1, 1961. Although the provisions of Section 42 (c), as they stood before the amendment effected by Act 2 of 1962, were not pressed at any prior stage a contention was raised before the High Court that in accordance therewith the appellant should have been left an area not less than one family holding on independent calculation with respect to the land held by each tenant. The High Court repelled this contention by saying that it was not possible to accept such a construction of Section 42 (c).As there was no proceeding pending for termination of the tenancy of respondent No. 1 the conclusion of the tribunal that respondent No. 1 had become a statutory owner on April 1, 1961 was upheld. 7. Before us an attempt was made on behalf of the appellant to reiterate the contention based on the provisions of Section 42 (c) as it existed before the amendment made by Act 2 of 1962. It was urged that one of the most important conditions of the right to purchase was that the extent of the land remaining with the landlord after the purchase by the tenant (whether to cultivate personally or otherwise) shall not be less than one family holding. On December 30, 1958 the appellant had no land whatever with him in his possession. He was, therefore, entitled to retain an area to the extent of one family holding which came to 26 acres. By virtue of the provisions of Section 42 (c) respondent No. 1 was not entitled to purchase the entire land comprising his tenancy as under Section 46 (1) the ownership of land stood transferred to the tenant only if he was entitled to purchase from landlord such land. As this condition was not fulfilled in the present case owing to the provisions of Section 42 (c) it followed that on April 1, 1961 the ownership of the land in question was not transferred to respondent No, 1 under Section 46 (1). This situation continued upto March 1, 1962 when the amending Act came into force. Sub-section (14-A) of Section 43 was one of the new provisions inserted by the Amending Act. Respondent No. 1, could, therefore, exercise his right of purchase only under Section 41 read with Section 43 (14-A). As he failed to exercise his right under those provisions the entire land in his tenancy must be deemed to have been surrendered to the landlord, namely, the appellant before April 1,1963 which was the relevant date for the purpose of the operation of Sec. 49-A. 8. We are unable to accept any of the contentions raised on behalf of the appellant so far as the effect of Section 42 (c), as it stood before its deletion by the amending Act is concerned, it was neither referred to nor relied upon before any of the revenue authorities including the Maharashtra Revenue Tribunal. The application which was filed by the appellant was not founded on any facts or pleas relevant to Section 42 (c). The contention as raised leads to unusual and strange results. If the appellant was entitled to an area of 26 acres it is difficult to see how he could choose only respondent No, 1 and leave out the other tenants for the purpose of retaining land not less than one family holding. It is significant that the appellant had filled applications on similar lines against two other tenants also. After the decision of the tribunal had been given he did not pursue the matter further which means that he abandoned his claim with regard to the lands in their tenancies. Respondent No. 1 has a holding with an area of little over 11 acres. It is incomprehensible how the appellant could seek to satisfy the requirements of S. 42 (c) by demanding the entire area from respondent No. 1 alone. We, however, do not wish to express any final opinion on the scope and ambit of Section 42 (c) because we are satisfied that the appellant was not entitled to raise any condition based on the aforesaid provision as no foundation was laid for doing so in the pleadings or at any prior stage except before the High Court. We concur in the view of the tribunal that respondent. No. 1 became a statutory owner of the land in his tenancy by virtue of Section 46 (1) of the Act with effect from April 1, 1961 even though he did not take steps to purchase that land from the appellant under Section 43. The operation of Section 46 (1) could not be affected by the subsequent insertion of sub-section (14-A) in Section 43 which did not have retrospective operation. | 0[ds]8. We are unable to accept any of the contentions raised on behalf of the appellant so far as the effect of Section 42 (c), as it stood before its deletion by the amending Act is concerned, it was neither referred to nor relied upon before any of the revenue authorities including the Maharashtra Revenue Tribunal. The application which was filed by the appellant was not founded on any facts or pleas relevant to Section 42 (c). The contention as raised leads to unusual and strange results. If the appellant was entitled to an area of 26 acres it is difficult to see how he could choose only respondent No, 1 and leave out the other tenants for the purpose of retaining land not less than one family holding. It is significant that the appellant had filled applications on similar lines against two other tenants also. After the decision of the tribunal had been given he did not pursue the matter further which means that he abandoned his claim with regard to the lands in their tenancies. Respondent No. 1 has a holding with an area of little over 11 acres. It is incomprehensible how the appellant could seek to satisfy the requirements of S. 42 (c) by demanding the entire area from respondent No. 1 alone. We, however, do not wish to express any final opinion on the scope and ambit of Section 42 (c) because we are satisfied that the appellant was not entitled to raise any condition based on the aforesaid provision as no foundation was laid for doing so in the pleadings or at any prior stage except before the High Court. We concur in the view of the tribunal that respondent. No. 1 became a statutory owner of the land in his tenancy by virtue of Section 46 (1) of the Act with effect from April 1, 1961 even though he did not take steps to purchase that land from the appellant under Section 43. The operation of Section 46 (1) could not be affected by the subsequent insertion of sub-section (14-A) in Section 43 which did not have retrospective operation. | 0 | 2,461 | 396 | ### Instruction:
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resumed would have been three family holdings and that also if he could prove that he bona fide required it for personal cultivation and was mainly dependent on the income of that land for his maintenance. The tenant was given the right to purchase the land in his tenancy from the landlord in accordance with Section 43. If he did not take steps to acquire the same he still became a statutory owner of that land by virtue of Section 46 with effect from April 1, 1961. Therefore even if the tenant did not apply for purchase of land held by him he became an owner with effect from April 1, 1961 subject to any other conditions as were laid down in the provisions of the Act. This vesting of ownership in the tenant was not affected by subsequent enactment of sub-section (14-A) by Act 2 of 1962 which did not have retrospective operation. 6. Thus, according to the tribunal, even if respondent No. 1 did not apply under the relevant provisions of the Act for purchasing the land comprising his tenancy he became an owner thereof by virtue of the provisions of Section 46 (1) and no tenancy rights were left which could be deemed to have been surrendered under Section 14-A which came into existence after April 1, 1961. Although the provisions of Section 42 (c), as they stood before the amendment effected by Act 2 of 1962, were not pressed at any prior stage a contention was raised before the High Court that in accordance therewith the appellant should have been left an area not less than one family holding on independent calculation with respect to the land held by each tenant. The High Court repelled this contention by saying that it was not possible to accept such a construction of Section 42 (c).As there was no proceeding pending for termination of the tenancy of respondent No. 1 the conclusion of the tribunal that respondent No. 1 had become a statutory owner on April 1, 1961 was upheld. 7. Before us an attempt was made on behalf of the appellant to reiterate the contention based on the provisions of Section 42 (c) as it existed before the amendment made by Act 2 of 1962. It was urged that one of the most important conditions of the right to purchase was that the extent of the land remaining with the landlord after the purchase by the tenant (whether to cultivate personally or otherwise) shall not be less than one family holding. On December 30, 1958 the appellant had no land whatever with him in his possession. He was, therefore, entitled to retain an area to the extent of one family holding which came to 26 acres. By virtue of the provisions of Section 42 (c) respondent No. 1 was not entitled to purchase the entire land comprising his tenancy as under Section 46 (1) the ownership of land stood transferred to the tenant only if he was entitled to purchase from landlord such land. As this condition was not fulfilled in the present case owing to the provisions of Section 42 (c) it followed that on April 1, 1961 the ownership of the land in question was not transferred to respondent No, 1 under Section 46 (1). This situation continued upto March 1, 1962 when the amending Act came into force. Sub-section (14-A) of Section 43 was one of the new provisions inserted by the Amending Act. Respondent No. 1, could, therefore, exercise his right of purchase only under Section 41 read with Section 43 (14-A). As he failed to exercise his right under those provisions the entire land in his tenancy must be deemed to have been surrendered to the landlord, namely, the appellant before April 1,1963 which was the relevant date for the purpose of the operation of Sec. 49-A. 8. We are unable to accept any of the contentions raised on behalf of the appellant so far as the effect of Section 42 (c), as it stood before its deletion by the amending Act is concerned, it was neither referred to nor relied upon before any of the revenue authorities including the Maharashtra Revenue Tribunal. The application which was filed by the appellant was not founded on any facts or pleas relevant to Section 42 (c). The contention as raised leads to unusual and strange results. If the appellant was entitled to an area of 26 acres it is difficult to see how he could choose only respondent No, 1 and leave out the other tenants for the purpose of retaining land not less than one family holding. It is significant that the appellant had filled applications on similar lines against two other tenants also. After the decision of the tribunal had been given he did not pursue the matter further which means that he abandoned his claim with regard to the lands in their tenancies. Respondent No. 1 has a holding with an area of little over 11 acres. It is incomprehensible how the appellant could seek to satisfy the requirements of S. 42 (c) by demanding the entire area from respondent No. 1 alone. We, however, do not wish to express any final opinion on the scope and ambit of Section 42 (c) because we are satisfied that the appellant was not entitled to raise any condition based on the aforesaid provision as no foundation was laid for doing so in the pleadings or at any prior stage except before the High Court. We concur in the view of the tribunal that respondent. No. 1 became a statutory owner of the land in his tenancy by virtue of Section 46 (1) of the Act with effect from April 1, 1961 even though he did not take steps to purchase that land from the appellant under Section 43. The operation of Section 46 (1) could not be affected by the subsequent insertion of sub-section (14-A) in Section 43 which did not have retrospective operation.
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8. We are unable to accept any of the contentions raised on behalf of the appellant so far as the effect of Section 42 (c), as it stood before its deletion by the amending Act is concerned, it was neither referred to nor relied upon before any of the revenue authorities including the Maharashtra Revenue Tribunal. The application which was filed by the appellant was not founded on any facts or pleas relevant to Section 42 (c). The contention as raised leads to unusual and strange results. If the appellant was entitled to an area of 26 acres it is difficult to see how he could choose only respondent No, 1 and leave out the other tenants for the purpose of retaining land not less than one family holding. It is significant that the appellant had filled applications on similar lines against two other tenants also. After the decision of the tribunal had been given he did not pursue the matter further which means that he abandoned his claim with regard to the lands in their tenancies. Respondent No. 1 has a holding with an area of little over 11 acres. It is incomprehensible how the appellant could seek to satisfy the requirements of S. 42 (c) by demanding the entire area from respondent No. 1 alone. We, however, do not wish to express any final opinion on the scope and ambit of Section 42 (c) because we are satisfied that the appellant was not entitled to raise any condition based on the aforesaid provision as no foundation was laid for doing so in the pleadings or at any prior stage except before the High Court. We concur in the view of the tribunal that respondent. No. 1 became a statutory owner of the land in his tenancy by virtue of Section 46 (1) of the Act with effect from April 1, 1961 even though he did not take steps to purchase that land from the appellant under Section 43. The operation of Section 46 (1) could not be affected by the subsequent insertion of sub-section (14-A) in Section 43 which did not have retrospective operation.
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Rajendera Nath Kar Vs. Gangadas and Gangadhar Rathi and Others | The sole question for decision, therefore, is whether the provisions of section 5 of the Limitation Act can apply to an application under section 17-A of the Act.Section 5 of the Limitation Act provides, to the extent relevant, that any application may be admitted after the prescribed period if the applicant satisfies the Court that he had sufficient cause for not making the application within the said period. On the applicability of section 5 to the proceedings under section 17-A of the Act, the provisions of section 39 of the Act have a material bearing and must be noticed. Section 39 of the Act provides:"Subject to the provisions in this Act relating to limitation, all the provisions of the Indian Limitation Act, 1908, shall apply to suits, appeals and proceedings under this Act." 5. This provision, which is clear and specific, leaves n o doubt that the provisions of the Limitation Act would apply to proceedings under the West Bengal Premises Tenancy Act, subject to the condition that if there is a provision in the West Bengal Act relating to limitation, that provision would prevail over the provisions of the Indian Limitation Act relating to limitation. Since the West Bengal Act prescribes a specific period of limitation for filing an application for setting aside an order striking out the defence, namely, a period of 30 days commencing on August 26, 1967 when the first Ordinance came into force, that period would undoubtedly apply to the making of the application under section 17A of the Act. And since the appellant did not file his application under section 17-A before the due date, that is to say, before September 25, 1967, the application must be held to be barred by limitation. But, by reason of section 39 of the Act, all other provisions of the Limitation Act would be attracted, including section 5 of the latter Act. Whether the appellant has made out sufficient ground for the condonation of delay is another matter but, in view of the provisions of section 39 of the Act, it seems to us clear that the application file d by the appellant under section 5 of the Limitation Act for condonation of delay is maintainable and has to be decided on merits. 6. The learned Single Judge of the Calcutta Court has referred in his judgment of June 3, 1969 to the pro visions of section 39 but he took the view that since section 17A lays down a special period of limitation for filing a petition to set aside an order striking out the defence, that period could not be extended by invoking the provisions of the Limitation Act. This view is unsupportable. The true meaning and effect of section 39 is that if any special period of limitation is prescribed by the Act, that period will govern the proceeding under the Act in preference to the period, if any, prescribed by the Limitation Act. But, apart from such an over-riding effect of the period of limitation prescribed by the Act, not only that the other provisions of the Limitation Act do not stand excluded or superseded, but they are expressly made applicable by section 39 of the Act. When a Court condones the delay caused in filing a proceeding, it does not extend the period of limitation prescribed by law for filing it. It treats the proceeding as if it is filed within limitation, which it has the power to do if sufficient cause is shown for not filing the proceeding within the prescribed period. 7. In M/s. Pakarmal Gurudayal v. Sagarmal Bengani(1) a Division Bench of the Calcutta High Court took the view that section 5 of the Limitation Act would apply even to an application made for setting aside the decree passed after and following upon an order striking out of the defence. We endorse the view of the High Court which, ex hypothesi, would justify the application of section 5 of the Limitation Act to an application for setting aside an order striking out the defence. 8. That leaves for consideration the question whether the appellant has shown sufficient cause for not preferring his application within a period of thirty days after August 26, 1967. On this aspect of the matter, it is relevant to bear in mind that in the revision application filed by the appellant against the order striking out his defence, the High Court on September 16, 1963 ha d stayed all further proceedings in the suit. If the, appellant were to succeed in that revision application, the suit would have been required to be heard on merits and there would have been no reason or occasion for him to resort to the provision newly inserted by the Ordinance, under which an application could be made for setting aside the order striking out the defence. The appellant was evidently advised wrongly as regards the true legal position, as a result of which he a waited the disposal of his revision application. He filed the application under section 17A within 30 days of the date on which the revision application was dismissed. The appellant acted bona fide in pursuing his remedy by way of a revision application which he had already filed and which, if successful, could have given him effective relief. We are satisfied that he had sufficient cause for not filing the application under section 17A within the prescribed period. Accordingly, the del ay caused in filing that application must be condoned under section 5 of the Limitation Act and the application under section 17A must be allowed. 9. For these reasons, we allow the application filed by the appellant under section 17A of the Act, set aside the order dated July 25, 1963 striking out his defence and remit the matter back to the Trial Court for deciding the respondents suit for eviction in accordance with law The suit has been pending since September 1962 and we direct that it shall be disposed of expeditiously. 10. | 1[ds]Section 39 of the Act provides:"Subject to the provisions in this Act relating to limitation, all the provisions of the Indian Limitation Act, 1908, shall apply to suits, appeals and proceedings under this Act."This provision, which is clear and specific, leaves n o doubt that the provisions of the Limitation Act would apply to proceedings under the West Bengal Premises Tenancy Act, subject to the condition that if there is a provision in the West Bengal Act relating to limitation, that provision would prevail over the provisions of the Indian Limitation Act relating to limitation. Since the West Bengal Act prescribes a specific period of limitation for filing an application for setting aside an order striking out the defence, namely, a period of 30 days commencing on August 26, 1967 when the first Ordinance came into force, that period would undoubtedly apply to the making of the application under section 17A of the Act. And since the appellant did not file his application under section 17-A before the due date, that is to say, before September 25, 1967, the application must be held to be barred by limitation. But, by reason of section 39 of the Act, all other provisions of the Limitation Act would be attracted, including section 5 of the latter Act. Whether the appellant has made out sufficient ground for the condonation of delay is another matter but, in view of the provisions of section 39 of the Act, it seems to us clear that the application file d by the appellant under section 5 of the Limitation Act for condonation of delay is maintainable and has to be decided one learned Single Judge of the Calcutta Court has referred in his judgment of June 3, 1969 to the pro visions of section 39 but he took the view that since section 17A lays down a special period of limitation for filing a petition to set aside an order striking out the defence, that period could not be extended by invoking the provisions of the Limitation Act. This view is unsupportable. The true meaning and effect of section 39 is that if any special period of limitation is prescribed by the Act, that period will govern the proceeding under the Act in preference to the period, if any, prescribed by the Limitation Act. But, apart from such an over-riding effect of the period of limitation prescribed by the Act, not only that the other provisions of the Limitation Act do not stand excluded or superseded, but they are expressly made applicable by section 39 of the Act. When a Court condones the delay caused in filing a proceeding, it does not extend the period of limitation prescribed by law for filing it. It treats the proceeding as if it is filed within limitation, which it has the power to do if sufficient cause is shown for not filing the proceeding within the prescribed periodOn this aspect of the matter, it is relevant to bear in mind that in the revision application filed by the appellant against the order striking out his defence, the High Court on September 16, 1963 ha d stayed all further proceedings in the suit. If the, appellant were to succeed in that revision application, the suit would have been required to be heard on merits and there would have been no reason or occasion for him to resort to the provision newly inserted by the Ordinance, under which an application could be made for setting aside the order striking out the defence. The appellant was evidently advised wrongly as regards the true legal position, as a result of which he a waited the disposal of his revision application. He filed the application under section 17A within 30 days of the date on which the revision application was dismissed. The appellant acted bona fide in pursuing his remedy by way of a revision application which he had already filed and which, if successful, could have given him effective relief. We are satisfied that he had sufficient cause for not filing the application under section 17A within the prescribed period. Accordingly, the del ay caused in filing that application must be condoned under section 5 of the Limitation Act and the application under section 17A must ber these reasons, we allow the application filed by the appellant under section 17A of the Act, set aside the order dated July 25, 1963 striking out his defence and remit the matter back to the Trial Court for deciding the respondents suit for eviction in accordance with law The suit has been pending since September 1962 and we direct that it shall be disposed of expeditiously. | 1 | 1,844 | 848 | ### Instruction:
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The sole question for decision, therefore, is whether the provisions of section 5 of the Limitation Act can apply to an application under section 17-A of the Act.Section 5 of the Limitation Act provides, to the extent relevant, that any application may be admitted after the prescribed period if the applicant satisfies the Court that he had sufficient cause for not making the application within the said period. On the applicability of section 5 to the proceedings under section 17-A of the Act, the provisions of section 39 of the Act have a material bearing and must be noticed. Section 39 of the Act provides:"Subject to the provisions in this Act relating to limitation, all the provisions of the Indian Limitation Act, 1908, shall apply to suits, appeals and proceedings under this Act." 5. This provision, which is clear and specific, leaves n o doubt that the provisions of the Limitation Act would apply to proceedings under the West Bengal Premises Tenancy Act, subject to the condition that if there is a provision in the West Bengal Act relating to limitation, that provision would prevail over the provisions of the Indian Limitation Act relating to limitation. Since the West Bengal Act prescribes a specific period of limitation for filing an application for setting aside an order striking out the defence, namely, a period of 30 days commencing on August 26, 1967 when the first Ordinance came into force, that period would undoubtedly apply to the making of the application under section 17A of the Act. And since the appellant did not file his application under section 17-A before the due date, that is to say, before September 25, 1967, the application must be held to be barred by limitation. But, by reason of section 39 of the Act, all other provisions of the Limitation Act would be attracted, including section 5 of the latter Act. Whether the appellant has made out sufficient ground for the condonation of delay is another matter but, in view of the provisions of section 39 of the Act, it seems to us clear that the application file d by the appellant under section 5 of the Limitation Act for condonation of delay is maintainable and has to be decided on merits. 6. The learned Single Judge of the Calcutta Court has referred in his judgment of June 3, 1969 to the pro visions of section 39 but he took the view that since section 17A lays down a special period of limitation for filing a petition to set aside an order striking out the defence, that period could not be extended by invoking the provisions of the Limitation Act. This view is unsupportable. The true meaning and effect of section 39 is that if any special period of limitation is prescribed by the Act, that period will govern the proceeding under the Act in preference to the period, if any, prescribed by the Limitation Act. But, apart from such an over-riding effect of the period of limitation prescribed by the Act, not only that the other provisions of the Limitation Act do not stand excluded or superseded, but they are expressly made applicable by section 39 of the Act. When a Court condones the delay caused in filing a proceeding, it does not extend the period of limitation prescribed by law for filing it. It treats the proceeding as if it is filed within limitation, which it has the power to do if sufficient cause is shown for not filing the proceeding within the prescribed period. 7. In M/s. Pakarmal Gurudayal v. Sagarmal Bengani(1) a Division Bench of the Calcutta High Court took the view that section 5 of the Limitation Act would apply even to an application made for setting aside the decree passed after and following upon an order striking out of the defence. We endorse the view of the High Court which, ex hypothesi, would justify the application of section 5 of the Limitation Act to an application for setting aside an order striking out the defence. 8. That leaves for consideration the question whether the appellant has shown sufficient cause for not preferring his application within a period of thirty days after August 26, 1967. On this aspect of the matter, it is relevant to bear in mind that in the revision application filed by the appellant against the order striking out his defence, the High Court on September 16, 1963 ha d stayed all further proceedings in the suit. If the, appellant were to succeed in that revision application, the suit would have been required to be heard on merits and there would have been no reason or occasion for him to resort to the provision newly inserted by the Ordinance, under which an application could be made for setting aside the order striking out the defence. The appellant was evidently advised wrongly as regards the true legal position, as a result of which he a waited the disposal of his revision application. He filed the application under section 17A within 30 days of the date on which the revision application was dismissed. The appellant acted bona fide in pursuing his remedy by way of a revision application which he had already filed and which, if successful, could have given him effective relief. We are satisfied that he had sufficient cause for not filing the application under section 17A within the prescribed period. Accordingly, the del ay caused in filing that application must be condoned under section 5 of the Limitation Act and the application under section 17A must be allowed. 9. For these reasons, we allow the application filed by the appellant under section 17A of the Act, set aside the order dated July 25, 1963 striking out his defence and remit the matter back to the Trial Court for deciding the respondents suit for eviction in accordance with law The suit has been pending since September 1962 and we direct that it shall be disposed of expeditiously. 10.
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Section 39 of the Act provides:"Subject to the provisions in this Act relating to limitation, all the provisions of the Indian Limitation Act, 1908, shall apply to suits, appeals and proceedings under this Act."This provision, which is clear and specific, leaves n o doubt that the provisions of the Limitation Act would apply to proceedings under the West Bengal Premises Tenancy Act, subject to the condition that if there is a provision in the West Bengal Act relating to limitation, that provision would prevail over the provisions of the Indian Limitation Act relating to limitation. Since the West Bengal Act prescribes a specific period of limitation for filing an application for setting aside an order striking out the defence, namely, a period of 30 days commencing on August 26, 1967 when the first Ordinance came into force, that period would undoubtedly apply to the making of the application under section 17A of the Act. And since the appellant did not file his application under section 17-A before the due date, that is to say, before September 25, 1967, the application must be held to be barred by limitation. But, by reason of section 39 of the Act, all other provisions of the Limitation Act would be attracted, including section 5 of the latter Act. Whether the appellant has made out sufficient ground for the condonation of delay is another matter but, in view of the provisions of section 39 of the Act, it seems to us clear that the application file d by the appellant under section 5 of the Limitation Act for condonation of delay is maintainable and has to be decided one learned Single Judge of the Calcutta Court has referred in his judgment of June 3, 1969 to the pro visions of section 39 but he took the view that since section 17A lays down a special period of limitation for filing a petition to set aside an order striking out the defence, that period could not be extended by invoking the provisions of the Limitation Act. This view is unsupportable. The true meaning and effect of section 39 is that if any special period of limitation is prescribed by the Act, that period will govern the proceeding under the Act in preference to the period, if any, prescribed by the Limitation Act. But, apart from such an over-riding effect of the period of limitation prescribed by the Act, not only that the other provisions of the Limitation Act do not stand excluded or superseded, but they are expressly made applicable by section 39 of the Act. When a Court condones the delay caused in filing a proceeding, it does not extend the period of limitation prescribed by law for filing it. It treats the proceeding as if it is filed within limitation, which it has the power to do if sufficient cause is shown for not filing the proceeding within the prescribed periodOn this aspect of the matter, it is relevant to bear in mind that in the revision application filed by the appellant against the order striking out his defence, the High Court on September 16, 1963 ha d stayed all further proceedings in the suit. If the, appellant were to succeed in that revision application, the suit would have been required to be heard on merits and there would have been no reason or occasion for him to resort to the provision newly inserted by the Ordinance, under which an application could be made for setting aside the order striking out the defence. The appellant was evidently advised wrongly as regards the true legal position, as a result of which he a waited the disposal of his revision application. He filed the application under section 17A within 30 days of the date on which the revision application was dismissed. The appellant acted bona fide in pursuing his remedy by way of a revision application which he had already filed and which, if successful, could have given him effective relief. We are satisfied that he had sufficient cause for not filing the application under section 17A within the prescribed period. Accordingly, the del ay caused in filing that application must be condoned under section 5 of the Limitation Act and the application under section 17A must ber these reasons, we allow the application filed by the appellant under section 17A of the Act, set aside the order dated July 25, 1963 striking out his defence and remit the matter back to the Trial Court for deciding the respondents suit for eviction in accordance with law The suit has been pending since September 1962 and we direct that it shall be disposed of expeditiously.
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Life Insurance Corporation Ltd Vs. Commissioner Of Income-Tax, Delhi &Rajasthan | respect of the last inter-valuation period, so as to exclude therefrom any surplus or deficit included therein which was made in the earlier inter valuation period, and expenditure not allowable under S. 10 in computing the profits. This is made explicit by R. 3 which makes it obligatory upon the Income-tax Officer to make the computation of the surplus for the purpose of R. 2 according to the scheme provided in cls. (a), (b) and (c) of R. 3.Under R. 2(b) of the Schedule the Income-tax Officer has, therefore no power to change the figures in the account of the assessee. He has to take the surplus as disclosed by the actuarial valuation made by the assessee under the Insurance Act and, then to arrive at the average mentioned in the rule. He has the power to exclude any surplus or deficit included in the actuarial valuation in respect of an earlier inter-valuation period and any expenditure other than an expenditure which may under S. 10 of the Act be allowed. What the Income-tax Officer in the present case did does not come within R. 2(b). This is not disputed.8. It is furthermore not in dispute that apart from the provisions in Rule 3 of which only cl. (b) is relevant for our purpose, there is no other provision in the Schedule which authorises an Income-tax Officer to make adjustments in the actuarial valuation made by the assessee. When we come to R. 3(b) we find that the first part of it lays down that it shall be obligatory on the Income-tax Officer to allow certain amounts written off or reserved by the assessee as a deduction and to include in the surplus any sums for which credit has been taken on account of appreciation or gains on the realisation of the securities or other assets. This part of the rule only compels the Income-tax Officer to allow certain amounts as deductions and to include certain amounts for which credit had been taken in the accounts of the assessee. It, therefore, does not warrant what the Income-tax Officer did, namely, to adjust the accounts on the basis of a revaluation made by him.9. Then we come to the proviso in R. 3 (b). It says that if it appears to the Income-tax Officer having regard to certain matters to which it is not necessary to refer here in detail, that the rate of interest or other factor employed in determining the liability in respect of outstanding policies is materially inconsistent with the valuation of the securities and other assets so as artificially to reduce the surplus, then he would have the power to make certain adjustments after consultation with the Controller of Insurance. Quite clearly the adjustment made in the present case by the Income-tax Officer was not of the variety mentioned in the proviso. He does not say that he made the adjustment because he found that any rate of interest was inconsistent with the valuation of securities or other assets. The adjustment made by him had nothing to do with any rate of interest. It was made only because he thought that the securities had been under-valued. This he had no power to do under the proviso. This again is not in dispute.10. The result, therefore, is that we find nothing in the rules justifying the adjustment made by the Income-tax Officer in the present cases. We have set out the relevant provisions and we think that they do not contemplate any other adjustment of the figures in the accounts of the insurance companies apart from what they expressly provide for. We have shown that the present adjustment does not fall within those so expressly provided for.11. The only other question is, is there a general right to correct the errors in the accounts of an insurance company when assessing the income-tax ? The High Court thought there was. We are wholly unable to agree with this view. The assessment of the profits of an insurance business is completely governed by the rules in the Schedule and there is no power to do anything not contained in it. The reason may be that the accounts of an insurance business are fully controlled by the controller of Insurance under the provisions of the Insurance Act. They are checked by him. He has power to see that various provisions of the Insurance Act are complied with by an insurer so that the persons who have insured with it are not made to suffer by mismanagement. A tampering with the accounts of an insurer by an Income-tax Officer may seriously affect the working of insurance companies. But apart from this consideration, we feel no doubt that the language of S. 10(7) and the Schedule to the Income-tax Act makes it perfectly certain that the Income-tax Officer could not make the adjustment that he did in these cases.12. It may be pointed out that the question referred was confined to the powers of the Income-tax Officer under R. 3(b) of the Schedule. Indeed learned counsel for the assessee did not contend to the contrary. The High Court, as may have been noticed, held that the proviso to R. 3(b) was not intended to cover cases like the present. It would appear, therefore, that the High Court thought that the Income-tax Officer had no power under the rule to make the adjustment. It however nonetheless answered the question in the affirmative. Obviously what was meant was that the Income-tax Officer had the power quite apart from the rule, to make all adjustments to prevent evasion of tax. The High Court in fact expressly said that the rule did not deprive the Income-tax Officer of the power to do this.It is clear that the High Court had travelled beyond the question. No objection having been taken at the bar to this procedure, we have dealt with the matter from this point of view also. The question framed has to be answered in the negative. | 1[ds]9. Then we come to the proviso in R. 3 (b). It says that if it appears to the Income-tax Officer having regard to certain matters to which it is not necessary to refer here in detail, that the rate of interest or other factor employed in determining the liability in respect of outstanding policies is materially inconsistent with the valuation of the securities and other assets so as artificially to reduce the surplus, then he would have the power to make certain adjustments after consultation with the Controller of Insurance. Quite clearly the adjustment made in the present case by the Income-tax Officer was not of the variety mentioned in the proviso. He does not say that he made the adjustment because he found that any rate of interest was inconsistent with the valuation of securities or other assets. The adjustment made by him had nothing to do with any rate of interest. It was made only because he thought that the securities had been under-valued. This he had no power to do under the proviso. This again is not in dispute.10. The result, therefore, is that we find nothing in the rules justifying the adjustment made by the Income-tax Officer in the present cases. We have set out the relevant provisions and we think that they do not contemplate any other adjustment of the figures in the accounts of the insurance companies apart from what they expressly provide for. We have shown that the present adjustment does not fall within those so expressly provided for.It may be pointed out that the question referred was confined to the powers of the Income-tax Officer under R. 3(b) of the Schedule. Indeed learned counsel for the assessee did not contend to the contrary. The High Court, as may have been noticed, held that the proviso to R. 3(b) was not intended to cover cases like the present. It would appear, therefore, that the High Court thought that the Income-tax Officer had no power under the rule to make the adjustment. It however nonetheless answered the question in the affirmative. Obviously what was meant was that the Income-tax Officer had the power quite apart from the rule, to make all adjustments to prevent evasion of tax. The High Court in fact expressly said that the rule did not deprive the Income-tax Officer of the power to do this.It is clear that the High Court had travelled beyond the question. No objection having been taken at the bar to this procedure, we have dealt with the matter from this point of view also. The question framed has to be answered in the negative. | 1 | 2,537 | 482 | ### Instruction:
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respect of the last inter-valuation period, so as to exclude therefrom any surplus or deficit included therein which was made in the earlier inter valuation period, and expenditure not allowable under S. 10 in computing the profits. This is made explicit by R. 3 which makes it obligatory upon the Income-tax Officer to make the computation of the surplus for the purpose of R. 2 according to the scheme provided in cls. (a), (b) and (c) of R. 3.Under R. 2(b) of the Schedule the Income-tax Officer has, therefore no power to change the figures in the account of the assessee. He has to take the surplus as disclosed by the actuarial valuation made by the assessee under the Insurance Act and, then to arrive at the average mentioned in the rule. He has the power to exclude any surplus or deficit included in the actuarial valuation in respect of an earlier inter-valuation period and any expenditure other than an expenditure which may under S. 10 of the Act be allowed. What the Income-tax Officer in the present case did does not come within R. 2(b). This is not disputed.8. It is furthermore not in dispute that apart from the provisions in Rule 3 of which only cl. (b) is relevant for our purpose, there is no other provision in the Schedule which authorises an Income-tax Officer to make adjustments in the actuarial valuation made by the assessee. When we come to R. 3(b) we find that the first part of it lays down that it shall be obligatory on the Income-tax Officer to allow certain amounts written off or reserved by the assessee as a deduction and to include in the surplus any sums for which credit has been taken on account of appreciation or gains on the realisation of the securities or other assets. This part of the rule only compels the Income-tax Officer to allow certain amounts as deductions and to include certain amounts for which credit had been taken in the accounts of the assessee. It, therefore, does not warrant what the Income-tax Officer did, namely, to adjust the accounts on the basis of a revaluation made by him.9. Then we come to the proviso in R. 3 (b). It says that if it appears to the Income-tax Officer having regard to certain matters to which it is not necessary to refer here in detail, that the rate of interest or other factor employed in determining the liability in respect of outstanding policies is materially inconsistent with the valuation of the securities and other assets so as artificially to reduce the surplus, then he would have the power to make certain adjustments after consultation with the Controller of Insurance. Quite clearly the adjustment made in the present case by the Income-tax Officer was not of the variety mentioned in the proviso. He does not say that he made the adjustment because he found that any rate of interest was inconsistent with the valuation of securities or other assets. The adjustment made by him had nothing to do with any rate of interest. It was made only because he thought that the securities had been under-valued. This he had no power to do under the proviso. This again is not in dispute.10. The result, therefore, is that we find nothing in the rules justifying the adjustment made by the Income-tax Officer in the present cases. We have set out the relevant provisions and we think that they do not contemplate any other adjustment of the figures in the accounts of the insurance companies apart from what they expressly provide for. We have shown that the present adjustment does not fall within those so expressly provided for.11. The only other question is, is there a general right to correct the errors in the accounts of an insurance company when assessing the income-tax ? The High Court thought there was. We are wholly unable to agree with this view. The assessment of the profits of an insurance business is completely governed by the rules in the Schedule and there is no power to do anything not contained in it. The reason may be that the accounts of an insurance business are fully controlled by the controller of Insurance under the provisions of the Insurance Act. They are checked by him. He has power to see that various provisions of the Insurance Act are complied with by an insurer so that the persons who have insured with it are not made to suffer by mismanagement. A tampering with the accounts of an insurer by an Income-tax Officer may seriously affect the working of insurance companies. But apart from this consideration, we feel no doubt that the language of S. 10(7) and the Schedule to the Income-tax Act makes it perfectly certain that the Income-tax Officer could not make the adjustment that he did in these cases.12. It may be pointed out that the question referred was confined to the powers of the Income-tax Officer under R. 3(b) of the Schedule. Indeed learned counsel for the assessee did not contend to the contrary. The High Court, as may have been noticed, held that the proviso to R. 3(b) was not intended to cover cases like the present. It would appear, therefore, that the High Court thought that the Income-tax Officer had no power under the rule to make the adjustment. It however nonetheless answered the question in the affirmative. Obviously what was meant was that the Income-tax Officer had the power quite apart from the rule, to make all adjustments to prevent evasion of tax. The High Court in fact expressly said that the rule did not deprive the Income-tax Officer of the power to do this.It is clear that the High Court had travelled beyond the question. No objection having been taken at the bar to this procedure, we have dealt with the matter from this point of view also. The question framed has to be answered in the negative.
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9. Then we come to the proviso in R. 3 (b). It says that if it appears to the Income-tax Officer having regard to certain matters to which it is not necessary to refer here in detail, that the rate of interest or other factor employed in determining the liability in respect of outstanding policies is materially inconsistent with the valuation of the securities and other assets so as artificially to reduce the surplus, then he would have the power to make certain adjustments after consultation with the Controller of Insurance. Quite clearly the adjustment made in the present case by the Income-tax Officer was not of the variety mentioned in the proviso. He does not say that he made the adjustment because he found that any rate of interest was inconsistent with the valuation of securities or other assets. The adjustment made by him had nothing to do with any rate of interest. It was made only because he thought that the securities had been under-valued. This he had no power to do under the proviso. This again is not in dispute.10. The result, therefore, is that we find nothing in the rules justifying the adjustment made by the Income-tax Officer in the present cases. We have set out the relevant provisions and we think that they do not contemplate any other adjustment of the figures in the accounts of the insurance companies apart from what they expressly provide for. We have shown that the present adjustment does not fall within those so expressly provided for.It may be pointed out that the question referred was confined to the powers of the Income-tax Officer under R. 3(b) of the Schedule. Indeed learned counsel for the assessee did not contend to the contrary. The High Court, as may have been noticed, held that the proviso to R. 3(b) was not intended to cover cases like the present. It would appear, therefore, that the High Court thought that the Income-tax Officer had no power under the rule to make the adjustment. It however nonetheless answered the question in the affirmative. Obviously what was meant was that the Income-tax Officer had the power quite apart from the rule, to make all adjustments to prevent evasion of tax. The High Court in fact expressly said that the rule did not deprive the Income-tax Officer of the power to do this.It is clear that the High Court had travelled beyond the question. No objection having been taken at the bar to this procedure, we have dealt with the matter from this point of view also. The question framed has to be answered in the negative.
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J.P. Jani, Income-Tax Officer, Circle Iv,Ward-G, Ahmedabad Vs. Induprasad Devshankar Bhatt | unless the terms of the statute expressly so provide or unless there is a necessary implication, retrospective operation should not be given to the statute so as to affect, alter or destroy any right already acquired or to revive any remedy already lost by efflux of time. On behalf of the appellants reference was made to the opening phrase "Where in respect of any assessment year after the year ending on the 31st day of March, 1940" occurring in S. 297 (2) (d) (ii) of the new Act, but these general words cannot take in their sweep all assessment years subsequent to the year ending on 31st March, 1940 without regard to the question whether the right to re-open the assessment in respect of any assessment year was or was not barred under the repealed Act. We consider that the language of the new Section must be read as applicable only to those cases where the right of the Income Tax Officer to reopen the assessment was not barred under the repealed Section.In our view the new statute does not disclose in express terms or by necessary implication that there was a revival of the right of the Income Tax Officer to re-open an assessment which was already barred under the old Act. This view is borne out by the decision of this court in S. S. Gadgil v. Lal and Co., 1964-53 ITR 231 = (AIR 1965 SC 171 ). In that case, a notice was issued against the assessee as an agent of a non-resident on 27th March, 1957 and that notice related to the assessment year 1954-55. Under clause (iii) of the proviso to Section 34 (1) as it stood prior to its amendment by the Finance Act, 1956, a notice of assessment or reassessment could not be issued against a person deemed to be an agent of a non-resident after the expiry of one year from the end of the year of assessment. The right to commence a proceeding for assessment against the assessee as agent of a non-resident for the assessment year 1954-55 therefore ended on 31st March, 1956 under the new Act before its amendment in 1956. This provision was, however, amended by the Finance Act, 1956 and under the amended provision the period of limitation was extended to two years from the end of the assessment year. The amendment was made on 8th September, 1958 but was given effect from 1st April, 1956. Since the time within which notice could be issued against a person deemed to be an agent of a non-resident was extended to two years from the end of the assessment year, it was contended on behalf of the Income Tax Officer that the notice issued by him was within the terms of the amended provision and was, therefore, a valid notice. Now the notice issued on 27th March, 1957 was clearly within a period of two years from the end of the assessment year 1954-55 and if the amended provision applied, the notice would be a valid notice. It was, however, held by this Court that notice was not a valid notice inasmuch as the right of the Income Tax Officer to re-open the assessment of the assessee under the unamended provision became barred on 31st March 1956 and the amended provision did not operate against him so as to authorise the Income Tax Officer to commence proceedings for re-opening the assessment of the assessee in a case where before the amended provision came into force, the proceedings had become barred under the unamended provision. At page 240 of the Report (ITR) = (at p. 177 of AIR), Shah, J. speaking or the Court observed as follows:-"As we have already pointed out, the right to commence a proceeding for assessment against the assessee as an agent of a non-resident party under the Income Tax Act before it was amended, ended on March 31, 1956. It is true that under the amending Act by Section 18 of the Finance Act, 1956, authority was conferred upon the Income Tax Officer to assess a person as an agent of a foreign party under Section 43 within two years from the end of the year of assessment.But authority of the Income Tax Officer under the Act before it was amended by the Finance Act of 1956, having already come to an end the amending provision will not assist him to commence a proceeding even though at the date when he issued the notice it is within the period provided by that amending Act. This will be so, notwithstanding the fact that there has been no determinable point of time between the expiry of the time provided under the old Act and the commencement of the amending Act. The legislature has given to Section 18 of the Finance Act 1956, only a limited retrospective operation, i. e. up to April 1, 1956 only. That provision must be read subject to the rule that in the absence of an express provision or clear implication, the legislature does not intend to attribute to the amending provision a greater retrospectivity than is expressly mentioned, nor to authorise the Income Tax Officer to commence proceedings which before the new Act came into force had by the expiry of the period provided become barred".6. In our opinion, the principle of this decision applies in the present case and it must be held that on a proper construction of Section 297 (2) (d) (ii) of the new Act, the Income Tax Officer cannot issue a notice under Section 148 in order to re-open the assessment of an assessee in a case where the right to re-open the assessment was barred under the old Act at the date when the new Act came into force.It follows therefore that the notices dated 13-11-1963 and 9-1-1964 issued by the Income Tax Officer, Ahmedabad were illegal and ultra vires and were rightly quashed by the Gujarat High Court by the grant of a writ. | 1[ds]The High Court took the view that on a true construction of S. 297 (2) (d) (ii) of the new Act the Income Tax Officer could not issue a notice under Section 148 in order to reopen the assessment in a case where the right to reopen the assessment was barred under the old Act at the date when the new Act came into force. The High Court observed that the right of the Income Tax Officer to reopen the assessment of the respondent in the present case was admittedly barred under Section 34 (1) (a) of the old Act at the commencement of the new Act and it was, therefore, not competent to the Income Tax Officer to issue a notice under Section 148 of the new Act in order to reopen the assessment of the respondent and to re-assess the income of the respondent relying on the provisions enacted under Section 297 (2) (d) (ii) of the new Act. The High Court accordingly allowed the Special Civil Application preferred by the respondent and set aside the notices dated 13-11-1963 andour opinion, the argument put forward by Mr. Narasaraju is not warranted. It is admitted in this case that the right of the Income Tax Officer to re-open the assessment for the year 1947-48 was barred under the old Act before the new Act came into force.In our opinion it is not permissible to construe Section 297 (2) (d) (ii) of the Act as reviving the right of the Income Tax Officer to re-open the assessment which was already barred under the old Act. The reason is that such a construction of Section 297 (2) (d) (ii) would be tantamount to giving of retrospective operation to that Section which is not warranted either by the express language of the Section or by necessary implication. The principle is based on the well-known rule of interpretation that unless the terms of the statute expressly so provide or unless there is a necessary implication, retrospective operation should not be given to the statute so as to affect, alter or destroy any right already acquired or to revive any remedy already lost by efflux ofour view the new statute does not disclose in express terms or by necessary implication that there was a revival of the right of the Income Tax Officer to re-open an assessment which was already barred under the old Act.In our opinion, the principle of this decision applies in the present case and it must be held that on a proper construction of Section 297 (2) (d) (ii) of the new Act, the Income Tax Officer cannot issue a notice under Section 148 in order to re-open the assessment of an assessee in a case where the right to re-open the assessment was barred under the old Act at the date when the new Act came into force.It follows therefore that the notices dated 13-11-1963 and 9-1-1964 issued by the Income Tax Officer, Ahmedabad were illegal and ultra vires and were rightly quashed by the Gujarat High Court by the grant of a writ. | 1 | 3,926 | 568 | ### Instruction:
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unless the terms of the statute expressly so provide or unless there is a necessary implication, retrospective operation should not be given to the statute so as to affect, alter or destroy any right already acquired or to revive any remedy already lost by efflux of time. On behalf of the appellants reference was made to the opening phrase "Where in respect of any assessment year after the year ending on the 31st day of March, 1940" occurring in S. 297 (2) (d) (ii) of the new Act, but these general words cannot take in their sweep all assessment years subsequent to the year ending on 31st March, 1940 without regard to the question whether the right to re-open the assessment in respect of any assessment year was or was not barred under the repealed Act. We consider that the language of the new Section must be read as applicable only to those cases where the right of the Income Tax Officer to reopen the assessment was not barred under the repealed Section.In our view the new statute does not disclose in express terms or by necessary implication that there was a revival of the right of the Income Tax Officer to re-open an assessment which was already barred under the old Act. This view is borne out by the decision of this court in S. S. Gadgil v. Lal and Co., 1964-53 ITR 231 = (AIR 1965 SC 171 ). In that case, a notice was issued against the assessee as an agent of a non-resident on 27th March, 1957 and that notice related to the assessment year 1954-55. Under clause (iii) of the proviso to Section 34 (1) as it stood prior to its amendment by the Finance Act, 1956, a notice of assessment or reassessment could not be issued against a person deemed to be an agent of a non-resident after the expiry of one year from the end of the year of assessment. The right to commence a proceeding for assessment against the assessee as agent of a non-resident for the assessment year 1954-55 therefore ended on 31st March, 1956 under the new Act before its amendment in 1956. This provision was, however, amended by the Finance Act, 1956 and under the amended provision the period of limitation was extended to two years from the end of the assessment year. The amendment was made on 8th September, 1958 but was given effect from 1st April, 1956. Since the time within which notice could be issued against a person deemed to be an agent of a non-resident was extended to two years from the end of the assessment year, it was contended on behalf of the Income Tax Officer that the notice issued by him was within the terms of the amended provision and was, therefore, a valid notice. Now the notice issued on 27th March, 1957 was clearly within a period of two years from the end of the assessment year 1954-55 and if the amended provision applied, the notice would be a valid notice. It was, however, held by this Court that notice was not a valid notice inasmuch as the right of the Income Tax Officer to re-open the assessment of the assessee under the unamended provision became barred on 31st March 1956 and the amended provision did not operate against him so as to authorise the Income Tax Officer to commence proceedings for re-opening the assessment of the assessee in a case where before the amended provision came into force, the proceedings had become barred under the unamended provision. At page 240 of the Report (ITR) = (at p. 177 of AIR), Shah, J. speaking or the Court observed as follows:-"As we have already pointed out, the right to commence a proceeding for assessment against the assessee as an agent of a non-resident party under the Income Tax Act before it was amended, ended on March 31, 1956. It is true that under the amending Act by Section 18 of the Finance Act, 1956, authority was conferred upon the Income Tax Officer to assess a person as an agent of a foreign party under Section 43 within two years from the end of the year of assessment.But authority of the Income Tax Officer under the Act before it was amended by the Finance Act of 1956, having already come to an end the amending provision will not assist him to commence a proceeding even though at the date when he issued the notice it is within the period provided by that amending Act. This will be so, notwithstanding the fact that there has been no determinable point of time between the expiry of the time provided under the old Act and the commencement of the amending Act. The legislature has given to Section 18 of the Finance Act 1956, only a limited retrospective operation, i. e. up to April 1, 1956 only. That provision must be read subject to the rule that in the absence of an express provision or clear implication, the legislature does not intend to attribute to the amending provision a greater retrospectivity than is expressly mentioned, nor to authorise the Income Tax Officer to commence proceedings which before the new Act came into force had by the expiry of the period provided become barred".6. In our opinion, the principle of this decision applies in the present case and it must be held that on a proper construction of Section 297 (2) (d) (ii) of the new Act, the Income Tax Officer cannot issue a notice under Section 148 in order to re-open the assessment of an assessee in a case where the right to re-open the assessment was barred under the old Act at the date when the new Act came into force.It follows therefore that the notices dated 13-11-1963 and 9-1-1964 issued by the Income Tax Officer, Ahmedabad were illegal and ultra vires and were rightly quashed by the Gujarat High Court by the grant of a writ.
### Response:
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### Explanation:
The High Court took the view that on a true construction of S. 297 (2) (d) (ii) of the new Act the Income Tax Officer could not issue a notice under Section 148 in order to reopen the assessment in a case where the right to reopen the assessment was barred under the old Act at the date when the new Act came into force. The High Court observed that the right of the Income Tax Officer to reopen the assessment of the respondent in the present case was admittedly barred under Section 34 (1) (a) of the old Act at the commencement of the new Act and it was, therefore, not competent to the Income Tax Officer to issue a notice under Section 148 of the new Act in order to reopen the assessment of the respondent and to re-assess the income of the respondent relying on the provisions enacted under Section 297 (2) (d) (ii) of the new Act. The High Court accordingly allowed the Special Civil Application preferred by the respondent and set aside the notices dated 13-11-1963 andour opinion, the argument put forward by Mr. Narasaraju is not warranted. It is admitted in this case that the right of the Income Tax Officer to re-open the assessment for the year 1947-48 was barred under the old Act before the new Act came into force.In our opinion it is not permissible to construe Section 297 (2) (d) (ii) of the Act as reviving the right of the Income Tax Officer to re-open the assessment which was already barred under the old Act. The reason is that such a construction of Section 297 (2) (d) (ii) would be tantamount to giving of retrospective operation to that Section which is not warranted either by the express language of the Section or by necessary implication. The principle is based on the well-known rule of interpretation that unless the terms of the statute expressly so provide or unless there is a necessary implication, retrospective operation should not be given to the statute so as to affect, alter or destroy any right already acquired or to revive any remedy already lost by efflux ofour view the new statute does not disclose in express terms or by necessary implication that there was a revival of the right of the Income Tax Officer to re-open an assessment which was already barred under the old Act.In our opinion, the principle of this decision applies in the present case and it must be held that on a proper construction of Section 297 (2) (d) (ii) of the new Act, the Income Tax Officer cannot issue a notice under Section 148 in order to re-open the assessment of an assessee in a case where the right to re-open the assessment was barred under the old Act at the date when the new Act came into force.It follows therefore that the notices dated 13-11-1963 and 9-1-1964 issued by the Income Tax Officer, Ahmedabad were illegal and ultra vires and were rightly quashed by the Gujarat High Court by the grant of a writ.
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A. S. T. Arunachalam Pillai Vs. M/S. Southern Roadways (Private) Ltd | 133A of the Act making the Regional Transport Authority subordinate to the State Transport Commissioner. The only material available to us is that the Commissioner was appointed by the State Government as Chairman of the Central Road Traffic Board. Under the Act and the rules framed thereunder, there are certain statutory duties and functions allotted to the Central Road Traffic Board. But no separate powers are conferred on the Chairman of the Board apart from his being a part of the Board. It is, therefore, clear that under the Act and the rules framed thereunder the Regional Transport Officer is not made subordinate to the State Transport Commissioner.24. But what is contended is that though between the Commissioner and the Regional Transport Officer, there is no statutory subordination, the latter was made by the Government administratively subordinate to the Commissioner. There is no order of the Government making the Regional Transport Officer a subordinate to the Commissioner placed before us. The only material is a notification issued by the Government dated October 20, 1955, on which reliance is placed to indicate that the Regional Transport Officer is subordinate to the Commissioner. But obviously it had no relevance to the present enquiry, for the notification was issued on a date subsequent to the date of the impugned order. If there was an earlier notification, the State or the appellant would have produced it, but from its non-production it may be assumed that there was no such notification. If that is excluded, the only two remaining documents are, (i) the Madras Financial Code giving a list of the heads of departments of the Madras State, and (ii) the Half-Yearly list of Gazetted Officers in the Madras State Government. The former shows the Transport Commissioner as one of the heads of departments. It does not in itself show that the Regional Transport Officer is his subordinate. The mere mention of the Regional Transport Officers in the list of Gazetted Officers in the department is not decisive of the fact that they are subordinate to the Transport Commissioner. In this state or record, it is not possible to hold that even administratively the Regional Transport Officer is subordinate to the State Transport Commissioner.25. I shall assume for the purpose of this case that the Regional Transport Officer is treated by the Government as a subordinate officer to the Commissioner. The question in this case is whether such administrative treatment in utter disregard of the statutory provisions can confer upon the Regional Transport Officer a right to function under S. 44A of the Act.26. The foregoing provisions relevant to the present enquiry may be summarised thus: The Act is a self-contained one.Under specific provisions it empowers the Government to constitute a State Transport Authority, the Regional Transport Authorities and a State Transport Commissioner. Section 44A does not authorize the Government to appoint subordinate officers to the Commissioner, but only enables it to confer statutory powers on an officer subordinate to the Commissioner. In exercise of the powers conferred under S. 133A of the Act, the State Government created a Motor Vehicles Department and appointed in that Department a Commissioner, Regional Transport Officers and others. But the State Government has not made any rules making the Regional Transport Officer a subordinate to the Commissioner. Indeed, the rules made him the executive officer of the Regional Transport Board indicating thereby that he is a subordinate to the Board. It is, therefore, manifest that either under the statute or under the rules made thereunder the Regional Transport Officer is not subordinate to the Commissioner.27. Learned Attorney General contends that S. 133A of the Act only confers a discretionary power on the State Government to make rules indicating the authorities to which the officers appointed shall be subordinate and, therefore, it is not bound to do so. Assuming that the word "may" in the section confers a discretionary power on the State Government, is it permissible to contend that the Government is entitled to do administratively what it is empowered to do by rules? If the Government decides not to exercise the powers conferred under sub-s. (3) of S. 133A, it may withhold from doing so; but it cannot bring about the same result administratively, i.e., by a process other than by way of rules. If the contention were accepted, it would be attributing to the legislature an intention to make an unnecessary provision. If the State Government could act administratively in regard to matters covered by sub-s. (3), why should the said sub-section be made at all? Either by making rules or without making rules, the Government can achieve the same object.28. There is an understandable reason for the legislative preference to a statutory rule.Statutory rules are placed before Parliament for its approval, while administrative regulations are entirely in the discretion of the executive government. Statutory authorities under the Act are empowered to exercise powers affecting valuable rights of citizens. The power to issue permits and modify the conditions thereof affects large interests and it may well be that the legislature in insisting upon statutory rules seeks to exercise supervision to prevent abuse of powers. The only reasonable construction of S. 133A is that the State can create subordination of one officer to another by only statutory rules and not otherwise. I would,. Therefore, hold that if the Government seeks to make a particular officer of the Department subordinate to an other, it can only do so by making a statutory rule, under sub-s. (3) of S. 133A of the Act.29. The result is that negatively there is no statutory rule making the Regional Transport Officer subordinate to the State Transport Commissioner, and positively there is a rule making him subordinate to the Regional Transport Authority (R.T.A.), If that be so, I must hold that the Regional Transport Officer is not a subordinate to the State Transport Commissioner within the meaning of S. 44A of the Act.30. In the result, the appeal fails and is dismissed with costs. | 1[ds]5. In our opinion, although the respondent had submitted to the jurisdiction of the Regional Transport Officer and had not in his petition under Art. 226 in the High Court taken the objection that that officer had no jurisdiction to vary the conditions of a permit, the High Court acted rightly in allowing the respondent to urge that the Regional Transport Officer had no jurisdiction to vary the conditions of a permit. It was not until the decision of the High Court in Writ Appeal No. 107 of 1955 that it became the considered view of that Court that the Regional Transport Officer had no jurisdiction to make any such variation. When the laws was so declared by the High Court it could not reasonably be said that the High Court erred in allowing the respondent to take this point although in its petition under Art. 226 the point had not been taken. This was obviously because the decision of the High Court in Writ Appeal No. 107 of 1955 had not been given at the time of the filing of the petition. Since the question went to the root of the matter and it involved the question whether the Regional Transport Officer had jurisdiction to vary the conditions of a permit the High Court faced with a Division Bench decision of its own on the matter, could not very well refuse permission to the respondent to rely on that decision in support of its petition questioning the validity of the order of the Government of Madras made under S. 64A of theour opinion, S. 64A is a power vested in the State Government by way of revision of orders passed under Chapter IV of the Act by any authority or officer subordinate to it. This is not a power which the State Government could exercise by way of original jurisdiction which was vested elsewhere. In our opinion, although the words "may pass such order in reference thereto as it thinks fit" are wide in expression, they do not mean that the State Government could pass an order in exercise of revisional jurisdiction which the authority whose order the Government was revising had no jurisdiction to pass. The State Government could undoubtedly set aside an order of an authority or officer subordinate to it who had no jurisdiction to pass the order in question under Chapter IV but it could not substitute for that order its own order directing the variation in the conditions of the permit of the appellant.It is significant that S. 43 which deals with the power of the State Government to control Road Transport does not mention that such a Government has the power to vary the conditions of a permit, although the various powers conferred by that section are fully specified, including the power to vary the notification issued; under the section. If the Act had intended to give the power to the State Government to vary the conditions of a stage carriage permit granted to a particular person it would have specified such a power in this section. The authority which is empowered to vary the conditions of a permit is stated in S. 48A which certainly is not the State Government. Under the Act, therefore, no such authority was vested in the State Government and the words in S. 64A "as it thinks fit" must mean within the ambit of the provisions of the Act.It will be seen from what has been stated that it is the State Transport, Authority and no other which is authorised under S. 48A to vary the conditions of a permit of a stage carriage. Section 44A, however, authorises the State Government to appoint a State Transport Commissioner. It further provides that notwithstanding anything contained in the Act the State Government may by notification authorize the State Transport Commissioner or any officer subordinate to him to exercise and discharge in lieu of any other authority prescribed by or under the Act such powers and functions as may be specified in the notification. By this section, although under S. 48A it is the State Transport Authority which can vary the conditions of a stage carriage permit, the State Government could, notwithstanding the provisions of that section, authorise the State Transport Commissioner to exercise such powers in lieu of the State Transport Authority. It could also confer such power on an officer subordinate to the State, Transport Commissioner. The vital question for determination is, how are the words "any officer subordinate to him" to be construed. In construing these words the provisions of S. 133A will have to be kept in mind as it was contended on behalf of the respondent that these sections should be read together. It was urged on behalf of the respondent that under S. 133A (3) as to who was subordinate to whom in the Motor Vehicles Department had to be prescribed by rules. As no rules had been framed it could not be said that the Regional Transport Officer was subordinate to the State Transport Commissioner.In paragraph 6 of the statement of the case filed by the respondent it was stated that in the exercise of the powers conferred under S. 44(1) of the Act the Government of Madras constituted Provincial and Regional Transport Authorities. It also set up a Motor Transport Department with a Transport Commissioner as its head and officers in that Department, in the lower scale, were the Regional Transport Officers who functioned as the Secretaries of the respective Regional Transport Authorities called the Road Traffic Board. It was further stated in paragraph 7 that although a Regional Transport Officer was a subordinate of the Transport Commissioner on the administrative side he could not be held to be a subordinate officer within the meaning of S. 44A. The State Government may establish a Motor Vehicles Department and appoint officers thereto under S. 133A, but mere appointment of officers in that Department could not invest them with statutory functions to be discharged under the Act and under the Rules. Section 133A contemplates framing of rules to regulate the discharge by officers of the department of their functions as also to state the authorities to whom such officers shall be subordinate and the duties to be performed by them. It was not suggested that any duties or powers of a statutory nature had been vested in the Transport Commissioner; nor was there any rule showing that the Regional Transport Officer is a subordinate of the Transport Commissioner for the purposes of the Rules. The statement of the case further stated that S. 44A required a functional subordination and not merely an administrative one.13. The Madras Financial Code Vol. II Appendix I shows the list of Heads of Departments of the Government of Madras. The Transport Commissioner is shown as the Head of a Department. The Half-Yearly List of Gazetted Officers in the Transport Department corrected upto the 31st July, 1955, shows that the Transport Commissioner is also the Chairman, Central Road Traffic Board, Madras, and subordinate to him are the Secretary, Central Road Traffic Board, Madras, Assistant Secretary, Road Traffic Board, Madras and Regional Transport Officers. There can be no question therefore that the Regional Transport Officers are officers subordinate to the Transport Commissioner. It is perhaps for this reason that the respondent admits that the Regional Transport Officers, administratively, are subordinate to the Transport Commissioner.Section 44A speaks merely of an officer subordinate to the Transport Commissioner to whom by notification the Government of Madras may confer the authority in lieu of any other authority prescribed by or under the Act to discharge the powers and functions of thatwas worthy of notice that S. 44A authorized the State Government, notwithstanding anything contained in the Act, to authorize any officer subordinate to the Transport Commissioner to exercise and discharge in lieu of any other authority such powers and functions as may be exercised by that authority. The section did not depend upon any rules to be framed under S. 133A. Furthermore, S. 133A was an enabling section by which a State Government could, if it so wished, for the purpose of carrying into effect the purposes of the Act establish a Motor Vehicles Department. Untile such a Department was established the question of framing rules under the section did not arise.14. There is no clear material on the record or in the Madras Road Traffic Code from which it can be ascertained precisely as to when the Madras Government established a Motor Vehicles Department. It is significant, however, by a notification dated December 20, 1955, cl. (m) was added to rule 3 of the Rules and this stated that "Transport Department" means the Motor Vehicles Department set up under S. 133A. of the Act. Apparently, until this date Transport Department was something other than the Motor Vehicles Department set up under S. 133A of the Act. It is clear, therefore, that on February 14, 1953, when the notification G. O. Ms. No. 527 was issued by the Government of Madras the Regional Transport Officers were officers subordinate to the Transport Commissioner. Even if at some time or the other a Motor Vehicles Department had been set up by the Government of Madras admittedly the Government of Madras had framed no rules under S. 133A (3).If rules had been framed under that section and they showed that the Regional Transport Officers were not subordinate to the Transport Commissioner then a question might well have arisen as to how the words "any Officer subordinate to him" should be construed owing to a conflict between the Regional Transport Officer being administratively subordinate to the Transport Commissioner and yet not subordinate to him by virtue of the rules framed under S. 133A. Since, however, no rules have been framed under this section so far as S. 44A is concerned, any officer who is subordinate to the Transport Commissioner in any way must include the Regional Transport Officers in the Transport Department.The words of the section are wide enough for this interpretation and they are incapable of being given the restricted meaning suggested on behalf of the respondent. It was, however, suggested that anomailes may occur in S. 44A is construed so widely; because a Regional Transport Officer was a Secretary of a Regional Transport Authority and therefore subordinate to that authority and yet he could be empowered to vary the conditions of a permit which the State Transport Authority, to which the Regional Transport Authority is subordinate, may have declined to do. In the matter of interpretation such considerations cannot be of much assistance. If the words of S. 44A are wide enough to mean any officer subordinate to the Transport Commissioner they must be given effect to. In the matter of interpretation a Court could not, if the words were plain enough, proceed on the basis that possibly the Government of Madras may misuse its powers. | 1 | 9,020 | 1,956 | ### 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:
133A of the Act making the Regional Transport Authority subordinate to the State Transport Commissioner. The only material available to us is that the Commissioner was appointed by the State Government as Chairman of the Central Road Traffic Board. Under the Act and the rules framed thereunder, there are certain statutory duties and functions allotted to the Central Road Traffic Board. But no separate powers are conferred on the Chairman of the Board apart from his being a part of the Board. It is, therefore, clear that under the Act and the rules framed thereunder the Regional Transport Officer is not made subordinate to the State Transport Commissioner.24. But what is contended is that though between the Commissioner and the Regional Transport Officer, there is no statutory subordination, the latter was made by the Government administratively subordinate to the Commissioner. There is no order of the Government making the Regional Transport Officer a subordinate to the Commissioner placed before us. The only material is a notification issued by the Government dated October 20, 1955, on which reliance is placed to indicate that the Regional Transport Officer is subordinate to the Commissioner. But obviously it had no relevance to the present enquiry, for the notification was issued on a date subsequent to the date of the impugned order. If there was an earlier notification, the State or the appellant would have produced it, but from its non-production it may be assumed that there was no such notification. If that is excluded, the only two remaining documents are, (i) the Madras Financial Code giving a list of the heads of departments of the Madras State, and (ii) the Half-Yearly list of Gazetted Officers in the Madras State Government. The former shows the Transport Commissioner as one of the heads of departments. It does not in itself show that the Regional Transport Officer is his subordinate. The mere mention of the Regional Transport Officers in the list of Gazetted Officers in the department is not decisive of the fact that they are subordinate to the Transport Commissioner. In this state or record, it is not possible to hold that even administratively the Regional Transport Officer is subordinate to the State Transport Commissioner.25. I shall assume for the purpose of this case that the Regional Transport Officer is treated by the Government as a subordinate officer to the Commissioner. The question in this case is whether such administrative treatment in utter disregard of the statutory provisions can confer upon the Regional Transport Officer a right to function under S. 44A of the Act.26. The foregoing provisions relevant to the present enquiry may be summarised thus: The Act is a self-contained one.Under specific provisions it empowers the Government to constitute a State Transport Authority, the Regional Transport Authorities and a State Transport Commissioner. Section 44A does not authorize the Government to appoint subordinate officers to the Commissioner, but only enables it to confer statutory powers on an officer subordinate to the Commissioner. In exercise of the powers conferred under S. 133A of the Act, the State Government created a Motor Vehicles Department and appointed in that Department a Commissioner, Regional Transport Officers and others. But the State Government has not made any rules making the Regional Transport Officer a subordinate to the Commissioner. Indeed, the rules made him the executive officer of the Regional Transport Board indicating thereby that he is a subordinate to the Board. It is, therefore, manifest that either under the statute or under the rules made thereunder the Regional Transport Officer is not subordinate to the Commissioner.27. Learned Attorney General contends that S. 133A of the Act only confers a discretionary power on the State Government to make rules indicating the authorities to which the officers appointed shall be subordinate and, therefore, it is not bound to do so. Assuming that the word "may" in the section confers a discretionary power on the State Government, is it permissible to contend that the Government is entitled to do administratively what it is empowered to do by rules? If the Government decides not to exercise the powers conferred under sub-s. (3) of S. 133A, it may withhold from doing so; but it cannot bring about the same result administratively, i.e., by a process other than by way of rules. If the contention were accepted, it would be attributing to the legislature an intention to make an unnecessary provision. If the State Government could act administratively in regard to matters covered by sub-s. (3), why should the said sub-section be made at all? Either by making rules or without making rules, the Government can achieve the same object.28. There is an understandable reason for the legislative preference to a statutory rule.Statutory rules are placed before Parliament for its approval, while administrative regulations are entirely in the discretion of the executive government. Statutory authorities under the Act are empowered to exercise powers affecting valuable rights of citizens. The power to issue permits and modify the conditions thereof affects large interests and it may well be that the legislature in insisting upon statutory rules seeks to exercise supervision to prevent abuse of powers. The only reasonable construction of S. 133A is that the State can create subordination of one officer to another by only statutory rules and not otherwise. I would,. Therefore, hold that if the Government seeks to make a particular officer of the Department subordinate to an other, it can only do so by making a statutory rule, under sub-s. (3) of S. 133A of the Act.29. The result is that negatively there is no statutory rule making the Regional Transport Officer subordinate to the State Transport Commissioner, and positively there is a rule making him subordinate to the Regional Transport Authority (R.T.A.), If that be so, I must hold that the Regional Transport Officer is not a subordinate to the State Transport Commissioner within the meaning of S. 44A of the Act.30. In the result, the appeal fails and is dismissed with costs.
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### Explanation:
As no rules had been framed it could not be said that the Regional Transport Officer was subordinate to the State Transport Commissioner.In paragraph 6 of the statement of the case filed by the respondent it was stated that in the exercise of the powers conferred under S. 44(1) of the Act the Government of Madras constituted Provincial and Regional Transport Authorities. It also set up a Motor Transport Department with a Transport Commissioner as its head and officers in that Department, in the lower scale, were the Regional Transport Officers who functioned as the Secretaries of the respective Regional Transport Authorities called the Road Traffic Board. It was further stated in paragraph 7 that although a Regional Transport Officer was a subordinate of the Transport Commissioner on the administrative side he could not be held to be a subordinate officer within the meaning of S. 44A. The State Government may establish a Motor Vehicles Department and appoint officers thereto under S. 133A, but mere appointment of officers in that Department could not invest them with statutory functions to be discharged under the Act and under the Rules. Section 133A contemplates framing of rules to regulate the discharge by officers of the department of their functions as also to state the authorities to whom such officers shall be subordinate and the duties to be performed by them. It was not suggested that any duties or powers of a statutory nature had been vested in the Transport Commissioner; nor was there any rule showing that the Regional Transport Officer is a subordinate of the Transport Commissioner for the purposes of the Rules. The statement of the case further stated that S. 44A required a functional subordination and not merely an administrative one.13. The Madras Financial Code Vol. II Appendix I shows the list of Heads of Departments of the Government of Madras. The Transport Commissioner is shown as the Head of a Department. The Half-Yearly List of Gazetted Officers in the Transport Department corrected upto the 31st July, 1955, shows that the Transport Commissioner is also the Chairman, Central Road Traffic Board, Madras, and subordinate to him are the Secretary, Central Road Traffic Board, Madras, Assistant Secretary, Road Traffic Board, Madras and Regional Transport Officers. There can be no question therefore that the Regional Transport Officers are officers subordinate to the Transport Commissioner. It is perhaps for this reason that the respondent admits that the Regional Transport Officers, administratively, are subordinate to the Transport Commissioner.Section 44A speaks merely of an officer subordinate to the Transport Commissioner to whom by notification the Government of Madras may confer the authority in lieu of any other authority prescribed by or under the Act to discharge the powers and functions of thatwas worthy of notice that S. 44A authorized the State Government, notwithstanding anything contained in the Act, to authorize any officer subordinate to the Transport Commissioner to exercise and discharge in lieu of any other authority such powers and functions as may be exercised by that authority. The section did not depend upon any rules to be framed under S. 133A. Furthermore, S. 133A was an enabling section by which a State Government could, if it so wished, for the purpose of carrying into effect the purposes of the Act establish a Motor Vehicles Department. Untile such a Department was established the question of framing rules under the section did not arise.14. There is no clear material on the record or in the Madras Road Traffic Code from which it can be ascertained precisely as to when the Madras Government established a Motor Vehicles Department. It is significant, however, by a notification dated December 20, 1955, cl. (m) was added to rule 3 of the Rules and this stated that "Transport Department" means the Motor Vehicles Department set up under S. 133A. of the Act. Apparently, until this date Transport Department was something other than the Motor Vehicles Department set up under S. 133A of the Act. It is clear, therefore, that on February 14, 1953, when the notification G. O. Ms. No. 527 was issued by the Government of Madras the Regional Transport Officers were officers subordinate to the Transport Commissioner. Even if at some time or the other a Motor Vehicles Department had been set up by the Government of Madras admittedly the Government of Madras had framed no rules under S. 133A (3).If rules had been framed under that section and they showed that the Regional Transport Officers were not subordinate to the Transport Commissioner then a question might well have arisen as to how the words "any Officer subordinate to him" should be construed owing to a conflict between the Regional Transport Officer being administratively subordinate to the Transport Commissioner and yet not subordinate to him by virtue of the rules framed under S. 133A. Since, however, no rules have been framed under this section so far as S. 44A is concerned, any officer who is subordinate to the Transport Commissioner in any way must include the Regional Transport Officers in the Transport Department.The words of the section are wide enough for this interpretation and they are incapable of being given the restricted meaning suggested on behalf of the respondent. It was, however, suggested that anomailes may occur in S. 44A is construed so widely; because a Regional Transport Officer was a Secretary of a Regional Transport Authority and therefore subordinate to that authority and yet he could be empowered to vary the conditions of a permit which the State Transport Authority, to which the Regional Transport Authority is subordinate, may have declined to do. In the matter of interpretation such considerations cannot be of much assistance. If the words of S. 44A are wide enough to mean any officer subordinate to the Transport Commissioner they must be given effect to. In the matter of interpretation a Court could not, if the words were plain enough, proceed on the basis that possibly the Government of Madras may misuse its powers.
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Bimla Devi & Others Vs. Satbir Singh & Others | High Court of Punjab & Haryana at Chandigarh, but unfortunately that also came to be dismissed on 24.3.2009. Thus unsuccessful Claimants are Appellants before us, praying the Looking to the facts & features of the case, either they be awarded just, proper & adequate compensation by this Court itself or it is found that their Claim petition is lacking in material particulars & evidence, then matter be remitted to the Claims Tribunal, for fresh decision on merits & in accordance with law. 3. Despite service on notice, Respondent nos 1 & 2, i.e. the owner & driver, have not appeared before us, Respondent No.3 Insurance Company is represented by Smt. Nanita Sharma, Advocate & has filed counter affidavit. 4. In the counter, it is specific case of the Insurance Company that factum of accident has not been established by the Appellants. Since the accident itself could not be proved, the question of grant of compensation to the Appellant of death of Ompal did not arise. It has also been contended that as against findings of two Courts recorded against the Appellants, no case has been made out for interference in this appeal. 5. We have accordingly heard Mr. Yashpal Rangi, learned counsel for the Appellants & Mrs. Nanita Sharma, learned Counsel for respondent No.3 & perused the record. 6. Thumbnail sketch of the facts of the case areas mentioned hereinbelow. 7. Deceased Ompal was travelling in a Three Wheeler on 15.5.2006. Deceased was accompanied by co-passenger Sunita & Janak Raj along with others. F.I.R. dated 16.5.2006 was lodged by Sunita, aforesaid co-passenger injured in the same accident. It is said that the accident pad occurred on account of rash & negligent driving of the Three Wheeler by its driver. On account of it, the same had dashed against the tree due to which Ompal had sustained grievous injuries & later succumbed to the same. They had filed a Claim Petition under Section 166 of the Motor Vehicles Act (in short, ‘the Act’) before the Claims Tribunal for awarding compensation to them for death of Ompal.8. For the reasons beyond the control of the Claimants, they were no able to produce the evidence of co-passengers i.e. Sunita & Janak raj. They had summoned records of Criminal Case No.196 & evidence of Ahalmad was recorded, which established lodging of the F.I.R. by Sunita on 16.5.2006, the Postmortem Report of he deceased Ompal & his M.L.R. probably on the strength of the scanty evidence produce before the Claims Tribunal, Claimants were of the opinion that the factum of the accident & death of Ompal have been established, Therefore, they did not think it proper or necessary to examine copassengers of the Three Wheeler. In the result, the Claim petition came to be dismissed. The appeal filed by them also proved to be futile.9. Here, the Appellants have filed affidavit of janak Raj & they have also taken us through the statement of Sunita, recorded by Police under Section 161 of Code of Criminal Procedure, after she had lodged the F.I.R.10. Thus, looking to the matter from all angles, we are of the considered opinion that one more opportunity should be given to the Appellants so that may be able to prove the factum of the accident & if they are able to so successfully, then they may also be able to get just, adequate and proper compensation. Only on account of hyper-technicality & niceties of that Claimants should not be thrown out at the there should. That is not the purpose of which the Claims Tribunals are established. 11. No doubt, it is true that claim case has not been contested in a proper & legal manner, but that should not be sufficient to throw the claim petition, so as to deny the Claimants of their just compensation. It is always desirable, rather a necessity in law, that the matter, as far as possible, be decided on merits & in accordance with law. According to us, that has not been done, may be account of several mistakes committed.12. In Claim Case, it is difficult to get witnesses, much less eye witness, thus extremely strict proof of facts in accordance with provision of Indian Evidence Act may not be adhered to religiously. Some amount of flexibility has to be given to those cases, but it may not be construed that a complete go-by is to be given to the Indian Evidence Act. From the facts as unfolded hereinabove, it is clear that Appellants have been callous & negligent in prosecuting the matter & did not do so in right earnest. We cannot take a pendente view of he matter os as to shut the doors of justice to the Appellants. Motor Vehicles Act is a social piece of legislation & has been enacted with intent & object to facilitate the Claimants victims to get redress for the loss of loosing of family member of for injuries at ana early date. In any case, money cannot be any substitute for it, but in long run it may have some soothing effect. Thus, it is desirable to adopt a more realistic, Pragmatic & liberal approach in these matters. In our considered opinion, interest of justice would be served & fully met if appellants are afforded at least one more opportunity to prove their case to the satisfaction of the Claims Tribunal.13. In this view of the matter, we deem it fit & proper to remit the matter to the Motor Accident Claims Tribunal, Bhiwani to afford an opportunity to both parties to lead evidence & to prove the factum of accident, the age & nature of work that was being conducted or carried on by deceased Ompal & finally, if they are able to establish the aforesaid facts, then to work out the amount of compensation to which the Appellants would be entitled. The Respondents would also be at liberty to lead evidence in rebuttal, it they so desire.14. In the light of this, the impugned | 1[ds]11. No doubt, it is true that claim case has not been contested in a proper & legal manner, but that should not be sufficient to throw the claim petition, so as to deny the Claimants of their just compensation. It is always desirable, rather a necessity in law, that the matter, as far as possible, be decided on merits & in accordance with law. According to us, that has not been done, may be account of several mistakes committed.12. In Claim Case, it is difficult to get witnesses, much less eye witness, thus extremely strict proof of facts in accordance with provision of Indian Evidence Act may not be adhered to religiously. Some amount of flexibility has to be given to those cases, but it may not be construed that a complete go-by is to be given to the Indian Evidence Act. From the facts as unfolded hereinabove, it is clear that Appellants have been callous & negligent in prosecuting the matter & did not do so in right earnest. We cannot take a pendente view of he matter os as to shut the doors of justice to the Appellants. Motor Vehicles Act is a social piece of legislation & has been enacted with intent & object to facilitate the Claimants victims to get redress for the loss of loosing of family member of for injuries at ana early date. In any case, money cannot be any substitute for it, but in long run it may have some soothing effect. Thus, it is desirable to adopt a more realistic, Pragmatic & liberal approach in these matters. In our considered opinion, interest of justice would be served & fully met if appellants are afforded at least one more opportunity to prove their case to the satisfaction of the Claims Tribunal.13. In this view of the matter, we deem it fit & proper to remit the matter to the Motor Accident Claims Tribunal, Bhiwani to afford an opportunity to both parties to lead evidence & to prove the factum of accident, the age & nature of work that was being conducted or carried on by deceased Ompal & finally, if they are able to establish the aforesaid facts, then to work out the amount of compensation to which the Appellants would be entitled. The Respondents would also be at liberty to lead evidence in rebuttal, it they so desire. | 1 | 1,186 | 443 | ### 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:
High Court of Punjab & Haryana at Chandigarh, but unfortunately that also came to be dismissed on 24.3.2009. Thus unsuccessful Claimants are Appellants before us, praying the Looking to the facts & features of the case, either they be awarded just, proper & adequate compensation by this Court itself or it is found that their Claim petition is lacking in material particulars & evidence, then matter be remitted to the Claims Tribunal, for fresh decision on merits & in accordance with law. 3. Despite service on notice, Respondent nos 1 & 2, i.e. the owner & driver, have not appeared before us, Respondent No.3 Insurance Company is represented by Smt. Nanita Sharma, Advocate & has filed counter affidavit. 4. In the counter, it is specific case of the Insurance Company that factum of accident has not been established by the Appellants. Since the accident itself could not be proved, the question of grant of compensation to the Appellant of death of Ompal did not arise. It has also been contended that as against findings of two Courts recorded against the Appellants, no case has been made out for interference in this appeal. 5. We have accordingly heard Mr. Yashpal Rangi, learned counsel for the Appellants & Mrs. Nanita Sharma, learned Counsel for respondent No.3 & perused the record. 6. Thumbnail sketch of the facts of the case areas mentioned hereinbelow. 7. Deceased Ompal was travelling in a Three Wheeler on 15.5.2006. Deceased was accompanied by co-passenger Sunita & Janak Raj along with others. F.I.R. dated 16.5.2006 was lodged by Sunita, aforesaid co-passenger injured in the same accident. It is said that the accident pad occurred on account of rash & negligent driving of the Three Wheeler by its driver. On account of it, the same had dashed against the tree due to which Ompal had sustained grievous injuries & later succumbed to the same. They had filed a Claim Petition under Section 166 of the Motor Vehicles Act (in short, ‘the Act’) before the Claims Tribunal for awarding compensation to them for death of Ompal.8. For the reasons beyond the control of the Claimants, they were no able to produce the evidence of co-passengers i.e. Sunita & Janak raj. They had summoned records of Criminal Case No.196 & evidence of Ahalmad was recorded, which established lodging of the F.I.R. by Sunita on 16.5.2006, the Postmortem Report of he deceased Ompal & his M.L.R. probably on the strength of the scanty evidence produce before the Claims Tribunal, Claimants were of the opinion that the factum of the accident & death of Ompal have been established, Therefore, they did not think it proper or necessary to examine copassengers of the Three Wheeler. In the result, the Claim petition came to be dismissed. The appeal filed by them also proved to be futile.9. Here, the Appellants have filed affidavit of janak Raj & they have also taken us through the statement of Sunita, recorded by Police under Section 161 of Code of Criminal Procedure, after she had lodged the F.I.R.10. Thus, looking to the matter from all angles, we are of the considered opinion that one more opportunity should be given to the Appellants so that may be able to prove the factum of the accident & if they are able to so successfully, then they may also be able to get just, adequate and proper compensation. Only on account of hyper-technicality & niceties of that Claimants should not be thrown out at the there should. That is not the purpose of which the Claims Tribunals are established. 11. No doubt, it is true that claim case has not been contested in a proper & legal manner, but that should not be sufficient to throw the claim petition, so as to deny the Claimants of their just compensation. It is always desirable, rather a necessity in law, that the matter, as far as possible, be decided on merits & in accordance with law. According to us, that has not been done, may be account of several mistakes committed.12. In Claim Case, it is difficult to get witnesses, much less eye witness, thus extremely strict proof of facts in accordance with provision of Indian Evidence Act may not be adhered to religiously. Some amount of flexibility has to be given to those cases, but it may not be construed that a complete go-by is to be given to the Indian Evidence Act. From the facts as unfolded hereinabove, it is clear that Appellants have been callous & negligent in prosecuting the matter & did not do so in right earnest. We cannot take a pendente view of he matter os as to shut the doors of justice to the Appellants. Motor Vehicles Act is a social piece of legislation & has been enacted with intent & object to facilitate the Claimants victims to get redress for the loss of loosing of family member of for injuries at ana early date. In any case, money cannot be any substitute for it, but in long run it may have some soothing effect. Thus, it is desirable to adopt a more realistic, Pragmatic & liberal approach in these matters. In our considered opinion, interest of justice would be served & fully met if appellants are afforded at least one more opportunity to prove their case to the satisfaction of the Claims Tribunal.13. In this view of the matter, we deem it fit & proper to remit the matter to the Motor Accident Claims Tribunal, Bhiwani to afford an opportunity to both parties to lead evidence & to prove the factum of accident, the age & nature of work that was being conducted or carried on by deceased Ompal & finally, if they are able to establish the aforesaid facts, then to work out the amount of compensation to which the Appellants would be entitled. The Respondents would also be at liberty to lead evidence in rebuttal, it they so desire.14. In the light of this, the impugned
### Response:
1
### Explanation:
11. No doubt, it is true that claim case has not been contested in a proper & legal manner, but that should not be sufficient to throw the claim petition, so as to deny the Claimants of their just compensation. It is always desirable, rather a necessity in law, that the matter, as far as possible, be decided on merits & in accordance with law. According to us, that has not been done, may be account of several mistakes committed.12. In Claim Case, it is difficult to get witnesses, much less eye witness, thus extremely strict proof of facts in accordance with provision of Indian Evidence Act may not be adhered to religiously. Some amount of flexibility has to be given to those cases, but it may not be construed that a complete go-by is to be given to the Indian Evidence Act. From the facts as unfolded hereinabove, it is clear that Appellants have been callous & negligent in prosecuting the matter & did not do so in right earnest. We cannot take a pendente view of he matter os as to shut the doors of justice to the Appellants. Motor Vehicles Act is a social piece of legislation & has been enacted with intent & object to facilitate the Claimants victims to get redress for the loss of loosing of family member of for injuries at ana early date. In any case, money cannot be any substitute for it, but in long run it may have some soothing effect. Thus, it is desirable to adopt a more realistic, Pragmatic & liberal approach in these matters. In our considered opinion, interest of justice would be served & fully met if appellants are afforded at least one more opportunity to prove their case to the satisfaction of the Claims Tribunal.13. In this view of the matter, we deem it fit & proper to remit the matter to the Motor Accident Claims Tribunal, Bhiwani to afford an opportunity to both parties to lead evidence & to prove the factum of accident, the age & nature of work that was being conducted or carried on by deceased Ompal & finally, if they are able to establish the aforesaid facts, then to work out the amount of compensation to which the Appellants would be entitled. The Respondents would also be at liberty to lead evidence in rebuttal, it they so desire.
|
S.A. Builders Ltd Vs. Commissioner of Income Tax , Chandigarh and Anr | as to whether the interest free loan was given to the sister company (which is a subsidiary of the assessee) as a measure of commercial expediency, and if it was, it should have been allowed. 23. The expression "commercial expediency" is an expression of wide import and includes such expenditure as a prudent businessman incurs for the purpose of business. The expenditure may not have been incurred under any legal obligation, but yet it is allowable as a business expenditure if it was incurred on grounds of commercial expediency. 24. No doubt, as held in Madhav Prasad Jantia vs. CIT (supra), if the borrowed amount was donated for some sentimental or personal reasons and not on the ground of commercial expediency, the interest thereon could not have been allowed under Section 36(1)(iii) of the Act. In Madhav Prasads case (supra), the borrowed amount was donated to a college with a view to commemorate the memory of the assessees deceased husband after whom the college was to be named. It was held by this Court that the interest on the borrowed fund in such a case could not be allowed, as it could not be said that it was for commercial expediency. 25. Thus, the ratio of Madhav Prasad Jantias case (supra) is that the borrowed fund advanced to a third party should be for commercial expediency if it is sought to be allowed under Section 36(1)(iii) of the Act. 26. In the present case, neither the High Court nor the Tribunal nor other authorities have examined whether the amount advanced to the sister concern was by way of commercial expediency. It has been repeatedly held by this Court that the expression "for the purpose of business" is wider in scope than the expression " for the purpose of earning profits" vide CIT vs. Malayalam Plantations Ltd. (1964) 53 ITR 140 , CIT vs. Birla Cotton Spinning & Weaving Mills Ltd (1971) 82 ITR 166 etc. 27. The High Court and the other authorities should have examined the purpose for which the assessee advanced the money to its sister concern, and what the sister concern did with this money, in order to decide whether it was for commercial expediency, but that has not been done. It is true that the borrowed amount in question was not utilized by the assessee in its own business, but had been advanced as interest free loan to its sister concern. However, in our opinion, that fact is not really relevant. What is relevant is whether the assessee advanced such amount to its sister concern as a measure of commercial expediency. Learned counsel for the Revenue relied on a Bombay High Court decision in Phaltan Sugar Works Ltd. Vs. Commissioner of Wealth-Tax (1994) 208 ITR 989 in which it was held that deduction under Section 36(1)(iii) can only be allowed on the interest if the assessee borrows capital for its own business. Hence, it was held that interest on the borrowed amount could not be allowed if such amount had been advanced to a subsidiary company of the assessee. With respect, we are of the opinion that the view taken by the Bombay High Court was not correct. The correct view in our opinion was whether the amount advanced to the subsidiary or associated company or any other party was advanced as a measure of commercial expediency. We are of the opinion that the view taken by the Tribunal in Phaltan Sugar Works Ltd (supra) that the interest was deductible as the amount was advanced to the subsidiary company as a measure of commercial expediency is the correct view, and the view taken by the Bombay High Court which set aside the aforesaid decision is not correct. Similarly, the view taken by the Bombay High Court in Phaltan Sugar Works Ltd. vs. Commissioner of Wealth-Tax (1995) 215 ITR 582 also does not appear to be correct. 28. We agree with the view taken by the Delhi High Court in CIT vs. Dalmia Cement (Bhart) Ltd. (2002) 254 ITR 377 that once it is established that there was nexus between the expenditure and the purpose of the business (which need not necessarily be the business of the assessee itself), the Revenue cannot justifiably claim to put itself in the arm-chair of the businessman or in the position of the board of directors and assume the role to decide how much is reasonable expenditure having regard to the circumstances of the case. No businessman can be compelled to maximize its profit. The income tax authorities must put themselves in the shoes of the assessee and see how a prudent businessman would act. The authorities must not look at the matter from their own view point but that of a prudent businessman. As already stated above, we have to see the transfer of the borrowed funds to a sister concern from the point of view of commercial expediency and not from the point of view whether the amount was advanced for earning profits. 29. We wish to make it clear that it is not our opinion that in every case interest on borrowed loan has to be allowed if the assessee advances it to a sister concern. It all depends on the facts and circumstances of the respective case. For instance, if the Directors of the sister concern utilize the amount advanced to it by the assessee for their personal benefit, obviously it cannot be said that such money was advanced as a measure of commercial expediency. However, money can be said to be advanced to a sister concern for commercial expediency in many other circumstances (which need not be enumerated here). However, where it is obvious that a holding company has a deep interest in its subsidiary, and hence if the holding company advances borrowed money to a subsidiary and the same is used by the subsidiary for some business purposes, the assessee would, in our opinion, ordinarily be entitled to deduction of interest on its borrowed loans. | 1[ds]In our opinion, the approach of the High Court as well as the authorities below on the aforesaid question was not correct19. In our opinion, the High Court in the impugned judgment, as well as the Tribunal and the Income Tax authorities have approached the matter from an erroneous angle. In the present case, the assessee borrowed the fund from the bank and lent some of it to its sister concern (a subsidiary) on interest free loan. The test, in our opinion, in such a case is really whether this was done as a measure of commercial expediency20. In our opinion, the decisions relating to Section 37 of the Act will also be applicable to Section 36(1)(iii) because in Section 37 also the expression used is "for the purpose of business". It has been consistently held in decisions relating to Section 37 that the expression "for the purpose of business" includes expenditure voluntarily incurred for commercial expediency, and it is immaterial if a third party also benefits thereby22. In our opinion, the High Court as well as the Tribunal and other Income Tax authorities should have approached the question of allow ability of interest on the borrowed funds from the above angle. In other words, the High Court and other authorities should have enquired as to whether the interest free loan was given to the sister company (which is a subsidiary of the assessee) as a measure of commercial expediency, and if it was, it should have been allowed23. The expression "commercial expediency" is an expression of wide import and includes such expenditure as a prudent businessman incurs for the purpose of business. The expenditure may not have been incurred under any legal obligation, but yet it is allowable as a business expenditure if it was incurred on grounds of commercial expediency26. In the present case, neither the High Court nor the Tribunal nor other authorities have examined whether the amount advanced to the sister concern was by way of commercial expediency. It has been repeatedly held by this Court that the expression "for the purpose of business" is wider in scope than the expression " for the purpose of earning profits"27. The High Court and the other authorities should have examined the purpose for which the assessee advanced the money to its sister concern, and what the sister concern did with this money, in order to decide whether it was for commercial expediency, but that has not been done. It is true that the borrowed amount in question was not utilized by the assessee in its own business, but had been advanced as interest free loan to its sister concern. However, in our opinion, that fact is not really relevant. What is relevant is whether the assessee advanced such amount to its sister concern as a measure of commercial expediencyit was held that interest on the borrowed amount could not be allowed if such amount had been advanced to a subsidiary company of the assessee. With respect, we are of the opinion that the view taken by the Bombay High Court was not correct. The correct view in our opinion was whether the amount advanced to the subsidiary or associated company or any other party was advanced as a measure of commercial expediency. We are of the opinion that the view taken by the Tribunal in Phaltan Sugar Works Ltd (supra) that the interest was deductible as the amount was advanced to the subsidiary company as a measure of commercial expediency is the correct view, and the view taken by the Bombay High Court which set aside the aforesaid decision is not correct28. We agree with the view taken by the Delhi High Court in CIT vs. Dalmia Cement (Bhart) Ltd. (2002) 254 ITR 377 that once it is established that there was nexus between the expenditure and the purpose of the business (which need not necessarily be the business of the assessee itself), the Revenue cannot justifiably claim to put itself in the arm-chair of the businessman or in the position of the board of directors and assume the role to decide how much is reasonable expenditure having regard to the circumstances of the case. No businessman can be compelled to maximize its profit. The income tax authorities must put themselves in the shoes of the assessee and see how a prudent businessman would act. The authorities must not look at the matter from their own view point but that of a prudent businessman. As already stated above, we have to see the transfer of the borrowed funds to a sister concern from the point of view of commercial expediency and not from the point of view whether the amount was advanced for earning profits29. We wish to make it clear that it is not our opinion that in every case interest on borrowed loan has to be allowed if the assessee advances it to a sister concern. It all depends on the facts and circumstances of the respective case. For instance, if the Directors of the sister concern utilize the amount advanced to it by the assessee for their personal benefit, obviously it cannot be said that such money was advanced as a measure of commercial expediency. However, money can be said to be advanced to a sister concern for commercial expediency in many other circumstances (which need not be enumerated here). However, where it is obvious that a holding company has a deep interest in its subsidiary, and hence if the holding company advances borrowed money to a subsidiary and the same is used by the subsidiary for some business purposes, the assessee would, in our opinion, ordinarily be entitled to deduction of interest on its borrowed loans. | 1 | 3,288 | 1,049 | ### 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:
as to whether the interest free loan was given to the sister company (which is a subsidiary of the assessee) as a measure of commercial expediency, and if it was, it should have been allowed. 23. The expression "commercial expediency" is an expression of wide import and includes such expenditure as a prudent businessman incurs for the purpose of business. The expenditure may not have been incurred under any legal obligation, but yet it is allowable as a business expenditure if it was incurred on grounds of commercial expediency. 24. No doubt, as held in Madhav Prasad Jantia vs. CIT (supra), if the borrowed amount was donated for some sentimental or personal reasons and not on the ground of commercial expediency, the interest thereon could not have been allowed under Section 36(1)(iii) of the Act. In Madhav Prasads case (supra), the borrowed amount was donated to a college with a view to commemorate the memory of the assessees deceased husband after whom the college was to be named. It was held by this Court that the interest on the borrowed fund in such a case could not be allowed, as it could not be said that it was for commercial expediency. 25. Thus, the ratio of Madhav Prasad Jantias case (supra) is that the borrowed fund advanced to a third party should be for commercial expediency if it is sought to be allowed under Section 36(1)(iii) of the Act. 26. In the present case, neither the High Court nor the Tribunal nor other authorities have examined whether the amount advanced to the sister concern was by way of commercial expediency. It has been repeatedly held by this Court that the expression "for the purpose of business" is wider in scope than the expression " for the purpose of earning profits" vide CIT vs. Malayalam Plantations Ltd. (1964) 53 ITR 140 , CIT vs. Birla Cotton Spinning & Weaving Mills Ltd (1971) 82 ITR 166 etc. 27. The High Court and the other authorities should have examined the purpose for which the assessee advanced the money to its sister concern, and what the sister concern did with this money, in order to decide whether it was for commercial expediency, but that has not been done. It is true that the borrowed amount in question was not utilized by the assessee in its own business, but had been advanced as interest free loan to its sister concern. However, in our opinion, that fact is not really relevant. What is relevant is whether the assessee advanced such amount to its sister concern as a measure of commercial expediency. Learned counsel for the Revenue relied on a Bombay High Court decision in Phaltan Sugar Works Ltd. Vs. Commissioner of Wealth-Tax (1994) 208 ITR 989 in which it was held that deduction under Section 36(1)(iii) can only be allowed on the interest if the assessee borrows capital for its own business. Hence, it was held that interest on the borrowed amount could not be allowed if such amount had been advanced to a subsidiary company of the assessee. With respect, we are of the opinion that the view taken by the Bombay High Court was not correct. The correct view in our opinion was whether the amount advanced to the subsidiary or associated company or any other party was advanced as a measure of commercial expediency. We are of the opinion that the view taken by the Tribunal in Phaltan Sugar Works Ltd (supra) that the interest was deductible as the amount was advanced to the subsidiary company as a measure of commercial expediency is the correct view, and the view taken by the Bombay High Court which set aside the aforesaid decision is not correct. Similarly, the view taken by the Bombay High Court in Phaltan Sugar Works Ltd. vs. Commissioner of Wealth-Tax (1995) 215 ITR 582 also does not appear to be correct. 28. We agree with the view taken by the Delhi High Court in CIT vs. Dalmia Cement (Bhart) Ltd. (2002) 254 ITR 377 that once it is established that there was nexus between the expenditure and the purpose of the business (which need not necessarily be the business of the assessee itself), the Revenue cannot justifiably claim to put itself in the arm-chair of the businessman or in the position of the board of directors and assume the role to decide how much is reasonable expenditure having regard to the circumstances of the case. No businessman can be compelled to maximize its profit. The income tax authorities must put themselves in the shoes of the assessee and see how a prudent businessman would act. The authorities must not look at the matter from their own view point but that of a prudent businessman. As already stated above, we have to see the transfer of the borrowed funds to a sister concern from the point of view of commercial expediency and not from the point of view whether the amount was advanced for earning profits. 29. We wish to make it clear that it is not our opinion that in every case interest on borrowed loan has to be allowed if the assessee advances it to a sister concern. It all depends on the facts and circumstances of the respective case. For instance, if the Directors of the sister concern utilize the amount advanced to it by the assessee for their personal benefit, obviously it cannot be said that such money was advanced as a measure of commercial expediency. However, money can be said to be advanced to a sister concern for commercial expediency in many other circumstances (which need not be enumerated here). However, where it is obvious that a holding company has a deep interest in its subsidiary, and hence if the holding company advances borrowed money to a subsidiary and the same is used by the subsidiary for some business purposes, the assessee would, in our opinion, ordinarily be entitled to deduction of interest on its borrowed loans.
### Response:
1
### Explanation:
In our opinion, the approach of the High Court as well as the authorities below on the aforesaid question was not correct19. In our opinion, the High Court in the impugned judgment, as well as the Tribunal and the Income Tax authorities have approached the matter from an erroneous angle. In the present case, the assessee borrowed the fund from the bank and lent some of it to its sister concern (a subsidiary) on interest free loan. The test, in our opinion, in such a case is really whether this was done as a measure of commercial expediency20. In our opinion, the decisions relating to Section 37 of the Act will also be applicable to Section 36(1)(iii) because in Section 37 also the expression used is "for the purpose of business". It has been consistently held in decisions relating to Section 37 that the expression "for the purpose of business" includes expenditure voluntarily incurred for commercial expediency, and it is immaterial if a third party also benefits thereby22. In our opinion, the High Court as well as the Tribunal and other Income Tax authorities should have approached the question of allow ability of interest on the borrowed funds from the above angle. In other words, the High Court and other authorities should have enquired as to whether the interest free loan was given to the sister company (which is a subsidiary of the assessee) as a measure of commercial expediency, and if it was, it should have been allowed23. The expression "commercial expediency" is an expression of wide import and includes such expenditure as a prudent businessman incurs for the purpose of business. The expenditure may not have been incurred under any legal obligation, but yet it is allowable as a business expenditure if it was incurred on grounds of commercial expediency26. In the present case, neither the High Court nor the Tribunal nor other authorities have examined whether the amount advanced to the sister concern was by way of commercial expediency. It has been repeatedly held by this Court that the expression "for the purpose of business" is wider in scope than the expression " for the purpose of earning profits"27. The High Court and the other authorities should have examined the purpose for which the assessee advanced the money to its sister concern, and what the sister concern did with this money, in order to decide whether it was for commercial expediency, but that has not been done. It is true that the borrowed amount in question was not utilized by the assessee in its own business, but had been advanced as interest free loan to its sister concern. However, in our opinion, that fact is not really relevant. What is relevant is whether the assessee advanced such amount to its sister concern as a measure of commercial expediencyit was held that interest on the borrowed amount could not be allowed if such amount had been advanced to a subsidiary company of the assessee. With respect, we are of the opinion that the view taken by the Bombay High Court was not correct. The correct view in our opinion was whether the amount advanced to the subsidiary or associated company or any other party was advanced as a measure of commercial expediency. We are of the opinion that the view taken by the Tribunal in Phaltan Sugar Works Ltd (supra) that the interest was deductible as the amount was advanced to the subsidiary company as a measure of commercial expediency is the correct view, and the view taken by the Bombay High Court which set aside the aforesaid decision is not correct28. We agree with the view taken by the Delhi High Court in CIT vs. Dalmia Cement (Bhart) Ltd. (2002) 254 ITR 377 that once it is established that there was nexus between the expenditure and the purpose of the business (which need not necessarily be the business of the assessee itself), the Revenue cannot justifiably claim to put itself in the arm-chair of the businessman or in the position of the board of directors and assume the role to decide how much is reasonable expenditure having regard to the circumstances of the case. No businessman can be compelled to maximize its profit. The income tax authorities must put themselves in the shoes of the assessee and see how a prudent businessman would act. The authorities must not look at the matter from their own view point but that of a prudent businessman. As already stated above, we have to see the transfer of the borrowed funds to a sister concern from the point of view of commercial expediency and not from the point of view whether the amount was advanced for earning profits29. We wish to make it clear that it is not our opinion that in every case interest on borrowed loan has to be allowed if the assessee advances it to a sister concern. It all depends on the facts and circumstances of the respective case. For instance, if the Directors of the sister concern utilize the amount advanced to it by the assessee for their personal benefit, obviously it cannot be said that such money was advanced as a measure of commercial expediency. However, money can be said to be advanced to a sister concern for commercial expediency in many other circumstances (which need not be enumerated here). However, where it is obvious that a holding company has a deep interest in its subsidiary, and hence if the holding company advances borrowed money to a subsidiary and the same is used by the subsidiary for some business purposes, the assessee would, in our opinion, ordinarily be entitled to deduction of interest on its borrowed loans.
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Narendra Kumar Maheshwari Vs. Union of India (UOI) and Ors | role and should not trespass or encroach/entrench upon the field of others. Progress is ensured and development helped if each performs his role in the common endeavourer. 104. In that light it is true that as was contended by learned Counsel appearing on behalf of the petitioners that in the changed socio-economic conditions of the country one who is charged to ensure capital investment has to perform the social role in capital formation and to protect the interest of the capital market, and to oversee the growth of industrialisation and investment in such a manner as to ensure employment and demand in the national economy to prevent wasteful investment and to promote sound methods of corporate finance. The guidelines are only a guide and nothing more. The application of mind by the CCI before sanction must be in the perspective for which he is enjoined by the Act. He must endeavour to secure a balanced investment of the countrys resources in industry, agriculture and social services. The Controller should perform the role of social control and fulfil the social purpose in conjunction with other authorities and functionaries. It is necessary for him in discharge of his functions to ensure that there is not too much concentration of particular industries in particular areas, and that there is a scientific development and proper investment in key and core project. 105. The present petitions have perhaps brought to the fore for the first time a public interest aspect of the issue of shares and debentures. In the past decades, investors in shares and equities constituted a very limited section of the public and consisted of two extreme types-either persons who could shrewdly appraise the merits of each issue and take a considered decision or persons who just wanted to invest and get a return for their moneys but were indifferent to the terms and conditions of such investment. The position has changed in recent years. There has been a vast increase in the number of members of the public who have surplus money to invest ; the size of the issues has assumed macro-proportions ; and the types of instruments are also becoming more and more sophisticated. Entrepreneurs , with legal and expert assistance at their command, could easily trap unwary investors and the development of a public interest lobby that can scrutinise issues carefully and advise prospective investors on their comparative merits and demerits may not be entirely undesirable. It is also perhaps necessary that the CCI, in considering the grant of consent to such issues, should have these aspects brought to his notice. We think that it may be too cumbersome to have a provision that the details of every proposed application for consent should be publicised to the maximum extent by the CCI, that objections and comments from the public should be called for, that there should be a public hearing before the CCI before grant of consent and that the CCI should pass a reasoned order granting or withholding consent. That would also delay the whole process of approvals which should be as expeditious as possible. But we have no hesitation in saying that some procedure has to be evolved to ensure that the CCI gets the benefit of the comments, suggestions and objections from the public before arriving at his decisions whether to grant consent or not and, if so, on what terms and conditions. Perhaps, evolution of certain rules in this respect could be examined at this juncture of industrial growth in our country. But having regard to the facts and the circumstances of the case in view of the various facts mentioned hereinbefore, we are of the opinion that there was no undue haste. There was proper application of mind that the sanction was for a new project. Sufficient security for the debentures as was enjoined to be ensured before sanction has been ensured in the facts and the circumstances of this case and the guidance provided by means of guidelines K-s been substantially complied with. There has been no infraction as such of the norms required to be followed in granting the sanction. The challenge to the sanction, therefore, must fail. 106. Before we conclude, we must note that good deal of argument was adduced that these applications in different High Courts in suits were not genuine and properly motivated, But were malafide. Even though these might not have been to feed fat an innocent object, it was apparent that it was to feed a grudge in respect of a competitive project by a competitor. Any way, in the view we have taken, it is not necessary to decide the bonafides or malafides of the applicants. Shri Nariman, when he moved the application initially, had suggested that we should lay down certain norms us to how the courts in different parts of the country should grant injunction or entertain applications affecting an all-India issue or having ramifications all over the country. Except that before the courts grant my injunction, they should have regard to the principles of comity courts in a federal structure and have regard to self restraint circumspection, we do not at this stage lay down any more definite norms. We may also perhaps add that it may be impossible to lay down hard and fast rule of general application because of the diverse situations which give rise to problems of this nature. Each case has its own special facts and complications and it will be a advantage. rather than an advantage, to attempt and apply any stereotyped formula to all cases, Perhaps in this sphere, the High Courts themselves might be able to introduce a certain amount of discipline having regard to the principles of comity of courts administering the same general laws applicable all over the country in respect of granting interim orders which will have repercussion or effect beyond the jurisdiction of the particular courts. Such an exercise will houseful contribution in evolving good conventions in the federal judicial system. | 0[ds]38. On 10th October, 1983 as RIL proposed to engage in manufacture of MEG, it filed an application for grant of an Industrial Licence under the Industries (Development & Regulation) Act, 19 1. On 16th August, 1984 RIL received a Letter of Intent No. 653 (84) Regn. No. 1323 (83)-IL/SCS issued by the Govt. of India for the manufacture of ,000 TP Act of MEG. Thereafter, from time to time on the applications made by the RIL., the Govt. of India by various letters extended the validity of the period ending up to 30th June, 1989. The last of such extensions was made by a letter dated 2nd September, 1988. On 11th may, 1988 pursuant to an application made, the Govt. of India permitted expansion of capacity for manufacture of MEG from ,000 TP Act to 60,000 TPA. From 12th January, 1988 to 22nd July, applications were made by RIL for change of Company from RIL to RPL for the MEG Project. It appears that on 11th August, 1988 approval/ sanction was granted by the Govt, of India for change in the implementing agency from RIL to RPL. On or about 19th January, 1985 a letter from the Govt. of Maharashtra was issued, stating that there was no objection to the Companys proposal for change of location for the MEG Project from Maharashtra to Gujarat. It also appears from the various documents which are mentioned in Vol. IV of the present Paper-Books at different pages (from 22 to 44) that by various orders under the Monopolies & Restrictive Trade Practices Act, sanctions and modifications were approved, the latest section being dated 11th October, 1988 whereby the Govt. approved the proposal of RPL for modified scheme of Finance. It is also significant to mention that on 25th January, 1988 an application was made under Section 22(3)(d) of the Monopolies & Restrictive Trade Practices Act with the proposal to implement the MEG Project along with other projects of RPL. It may be mentioned that by a letter dated 6th June, 1988 RIL had informed that they had originally planned to utilise a sum of Rs. 85 crores from G Series debentures for this project. But, however, they were not able to utilise this money as the entire G Series amount had been utilised for PTA and Lab projects including the working capital on account of overrun in the cost of Lab and PTA projects. Hence, it applied for permitting a new scheme of finance. By an order dated 21st July, 1988 the Govt. accorded approval to the proposal of RIL for modified scheme of finance to be implemented by RIL Thereafter, RPL made an application for modification of the schema of finance and the same was approved by the Govts order dated 11th October, 1988.39. It appears that on 9th October, 1984 pursuant to an application made by RIL for foreign collaboration with M/s. Union Carbide Corporation, USA, the Govt. of India by its order of that date accorded approval to the terms of the foreign collaboration for a period of six months for this project. It further appears that on 14th March, 1986 pursuant to an application made by RIL, the Govt. accorded approval for foreign collaboration with M/s. Scientific Design Company. It may, however, be mentioned that there was a letter dated 30.4.1986 whereby approval was granted by the Reserve Bank of India in respect of foreign collaboration agreement with M/s. Scientific Design Co. USA.40. The next aspect of the matter which has to be borne in mind in view of the contentions urged was regarding the licences. It appears that there was an application on 2th March, 1987, for licence. On 9th August, 1988 the Industrial Licence dated 2.3.1984 granted to RIL for manufacture of PVC was endorsed to RIL. This is important because one of the contentions that Shri Pagaria during the course of his long submissions made was that there was no valid licence.41. It also appears that so far as the Monopolies & Restrictive Trade Practices Act is concerned, an application was made by RIL on or about 12th October, 1984 under Section 22(3)(a) for manufacture of PVC. Several other steps were taken and on 29th June, 1988 there was an order of the Govt. of India under Section 22(3)(d) of the Act, according approval to the proposal for modified scheme of finance.42. There was a further proposal for modification and further orders. Last of such order was dated 11th October, 1988. Similarly, regarding the foreign collaboration, there were approval letters and the last one was dated 12th August, 19S8 for endorsement of foreign collaboration approval in favour of RPL. So far as HOPE is concerned, it appears that there was a valid licence ; and it may be mentioned that on 24th August, 198 pursuant to an application made by RIL under Section 22(3)(a) of the Monopolies & Restrictive Trade Practices Act, the Govt. granted approval for the establishment of a new undertaking for manufacture of HOPE.43. Regarding foreign collaboration, application was made by RIL in 1984 for approval of foreign collaboration with M/s. Du Pont Inc. Canada, for manufacture of HOPE. Such approval was given and the validity was extended and the foreign collaboration approval was endorsed in favour of RPL on 12th October 1988. Similar other consents were there, Mention may be made of letters dated 28th April, 11th March 6th December. 1986 2nd January, 1987, 15th July, 25th 26th July. 19th August 1988 which appear at various pages of Vol. IV of the papers Finally, capital-goods clearance was endorsed in favour of RPL for the PVC project on 12th August, 1988. Capital goods clearance was also endorsed in favour of RPL for HDPE project on 23rd August 1988. Thus it will be seen that all the basic ground work had already been done by the RIL.45. The Press note earlier referred to makes it clear that the transfers from one company to an allied company were considered unexceptionable except where trafficking in licences is intended. In this situation the change of name from RIL to RPL, of the licences, letters of intent and other approvals was only a matter of course and much importance cannot be attached to the fact that CCI did not insist upon these endorsements being obtained even before the letter of consent is granted. In any event the letter of consent is very clear. Clause (h) of the conditions attached to the consent letter make it clear that the consent should not be construed as exempting the company from the operation of the provisions of the Monopolies & Restrictive Trade Practices Act, 1969 as amended. Clause (e) makes it clear that it is a condition of this consent that the company will be subject to any measures of control, licensing, or acquisition that may be brought into operation either by the Central or any State Government or any authority therein. Under Clause (t) the approval granted is without prejudice to any other approval/permission that may be required to be obtained under any other Acts/laws in force. Having regard to the above history as well as having regard to the terms and conditions of the consent letter, the grant of consent itself being conditioned on the RPL obtaining the necessary approvals, consents and permissions before embarking on the project, we do not think that there was any impropriety in the CCI granting the consent without waiting for the formal endorsement of the various licences, letters and approvals in favour of the RPL.46. It is stated in the affidavit that in March/April, 1988 discussions centered around the concept of cumulative convertible preference shares (CCP) which was mooted as an instrument for the means of finance. The instrument would have been equity shares to the extent of Rs. 57 crores, cumulative convertible preference shares to the extent of Rs. 81 crores and convertible debentures to the extent of Rs. 478 crores with four conversions. In this connection, reference may be made to Annexure 1 at page 39 of the reply affidavit filed in these proceedings by RPL, Thereafter, on 4th May, 1988 RPL made an application to the Controller of Capital Issues seeking permission to make an Issue of Capital on certain conditions. Specific details thereof are not necessary to be set out here. It also made a proposal for issue of 81 lakhs 10% cumulative convertible preference shares of Rs. 100/-each for cash at par through prospectus to non-resident Indians/resident Indian public-81 crores. It is stated that in accordance with the present guidelines issued by the Govt. of India, the Company intended to retain excess subscription amount to the extent of % of Rs. 66 crores, i.e., a right to retain an additional amount.47. It was further stated that in accordance with the Guidelines issued by the Government of India, the Company had intended to retain excess subscription amount to the extent of 5% of Rs. 66 crores, i.e., a right to retain an additional amount of Rs. 8 crores. The idea was that the company would in the event of over-subscription request the CCI for allotment of such additional amount of Rs. 8 crores. It was further proposed to issue apart of the cumulative convertible preference shares to NRIs and a part to the foreign collaborators.The institutional proposal of the project cost emerged at Rs. 700 crores instead of Rs. 6 0 crores and it was then felt that RIL should increase its own contribution to the project by way of a promoters contribution at Rs. 100 crores, thereby increasing its stake to 14% at the suggestion of CCI. It was stated that this was also a requirement of the CCI guidelines and MRTP conditions At the end of June, 1988, there was an amendment of the Order by the Department of Company Affairs in favour of RPL for PVC. Similarly, on 21st July, 1988, the order for MEG passed 22 for RIL was amended permitting RPL to undertake the new projects for implementation of the MEG Project. It is not necessary to set out in detail these proposals. On 4th July, 1988, CCI granted the consent under the Capital Issues (Control) Act, 1947 to the public issue. There were variations between the proposal and the Order of consent of the CCI.55. On being moved, this Court, on August 19, 1988, passed an order in Transfer Petitions No. 192-193 of 1988 staying the three pending Writ Petitions in the three High Courts, namely Bangalore, Delhi and Jaipur and further stayed the proceedings in the suit being Civil Suit No. 1172 of 1988 filed in Baroda. It was directed that the issue of debentures would proceed without hindrance notwithstanding any proceedings instituted or orders passed and that any order or direction or injunction already passed or which might be passed would remain suspended till further orders of this Court. It was mentioned that on August 29, 1988, the complaint filed by Shri Sharma before the MRTP Commission was dismissed. On August 31, 1988, one Shri Arvind Kumar Sanganeria issued notice through his Advocate advising that a Writ Petition was being preferred in the Bombay High Court. On September 1, 1988, this Court granted an ex-parte stay of the proceedings in Writ Petition. No. 4388 of 1988 pending before the Bombay High Court. As mentioned hereinbefore, on September 9, 1988, this Court had transferred the four Write Petitions in the four High Courts and civil suit to this Court. It appears that there was a further writ petition filed by Shri Sunil Ambani in the High Court of Allahabad on the basis of two articles published in the Indian Express.59. Section 3(1) of the said Act enjoins that no company incorporated in the States shall, except with the consent of the Central Government, make an issue of capital outside the States. The other sub-sections of Section 3 deal with the modalities of such consent.60. It may be mentioned that the Statement of Objects and Reasons of the Act states that the object of this measure is to keep in existence...the control over capital issues which was imposed by Rule 94-A of the Defence of India Rules in May, 1943 and continued in force after the expiry of the Defence of India Act by Ordinance No. XX of 1946. Statement further states that although there has been an appreciable change in the general conditions which constituted the principal reason for the introduction of the control during wartime, it was thought in the light of experience gained that the control was still necessary to secure a balanced investment of the countrys resources in industry, agriculture and the social services. (See Gazette of India, 1947, Part V, p. 264).62. We have referred to the debates only to highlight that the purpose of the Bill was to secure a balanced investment of the countrys resources in the industry and not to ensure so much the soundness of the investment or give any guarantee to the investOrs. The section of the Act in question in express terms does not enjoin the CCI to discharge such obligations nor does the background of the Act so encompass.63. There was considerable discussion before us as to the scope of the powers and responsibilities of the CCI while granting his consent to an issue of shares and debentures proposed by a company.64. We are unable to agree fully with this somewhat narrow aspect of the CCIs role. In the very speech in Parliament to which the learned Additional Solicitor General referred, the Minister also stated:Apart from this main object of the Bill which is thus to prevent the diversion of investible resources of non-essential projects, the control has also been used for many other purposes. The more important of these purposes which may be called ancillary purposes are the regulation of the issue of bonus shares, regulation of capital reorganisation plans of companies including mergers and amalgamations which involved the issue or re-issue of capital, the regulation of the capital structure of companies with a view to discouraging undesirable practices, namely, issue of shares with disproportionate voting rights and encouraging the adoption of sound methods and techniques in company floatation, regulation of the terms and conditions of additional issues of capital etc.(emphasis added)65. That apart, whatever may have been the position at the time the Act was passed, the present duties of the CCI have to be construed in the context of the current situation in the country, particularly, when there is no clear cut delineation of their scope in the enactment. This line of thought is also reinforced by the expanding scope of the guidelines issued under the Act from time to time and the increasing range of financial instruments that enter the market. Looking to all this, we think that the CCI has also a role to play in ensuring that public interest does not suffer as a consequence of the consent granted by him. But, as we have explained later, the responsibilities of the CCI in this direction should not be widened beyond the range of expeditious implementation of the scheme of the Act and should at, least for the present, be restricted and limited to ensuring that the issue to which he is granting consent is not, patently and to his knowledge, so manifestly impracticable or financially risky as to amount to a fraud on the public. To go beyond this and require that the CCI should proper in depth into the technical feasibilities and financial soundness of the proposed projects or the sufficiency of otherwise of the security offered and such other details may be to burden him with duties for the discharge of which he is as yet ill-equipped.67. We are unable, however, to accept the criticism that there has been deviations from the guidelines which are substantial. We have referred to the guidelines. We do not find that there has been any requirement of such guidelines which could be considered to be mandatory which have not been complied with. We have considered this carefully and found that there have been no deviations from paras 3,5,12,13 and 14 of the guidelines. Nor has there been, as pointed out by the respondents, any infraction of guidelines Nos. 2 and 4. The fact that debentures of the face value of Rs. 200 have been approved as against the normal face value of Rs. 100 envisaged under para 8 or that the requirements of the service of underwriters have been dispensed with in exercise of the discretion conferred by para 11 do not constitute arbitrary, substantial or unjustified deviations from those guidelines. There has been sufficient compliance with the guidelines on the quantum of issue, debt-equity ratio, interest rate and the period of redemption and also guideline No. about the security of the debenture and there was sufficient security for the debentures in the facts and circumstances of this case. The preference in favour of shareholders of RIL was justified and based on intelligible differentia. Indeed, if we consider the role of the CCI it is primarily concerned to ensure a balanced investment policy not to guarantee the solvency or sufficiency of the security. In our opinion, most of the criticisms directed against deviation from guidelines were misplaced.We are unable to accept this contention.There is substance in this contention.(iii) The third loophole, according to the petitioners, is the insecurity by the terms of clauses and 6 of the prospectus dealing with created security and borrowings. Sri Ganesh submits that clauses and 6 severely qualify the rights of the debenture holders under the present issue in several respects:(a) There is, in their favour, only a residual charge on all or any of the assets of the company at Hazira and other places which shall rank expressly subject to subservient and subordinate to all existing and future mortgages, charges and securities as may be hereafter created by the company in any manner whatsoever ;(b) The company need not obtain the consent or concurrence of the debenture holders for creating any such mortgage etc. which will have priority over the present debenture issue or for disposing of any of the assets of the company:(c) Not only is the residential complex of the company excluded from the purview of the security, it is also open to the company and the trustees of the debenture holders to the exclusion of any of the company from the purview of the security ;(d) The current assets or the bankers goods such as stocks, inventories book debts, receivables, work in progress, finished and semi finished goods etc. stand excluded from the security.(e) Clause 6 again emphasises that the company shall be at liberty to raise any further loans and secure the same in priority to the present security and/or on such terms as to security, ranking or otherwise as may be mutually acceptable to the company and the trustees of the debenture holders without being required to obtain any further sanction from the debenture holders.If these clauses are closely perused, Sri Ganesh urges, it will be seen (a) that the charge in favour of the debenture holders has a very poor priority as it can rank subservient to any securities that may be created by the company in future in respect of further borrowings, (b) that the company and debenture trustees, by mutual agreement, can take any of the assets of the company outside the purview of the present security and (c) that the company can create such future securities as have a priority over the present issue or exclude assets from the purview of the security without the consent or concurrence of the present debenture holders.71. We think, as has been urged on behalf of the company, that these arguments proceed on a mis-apprehension of the true nature and scope of clauses and 6 above as well as of the nature and legal effect of a floating charge-what has been described in this prospectus as a residual charge-that is created at the time of issue of such debentures. In the first place, these clauses are only enabling in nature so as to permit the company, despite the mortgage in favour of debenture holders, to carry on Us business normally. It will be appreciated that the companys normal business activities would necessarily involve inter alia, alienation of some of the assets of the company from time to time (such as, for example, the sale of the goods manufactured by the company) as well the procurement and discharge of loans and accommodation facilities from banks, financial institutions and others (such as, for example, entering into agreements for hire purchase of plant and machinery and making payments of installments towards their price). The entire progress of the company would come to a standstill in the absence of such an enabling provision. Such a provision is not only usual but also essential because the basic idea is that the finances raised by the debentures should be employed for running the project profitably and thereby generating more and more funds and assets which will also be available to the debenture holders. Secondly, we think-and indeed RPL also conceded both in arguments as well in an affidavit filed on its behalf by Sri Mohan Ramachandra dated 10th January, 1989-that what the two clauses provide is only that the consent and concurrence of the debenture holders need not be obtained by the company before creating securities that may have priority over the present issue and that, under clauses and 6 read harmoniously together, the trustees for the debenture- holders have to concur before the company can raise any future borrowings and create therefore a security which will have priority over the security available to the present debenture holders. The Trustees here are not stooges of the company. The ICICI is not only a financial institution in the public sector but is also one of the institutions financing the project and thus having a stake in the success of the project. It can be trusted to adequately look after the interests of the debenture holders. Thirdly, as has been pointed out by the company, the misapprehensions of the petitioners are more imaginary than real. The company, in its affidavit, has pointed out that the Debenture Trust Deed dated 7.11.1 88, which has since been executed in the present case, contains a provision by which, at the time of creation of any future charge, the terms and conditions as to ranking have to be agreed upon between the RPL and ICICI.Thus if at any time the company proposes to create such higher-ranking charges, the trustees for debenture holders can stultify the same by taking immediate action. Fourthly, the impression sought to be created by the petitioners that the company may go on creating encumbrances left and right, to the detriment and prejudice of the present debenture-holders overlooks several restraints imposed on the company in this respect under the Companies Act, the CCA Act, the Monopolies & Restrictive Trade Practices Act and involving the consent of public financial institutions, commercial banks, the term lenders, the shareholders, the MRTP Commission the Central Government and the CCI before the creation of such securities. Lastly, the contention of the petitioners completely overlooks the basic principles underlying the commercial law concept of debentures secured by a floating charge as evolved in British Jurisprudence over the past two hundred years. Clauses like clauses and 6 are usually inserted in debenture issues and the company has drawn our attention to two like instances in certain issues approved in December 1988 and January, 1989. It has also been argued for the company that a fully convertible debenture is not a debenture at all in the true sense of the term and is more akin to an issue of equity and that, therefore there is no need that it should be covered by adequate security at all. These aspects of the matter are dealt with by us at some length later ; it is sufficient here to say that we are unable to accept the contention that the security in favour of the debenture holders is illusory and inadequate because of the wide language of Clauses (5 ) and (6) of the prospectus. Both these clauses have to read together and so read, we have no doubt, do not permit the creation of any charge ranking in priority to the charge created under these debentures save with the consent of the trustees of debenture holders.This argument is untenable. We have already pointed out, there was sufficient security as was warranted by the issue. This was an issue of 12. % fully secured convertible debentures of Rs. 200/- each. We have examined the share capital, the present issue and the scheme of conversion. In the premises, it is not possible to accept the submission of Shri Ganesh that the Controller satisfied himself (as stated by him in his affidavit) with the bare statement of the applicant company (RPL) that security would be created as per the requirements of the debenture trustees. There was this statement that the debenture trustees were well known financial institutions and they had been entrusted with this obligation. Learned Additional Solicitor General drew our attention to similar debentures and submitted and, in our opinion, rightly that this was the usual practice. It is not possible for the CCI to ensure more than that. The prospectus was not misleading to that extent. It, therefore, cannot be accepted that the CCI failed to apply its mind before the documents before him. Reliance was placed on the fact that the RIL had proposed the issue of shares for G-series for more or less identical project.These guidelines had been subsequently amended by a Press Release dated 8th March, 198 and these were released on 19th August, 198 for issue of convertible cumulative preference shares and also there are guidelines issued by Press Release dated 1st August, 198 for employees stock option scheme. In accordance with this guidelines, according to the deponent on behalf of the CCI, the consent of the CCI for capital issue for secured fully convertible debentures was issued as the projects originally to be established in RIL were permitted by the Department of Company Affairs to be transferred to RPL and endorsements thereof from RIL of RPL had already been filed including, inter alia, for endorsement of the latter or intent for the MEG Project. The scheme of finance for setting up of three projects namely PVC, HOPE and MEG had already been approved by the Department of Economic Affairs in favour of RIL. In that context, in our opinion, to contend that there was violation of the guidelines because the RPLs project was not a new project was too narrow and legalistic view.The CCI ought to have withheld permission for a fresh capital issue in the name of RPL for the very same project. However, the CCI did not appear to have applied his mind, according to Shri Ganesh. Consent Order, therefore, according to Shri Ganesh, was bad. We are, however, unable to accept this submission. The CCI was not performing the role of a social mentor taking into account the purpose of RIL. If RIL has misutilised any of its funds or the fund had not been utilised for Gscries. then RIL would be responsible to its shareholders or to authorities in accordance with the reliant provisions of the Companies Act, 19 6, This aspect does not enter into sanctioning the capital issue for the new project in accordance with the guidelines enumerated hereinbefore. That apart, even If RIL and RPL have to be treated as one for this purpose and the grant of consent for earlier debenture issues in favour of RIL are to be taken into account in judging the necessity of the issues, there is no illegality or irregularity in the impugned grant of consent to RPL. As referred to elsewhere, RIL had not been able to utilise any part of the G series of debentures on the MEG project as there had been a overrun in the PTA & LTB projects. Eventually, for reasons adverted to earlier, it was decided to have the MEG, PVC and HDPE projects undertaken by floating RPL, a wholly-owned subsidiary. In the result, even if we look at the projects not as new ones but only as those of the RIL to be implemented by RPL, the additional finances were needed for the extension, expansion and diversification of the projects originally envisaged. This is one of the objects for which a debenture issue is permissible under the Dimes,73. This has caused us certain amount of anxiety. Speed is good; haste is bad and it is always desirable to bear in mind that one should hasten slowly. However, whether in a particular case, there was haste or speed depends upon the objective situation or on overall appraisement of the situation. Here, as discussed earlier, the material shows that the details of the proposals have been examined and discussed and that an examination of the merits has not been a casualty due to the speed with which the application was processed; and especially in view of the fact that no injury has been caused to the investors and no substantial loss to their securities have been occasioned, we are of the opinion that much cannot be made of this criticism. Learned Additional Solicitor General placed before us other instances where applications had been sanctioned within shorter times.In our opinion, these factors were sufficient to justify the treatment of RIL differently from other investing public and thus the treatment does not amount to any discriminatory benefit to RIL in respect of the debentures of RPL. As a matter of fact, this was a known face and the shareholders or the subscribing debenture holders would be aware of the same. Shri Ganesh sought to urge that the CCI had not made any attempt to appreciate or quantify the extent of the said benefits and advantages and go into the question of whether the same are fair, reasonable and just. Consequently, for this reason also, there had not been, according to Shri Ganesh, due application of mind by the CCI before the Consent Order was issued. We are unable to accept this criticism.75. The discrimination alleged is on two grounds. The first is that RIL is entitled straightaway to the allotment of shares of the face value of Rs. 57. 50 crores whereas only 5% of the investment by the debenture-holders can be converted into shares at par simultaneously with the issue. The second is that a loan of Rs. crores advanced by RIL to RPL will be converted into shares at par at the end of 3 years whereas the debenture-holders will have to pay a premium even for converting 20% of their debentures into shares by that time. These allegations do not bear scrutiny. So far as the first ground is concerned, there is no justification for a comparison between these two categories of investOrs. RIL is the promoter company which has conceived the projects, got them sanctioned, invested huge amounts of time and money and transferred the projects for implementation to RPL. It is, therefore, in a class by itself and there is nothing wrong if it is allotted certain shares in the company, quite independently of the debenture issue, in lieu of its investments. So far as the second ground is concerned, it overlooks certain disadvantages attached to RIL in regard to the loan of Rs. 50 crores advanced by RIL as compared with the investor in the debentures. Firstly, RILs advance is interest free for 3 years whereas the debenture holders get interest at the rate of 12.5% during the period. Secondly, the debenture loan is secured while tee RILs are not. Thus the debenture-holders have certain benefits which RIL does not have and, if the debenture-holders have the disadvantage of having to pay a premium, that cannot constitute basis for a ground of discrimination.76. These considerations apart, we would like to observe that we are unable to appreciate how any question of discrimination is at all relevant in the present context. It is a company-not the State or a State instrumentality-that is issuing the shares and debentures. It is entirely for the company to issue the shares and debentures on such terms as they may consider practicable from their point of view. There is no reason why they should not so structure the issue that it confers certain greater advantages and benefits on the existing shareholders or promoters than on the new subscribers to the debentures. We do not think that it is permissible for the CCI to withhold consent only for this reason or to stipulate that consent can be given only if the shareholders and promoters as well as prospective debenture holders are all treated alike. The subscribers to the debentures are only lenders to the company who have an option to convert their debt into equity on certain terms, It is perfectly open to the subscribers to balance the pros and cons of the issue and to desist from taking the debentures if they feel that the dice are loaded unfavourably in favour of the proprietors of the company.78. One may perhaps concede that, with the vast expansion in recent years of the corporate sector and its constant tendency to have recourse to public funds for securing finances for its projects (either by way of share capital or borrowed capital), the scope of the responsibilities of the CCI can no longer be as limited as before. It may no longer be restricted merely to the task of preventing an imbalance of investment in various sectors or the diversion of investment to non-essential projects. The petitioners may perhaps have a point in suggesting that the CCI should as burdened with a duty also to safeguard the interests of the public who are invited to participate in such financing on large scale and at least to satisfy himself that the project for which funds are needed is not in the nature of a South-sea bubble and that the volume, terms and conditions of the issue proposed by the company are not such as to constitute a fraud on the public. But we think that the time is not yet ripe for placing on the office of the CCI, as at present constituted, more than a skeletal outline of responsibility in this direction ; his shoulders are, as yet, not strong enough to bear such burden. He does not have the time, the staff, the powers of enquiry, the benefit of public hearing, the requisite background, or the economic commercial or financial skill or expertise to so assess the technical, commercial and financial aspects of the projects as to be able to give the public investor a guarantee that he is not being led up the garden path. All that one can say at present is that the parameters of his action have to be found within the four corners of the Act and the guidelines. May be, he can legitimately withhold his consent to a project that is ex facie impracticable (for instance, as was put to the parties in the course of hearing, a project to convert base metal into geld) or a project, which, in the present state of finances and scientific knowledge and progress of our country, is an impossibility-(for example, to have a transport service to the moon). May be, he also can in a proper case, refuse his consent to a scheme of finance if, ex facie, and without any detailed investigation, he is satisfied, that it is too big for the applicant company to handle, or too risky and onerous to be permitted in public interest. But this is a decision which he will have to venture upon, on his own responsibility, in patent cases where the nature of the project or the scheme of financing is, on its face, startlingly non-feasible, impracticable or risky. He cannot, however be compelled to withhold consent, or found fault with for having granted consent, in a case such as this, where the proposed project is in a core industrial sector, where there considerable scope for foreign currency savings and the scheme of financing proposed has been developed in consultation with and scrutinised and approved by, a leading public sector financial institution (which has also agreed to be the trustee for the Debenture-holders). It is too much to suggest that the CCI should be held to have failed in his duty by accepting the opinion of such institutions and not investigating for himself from various angles and in particular, the adequacy of the security offered to the debenture-holders under the scheme.79. While we do appreciate that in the changed atmosphere, the corporate sector, when seeking to attract public moneys while raising new capital must perform both responsible and responsive roles, it is difficult to enjoin that the CCI while considering the question of consent/sanction of the capital issues can fulfil any role beyond the policies prescribed under which, as noticed before, it was enjoined to function. There are other various Acts like the Income-Tax Act, Companies Act, Monopolies & Restrictive Trade Practices Act to subserves other social objectives which are conducive or ancillary to the directive principles. Nelson, it is reported to have said before the battle of Waterloo, that England expected every man to do his duty. It is well to remember that every authority in a vast developmental society must perform his role keeping in view the part he is expected to play in the background of the whole perspective and should not encroach upon others taking the onus upon himself to do everything. That would lead to chaos and confusion.81. We find the factual position to be this. The application for consent to the issue had not specifically earmarked any portion of the issue to the employees of RPL and RIL. In the course of the discussion with the CCI, it was suggested that 12,90,000 debentures should be offered by way of preferential allotment to the employees of the RIL and RPL Para of the consent order by the CCI conveyed the approval by the Central Government under proviso to rule 19(2)(6) of the Securities Contracts (Regulation) Rules, 1957 subject to the conditions that the allotment to the employees shall not exceed 200 shares per individual. The Company by its latter of 7th July pointed out that shares in the above para was a mistake for debentures and also suggested that a maximum of 200 debenture-which on first conversion would become 200 shares-be allotted to each of the employees of RPL as well as RIL. The CCI, however, modified Para by his letter of the 19th July, 1988 to say that allotment to the employees shall not exceed debentures per individual. In this context, it does not appear that the restriction of the allotments to the employees was at the instance of the company nor does it seem that any discrimination was intended in respect of the allotments to the employees. Nor has our attention been invited to any legal requirement or guideline prescribing any fixed or minimum quota of allotment to the employees of the company. We are, therefore, unable to see any discrimination. In any case, the petitioner in this case has no cause for grievance on that score.88. Hazira has been selected with special reference to the availability of natural gas oil from South Sea Basin and it is countrys first ethylene handling port and has economies of transportation and terminal facility at Hazira etc. It is not necessary to set but however how the company developed in different stages. The application for consent was filed on 14th May, 1988 as mentioned hereinbefore. The licence and letter of intent were endorsed in favour of the RIL and the scheme for finance in favour of the RPL.In fact in Re. Florence Lands case (supra), the Court observed that if the companies were not allowed to resort to floating charge, they would have to call the meeting of existing charge holders/debenture holders each time they intend to create future charge. The decision in Re. Panama New Zealand, and Australian Royal Mail Co., as indicated in Palmers Company Law at page 708 is a landmark because it established the validity and the utility of a floating charge. In the instant case, if the permission of the debenture holders A ere required or is insisted upon to create future security, 2. million debenture holders would have to be informed and invited for meeting. The extravagant effects of this course would be colossal especially when a shareholders meeting is also additionally called for the same body of persons. It is, therefore, incorrect to say that a floating charge creates an illusory charge because future securities can be created ranking in priority over it. The legal position is that a floating charge creates a present equitable right in favour of the debenture holders/trustees. It creates a present charge in the property/undertaking of a company even before the time of payment of the debenture arrives, The fact is that a company can deal with its property without the permission of debenture holders/trustees, before crystallisation by resorting to a floating charge on the undertaking (See the observations in this connection in Re. Florence Lands case (supra); Re. Standard Manufacturing Co. 1891 1 Ch. 627; Re. Borax Foster v. Borax Co. 1901 (1) Ch. 326; Greatnor Maritime Co. Ltd v. Irish Marine Management Ltd. 1978 (1) WLR 966. This however does not mean that the company can keep on creating future charges with superior ranking without any let or hindrance because the debenture holders/trustees can any time move to crystallise the floating security if they felt the security is in jeopardy. 3094. In the present case, there is no case to suggest or believe that ICICI (which is one of the most important national Government financial institutions,) will not act effectively and promptly to ensure that the security in favour of the debenture-holders is not rendered illusory. Even Guideline dated 14th January, 1987, has cast the responsibility of supervising creating, monitoring, and implementation of security in favour of debenture-trustees. The company cannot normally create a general floating charge ranking in priority to or pan passu with a prior floating charge unless the prior floating charge itself permits such a course. In this connection, reference may be made to the observations in The Encyclopaedia of Forms and Precedents, 4th Edn., Vol. 6 para 27 at page 1102-1103.It, Therefore, follows that : -i) A debenture is usually secured by floating charge only.ii) A company which creates floating charge has a right to create future security which may rank superior in ranking.iii) However, this right of the company may be restricted by agreement.iv) Where no restriction is provided, any future specific charge will rank superior to the earlier floating charge (Section 123 of the Companies Act).v) Again, where no specific provision is made in the earlier floating charge with respect to the ranking of future floating charge then any future floating chare will be inferior to the earlier floating charge. In this connection, reference may be made to Section 48 of the Transfer of Property. The risk of floating charges can be controlled by creating legal mortgage in favour of debenture trustees as has been explained in All About Debentures by Sen & Chandreashekhar [p. 66-67].95. In the present case, a legal mortgage has been created by RPL in favour of the trustees in respect of its immovable and movable assets, except book debts, in respect of which financial institutions will hold a first charge on account of foreign loan. In the present case, RPL does not have any existing loans. Therefore, the charge in favour of the debenture holders is presently the first charge. No future borrowing is contemplated at this stage except the foreign currency loan to the amount of Rs. 84 crores. Therefore, the submission that the security is illusory cannot be accepted and the CCI is right that the apprehension is based on factually unsound and unfounded grounds. Even if the value of the foreign currency which has been sanctioned in principle by the three financial institutions, taken into account, the assets coverage goes down at each stage and does not make any critical difference to the value of the security of the debenture-holders under the Trust Deed. The purposes of borrowings, namely, term-loan borrowings, deferred payment credits/guarantees and borrowing for financing new projects do not, on analysis, raise any difficulty. There are sufficient in-built checks and controls. The company, being an MRTP company would have to obtain both MRTP permission for creating any security irrespective of its value and fresh CCI consent under the CCI Act, except in case of exempted securities. Therefore, in our opinion, this submission is really in the nature of a red-herring. It was submitted that we should at least direct that the future security should not rank superior to the floating charge in favour of the existing debenture holders.96. Having regard to the factors which the investors should have taken into consideration, we are of the opinion that all relevant factors were borne in mind by the CCL There is no substance also in the ground of discrimination. It is reiterated that Article 14 of the Constitution does not forbid reasonable classification. RIL is a promoter company. It had conceived the projects got them sanctioned and invested hedge amounts of time and money in the process. It was open to RIL to undertake these projects, on its own and not to make any public issue at all. The ground that there was non-application of mind because the CCI did not take into consideration the issue of G-Series is also without substance. Under Guideline 2(a) of the Guidelines of 1984, capital could be raised only for setting up of new project. MEG, it was submitted, was not a new project for capital had been raised for it by RIL under G-Series, It was further submitted that the Controller did not ask RPL to get the bankers prior clearance certificate under Guideline II (v) of the Guidelines of January 14, 1987. Finally, the CCI did not take note of the fact that the application under Scheme I of Rule III of the Capital Issues (Application for Consent) Rules did not contain the relevant information. The position of cost over run has been explained. So there was no substance in the submission that it was not a new project. Secondly, it cannot be accepted that the CCI did not insist the bankers prior clearance certificate. These guidelines apply to non-convertible debentures or partly convertible debentures. These do not apply to compulsorily convertible debentures. Even assuming that these are applied to compulsorily convertible debentures, there was no need for the CCI to ask for the bankers prior clearance certificate because RPL was not issuing any new set of debentures. All requisite information had been furnished.97. Shri Ganesh as well as Shri Pagaria tried to submit that in order to protect the investors, a function, which they submitted, the CCI, in changed circumstances should determine whether the project is profitable. Where a project has been appraised by an institution like ICICI, Controller can safely assume that it is profitable and he need not engage in separate independent exercise of his own in this regard. The scope and nature of the Controllers powers and jurisdiction have to be determined in the light of the specific provisions of the CCI Act, its history, the debates, to which we have referred, the capital structure of the national economy and its over all direction, in higher priorities, are decided by the Government and the planning Commission by formulating Five Year Plans. However, the capital structure and direction of a particular industry is decided in terms of the provisions of IDR Act. That a particular industrial house may become a monopoly or otherwise have a restrictive and detrimental effect on the economy of the country, is the concern of Monopolies & Restrictive Trade Practices Act. Therefore, the scope of the CCI under the Act is of a limited nature and must be kept in its proper perspective. It is true that he cannot, as was contended on behalf of the petitioner, oblivious of the fact that small scale investors are coming into operation and there is a social obligation of the State to provide safe guidelines. Yet, each authority must circumscribe its work in the proper light. Unless, therefore, CCI acts perversely, irrationally or with procedural impropriety, his decisions cannot and should not be faulted on the ground that other consequences might follow. Of course, no other consequences have been indicated before us.98. As a matter of fact, there was no allegation that the CCI acted mala fide or on extraneous considerations. The CCI applied its mind to the facts of this case and the factors in general. There was no undue haste. A statement was produced indicating that the application for grant of consent had been disposed after some time, but within the time frame in which such applications are normally disposed of.99. It may, however, be stated that being not statutory in character, these guidelines are not enforceable. See the observations of this. Court in Fernandez v. State of Mysore [1967]3SCR636 (Also see R. Abdullah Rowther v. State of Transport, etc. AIR 19 9 SC 896 ; by. Asst. Iron & Steel Controller v. Manekchand Proprietor [1972]3SCR1 ; Andhra Industrial Work v. CCV&E 1971 SCR 321; K.M. Shanmugham v. S.R.V.S. Pvt. Ltd. [1964]1SCR809 . A policy is not low. A statement of policy is not a prescription of binding criterion. In this connection, reference may be made to the observations of Sagnata Investments Ltd. v. Norwich Corporation 1971 2 QB 614 Also the observations inBritish Oxygen Co. v. Board of. See also Foulkes Administrative Law, 6th Ed. at page 181-184. In Ex P. Khan 1981 1 All. E.R., the Court held that a circular or self made rule can become enforceable of the application of persons if it was shown that it had created legitimate expectation in their minds that the authority would abide by such a policy/guideline. However, the doctrine of legitimate expectation applies only when a person had been given reason to believe that the State will abide by the certain policy or guideline on the basis of which such applicant might have been led to take certain actions. This doctrine is akin to the doctrine of promissory estoppel. See also the observations of Lord Wilberforce in IRC v. National Federation 1982 AC 617. However, it has to be borne in mind that the guidelines on which the petitioners have relied are not statutory in character. These guidelines are not judicially enforceable. The competent authority might depart from these guidelines where the proper exercise of his discretion so warrants. In the present case, the statute provided that rules can be made by the Central Government only. Furthermore, according to Section 6(2) of the Act, the competent authority has the power and jurisdiction to condone any deviation from even the statutory requirements prescribed under Sections 3 and 4 of the Act. In Regina v. Preston Supplementary 197, it had been held that the Act should be administered with as little technicality as possible. Judicial review of these matters, though can always be made where there was arbitrariness and malafide 20 and where the purpose of an authority in exercising its statutory power and that of legislature in conferring the powers are demonstrably at variance, should be exercised cautiously and soberly.100. We would also like to one more aspect of the enforceability of the guidelines by persons in the position of the petitioners in these cases. Guidelines are issued by Governments and statutory authorities in various types of situations. Where such guidelines are intended to clarify or implement the conditions and requirements precedent to the exercise of certain rights conferred in favour of citizens or persons and a deviation therefrom directly affects the rights so vested the persons whose rights are affected have a clear right to approach $e court for relief. Sometimes guidelines control the choice of persons competing with one another for the grant of benefits largesses or favours and, if the guidelines are departed from without rhyme or reason, an arbitrary discrimination may result which may call for judicial review. In some other instances (as in the Ramanna Shetty case), the guidelines may prescribe certain standards or norms for the grant of certain benefits and a relaxation of, or departure from, the norms may affect persons, not directly but indirectly, in the sense that though they did not seek the benefit or privilege as they were not eligible for it on the basis of the announced norms, they might also have entered, the fray had the relaxed guidelines been made known. In other word they would have been potential competitors in case any relaxations or departure were to be made. In a case of the present type, however, the guidelines operate in a totally different field. The guidelines do riot affect or regulate the right of any person other than the company applying for consent. The manner of application of these guidelines, whether strict or lax, does not either directly or indirectly, affect the rights or potential rights of any others or deprive them, directly or indirectly, of any advantages or benefits to which they were or would have been entitled In this context, there is only a very limited scope for judicial review on the ground that the guidelines have not been followed or have been deviated from. Any member of the public can perhaps claim that such of the guidelines as impose controls intended to safeguard the interests of members of the public investing in such public issues should be strictly enforced and not departed from departure therefrom will take away the protections provided to them. The scope for such challenge will necessarily be very narrow and restricted and will depend to a considerable extent on the nature and extent of the deviation. For instance, if debentures were issued which provide no security at all or if the debt-equity ratio is 6000 : 1 (as alleged) as against the permissible 2:1 (or thereabouts) a Court may be persuaded to interfere. A Court, however, would be reluctant to interfere simply because one or more of the guidelines have not been adhered to even where there are substantial deviations, unless such deviations are, by nature and extent such as to prejudice the interests of the public which it is their avowed object to protect. Per contra, the Court would be inclined to perhaps overlook or ignore such deviations, if the object of the statute or public interest warrant, justify or necessitate such deviations in a particular case. This is because guidelines, by their very nature, do not fall into the category of legislation, direct, subordinate or ancillary. They have only an advisory role to play and non-adherence to or deviation from them is necessarily and implicitly permissible if the circumstances of any particular fact or law situation warrants the same. Judicial control takes over only where the deviation either involves arbitrariness or discrimination or is so fundamental as to undermine a basic public purpose which the guidelines and the statute under which they are issued are intended to achieve.101. But in the instant case, in the view have taken, it is not necessary to base our decision on this aspect. We find that the CCI has, in fact, acted in substantial compliance with the principles of these guidelines. He has acted objectively and bonafide. He has not acted in undue haste. No substantial prejudice or injury to the petitioners have been demonstrated. In the aforesaid view of the matter, we are, therefore, unable to interfere. In this connection, furthermore, a common sense view has to be adopted-See the observations in Council of Civil Service Unions and Ors. v. Minister for the Civil Service 1985 AC 7. Public interest in this case does not require that we should interfere. In this case, there is no illegality in the decision of the Controller of Capital Issues. He has not exercised a power which he does not possess. There is also no irrationality. He has not acted in any manner that no reasonably authority would have acted in the decision. There is no procedural impropriety in his decision. He has not failed in his duty to act fairly insofar as fairness was warranted by the justice of the situation.102. In the aforesaid view of the matter, we are of the opinion that there was no substance in the write petitions and also in the civil suits conversed by these transfer applications.The purpose of the Act must be found from the language used. The scheme and the language used, strictly speaking, do not indicate any positive role for the CCI in discharging his functions in respect of grant of sanction. But it has to be borne in mind that he is a part of a State instrumentalities committed to the endeavours of the constitutional aspiration to secure justice, inter alia, social and economic, and also under Article 39(b) to (c)of the Constitution to ensure that the ownership and control of the material resources of the community are so distributed as to best subserve the common good and that the operation of the economic system does not result in concentration of wealth and means of production to the common determent. Yet, every instrumentality and functionary of the State must fulfil its own role and should not trespass or encroach/entrench upon the field of others. Progress is ensured and development helped if each performs his role in the common endeavourer.104. In that light it is true that as was contended by learned Counsel appearing on behalf of the petitioners that in the changed socio-economic conditions of the country one who is charged to ensure capital investment has to perform the social role in capital formation and to protect the interest of the capital market, and to oversee the growth of industrialisation and investment in such a manner as to ensure employment and demand in the national economy to prevent wasteful investment and to promote sound methods of corporate finance. The guidelines are only a guide and nothing more. The application of mind by the CCI before sanction must be in the perspective for which he is enjoined by the Act. He must endeavour to secure a balanced investment of the countrys resources in industry, agriculture and social services. The Controller should perform the role of social control and fulfil the social purpose in conjunction with other authorities and functionaries. It is necessary for him in discharge of his functions to ensure that there is not too much concentration of particular industries in particular areas, and that there is a scientific development and proper investment in key and core project.105. The present petitions have perhaps brought to the fore for the first time a public interest aspect of the issue of shares and debentures. In the past decades, investors in shares and equities constituted a very limited section of the public and consisted of two extreme types-either persons who could shrewdly appraise the merits of each issue and take a considered decision or persons who just wanted to invest and get a return for their moneys but were indifferent to the terms and conditions of such investment. The position has changed in recent years. There has been a vast increase in the number of members of the public who have surplus money to invest ; the size of the issues has assumed macro-proportions ; and the types of instruments are also becoming more and more sophisticated. Entrepreneurs , with legal and expert assistance at their command, could easily trap unwary investors and the development of a public interest lobby that can scrutinise issues carefully and advise prospective investors on their comparative merits and demerits may not be entirely undesirable. It is also perhaps necessary that the CCI, in considering the grant of consent to such issues, should have these aspects brought to his notice. We think that it may be too cumbersome to have a provision that the details of every proposed application for consent should be publicised to the maximum extent by the CCI, that objections and comments from the public should be called for, that there should be a public hearing before the CCI before grant of consent and that the CCI should pass a reasoned order granting or withholding consent. That would also delay the whole process of approvals which should be as expeditious as possible. But we have no hesitation in saying that some procedure has to be evolved to ensure that the CCI gets the benefit of the comments, suggestions and objections from the public before arriving at his decisions whether to grant consent or not and, if so, on what terms and conditions. Perhaps, evolution of certain rules in this respect could be examined at this juncture of industrial growth in our country. But having regard to the facts and the circumstances of the case in view of the various facts mentioned hereinbefore, we are of the opinion that there was no undue haste. There was proper application of mind that the sanction was for a new project. Sufficient security for the debentures as was enjoined to be ensured before sanction has been ensured in the facts and the circumstances of this case and the guidance provided by means of guidelines K-s been substantially complied with. There has been no infraction as such of the norms required to be followed in granting the sanction. The challenge to the sanction, therefore, must fail.106. Before we conclude, we must note that good deal of argument was adduced that these applications in different High Courts in suits were not genuine and properly motivated, But were malafide. Even though these might not have been to feed fat an innocent object, it was apparent that it was to feed a grudge in respect of a competitive project by a competitor. Any way, in the view we have taken, it is not necessary to decide the bonafides or malafides of the applicants. Shri Nariman, when he moved the application initially, had suggested that we should lay down certain norms us to how the courts in different parts of the country should grant injunction or entertain applications affecting an all-India issue or having ramifications all over the country. Except that before the courts grant my injunction, they should have regard to the principles of comity courts in a federal structure and have regard to self restraint circumspection, we do not at this stage lay down any more definite norms. We may also perhaps add that it may be impossible to lay down hard and fast rule of general application because of the diverse situations which give rise to problems of this nature. Each case has its own special facts and complications and it will be a advantage. rather than an advantage, to attempt and apply any stereotyped formula to all cases, Perhaps in this sphere, the High Courts themselves might be able to introduce a certain amount of discipline having regard to the principles of comity of courts administering the same general laws applicable all over the country in respect of granting interim orders which will have repercussion or effect beyond the jurisdiction of the particular courts. Such an exercise will houseful contribution in evolving good conventions in the federal judicial system. | 0 | 33,916 | 11,661 | ### Instruction:
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role and should not trespass or encroach/entrench upon the field of others. Progress is ensured and development helped if each performs his role in the common endeavourer. 104. In that light it is true that as was contended by learned Counsel appearing on behalf of the petitioners that in the changed socio-economic conditions of the country one who is charged to ensure capital investment has to perform the social role in capital formation and to protect the interest of the capital market, and to oversee the growth of industrialisation and investment in such a manner as to ensure employment and demand in the national economy to prevent wasteful investment and to promote sound methods of corporate finance. The guidelines are only a guide and nothing more. The application of mind by the CCI before sanction must be in the perspective for which he is enjoined by the Act. He must endeavour to secure a balanced investment of the countrys resources in industry, agriculture and social services. The Controller should perform the role of social control and fulfil the social purpose in conjunction with other authorities and functionaries. It is necessary for him in discharge of his functions to ensure that there is not too much concentration of particular industries in particular areas, and that there is a scientific development and proper investment in key and core project. 105. The present petitions have perhaps brought to the fore for the first time a public interest aspect of the issue of shares and debentures. In the past decades, investors in shares and equities constituted a very limited section of the public and consisted of two extreme types-either persons who could shrewdly appraise the merits of each issue and take a considered decision or persons who just wanted to invest and get a return for their moneys but were indifferent to the terms and conditions of such investment. The position has changed in recent years. There has been a vast increase in the number of members of the public who have surplus money to invest ; the size of the issues has assumed macro-proportions ; and the types of instruments are also becoming more and more sophisticated. Entrepreneurs , with legal and expert assistance at their command, could easily trap unwary investors and the development of a public interest lobby that can scrutinise issues carefully and advise prospective investors on their comparative merits and demerits may not be entirely undesirable. It is also perhaps necessary that the CCI, in considering the grant of consent to such issues, should have these aspects brought to his notice. We think that it may be too cumbersome to have a provision that the details of every proposed application for consent should be publicised to the maximum extent by the CCI, that objections and comments from the public should be called for, that there should be a public hearing before the CCI before grant of consent and that the CCI should pass a reasoned order granting or withholding consent. That would also delay the whole process of approvals which should be as expeditious as possible. But we have no hesitation in saying that some procedure has to be evolved to ensure that the CCI gets the benefit of the comments, suggestions and objections from the public before arriving at his decisions whether to grant consent or not and, if so, on what terms and conditions. Perhaps, evolution of certain rules in this respect could be examined at this juncture of industrial growth in our country. But having regard to the facts and the circumstances of the case in view of the various facts mentioned hereinbefore, we are of the opinion that there was no undue haste. There was proper application of mind that the sanction was for a new project. Sufficient security for the debentures as was enjoined to be ensured before sanction has been ensured in the facts and the circumstances of this case and the guidance provided by means of guidelines K-s been substantially complied with. There has been no infraction as such of the norms required to be followed in granting the sanction. The challenge to the sanction, therefore, must fail. 106. Before we conclude, we must note that good deal of argument was adduced that these applications in different High Courts in suits were not genuine and properly motivated, But were malafide. Even though these might not have been to feed fat an innocent object, it was apparent that it was to feed a grudge in respect of a competitive project by a competitor. Any way, in the view we have taken, it is not necessary to decide the bonafides or malafides of the applicants. Shri Nariman, when he moved the application initially, had suggested that we should lay down certain norms us to how the courts in different parts of the country should grant injunction or entertain applications affecting an all-India issue or having ramifications all over the country. Except that before the courts grant my injunction, they should have regard to the principles of comity courts in a federal structure and have regard to self restraint circumspection, we do not at this stage lay down any more definite norms. We may also perhaps add that it may be impossible to lay down hard and fast rule of general application because of the diverse situations which give rise to problems of this nature. Each case has its own special facts and complications and it will be a advantage. rather than an advantage, to attempt and apply any stereotyped formula to all cases, Perhaps in this sphere, the High Courts themselves might be able to introduce a certain amount of discipline having regard to the principles of comity of courts administering the same general laws applicable all over the country in respect of granting interim orders which will have repercussion or effect beyond the jurisdiction of the particular courts. Such an exercise will houseful contribution in evolving good conventions in the federal judicial system.
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### Explanation:
fulfil its own role and should not trespass or encroach/entrench upon the field of others. Progress is ensured and development helped if each performs his role in the common endeavourer.104. In that light it is true that as was contended by learned Counsel appearing on behalf of the petitioners that in the changed socio-economic conditions of the country one who is charged to ensure capital investment has to perform the social role in capital formation and to protect the interest of the capital market, and to oversee the growth of industrialisation and investment in such a manner as to ensure employment and demand in the national economy to prevent wasteful investment and to promote sound methods of corporate finance. The guidelines are only a guide and nothing more. The application of mind by the CCI before sanction must be in the perspective for which he is enjoined by the Act. He must endeavour to secure a balanced investment of the countrys resources in industry, agriculture and social services. The Controller should perform the role of social control and fulfil the social purpose in conjunction with other authorities and functionaries. It is necessary for him in discharge of his functions to ensure that there is not too much concentration of particular industries in particular areas, and that there is a scientific development and proper investment in key and core project.105. The present petitions have perhaps brought to the fore for the first time a public interest aspect of the issue of shares and debentures. In the past decades, investors in shares and equities constituted a very limited section of the public and consisted of two extreme types-either persons who could shrewdly appraise the merits of each issue and take a considered decision or persons who just wanted to invest and get a return for their moneys but were indifferent to the terms and conditions of such investment. The position has changed in recent years. There has been a vast increase in the number of members of the public who have surplus money to invest ; the size of the issues has assumed macro-proportions ; and the types of instruments are also becoming more and more sophisticated. Entrepreneurs , with legal and expert assistance at their command, could easily trap unwary investors and the development of a public interest lobby that can scrutinise issues carefully and advise prospective investors on their comparative merits and demerits may not be entirely undesirable. It is also perhaps necessary that the CCI, in considering the grant of consent to such issues, should have these aspects brought to his notice. We think that it may be too cumbersome to have a provision that the details of every proposed application for consent should be publicised to the maximum extent by the CCI, that objections and comments from the public should be called for, that there should be a public hearing before the CCI before grant of consent and that the CCI should pass a reasoned order granting or withholding consent. That would also delay the whole process of approvals which should be as expeditious as possible. But we have no hesitation in saying that some procedure has to be evolved to ensure that the CCI gets the benefit of the comments, suggestions and objections from the public before arriving at his decisions whether to grant consent or not and, if so, on what terms and conditions. Perhaps, evolution of certain rules in this respect could be examined at this juncture of industrial growth in our country. But having regard to the facts and the circumstances of the case in view of the various facts mentioned hereinbefore, we are of the opinion that there was no undue haste. There was proper application of mind that the sanction was for a new project. Sufficient security for the debentures as was enjoined to be ensured before sanction has been ensured in the facts and the circumstances of this case and the guidance provided by means of guidelines K-s been substantially complied with. There has been no infraction as such of the norms required to be followed in granting the sanction. The challenge to the sanction, therefore, must fail.106. Before we conclude, we must note that good deal of argument was adduced that these applications in different High Courts in suits were not genuine and properly motivated, But were malafide. Even though these might not have been to feed fat an innocent object, it was apparent that it was to feed a grudge in respect of a competitive project by a competitor. Any way, in the view we have taken, it is not necessary to decide the bonafides or malafides of the applicants. Shri Nariman, when he moved the application initially, had suggested that we should lay down certain norms us to how the courts in different parts of the country should grant injunction or entertain applications affecting an all-India issue or having ramifications all over the country. Except that before the courts grant my injunction, they should have regard to the principles of comity courts in a federal structure and have regard to self restraint circumspection, we do not at this stage lay down any more definite norms. We may also perhaps add that it may be impossible to lay down hard and fast rule of general application because of the diverse situations which give rise to problems of this nature. Each case has its own special facts and complications and it will be a advantage. rather than an advantage, to attempt and apply any stereotyped formula to all cases, Perhaps in this sphere, the High Courts themselves might be able to introduce a certain amount of discipline having regard to the principles of comity of courts administering the same general laws applicable all over the country in respect of granting interim orders which will have repercussion or effect beyond the jurisdiction of the particular courts. Such an exercise will houseful contribution in evolving good conventions in the federal judicial system.
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