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State of W.B. and Others Vs. Texmaco Limited | 1. The respondent-Company has a Scheme whereunder it pays to its employees what is called an "incentive bonus". The appellants took the stand that the incentive bonus fell within the definition of "salary" or "wage" contained in Section 2(j) of the West Bengal State Tax on Professions, Trades, Callings and Employments Act, 1979, and, therefore, it was liable to the levy of tax under that statute, which the respondent-Company was bound to deduct and pay on behalf of its employees. This contention was the subject-matter of applications before the West Bengal Taxation Tribunal. In its order under appeal, the Tribunal found that it was common ground that the incentive bonus was linked to production. It was paid at a certain rate for production in excess of a specified minimum quantity. It was payable only when production exceeded that quantity. If in a particular month, the production did not exceed the specified minimum quantity, there was no payment. If, on the other hand, there was in another month production exceeding the minimum quantity, the incentive bonus was payable commensurate with the additional production, which was naturally variable from month to month. Upon this basis, the Tribunal found that the payment of incentive bonus was not made on a regular basis and that, therefore, the requirement of the definition of "salary" or "wage" in Section 2(j) was not satisfied 2. That definition says, so far as is relevant for our purposes, that "salary" or "wage" includes "pay, dearness allowance and all other remunerations received by any person on regular basis, whether payable in cash or in kind ......" 3. The findings of fact reached by the Tribunal are clear. The Scheme of the respondent-Company providing for incentive bonus sets out that it is payable only when production exceeds a specified minimum quantity. This implies that the incentive bonus is not paid when production does not exceed that minimum quantity. If so, clearly, the incentive bonus is not a remuneration received by the respondent-Companys employees "on regular basis"4. Learned counsel for the appellant submitted, however, that there was a Scheme and that suggested regularity of payment. Judged only upon the basis of the Scheme, it must he held that it contemplates situations where the incentive bonus is payable and situations where it is not payable. Judged on the Scheme, therefore, the payments of incentive bonus are not on a regular basis. It would have been another matter had the appellants been able to place material before the Tribunal to show that, despite the terms of the Scheme, there had in fact been, over a substantial period of time, payment of incentive bonus from month to month | 0[ds]Judged only upon the basis of the Scheme, it must he held that it contemplates situations where the incentive bonus is payable and situations where it is not payable. Judged on the Scheme, therefore, the payments of incentive bonus are not on a regular basis. It would have been another matter had the appellants been able to place material before the Tribunal to show that, despite the terms of the Scheme, there had in fact been, over a substantial period of time, payment of incentive bonus from month to month | 0 | 518 | 103 | ### 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:
1. The respondent-Company has a Scheme whereunder it pays to its employees what is called an "incentive bonus". The appellants took the stand that the incentive bonus fell within the definition of "salary" or "wage" contained in Section 2(j) of the West Bengal State Tax on Professions, Trades, Callings and Employments Act, 1979, and, therefore, it was liable to the levy of tax under that statute, which the respondent-Company was bound to deduct and pay on behalf of its employees. This contention was the subject-matter of applications before the West Bengal Taxation Tribunal. In its order under appeal, the Tribunal found that it was common ground that the incentive bonus was linked to production. It was paid at a certain rate for production in excess of a specified minimum quantity. It was payable only when production exceeded that quantity. If in a particular month, the production did not exceed the specified minimum quantity, there was no payment. If, on the other hand, there was in another month production exceeding the minimum quantity, the incentive bonus was payable commensurate with the additional production, which was naturally variable from month to month. Upon this basis, the Tribunal found that the payment of incentive bonus was not made on a regular basis and that, therefore, the requirement of the definition of "salary" or "wage" in Section 2(j) was not satisfied 2. That definition says, so far as is relevant for our purposes, that "salary" or "wage" includes "pay, dearness allowance and all other remunerations received by any person on regular basis, whether payable in cash or in kind ......" 3. The findings of fact reached by the Tribunal are clear. The Scheme of the respondent-Company providing for incentive bonus sets out that it is payable only when production exceeds a specified minimum quantity. This implies that the incentive bonus is not paid when production does not exceed that minimum quantity. If so, clearly, the incentive bonus is not a remuneration received by the respondent-Companys employees "on regular basis"4. Learned counsel for the appellant submitted, however, that there was a Scheme and that suggested regularity of payment. Judged only upon the basis of the Scheme, it must he held that it contemplates situations where the incentive bonus is payable and situations where it is not payable. Judged on the Scheme, therefore, the payments of incentive bonus are not on a regular basis. It would have been another matter had the appellants been able to place material before the Tribunal to show that, despite the terms of the Scheme, there had in fact been, over a substantial period of time, payment of incentive bonus from month to month
### Response:
0
### Explanation:
Judged only upon the basis of the Scheme, it must he held that it contemplates situations where the incentive bonus is payable and situations where it is not payable. Judged on the Scheme, therefore, the payments of incentive bonus are not on a regular basis. It would have been another matter had the appellants been able to place material before the Tribunal to show that, despite the terms of the Scheme, there had in fact been, over a substantial period of time, payment of incentive bonus from month to month
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Bathina Ramakrishna Reddy Vs. The State Of Madras | of subordinate Courts, so as to prevent grave injustice in non, appealable cases. This decision was, however, dissented from by the same High Court inEnat Mondul v. Baloram Dey, 3 Cal. W. N. 581, but was cited with approval by Lord-Williams J. inGulabchand Bangur v. Kabiruddin Ahmed, 58 Cal. -111. In these circumstances, it is worth-while recalling again to mind the decisions of the Privy Council on this subject and the limits stated therein for the exercise of jurisdiction conferred by this section on the High Courts.18. As long ago as 1894, inRajah Amir Hassan Khan v. Sheo Baksh Singh, 11 Ind. App. 237, the Privy Council made the following observations on s. 622 of the former Code of Civil Procedure, which was replaced by s.115 of the Code of 1908:"The question then is, did the Judges of the lower Courts in this case, in the exercise of their jurisdiction, act illegally or with material irregularity. It appears that they had perfect jurisdiction to decide the case, and even if they decided wrongly, they did not exercise their jurisdiction illegally or with material irregularity."In 1917 again inBalakrishna Udayar v. Vasudeva Aiyar, 44 Ind. App. 261, the Board observed:"It will be observed that the section applies to jurisdiction alone, the irregular exercise or non-exercise of it or the illegal assumption of it. The section is not directed against conclusions of law or fact in which the question of jurisdiction is not involved."In 1949, inVenkatagiri Ayyangar v. Hindu Religious Endowments Board, Madras, 76 Ind. App. 67, the Privy Council again examined the scope of s. 115 and observed that they could see no justification for the view that the section was intended to authorise the High Court to interfere and correct gross and palpable errors of subordinate Courts so as to prevent grave injustice in non-appealable cases and that it would be difficult to formulate any standard by which the degree of error of subordinate Courts could be measured. It was said :"Section 115 applies only to cases in which no appeal lies, and, where the Legislature has provided no right of appeal, the manifest intention is that the order of the trial Court, right or wrong, shall be final. The section empowers the High Court to satisfy itself on three matters, (a) that the order of the subordinate Court is within its jurisdiction; (b) that the case is one in which the Court ought to exercise jurisdiction: and (c) that in exercising jurisdiction the Court has not acted illegally, that is, in breach of some provision of law, or with material irregularity, that is, by committing same error of procedure in the course of the trial which is material in that it may have affected the ultimate decision. If the High Court is satisfied on those three matters, it has no power to interfere because it differs, however profoundly, from the conclusions of the subordinate Court on questions of fact or law."19. Later in the same year inJoy Chand Lal Babu v. Kamalaksha Chaudhury, 76 Ind. App. 131, their Lordships had again adverted to this matter and reiterated what they had said in their earlier decision. They pointed out :"There have been a very large number of decisions of Indian High Courts on S. 115 to many of which their Lordships have been referred. Some of such decisions prompt the observation that High Courts have not always appreciated that although error in a decision of a subordinate Court does not by itself involve that the subordinate Court has acted illegally or with material irregularity so as to justify interference in revision under sub-s. (c), nevertheless, if the erroneous decision results in the subordinate court exercising a jurisdiction not vested in it by law, or falling to exercise a jurisdiction so vested, a case for revision arises under sub-s. (a) or sub-s. (b) and sub-s.(c) can be ignored."20. Reference may also be made to the observations of Bose J. in his order of reference inNarayan Sonaji v. Sheshrao Vithoba, A. I. R. 1948 Nag. 258 wherein it was said that the words "illegally" and "material irregularity" do not cover either errors of fact or law. They do not refer to the decision arrived at but to the manner in which it is reached. The errors contemplated relate to material defects of procedure and not to errors of either law or fact after the formalities which the law prescribes have been complied with.21. We are therefore of the opinion that in reversing the order of the executing Court dated 25-4-1945 reviving the execution, the High Court exercised jurisdiction not conferred on it by s. 115 of the Code. It is plain that the order of the Subordinate Judge dated 25-4-1945 was one that he had jurisdiction to make, that in making that order he neither acted in excess of his jurisdiction nor did he assume jurisdiction which he did not possess. It could not be said that in the exercise of it he acted with material irregularity or committed any breach of the procedure laid down for reaching the result. All that happened was that he felt that he bad committed an error in dismissing the main execution while he was merely dealing with an adjournment application. It cannot be said that his omission in not taking into consideration what the decree-holders pleader would have done had he been given the opportunity to make his submission amounts to material irregularity in the exercise of jurisdiction. This speculation was hardly relevant in the view of the case that he took. The Judge had jurisdiction to correct his own error without entering into a discussion of the grounds taken by the decree-holder or the objections raised by the judgment-debtors. We are satisfied therefore that the High Court acted in excess of its jurisdiction when it entertained an application in revision against the order of the Subordinate Judge dated 25-4-1945 and set it aside in exercise of that jurisdiction and remanded the case for further enquiry. | 1[ds]13. It is unnecessary to consider all the points taken in these appeals because, in our opinion, the point canvassed on behalf of the decree-holder that the order of remand was without jurisdiction and that all the proceedings taken subsequent to the order of the executing Court reviving the execution were void, has force. The sole ground on which the Subordinate Judge had ordered restoration of the execution was that he had himself made a sad mistake in dismissing it at the same time that he dismissed the adjournment application without informing the decree-holders counsel that the request for adjournment had been refused and without calling upon him to state what he wanted done in the matter in those circumstances. As the Subordinate, Judge was correcting his own error in the exercise of his inherent powers, it was not necessary for him to investigate into the correctness of the various allegations and counter allegations made by the parties. He was the best judge of the procedure that was usually adopted in his Court in such cases and there is no reason whatsoever for the supposition that when the Subordinate Judge said that he had not given any opportunity to the decree-holders pleader to take any steps in execution of the decree after the dismissal of the adjournment application he was not right. It Could not be seriously suggested that such an opportunity was given to the decree-holder, the dismissal order of the execution having been made at the same moment of time as the order dismissing the application for adjournment. It is quite clear that the interests of justice demanded that the decree-holders pleader should have been informed that his request for adjournment had been refused, and further given opportunity to state what he wanted, done in that situation. It was wholly unnecessary in such circumstances to speculate what the pleader would have done when faced with that situation. The solid fact remains that he was not given that opportunity and that being so, the order dismissing the execution was bad and was rightly corrected by the Court on its own initiative in the exercise of its inherentis plain that the High Court had no jurisdiction in the exercise of its appellate jurisdiction to reverse this decision. In the remand order itself, it was held that it was difficult to say that the order by itself amounted to final determination of any question relating to execution, discharge or satisfaction of a decree and that being so, it did not fall within the ambit of s. 47, Civil P. C. We are in entire agreement with this observation. The proceedings that commenced with the decree-holders application for restoration of the execution and terminated with the order of revival can in no sense be said to relate to the determination of any question concerning the execution, discharge or satisfaction of the decree. Such proceedings are in their nature collateral to the execution and are independent of it.15. It was not contended and could not be seriously urged, that an order under s. 151 simpliciter is appealable. Under the Code of Civil Procedure, certain specific orders mentioned in s. l04 and O. 43, R. 1 only are appealable and no appeal lies from any other orders (Vide s. 105, Civil P. C.). An order made under s. 151 is not included in the category of appealable orders.We are therefore of the opinion that in reversing the order of the executing Court dated 25-4-1945 reviving the execution, the High Court exercised jurisdiction not conferred on it by s. 115 of the Code. It is plain that the order of the Subordinate Judge dated 25-4-1945 was one that he had jurisdiction to make, that in making that order he neither acted in excess of his jurisdiction nor did he assume jurisdiction which he did not possess. It could not be said that in the exercise of it he acted with material irregularity or committed any breach of the procedure laid down for reaching the result. All that happened was that he felt that he bad committed an error in dismissing the main execution while he was merely dealing with an adjournment application. It cannot be said that his omission in not taking into consideration what the decree-holders pleader would have done had he been given the opportunity to make his submission amounts to material irregularity in the exercise of jurisdiction. This speculation was hardly relevant in the view of the case that he took. The Judge had jurisdiction to correct his own error without entering into a discussion of the grounds taken by the decree-holder or the objections raised by the judgment-debtors. We are satisfied therefore that the High Court acted in excess of its jurisdiction when it entertained an application in revision against the order of the Subordinate Judge dated 25-4-1945 and set it aside in exercise of that jurisdiction and remanded the case for further enquiry. | 1 | 5,365 | 873 | ### 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 subordinate Courts, so as to prevent grave injustice in non, appealable cases. This decision was, however, dissented from by the same High Court inEnat Mondul v. Baloram Dey, 3 Cal. W. N. 581, but was cited with approval by Lord-Williams J. inGulabchand Bangur v. Kabiruddin Ahmed, 58 Cal. -111. In these circumstances, it is worth-while recalling again to mind the decisions of the Privy Council on this subject and the limits stated therein for the exercise of jurisdiction conferred by this section on the High Courts.18. As long ago as 1894, inRajah Amir Hassan Khan v. Sheo Baksh Singh, 11 Ind. App. 237, the Privy Council made the following observations on s. 622 of the former Code of Civil Procedure, which was replaced by s.115 of the Code of 1908:"The question then is, did the Judges of the lower Courts in this case, in the exercise of their jurisdiction, act illegally or with material irregularity. It appears that they had perfect jurisdiction to decide the case, and even if they decided wrongly, they did not exercise their jurisdiction illegally or with material irregularity."In 1917 again inBalakrishna Udayar v. Vasudeva Aiyar, 44 Ind. App. 261, the Board observed:"It will be observed that the section applies to jurisdiction alone, the irregular exercise or non-exercise of it or the illegal assumption of it. The section is not directed against conclusions of law or fact in which the question of jurisdiction is not involved."In 1949, inVenkatagiri Ayyangar v. Hindu Religious Endowments Board, Madras, 76 Ind. App. 67, the Privy Council again examined the scope of s. 115 and observed that they could see no justification for the view that the section was intended to authorise the High Court to interfere and correct gross and palpable errors of subordinate Courts so as to prevent grave injustice in non-appealable cases and that it would be difficult to formulate any standard by which the degree of error of subordinate Courts could be measured. It was said :"Section 115 applies only to cases in which no appeal lies, and, where the Legislature has provided no right of appeal, the manifest intention is that the order of the trial Court, right or wrong, shall be final. The section empowers the High Court to satisfy itself on three matters, (a) that the order of the subordinate Court is within its jurisdiction; (b) that the case is one in which the Court ought to exercise jurisdiction: and (c) that in exercising jurisdiction the Court has not acted illegally, that is, in breach of some provision of law, or with material irregularity, that is, by committing same error of procedure in the course of the trial which is material in that it may have affected the ultimate decision. If the High Court is satisfied on those three matters, it has no power to interfere because it differs, however profoundly, from the conclusions of the subordinate Court on questions of fact or law."19. Later in the same year inJoy Chand Lal Babu v. Kamalaksha Chaudhury, 76 Ind. App. 131, their Lordships had again adverted to this matter and reiterated what they had said in their earlier decision. They pointed out :"There have been a very large number of decisions of Indian High Courts on S. 115 to many of which their Lordships have been referred. Some of such decisions prompt the observation that High Courts have not always appreciated that although error in a decision of a subordinate Court does not by itself involve that the subordinate Court has acted illegally or with material irregularity so as to justify interference in revision under sub-s. (c), nevertheless, if the erroneous decision results in the subordinate court exercising a jurisdiction not vested in it by law, or falling to exercise a jurisdiction so vested, a case for revision arises under sub-s. (a) or sub-s. (b) and sub-s.(c) can be ignored."20. Reference may also be made to the observations of Bose J. in his order of reference inNarayan Sonaji v. Sheshrao Vithoba, A. I. R. 1948 Nag. 258 wherein it was said that the words "illegally" and "material irregularity" do not cover either errors of fact or law. They do not refer to the decision arrived at but to the manner in which it is reached. The errors contemplated relate to material defects of procedure and not to errors of either law or fact after the formalities which the law prescribes have been complied with.21. We are therefore of the opinion that in reversing the order of the executing Court dated 25-4-1945 reviving the execution, the High Court exercised jurisdiction not conferred on it by s. 115 of the Code. It is plain that the order of the Subordinate Judge dated 25-4-1945 was one that he had jurisdiction to make, that in making that order he neither acted in excess of his jurisdiction nor did he assume jurisdiction which he did not possess. It could not be said that in the exercise of it he acted with material irregularity or committed any breach of the procedure laid down for reaching the result. All that happened was that he felt that he bad committed an error in dismissing the main execution while he was merely dealing with an adjournment application. It cannot be said that his omission in not taking into consideration what the decree-holders pleader would have done had he been given the opportunity to make his submission amounts to material irregularity in the exercise of jurisdiction. This speculation was hardly relevant in the view of the case that he took. The Judge had jurisdiction to correct his own error without entering into a discussion of the grounds taken by the decree-holder or the objections raised by the judgment-debtors. We are satisfied therefore that the High Court acted in excess of its jurisdiction when it entertained an application in revision against the order of the Subordinate Judge dated 25-4-1945 and set it aside in exercise of that jurisdiction and remanded the case for further enquiry.
### Response:
1
### Explanation:
13. It is unnecessary to consider all the points taken in these appeals because, in our opinion, the point canvassed on behalf of the decree-holder that the order of remand was without jurisdiction and that all the proceedings taken subsequent to the order of the executing Court reviving the execution were void, has force. The sole ground on which the Subordinate Judge had ordered restoration of the execution was that he had himself made a sad mistake in dismissing it at the same time that he dismissed the adjournment application without informing the decree-holders counsel that the request for adjournment had been refused and without calling upon him to state what he wanted done in the matter in those circumstances. As the Subordinate, Judge was correcting his own error in the exercise of his inherent powers, it was not necessary for him to investigate into the correctness of the various allegations and counter allegations made by the parties. He was the best judge of the procedure that was usually adopted in his Court in such cases and there is no reason whatsoever for the supposition that when the Subordinate Judge said that he had not given any opportunity to the decree-holders pleader to take any steps in execution of the decree after the dismissal of the adjournment application he was not right. It Could not be seriously suggested that such an opportunity was given to the decree-holder, the dismissal order of the execution having been made at the same moment of time as the order dismissing the application for adjournment. It is quite clear that the interests of justice demanded that the decree-holders pleader should have been informed that his request for adjournment had been refused, and further given opportunity to state what he wanted, done in that situation. It was wholly unnecessary in such circumstances to speculate what the pleader would have done when faced with that situation. The solid fact remains that he was not given that opportunity and that being so, the order dismissing the execution was bad and was rightly corrected by the Court on its own initiative in the exercise of its inherentis plain that the High Court had no jurisdiction in the exercise of its appellate jurisdiction to reverse this decision. In the remand order itself, it was held that it was difficult to say that the order by itself amounted to final determination of any question relating to execution, discharge or satisfaction of a decree and that being so, it did not fall within the ambit of s. 47, Civil P. C. We are in entire agreement with this observation. The proceedings that commenced with the decree-holders application for restoration of the execution and terminated with the order of revival can in no sense be said to relate to the determination of any question concerning the execution, discharge or satisfaction of the decree. Such proceedings are in their nature collateral to the execution and are independent of it.15. It was not contended and could not be seriously urged, that an order under s. 151 simpliciter is appealable. Under the Code of Civil Procedure, certain specific orders mentioned in s. l04 and O. 43, R. 1 only are appealable and no appeal lies from any other orders (Vide s. 105, Civil P. C.). An order made under s. 151 is not included in the category of appealable orders.We are therefore of the opinion that in reversing the order of the executing Court dated 25-4-1945 reviving the execution, the High Court exercised jurisdiction not conferred on it by s. 115 of the Code. It is plain that the order of the Subordinate Judge dated 25-4-1945 was one that he had jurisdiction to make, that in making that order he neither acted in excess of his jurisdiction nor did he assume jurisdiction which he did not possess. It could not be said that in the exercise of it he acted with material irregularity or committed any breach of the procedure laid down for reaching the result. All that happened was that he felt that he bad committed an error in dismissing the main execution while he was merely dealing with an adjournment application. It cannot be said that his omission in not taking into consideration what the decree-holders pleader would have done had he been given the opportunity to make his submission amounts to material irregularity in the exercise of jurisdiction. This speculation was hardly relevant in the view of the case that he took. The Judge had jurisdiction to correct his own error without entering into a discussion of the grounds taken by the decree-holder or the objections raised by the judgment-debtors. We are satisfied therefore that the High Court acted in excess of its jurisdiction when it entertained an application in revision against the order of the Subordinate Judge dated 25-4-1945 and set it aside in exercise of that jurisdiction and remanded the case for further enquiry.
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SUSHILABEN INDRAVADAN GANDHI & ANR. Vs. THE NEW INDIA ASSURANCE COMPANY LIMITED & ORS. | Investment Corpn. of Orissa Ltd. v. New India Assurance Co. Ltd. (2016) 15 SCC 315 , this Court referred to the contra proferentum rule as follows: 10. We proceed to deal with the submission made by the counsel for the appellant regarding the rule of contra proferentem. The Common Law rule of construction verba chartarum fortius accipiuntur contra proferentem means that ambiguity in the wording of the policy is to be resolved against the party who prepared it. MacGillivray on Insurance Law [ Legh-Jones, Longmore et al (Eds.), MacGillivray on Insurance Law (9th Edn., Sweet and Maxwell, London 1997) at p. 280.] deals with the rule of contra proferentem as follows: The contra proferentem rule of construction arises only where there is a wording employed by those drafting the clause which leaves the court unable to decide by ordinary principles of interpretation which of two meanings is the right one. One must not use the rule to create the ambiguity — one must find the ambiguity first. The words should receive their ordinary and natural meaning unless that is displaced by a real ambiguity either appearing on the face of the policy or, possibly, by extrinsic evidence of surrounding circumstances. (footnotes omitted) 11.Colinvauxs Law of Insurance [ Robert and Merkin (Eds.), Colinvauxs Law of Insurance (6th Edn., 1990) at p. 42.] propounds the contra proferentem rule as under: Quite apart from contradictory clauses in policies, ambiguities are common in them and it is often very uncertain what the parties to them mean. In such cases the rule is that the policy, being drafted in language chosen by the insurers, must be taken most strongly against them. It is construed contra proferentem, against those who offer it. In a doubtful case the turn of the scale ought to be given against the speaker, because he has not clearly and fully expressed himself. Nothing is easier than for the insurers to express themselves in plain terms. The assured cannot put his own meaning upon a policy, but, where it is ambiguous, it is to be construed in the sense in which he might reasonably have understood it. If the insurers wish to escape liability under given circumstances, they must use words admitting of no possible doubt. But a clause is only to be contra proferentem in cases of real ambiguity. One must not use the rule to create an ambiguity. One must find the ambiguity first. Even where a clause by itself is ambiguous if, by looking at the whole policy, its meaning becomes clear, there is no room for the application of the doctrine. So also where if one meaning is given to a clause, the rest of the policy becomes clear, the policy should be construed accordingly.(footnotes omitted) 34. The High Court held in the impugned judgment that as additional premium had been paid so as to attract the applicability of IMT-5, in any case the Insurance Company would be liable under the policy to pay compensation in the case of death to unnamed passengers other than the insured and his paid driver or cleaner, Dr. Alpesh Gandhi being one such unnamed passenger. This was done on the footing that the exception to IMT-5 was that a person in the employ of the insured coming within the scope of the Workmens Compensation Act, 1923 is excluded from the cover, but that as Dr. Alpesh Gandhi did not come within the scope of the Workmens Compensation Act, compensation payable due to his death in a motor accident would be covered by IMT-5. We see no reason to disturb this finding. The inapplicability of endorsement IMT-16, as additional premium had not been paid would, therefore, make no difference on the facts of this case. Section-II, entitled liability to third parties in the insurance policy dated 17.04.1997 set out hereinabove exempts the insurance company from the death of a person carried in a motor car where such death arises out of and in the course of the employment of such person by the insurer. The question that arises before us is as to whether the expression employment is to be construed widely or narrowly – if widely construed, a person may be said to employed by an employer even if he is not a regular employee of the employer. However, the wider meaning that has been canvassed for by the insurance company cannot possibly be given, given the language immediately before, namely, in the course of, thereby indicating that the employment can only be that of a person regularly employed by the employer. Even otherwise, assuming that there is an ambiguity or doubt, the contra proferentum rule referred to hereinabove, must be applied, thus making it clear that such employment refers only to regular employees of the Institute, which, as we have seen hereinabove, Dr. Alpesh Gandhi was certainly not. 35. The Appellants placed reliance on an Order of this Court dated 05.03.2019, which reads as follows: 1. Leave granted. 2. The limited question to be examined arising from the impugned order is the effect of the direction that the insurance company is liable to pay only a sum of Rs.25,000/- and the balance amount may be recovered from the respondent No.2. 3. The appellant(s)/claimant(s) seeks to contend that it is impossible for the appellants to enforce their remedy specially giving their economic status. 4. On the conspectus of the matter and on hearing learned counsel for the parties, we consider it appropriate to direct that full amount should be paid by respondent No.1-Insurance Company and the amount beyond the liability to be paid by respondent No.1 may be recovered by the Insurance company from respondent No.2. 5. The appeal accordingly stands disposed of. Parties to bear their own costs. This Order seems to have been passed under Article 142 of the Constitution on the facts of that case, without reference to any case law. In the view that we have taken, it is unnecessary for us to place reliance on such Order. | 1[ds]24. A conspectus of all the aforesaid judgments would show that in a society which has moved away from being a simple agrarian society to a complex modern society in the computer age, the earlier simple test of control, whether or not actually exercised, has now yielded more complex tests in order to decide complex matters which would have factors both for and against the contract being a contract of service as against a contract for service. The early control of the employer test in the sense of controlling not just the work that is given but the manner in which it is to be done obviously breaks down when it comes to professionals who may be employed25. Given the fact that this balancing process may often not yield a clear result in hybrid situations, the context in which a finding is to be made assumes great importance. Thus, if the context is one of a beneficial legislation being applied to weaker sections of society, the balance tilts in favour of declaring the contract to be one of service, as was done in Dharangadhara (supra), Birdhichand (supra), D.C.Dewan (supra), Silver Jubilee (supra), Hussainbhai (supra), Shining Tailors (supra), P.M. Patel (supra), and Indian Banks (supra). On the other hand, where the context is that of legislation other than beneficial legislation or only in the realm of contract, and the context of that legislation or contract would point in the direction of the relationship being a contract for service then, other things being equal, the context may then tilt the balance in favour of the contract being construed to be one which is for service26. Looked at in this light, let us now examine the agreement between Dr. Alpesh Gandhi and the Respondent No. 3. The factors which would lead to the contract being one for service may be enumerated as follows:(i) The heading of the contract itself states that it is a contract for service(ii) The designation of Dr. Gandhi is an Honorary Ophthalmic Surgeon(iii) INR 4000 per month is declared to be honorarium as opposed to salary(iv) In addition to INR 4000 per month, Dr. Gandhi is paid a percentage of the earnings of the Respondent No. 3 from out of the OPD, Operation Fee component of Hospitalization Bills, and Room Visiting Fees(v) The arbitration clause which speaks of disputes arising in the course of the tenure of this contract will be referred to the Managing Committee of the Institute, the decision of the Managing Committee being final, is also a clause which is unusual in a pure master-servant relationship(vi) The fact that the appointment is contractual – for 3 years – and extendable only by mutual consent, is another pointer to the fact that the contract is for service, which is tenure based(vii) The fact that termination of the contract can be by notice on either side would again show that the parties are dealing with each other more as equals than as master-servant(viii) Clause XI of the agreement also makes it clear that the earlier appointment that was made of Dr. Gandhi would cease the moment this contract comes into existence, Dr. Gandhi no longer remaining as a regular employee of the Institute27. As against the aforesaid factors which would point to the contract the contract being a contract for service, the following factors would point in the opposite direction:(i) The employment is full-time. Dr. Gandhi can do no other work, and apart from the seven types of work that Dr. Gandhi is to perform under Clause IV, any other assignment that may get created in the course of time may also be assigned to him at the employers discretion(ii) Dr. Gandhi is to work on all days except weekly offs and holidays that are given to him by the employer. However, what is important is that though governed by the leave rules of the Institute as in vogue from time to time, Dr. Gandhi will not be entitled to any financial benefit of any kind as may be applicable to other regular employees of the Institute under Clause V(iii) Dr. Gandhi will be governed by the Conduct Rules of the Institute as invoked from time to time and as applicable to regular employees of the Institute(iv) That in the event of a proven case of indiscipline or breach of trust, the Institute reserves a right to terminate the contract at any time without giving any compensation whatsoever28. If the aforesaid factors are weighed in the scales, it is clear that the factors which make the contract one for service outweigh the factors which would point in the opposite direction. First and foremost, the intention of the parties is to be gathered from the terms of the contract. The terms of the contract make it clear that the contract is one for service, and that with effect from the date on which the contract begins, Dr. Gandhi shall no longer remain as a regular employee of the Institute, making it clear that his services are now no longer as a regular employee but as an independent professional. Secondly, the remuneration is described as honorarium, and consistent with the position that Dr. Gandhi is an independent professional working in the Institute in his own right, he gets a share of the spoils as has been pointed out hereinabove. Thirdly, he enters into the agreement on equal terms as the agreement is for three years, extendable only by mutual consent of both the parties. Fourthly, his services cannot be terminated in the usual manner of the other regular employees of the Institute but are terminable on either side by notice. The fact that Dr. Gandhi will devote full-time attention to the Institute is the obverse side of piece-rated work which, as has been held in some of the judgments hereinabove, can yet amount to contracts of service, being a neutral factor. Likewise, the fact that Dr. Gandhi must devote his entire attention to the Institute would not necessarily lead to the conclusion that de hors all other factors the contract is one of service. Equally important is the fact that it is necessary to state Dr. Gandhi will be governed by the Conduct Rules and by the Leave Rules of the Institute, but by no other Rules. And even though the Leave Rules apply to Dr. Gandhi, since he is not a regular employee, he is not entitled to any financial benefit as might be applicable to other regular employees. Equally, arbitration of disputes between Dr. Gandhi and the Institute being referred to the Managing Committee of the Institute would show that they have entered into the contract not as master and servant but as employer and independent professional. A conspectus of all the above would certainly lead to the conclusion, applying the economic reality test, that the contract entered into between the parties is one between an Institute and an independent professional29. Even otherwise, it is well-settled that exemption of liability clauses in insurance contracts are to be construed in the case of ambiguity contra proferentum34. The High Court held in the impugned judgment that as additional premium had been paid so as to attract the applicability of IMT-5, in any case the Insurance Company would be liable under the policy to pay compensation in the case of death to unnamed passengers other than the insured and his paid driver or cleaner, Dr. Alpesh Gandhi being one such unnamed passenger. This was done on the footing that the exception to IMT-5 was that a person in the employ of the insured coming within the scope of the Workmens Compensation Act, 1923 is excluded from the cover, but that as Dr. Alpesh Gandhi did not come within the scope of the Workmens Compensation Act, compensation payable due to his death in a motor accident would be covered by IMT-5. We see no reason to disturb this finding. The inapplicability of endorsement IMT-16, as additional premium had not been paid would, therefore, make no difference on the facts of this case. Section-II, entitled liability to third parties in the insurance policy dated 17.04.1997 set out hereinabove exempts the insurance company from the death of a person carried in a motor car where such death arises out of and in the course of the employment of such person by the insurer. The question that arises before us is as to whether the expression employment is to be construed widely or narrowly – if widely construed, a person may be said to employed by an employer even if he is not a regular employee of the employer. However, the wider meaning that has been canvassed for by the insurance company cannot possibly be given, given the language immediately before, namely, in the course of, thereby indicating that the employment can only be that of a person regularly employed by the employer. Even otherwise, assuming that there is an ambiguity or doubt, the contra proferentum rule referred to hereinabove, must be applied, thus making it clear that such employment refers only to regular employees of the Institute, which, as we have seen hereinabove, Dr. Alpesh Gandhi was certainly notThis Order seems to have been passed under Article 142 of the Constitution on the facts of that case, without reference to any case law. In the view that we have taken, it is unnecessary for us to place reliance on such Order. | 1 | 15,416 | 1,741 | ### Instruction:
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Investment Corpn. of Orissa Ltd. v. New India Assurance Co. Ltd. (2016) 15 SCC 315 , this Court referred to the contra proferentum rule as follows: 10. We proceed to deal with the submission made by the counsel for the appellant regarding the rule of contra proferentem. The Common Law rule of construction verba chartarum fortius accipiuntur contra proferentem means that ambiguity in the wording of the policy is to be resolved against the party who prepared it. MacGillivray on Insurance Law [ Legh-Jones, Longmore et al (Eds.), MacGillivray on Insurance Law (9th Edn., Sweet and Maxwell, London 1997) at p. 280.] deals with the rule of contra proferentem as follows: The contra proferentem rule of construction arises only where there is a wording employed by those drafting the clause which leaves the court unable to decide by ordinary principles of interpretation which of two meanings is the right one. One must not use the rule to create the ambiguity — one must find the ambiguity first. The words should receive their ordinary and natural meaning unless that is displaced by a real ambiguity either appearing on the face of the policy or, possibly, by extrinsic evidence of surrounding circumstances. (footnotes omitted) 11.Colinvauxs Law of Insurance [ Robert and Merkin (Eds.), Colinvauxs Law of Insurance (6th Edn., 1990) at p. 42.] propounds the contra proferentem rule as under: Quite apart from contradictory clauses in policies, ambiguities are common in them and it is often very uncertain what the parties to them mean. In such cases the rule is that the policy, being drafted in language chosen by the insurers, must be taken most strongly against them. It is construed contra proferentem, against those who offer it. In a doubtful case the turn of the scale ought to be given against the speaker, because he has not clearly and fully expressed himself. Nothing is easier than for the insurers to express themselves in plain terms. The assured cannot put his own meaning upon a policy, but, where it is ambiguous, it is to be construed in the sense in which he might reasonably have understood it. If the insurers wish to escape liability under given circumstances, they must use words admitting of no possible doubt. But a clause is only to be contra proferentem in cases of real ambiguity. One must not use the rule to create an ambiguity. One must find the ambiguity first. Even where a clause by itself is ambiguous if, by looking at the whole policy, its meaning becomes clear, there is no room for the application of the doctrine. So also where if one meaning is given to a clause, the rest of the policy becomes clear, the policy should be construed accordingly.(footnotes omitted) 34. The High Court held in the impugned judgment that as additional premium had been paid so as to attract the applicability of IMT-5, in any case the Insurance Company would be liable under the policy to pay compensation in the case of death to unnamed passengers other than the insured and his paid driver or cleaner, Dr. Alpesh Gandhi being one such unnamed passenger. This was done on the footing that the exception to IMT-5 was that a person in the employ of the insured coming within the scope of the Workmens Compensation Act, 1923 is excluded from the cover, but that as Dr. Alpesh Gandhi did not come within the scope of the Workmens Compensation Act, compensation payable due to his death in a motor accident would be covered by IMT-5. We see no reason to disturb this finding. The inapplicability of endorsement IMT-16, as additional premium had not been paid would, therefore, make no difference on the facts of this case. Section-II, entitled liability to third parties in the insurance policy dated 17.04.1997 set out hereinabove exempts the insurance company from the death of a person carried in a motor car where such death arises out of and in the course of the employment of such person by the insurer. The question that arises before us is as to whether the expression employment is to be construed widely or narrowly – if widely construed, a person may be said to employed by an employer even if he is not a regular employee of the employer. However, the wider meaning that has been canvassed for by the insurance company cannot possibly be given, given the language immediately before, namely, in the course of, thereby indicating that the employment can only be that of a person regularly employed by the employer. Even otherwise, assuming that there is an ambiguity or doubt, the contra proferentum rule referred to hereinabove, must be applied, thus making it clear that such employment refers only to regular employees of the Institute, which, as we have seen hereinabove, Dr. Alpesh Gandhi was certainly not. 35. The Appellants placed reliance on an Order of this Court dated 05.03.2019, which reads as follows: 1. Leave granted. 2. The limited question to be examined arising from the impugned order is the effect of the direction that the insurance company is liable to pay only a sum of Rs.25,000/- and the balance amount may be recovered from the respondent No.2. 3. The appellant(s)/claimant(s) seeks to contend that it is impossible for the appellants to enforce their remedy specially giving their economic status. 4. On the conspectus of the matter and on hearing learned counsel for the parties, we consider it appropriate to direct that full amount should be paid by respondent No.1-Insurance Company and the amount beyond the liability to be paid by respondent No.1 may be recovered by the Insurance company from respondent No.2. 5. The appeal accordingly stands disposed of. Parties to bear their own costs. This Order seems to have been passed under Article 142 of the Constitution on the facts of that case, without reference to any case law. In the view that we have taken, it is unnecessary for us to place reliance on such Order.
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Gandhi can do no other work, and apart from the seven types of work that Dr. Gandhi is to perform under Clause IV, any other assignment that may get created in the course of time may also be assigned to him at the employers discretion(ii) Dr. Gandhi is to work on all days except weekly offs and holidays that are given to him by the employer. However, what is important is that though governed by the leave rules of the Institute as in vogue from time to time, Dr. Gandhi will not be entitled to any financial benefit of any kind as may be applicable to other regular employees of the Institute under Clause V(iii) Dr. Gandhi will be governed by the Conduct Rules of the Institute as invoked from time to time and as applicable to regular employees of the Institute(iv) That in the event of a proven case of indiscipline or breach of trust, the Institute reserves a right to terminate the contract at any time without giving any compensation whatsoever28. If the aforesaid factors are weighed in the scales, it is clear that the factors which make the contract one for service outweigh the factors which would point in the opposite direction. First and foremost, the intention of the parties is to be gathered from the terms of the contract. The terms of the contract make it clear that the contract is one for service, and that with effect from the date on which the contract begins, Dr. Gandhi shall no longer remain as a regular employee of the Institute, making it clear that his services are now no longer as a regular employee but as an independent professional. Secondly, the remuneration is described as honorarium, and consistent with the position that Dr. Gandhi is an independent professional working in the Institute in his own right, he gets a share of the spoils as has been pointed out hereinabove. Thirdly, he enters into the agreement on equal terms as the agreement is for three years, extendable only by mutual consent of both the parties. Fourthly, his services cannot be terminated in the usual manner of the other regular employees of the Institute but are terminable on either side by notice. The fact that Dr. Gandhi will devote full-time attention to the Institute is the obverse side of piece-rated work which, as has been held in some of the judgments hereinabove, can yet amount to contracts of service, being a neutral factor. Likewise, the fact that Dr. Gandhi must devote his entire attention to the Institute would not necessarily lead to the conclusion that de hors all other factors the contract is one of service. Equally important is the fact that it is necessary to state Dr. Gandhi will be governed by the Conduct Rules and by the Leave Rules of the Institute, but by no other Rules. And even though the Leave Rules apply to Dr. Gandhi, since he is not a regular employee, he is not entitled to any financial benefit as might be applicable to other regular employees. Equally, arbitration of disputes between Dr. Gandhi and the Institute being referred to the Managing Committee of the Institute would show that they have entered into the contract not as master and servant but as employer and independent professional. A conspectus of all the above would certainly lead to the conclusion, applying the economic reality test, that the contract entered into between the parties is one between an Institute and an independent professional29. Even otherwise, it is well-settled that exemption of liability clauses in insurance contracts are to be construed in the case of ambiguity contra proferentum34. The High Court held in the impugned judgment that as additional premium had been paid so as to attract the applicability of IMT-5, in any case the Insurance Company would be liable under the policy to pay compensation in the case of death to unnamed passengers other than the insured and his paid driver or cleaner, Dr. Alpesh Gandhi being one such unnamed passenger. This was done on the footing that the exception to IMT-5 was that a person in the employ of the insured coming within the scope of the Workmens Compensation Act, 1923 is excluded from the cover, but that as Dr. Alpesh Gandhi did not come within the scope of the Workmens Compensation Act, compensation payable due to his death in a motor accident would be covered by IMT-5. We see no reason to disturb this finding. The inapplicability of endorsement IMT-16, as additional premium had not been paid would, therefore, make no difference on the facts of this case. Section-II, entitled liability to third parties in the insurance policy dated 17.04.1997 set out hereinabove exempts the insurance company from the death of a person carried in a motor car where such death arises out of and in the course of the employment of such person by the insurer. The question that arises before us is as to whether the expression employment is to be construed widely or narrowly – if widely construed, a person may be said to employed by an employer even if he is not a regular employee of the employer. However, the wider meaning that has been canvassed for by the insurance company cannot possibly be given, given the language immediately before, namely, in the course of, thereby indicating that the employment can only be that of a person regularly employed by the employer. Even otherwise, assuming that there is an ambiguity or doubt, the contra proferentum rule referred to hereinabove, must be applied, thus making it clear that such employment refers only to regular employees of the Institute, which, as we have seen hereinabove, Dr. Alpesh Gandhi was certainly notThis Order seems to have been passed under Article 142 of the Constitution on the facts of that case, without reference to any case law. In the view that we have taken, it is unnecessary for us to place reliance on such Order.
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Vijendrajit Ayodhya Prasad Goel Vs. State of Bombay | raided by the police. He further held that as admittedly the appellant was in charge of the godown, the inference was that he was in control and possession of the articles found therein. In the result he convicted the appellant and sentenced him to three months rigorous imprisonment and, fine of Rs. 1000. Against the decision of the Presidency Magistrate, an appeal was filed in the High Court but was summarily dismissed. This appeal is before us by special leave.2. The principal question raised in this appeal is that there is no. evidence on the basis of which it could be held proved that the appellant was found in possession of twenty gallons eight drums of rectified spirit on 8-6-1950. It was contended that the Magistrate was not justified in making use of the statement of the accused made under S. 342, Cr. P. C., for the purpose of finding that fact. It was said that the godown was owned by a limited body, Frank Rose & Co., Ltd., and the appellant was paying rent for the godown under their instructions, and that in the absence of evidence that the appellant ever visited the godown or had anything to do with the business carried on therein, it could not be held that the rectified spirit recovered from the godown was in his possession. This contention might have had force if the conviction of the accused was based merely on his statement recorded under S. 342, Cr. P.C., which could not be regarded as evidence, but this is not so.3. Pitalwalla, P. W. 1, gave evidence that the godown from where the rectified spirit was recovered was in possession of the appellant. He was not cross examined on this point. P. W. 3 also described the godown as the godown of the appellant. He was also not questioned on this point. If the fact that the godown was in the possession and charge of the appellant had been denied, further evidence would have been led on the point as the prosecution had the rent receipts signed by the appellant in their possession. As the appellant admitted that he was in charge of the godown, further evidence was not led an the point. The Magistrate was in this situation fully justified in referring to the statement of the accused under S. 342 as supporting the prosecution case concerning the possession of the godown. The contention that the Magistrate made use of the inculpatory part of the accuseds statement and excluded the exculpatory part does not seem to be correct. The statement under S. 342 did not consist of two portions, part inculpatory and part exculpatory. It concerned itself with two facts. The accused admitted that he was in charge of the godown, he denied that the rectified spirit was found in that godown. He alleged that the rectified spirit was found outside it. This part of his statement was proved untrue by the prosecution evidence and had no. intimate connection with the statement concerning the possession of the godown.4. Mr. Umrigar next argued that even if the appellant was in possession of the godown, from that circumstance an inference could not be drawn that the rectified spirit recovered from the godown was necessarily in his possession or was there with his knowledge. It was not suggested that the godown was accessible to all and sundry. A servant working under the appellant was actually inside the godown filling the bottles with the rectified spirit. As many as 108 bottles and two drums of rectified spirit and various other articles were found in this godown. All that was suggested was that these had been planted there by the police but it was not said that as the godown was accessible to several other persons they might have kept the spirit there. The suggestion that the police placed the articles in the godown cannot bear examination in view of the evidence and in these circumstances the Presidency Magistrate was justified in drawing the inference that these articles were in possession of the appellant who was in possession of the godown, when the defence of the accused that the articles were found outside the godown was negatived. Be that as it may, in our view this Court would not be justified in disturbing the decision of the Courts below on special leave merely on the ground that perhaps a different inference could also have been drawn from the facts found in the case.5. Mr. Umrigar next contended that only one bottle out of the articles recovered at the raid was sent for analysis and that it was not proved that all the bottles and the drums that were recovered from the godown contained rectified spirit. He said these might well have contained phenyle, the manufacture of which the company admittedly was carrying on in that godown. This argument cannot be seriously considered. It was wholly unnecessary to send all the bottles recovered by the police in the presence of panches and which contained the same stuff for purpose of analysis. This argument is therefore rejected.6. It was next contended that no. permit was necessary for possession of rectified spirit because it falls in the category of medical preparations. This contention again is without substance. No. evidence has been led that this falls in the category of medical preparations. On the other hand, rectified spirit clearly falls within the definition of an intoxicant and its possession without permit is prohibited by the provisions of S. 66 (b) of the Act. Section 2 (22) of the Act defines an "intoxicant" as including Iiquor. Sub-section (24) defines liquor as including spirits of wine, methyleted spirit wine, beer, toddy and all liquids consisting of alcohol. From the chemical analysts report it appears that the rectified spirit found in the possession of the appellant was 94 v/v of ethyl alcohol. It therefore clearly fell within the definition of intoxicant, as given in S. (22) of Act. This contention is therefore repelled. | 0[ds]It was contended that the Magistrate was not justified in making use of the statement of the accused made under S. 342, Cr. P. C., for the purpose of finding that fact. It was said that the godown was owned by a limited body, Frank Rose & Co., Ltd., and the appellant was paying rent for the godown under their instructions, and that in the absence of evidence that the appellant ever visited the godown or had anything to do with the business carried on therein, it could not be held that the rectified spirit recovered from the godown was in his possession.This contention might have had force if the conviction of the accused was based merely on his statement recorded under S. 342, Cr. P.C., which could not be regarded as evidence, but this is notaccused admitted that he was in charge of the godown, he denied that the rectified spirit was found in that godown. He alleged that the rectified spirit was found outside it. This part of his statement was proved untrue by the prosecution evidence and had no. intimate connection with the statement concerning the possession of thesuggestion that the police placed the articles in the godown cannot bear examination in view of the evidence and in these circumstances the Presidency Magistrate was justified in drawing the inference that these articles were in possession of the appellant who was in possession of the godown, when the defence of the accused that the articles were found outside the godown was negatived. Be that as it may, in our view this Court would not be justified in disturbing the decision of the Courts below on special leave merely on the ground that perhaps a different inference could also have been drawn from the facts found in theargument cannot be seriously considered. It was wholly unnecessary to send all the bottles recovered by the police in the presence of panches and which contained the same stuff for purpose of analysis. This argument is thereforecontention again is without substance. No. evidence has been led that this falls in the category of medical preparations. On the other hand, rectified spirit clearly falls within the definition of an intoxicant and its possession without permit is prohibited by the provisions of S. 66 (b) of the Act. Section 2 (22) of the Act defines an "intoxicant" as including Iiquor.(24) defines liquor as including spirits of wine, methyleted spirit wine, beer, toddy and all liquids consisting of alcohol. From the chemical analysts report it appears that the rectified spirit found in the possession of the appellant was 94 v/v of ethyl alcohol. It therefore clearly fell within the definition of intoxicant, as given in S. (22) of Act. This contention is therefore repelled. | 0 | 1,198 | 512 | ### Instruction:
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raided by the police. He further held that as admittedly the appellant was in charge of the godown, the inference was that he was in control and possession of the articles found therein. In the result he convicted the appellant and sentenced him to three months rigorous imprisonment and, fine of Rs. 1000. Against the decision of the Presidency Magistrate, an appeal was filed in the High Court but was summarily dismissed. This appeal is before us by special leave.2. The principal question raised in this appeal is that there is no. evidence on the basis of which it could be held proved that the appellant was found in possession of twenty gallons eight drums of rectified spirit on 8-6-1950. It was contended that the Magistrate was not justified in making use of the statement of the accused made under S. 342, Cr. P. C., for the purpose of finding that fact. It was said that the godown was owned by a limited body, Frank Rose & Co., Ltd., and the appellant was paying rent for the godown under their instructions, and that in the absence of evidence that the appellant ever visited the godown or had anything to do with the business carried on therein, it could not be held that the rectified spirit recovered from the godown was in his possession. This contention might have had force if the conviction of the accused was based merely on his statement recorded under S. 342, Cr. P.C., which could not be regarded as evidence, but this is not so.3. Pitalwalla, P. W. 1, gave evidence that the godown from where the rectified spirit was recovered was in possession of the appellant. He was not cross examined on this point. P. W. 3 also described the godown as the godown of the appellant. He was also not questioned on this point. If the fact that the godown was in the possession and charge of the appellant had been denied, further evidence would have been led on the point as the prosecution had the rent receipts signed by the appellant in their possession. As the appellant admitted that he was in charge of the godown, further evidence was not led an the point. The Magistrate was in this situation fully justified in referring to the statement of the accused under S. 342 as supporting the prosecution case concerning the possession of the godown. The contention that the Magistrate made use of the inculpatory part of the accuseds statement and excluded the exculpatory part does not seem to be correct. The statement under S. 342 did not consist of two portions, part inculpatory and part exculpatory. It concerned itself with two facts. The accused admitted that he was in charge of the godown, he denied that the rectified spirit was found in that godown. He alleged that the rectified spirit was found outside it. This part of his statement was proved untrue by the prosecution evidence and had no. intimate connection with the statement concerning the possession of the godown.4. Mr. Umrigar next argued that even if the appellant was in possession of the godown, from that circumstance an inference could not be drawn that the rectified spirit recovered from the godown was necessarily in his possession or was there with his knowledge. It was not suggested that the godown was accessible to all and sundry. A servant working under the appellant was actually inside the godown filling the bottles with the rectified spirit. As many as 108 bottles and two drums of rectified spirit and various other articles were found in this godown. All that was suggested was that these had been planted there by the police but it was not said that as the godown was accessible to several other persons they might have kept the spirit there. The suggestion that the police placed the articles in the godown cannot bear examination in view of the evidence and in these circumstances the Presidency Magistrate was justified in drawing the inference that these articles were in possession of the appellant who was in possession of the godown, when the defence of the accused that the articles were found outside the godown was negatived. Be that as it may, in our view this Court would not be justified in disturbing the decision of the Courts below on special leave merely on the ground that perhaps a different inference could also have been drawn from the facts found in the case.5. Mr. Umrigar next contended that only one bottle out of the articles recovered at the raid was sent for analysis and that it was not proved that all the bottles and the drums that were recovered from the godown contained rectified spirit. He said these might well have contained phenyle, the manufacture of which the company admittedly was carrying on in that godown. This argument cannot be seriously considered. It was wholly unnecessary to send all the bottles recovered by the police in the presence of panches and which contained the same stuff for purpose of analysis. This argument is therefore rejected.6. It was next contended that no. permit was necessary for possession of rectified spirit because it falls in the category of medical preparations. This contention again is without substance. No. evidence has been led that this falls in the category of medical preparations. On the other hand, rectified spirit clearly falls within the definition of an intoxicant and its possession without permit is prohibited by the provisions of S. 66 (b) of the Act. Section 2 (22) of the Act defines an "intoxicant" as including Iiquor. Sub-section (24) defines liquor as including spirits of wine, methyleted spirit wine, beer, toddy and all liquids consisting of alcohol. From the chemical analysts report it appears that the rectified spirit found in the possession of the appellant was 94 v/v of ethyl alcohol. It therefore clearly fell within the definition of intoxicant, as given in S. (22) of Act. This contention is therefore repelled.
### Response:
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### Explanation:
It was contended that the Magistrate was not justified in making use of the statement of the accused made under S. 342, Cr. P. C., for the purpose of finding that fact. It was said that the godown was owned by a limited body, Frank Rose & Co., Ltd., and the appellant was paying rent for the godown under their instructions, and that in the absence of evidence that the appellant ever visited the godown or had anything to do with the business carried on therein, it could not be held that the rectified spirit recovered from the godown was in his possession.This contention might have had force if the conviction of the accused was based merely on his statement recorded under S. 342, Cr. P.C., which could not be regarded as evidence, but this is notaccused admitted that he was in charge of the godown, he denied that the rectified spirit was found in that godown. He alleged that the rectified spirit was found outside it. This part of his statement was proved untrue by the prosecution evidence and had no. intimate connection with the statement concerning the possession of thesuggestion that the police placed the articles in the godown cannot bear examination in view of the evidence and in these circumstances the Presidency Magistrate was justified in drawing the inference that these articles were in possession of the appellant who was in possession of the godown, when the defence of the accused that the articles were found outside the godown was negatived. Be that as it may, in our view this Court would not be justified in disturbing the decision of the Courts below on special leave merely on the ground that perhaps a different inference could also have been drawn from the facts found in theargument cannot be seriously considered. It was wholly unnecessary to send all the bottles recovered by the police in the presence of panches and which contained the same stuff for purpose of analysis. This argument is thereforecontention again is without substance. No. evidence has been led that this falls in the category of medical preparations. On the other hand, rectified spirit clearly falls within the definition of an intoxicant and its possession without permit is prohibited by the provisions of S. 66 (b) of the Act. Section 2 (22) of the Act defines an "intoxicant" as including Iiquor.(24) defines liquor as including spirits of wine, methyleted spirit wine, beer, toddy and all liquids consisting of alcohol. From the chemical analysts report it appears that the rectified spirit found in the possession of the appellant was 94 v/v of ethyl alcohol. It therefore clearly fell within the definition of intoxicant, as given in S. (22) of Act. This contention is therefore repelled.
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Hindustan Lever Limited Vs. R.B. Wadkar & Others | petitioner to file a return of income within thirty days from the date of service of the notice. It is also stated that the notice was issued after obtaining the necessary satisfaction of respondent No.3.8. The petitioner by its letter dated 5th November 2002 requested respondent No.1 to furnish the reasons recorded by him prior to the issuance of the impugned notice so as to enable the petitioner to comply with requirements of the notice. The petitioner did not hear anything from the respondent No.1 and as the time for furnishing a return was coming to an end, the petitioner by its letter dated 14th November, 2002 pointed out that although the proceedings initiated were without jurisdiction, the return was being filed without prejudice to its contentions and legal right to challenge notice and respondent No.1 was again requested to treat the return filed on 1st December, 1997 as a return filed in pursuance of the notice under section 148.9. The petitioner, thereafter, did not hear anything from respondent No.1. However, respondent No.2 vide his notice dated 3rd December, 2002 under sections 142(1) and 143(1) called upon the petitioner to make its submissions as to how the sum of Rs.16.07 crore was allowable as a revenue expenditure. In this connection he had relied upon the judgment of the Gujarat High Court in C.I.T. v. Official Liquidator of Ahmedabad Manufacturing and Calico Printing Company Ltd., 224 ITR 156; wherein it has been held that expenditure incurred in connection with an amalgamation scheme is to be treated as capital expenditure. He has also relied upon a decision of the Supreme Court in Punjab State Industrial Corporation 225 ITR 792 that any expenditure incurred for widening the capital base has to be treated as capital expenditure and as the amalgamation has resulted in the widening of the capital base of the petitioners expenditure incurred ought to be disallowed. He has also referred to a decision of the Calcutta High Court; wherein it was held that stamp duty registration charges etc. incurred in taking over another concern is capital expenditure. The petitioner by their letter dated 9th December, 2002 addressed to respondent No.2 asked for some time to file reply and reiterated its request that the reasons recorded prior to the issuance of the impugned notice be furnished to it.10. In spite of repeated requests, the respondents did not furnish reasons, if any, alleged to have been recorded by respondent No.1 prior to the issuance of the impugned notice. Hence the petitioner filed this petition under Article 226 of the Constitution of India to challenge the impugned notice dated 23rd September, 2002.11. On being noticed, respondents appeared and filed their counter affidavit disclosing the reasons recorded prior to issuance of the notice under section 148. The said reasons recorded read as under:It is seen from the details on record that the assessee company paid stamp duty of Rs.23.29 crores on merger of M/s. Brooke Bond Lipton India Ltd., with it. However, out of the said amount, the assessee company capitalised in its books only an amount of Rs.6.62 crores as being attributable to capital assets. The balance amount of Rs.16.67 crores was claimed/allowed as revenue expenditure relating to current assets such as stocks etc. However, in the case of CIT Vs. Official Liquidator of Ahmedabad Mfg. & Calico Ptg. Co. Ltd. (224 ITR 156) the Honble Gujarat High Court held that any expenditure incurred in connection with an amalgamation scheme is to be treated as capital expenses. Further, Honble Supreme Court of India in the case of Punjab State Industrial Corporation Ltd. (225 ITR 792) has held that any expenditure incurred for widening capital base is to be treated as capital expenditure. In the present case, the above-mentioned merger resulted in widening of capital base of the assessee company. In the case of Gobind Sugar Mills (117 ITR 147) the Honble Calcutta High Court held that Stamp fee, registration chare etc. incurred in taking over another concern was capital expenditure.In the light of the foregoing discussion, it is apparent that treating of the amount of Rs.16.67 crores of stamp duty as revenue expenditure was erroneous and the same resulted in underassessment of income in the assessment-completed u/s. 143(3) on 29.2.2000. In view of these facts and circumstances, I have reason to believe that income chargeable to tax has escaped assessment within the meaning of provisions of Sec.147 of I.T. Act. It may also be mentioned that an order u/s. 263 was passed by the C.I.T.-I on 26.3.2002 in regard to issues like valuation of closing stock and recomputation of deduction u/s. 80 HHC. Thus, remedial action is now proposed u/s. 147 of I.T. Act.12. The Petitioner submits that the disclosure of reasons would make it clear that no failure on the part of the petitioner to disclose fully and truly all material facts necessary for its assessment for that assessment year has been alleged as such the notice is hit by the proviso to section 147 and the same being beyond the period of four years from the end of the assessment year is unsustainable in law much less the same is without jurisdiction. We find that the submission made is well sustainable. It is not in dispute that the proviso to section 147 of the Act is applicable to the facts of this case and the notice is without jurisdiction. The same view is taken by us while deciding connected Writ Petition No.1505/2003. Thus, for the reasons stated in our judgment dated 25th February 2004 delivered in Writ Petition No.1505/2003, we quash and set aside the notice dated 23rd September 2002 issued under section 148 of the Act holding it to be without jurisdiction. Even otherwise, having examined the facts and the proceedings it is clear that the Revenue could not establish any lapse or failure on the part of the assessee petitioner to disclose fully and truly all material necessary for the assessment of the petitioner for the assessment year in question. | 1[ds]12. The Petitioner submits that the disclosure of reasons would make it clear that no failure on the part of the petitioner to disclose fully and truly all material facts necessary for its assessment for that assessment year has been alleged as such the notice is hit by the proviso to section 147 and the same being beyond the period of four years from the end of the assessment year is unsustainable in law much less the same is without jurisdiction. We find that the submission made is well sustainable. It is not in dispute that the proviso to section 147 of the Act is applicable to the facts of this case and the notice is without jurisdiction. The same view is taken by us while deciding connected Writ Petition No.1505/2003. Thus, for the reasons stated in our judgment dated 25th February 2004 delivered in Writ Petition No.1505/2003, we quash and set aside the notice dated 23rd September 2002 issued under section 148 of the Act holding it to be without jurisdiction. Even otherwise, having examined the facts and the proceedings it is clear that the Revenue could not establish any lapse or failure on the part of the assesseepetitioner to disclose fully and truly all material necessary for the assessment of the petitioner for the assessment year in question. | 1 | 1,889 | 234 | ### 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:
petitioner to file a return of income within thirty days from the date of service of the notice. It is also stated that the notice was issued after obtaining the necessary satisfaction of respondent No.3.8. The petitioner by its letter dated 5th November 2002 requested respondent No.1 to furnish the reasons recorded by him prior to the issuance of the impugned notice so as to enable the petitioner to comply with requirements of the notice. The petitioner did not hear anything from the respondent No.1 and as the time for furnishing a return was coming to an end, the petitioner by its letter dated 14th November, 2002 pointed out that although the proceedings initiated were without jurisdiction, the return was being filed without prejudice to its contentions and legal right to challenge notice and respondent No.1 was again requested to treat the return filed on 1st December, 1997 as a return filed in pursuance of the notice under section 148.9. The petitioner, thereafter, did not hear anything from respondent No.1. However, respondent No.2 vide his notice dated 3rd December, 2002 under sections 142(1) and 143(1) called upon the petitioner to make its submissions as to how the sum of Rs.16.07 crore was allowable as a revenue expenditure. In this connection he had relied upon the judgment of the Gujarat High Court in C.I.T. v. Official Liquidator of Ahmedabad Manufacturing and Calico Printing Company Ltd., 224 ITR 156; wherein it has been held that expenditure incurred in connection with an amalgamation scheme is to be treated as capital expenditure. He has also relied upon a decision of the Supreme Court in Punjab State Industrial Corporation 225 ITR 792 that any expenditure incurred for widening the capital base has to be treated as capital expenditure and as the amalgamation has resulted in the widening of the capital base of the petitioners expenditure incurred ought to be disallowed. He has also referred to a decision of the Calcutta High Court; wherein it was held that stamp duty registration charges etc. incurred in taking over another concern is capital expenditure. The petitioner by their letter dated 9th December, 2002 addressed to respondent No.2 asked for some time to file reply and reiterated its request that the reasons recorded prior to the issuance of the impugned notice be furnished to it.10. In spite of repeated requests, the respondents did not furnish reasons, if any, alleged to have been recorded by respondent No.1 prior to the issuance of the impugned notice. Hence the petitioner filed this petition under Article 226 of the Constitution of India to challenge the impugned notice dated 23rd September, 2002.11. On being noticed, respondents appeared and filed their counter affidavit disclosing the reasons recorded prior to issuance of the notice under section 148. The said reasons recorded read as under:It is seen from the details on record that the assessee company paid stamp duty of Rs.23.29 crores on merger of M/s. Brooke Bond Lipton India Ltd., with it. However, out of the said amount, the assessee company capitalised in its books only an amount of Rs.6.62 crores as being attributable to capital assets. The balance amount of Rs.16.67 crores was claimed/allowed as revenue expenditure relating to current assets such as stocks etc. However, in the case of CIT Vs. Official Liquidator of Ahmedabad Mfg. & Calico Ptg. Co. Ltd. (224 ITR 156) the Honble Gujarat High Court held that any expenditure incurred in connection with an amalgamation scheme is to be treated as capital expenses. Further, Honble Supreme Court of India in the case of Punjab State Industrial Corporation Ltd. (225 ITR 792) has held that any expenditure incurred for widening capital base is to be treated as capital expenditure. In the present case, the above-mentioned merger resulted in widening of capital base of the assessee company. In the case of Gobind Sugar Mills (117 ITR 147) the Honble Calcutta High Court held that Stamp fee, registration chare etc. incurred in taking over another concern was capital expenditure.In the light of the foregoing discussion, it is apparent that treating of the amount of Rs.16.67 crores of stamp duty as revenue expenditure was erroneous and the same resulted in underassessment of income in the assessment-completed u/s. 143(3) on 29.2.2000. In view of these facts and circumstances, I have reason to believe that income chargeable to tax has escaped assessment within the meaning of provisions of Sec.147 of I.T. Act. It may also be mentioned that an order u/s. 263 was passed by the C.I.T.-I on 26.3.2002 in regard to issues like valuation of closing stock and recomputation of deduction u/s. 80 HHC. Thus, remedial action is now proposed u/s. 147 of I.T. Act.12. The Petitioner submits that the disclosure of reasons would make it clear that no failure on the part of the petitioner to disclose fully and truly all material facts necessary for its assessment for that assessment year has been alleged as such the notice is hit by the proviso to section 147 and the same being beyond the period of four years from the end of the assessment year is unsustainable in law much less the same is without jurisdiction. We find that the submission made is well sustainable. It is not in dispute that the proviso to section 147 of the Act is applicable to the facts of this case and the notice is without jurisdiction. The same view is taken by us while deciding connected Writ Petition No.1505/2003. Thus, for the reasons stated in our judgment dated 25th February 2004 delivered in Writ Petition No.1505/2003, we quash and set aside the notice dated 23rd September 2002 issued under section 148 of the Act holding it to be without jurisdiction. Even otherwise, having examined the facts and the proceedings it is clear that the Revenue could not establish any lapse or failure on the part of the assessee petitioner to disclose fully and truly all material necessary for the assessment of the petitioner for the assessment year in question.
### Response:
1
### Explanation:
12. The Petitioner submits that the disclosure of reasons would make it clear that no failure on the part of the petitioner to disclose fully and truly all material facts necessary for its assessment for that assessment year has been alleged as such the notice is hit by the proviso to section 147 and the same being beyond the period of four years from the end of the assessment year is unsustainable in law much less the same is without jurisdiction. We find that the submission made is well sustainable. It is not in dispute that the proviso to section 147 of the Act is applicable to the facts of this case and the notice is without jurisdiction. The same view is taken by us while deciding connected Writ Petition No.1505/2003. Thus, for the reasons stated in our judgment dated 25th February 2004 delivered in Writ Petition No.1505/2003, we quash and set aside the notice dated 23rd September 2002 issued under section 148 of the Act holding it to be without jurisdiction. Even otherwise, having examined the facts and the proceedings it is clear that the Revenue could not establish any lapse or failure on the part of the assesseepetitioner to disclose fully and truly all material necessary for the assessment of the petitioner for the assessment year in question.
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Jiten Kumar Sahoo Vs. Chief Gen.Manager,Mcl | - could not be filled up due to non-availability of the candidates. Subsequently, it appears that fresh 84 vacancies of Mazdoor Category-I (I.T.I.) occurred and MCL requested the local employment exchange for their permission to fill up fresh vacancies from amongst the candidates who had qualified in the written test and the trade test conducted as above. There was no response from the local employment exchange to that requisition and, accordingly, MCL filled up 51 vacancies out of 84 fresh vacancies by giving employment to those candidates who had already undergone the apprenticeship with them in the year 1991-92. The present appellants are amongst those candidates.4. The private respondents herein and few others aggrieved by the appointment of the appellants and some others to the posts of Mazdoor - Category I (I.T.I.) having been given preference as they had undergone the apprenticeship with the MCL, filed various writ petitions before the High Court of Orissa. They prayed that appointments given to 51 such appointees be quashed. They also prayed for their (writ petitioners) absorption in the vacant posts without calling them to appear for fresh written test and/or interview.5. MCL and its functionaries who were impleaded as respondents in the writ petition filed their counter affidavit and contested the writ petitions on diverse grounds. The defence of the MCL was that the preference was given to the apprentices who had undergone training with them in the interest of the company as coal mines use very specific and specialized high value heavy earth moving machines like dragline, shovel, dumpers, heavy duty dazers, drills and craines and those who have been extensively trained on these machines are of much use than the candidates who were trained in other industries not dealing with heavy earth moving machines. MCL justified their action on the basis of a decision of this Court in U.P. State Road Transport Corporation and Another v. U.P. Parivahan Nigam Shishukhs Berozgar Sangh and Others ((1995) 2 SCC 1 ). It was submitted by MCL that the preference to MCL apprentices was not influenced by any consideration other than the interest of the company.6. It is pertinent to mention here that neither the appellants nor others whose appointments were challenged in the writ petitions were impleaded initially. It was after 10 years or so that the present appellants were impleaded as party respondents in the writ petitions. On their impleadment and service of notice, the present appellants filed their counter affidavit in opposition to the writ petitions and denied the claim of the writ petitioners.7. The High Court vide its judgment dated May 2, 2008, however, held that MCL ought to have filled up the newly sanctioned 51 posts of Mazdoor - Category I (I.T.I.) from the merit list prepared earlier strictly in the order of merit and no preference could have been given to those who had undertaken apprenticeship with MCL. The High Court, accordingly, directed MCL to fill up 51 posts strictly in the order of merit as per the select list prepared earlier. The High Court further directed that those who were likely to lose their job could be adjusted in suitable posts in the existing and future vacancies without asking them to face any recruitment test. It is this judgment and order of the High Court which is impugned in these two appeals. 8. In our judgment, these appeals have to be allowed. There is no dispute of fact that the appellants herein were not initially impleaded as party respondents in the writ petitions although primary relief in the writ petitions was to quash their selection and appointments. The appellants were impleaded for the first time after ten years or so. By that time the appellants got promoted from Mazdoor Category-I to Mazdoor Category-II and then to Mazdoor Category-III and thereafter to the posts of Fitter. In view of these circumstances, the writ petitioners were not entitled to any discretionary relief by the High Court in exercise of its extraordinary jurisdiction. 9. The appellants in their counter affidavit before the High Court set up the following specific grounds: "5. That the petitioners have impleaded the present Opp. Parties after about 10 (ten) years of their appointment as well as selection to the post of Mazdoor Category-I (ITI). Therefore the writ application is liable to be dismissed as against the present Opp. Parties being grossly barred by limitation and on the ground of unexplained delay, latches and negligence of the petitioner.6. That the petitioners though had the knowledge of the appointment, posting, continuance in service and subsequent promotions of the Opp. Parties had not challenged the same for about 10 (Ten) years and have acquiescence their claim and waived their claim if any. Therefore, this Honble Court in exercise of its equitable jurisdiction may be pleased to dismiss the writ application.7. That the petitioners are estopped by acquiescence, waiver, conduct and by negligence to challenge the appointment of the Opp. Parties who are discharging their duties sincerely to the best satisfaction of the authority being selected and appointed to the post for about ten years." 10. The High Court unfortunately has failed to take into consideration the material aspects stated in the counter affidavit filed by the appellants. As a matter of fact, on promotion of the appellants to the higher posts, other candidates have been appointed to the posts of Mazdoor - Category I in place of the appellants. If the order of the High Court is allowed to stand, it would not only affect the appellants who, during the continuation of their service, had got three promotions, but also will seriously affect the persons who have been appointed in their place and were not impleaded before the High Court.11. For what we have discussed above, we do not think we need to deal with the merits of the issue as to whether the High Court was right in holding that MCL could not have preferred to give appointments to those who had undertaken training with them. | 1[ds]10. The High Court unfortunately has failed to take into consideration the material aspects stated in the counter affidavit filed by the appellants. As a matter of fact, on promotion of the appellants to the higher posts, other candidates have been appointed to the posts of Mazdoor - Category I in place of the appellants. If the order of the High Court is allowed to stand, it would not only affect the appellants who, during the continuation of their service, had got three promotions, but also will seriously affect the persons who have been appointed in their place and were not impleaded before the High Court.11. For what we have discussed above, we do not think we need to deal with the merits of the issue as to whether the High Court was right in holding that MCL could not have preferred to give appointments to those who had undertaken training with them. | 1 | 1,430 | 169 | ### 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:
- could not be filled up due to non-availability of the candidates. Subsequently, it appears that fresh 84 vacancies of Mazdoor Category-I (I.T.I.) occurred and MCL requested the local employment exchange for their permission to fill up fresh vacancies from amongst the candidates who had qualified in the written test and the trade test conducted as above. There was no response from the local employment exchange to that requisition and, accordingly, MCL filled up 51 vacancies out of 84 fresh vacancies by giving employment to those candidates who had already undergone the apprenticeship with them in the year 1991-92. The present appellants are amongst those candidates.4. The private respondents herein and few others aggrieved by the appointment of the appellants and some others to the posts of Mazdoor - Category I (I.T.I.) having been given preference as they had undergone the apprenticeship with the MCL, filed various writ petitions before the High Court of Orissa. They prayed that appointments given to 51 such appointees be quashed. They also prayed for their (writ petitioners) absorption in the vacant posts without calling them to appear for fresh written test and/or interview.5. MCL and its functionaries who were impleaded as respondents in the writ petition filed their counter affidavit and contested the writ petitions on diverse grounds. The defence of the MCL was that the preference was given to the apprentices who had undergone training with them in the interest of the company as coal mines use very specific and specialized high value heavy earth moving machines like dragline, shovel, dumpers, heavy duty dazers, drills and craines and those who have been extensively trained on these machines are of much use than the candidates who were trained in other industries not dealing with heavy earth moving machines. MCL justified their action on the basis of a decision of this Court in U.P. State Road Transport Corporation and Another v. U.P. Parivahan Nigam Shishukhs Berozgar Sangh and Others ((1995) 2 SCC 1 ). It was submitted by MCL that the preference to MCL apprentices was not influenced by any consideration other than the interest of the company.6. It is pertinent to mention here that neither the appellants nor others whose appointments were challenged in the writ petitions were impleaded initially. It was after 10 years or so that the present appellants were impleaded as party respondents in the writ petitions. On their impleadment and service of notice, the present appellants filed their counter affidavit in opposition to the writ petitions and denied the claim of the writ petitioners.7. The High Court vide its judgment dated May 2, 2008, however, held that MCL ought to have filled up the newly sanctioned 51 posts of Mazdoor - Category I (I.T.I.) from the merit list prepared earlier strictly in the order of merit and no preference could have been given to those who had undertaken apprenticeship with MCL. The High Court, accordingly, directed MCL to fill up 51 posts strictly in the order of merit as per the select list prepared earlier. The High Court further directed that those who were likely to lose their job could be adjusted in suitable posts in the existing and future vacancies without asking them to face any recruitment test. It is this judgment and order of the High Court which is impugned in these two appeals. 8. In our judgment, these appeals have to be allowed. There is no dispute of fact that the appellants herein were not initially impleaded as party respondents in the writ petitions although primary relief in the writ petitions was to quash their selection and appointments. The appellants were impleaded for the first time after ten years or so. By that time the appellants got promoted from Mazdoor Category-I to Mazdoor Category-II and then to Mazdoor Category-III and thereafter to the posts of Fitter. In view of these circumstances, the writ petitioners were not entitled to any discretionary relief by the High Court in exercise of its extraordinary jurisdiction. 9. The appellants in their counter affidavit before the High Court set up the following specific grounds: "5. That the petitioners have impleaded the present Opp. Parties after about 10 (ten) years of their appointment as well as selection to the post of Mazdoor Category-I (ITI). Therefore the writ application is liable to be dismissed as against the present Opp. Parties being grossly barred by limitation and on the ground of unexplained delay, latches and negligence of the petitioner.6. That the petitioners though had the knowledge of the appointment, posting, continuance in service and subsequent promotions of the Opp. Parties had not challenged the same for about 10 (Ten) years and have acquiescence their claim and waived their claim if any. Therefore, this Honble Court in exercise of its equitable jurisdiction may be pleased to dismiss the writ application.7. That the petitioners are estopped by acquiescence, waiver, conduct and by negligence to challenge the appointment of the Opp. Parties who are discharging their duties sincerely to the best satisfaction of the authority being selected and appointed to the post for about ten years." 10. The High Court unfortunately has failed to take into consideration the material aspects stated in the counter affidavit filed by the appellants. As a matter of fact, on promotion of the appellants to the higher posts, other candidates have been appointed to the posts of Mazdoor - Category I in place of the appellants. If the order of the High Court is allowed to stand, it would not only affect the appellants who, during the continuation of their service, had got three promotions, but also will seriously affect the persons who have been appointed in their place and were not impleaded before the High Court.11. For what we have discussed above, we do not think we need to deal with the merits of the issue as to whether the High Court was right in holding that MCL could not have preferred to give appointments to those who had undertaken training with them.
### Response:
1
### Explanation:
10. The High Court unfortunately has failed to take into consideration the material aspects stated in the counter affidavit filed by the appellants. As a matter of fact, on promotion of the appellants to the higher posts, other candidates have been appointed to the posts of Mazdoor - Category I in place of the appellants. If the order of the High Court is allowed to stand, it would not only affect the appellants who, during the continuation of their service, had got three promotions, but also will seriously affect the persons who have been appointed in their place and were not impleaded before the High Court.11. For what we have discussed above, we do not think we need to deal with the merits of the issue as to whether the High Court was right in holding that MCL could not have preferred to give appointments to those who had undertaken training with them.
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P.N. Dua Vs. P. Shiv Shanker and Ors. | the law gives to some problem is regarded by many people as unjust. Lord Cross further observed that there must be no prejudging of the issues in a case is one thing. To say that no one must in any circumstances exert any pressure on a party to litigation to induce him to act in relation to the litigation in a way in which he would otherwise not choose to act is another and a very different thing. Lord Cross at page 87 of the report observed as follows: In conclusion I would say that I disagree with the views expressed by Lord Denning MR and Phillimore LJ 1973 1 All E.R. 815 as to the role of the Attorney-General in cases of alleged contempt of court. If he takes them up he does not do so as a Minister of the Crown putting the authority of the Crown behind the complaint-but as amicus curiae bringing to the notice of the court some matter of which he considers that the court shall be informed in the interests of the administration of justice. It is, I think, most desirable that in civil as well as in criminal cases anyone who thinks that a criminal contempt of court has been or is about to be committed should, if possible, place the facts before the Attorney-General for him to consider whether or not those facts appear to disclose a contempt of court of sufficient gravity to warrant his bringing the matter to the notice of the court. Of course, in some cases it may be essential if an application is to be made at all for it to be made promptly and there may be no time for the person affected by the contempt to put the facts before the attorney before moving himself. Again the fact that the attorney declines to take up the case will not prevent the complainant from seeking to persuade the court that notwithstanding the refusal of the attorney to act the matter complained of does in fact constitute a contempt of which the court should take notice. Yet, again, of course, there may be cases where a serious contempt appears to have been committed but for one reason or another none of the parties affected by it wishes any action to be taken in respect of it. In such cases if the facts come to the knowledge of the attorney from some other source he will naturally himself bring the matter to the attention of the court. 43. Lord Cross has noticed in his speech that if the Attorney General declines to take up the case, it will not prevent the complainant from seeking to persuade the Court that notwithstanding refusal of the Attorney General to act, the matter complained of does, in fact, constitute a contempt of which the Court should take notice. But that does not derogate the rights of the individual to move the Court. See the observations of Lord Reid. In Indian Express Newspapers (Bombay) Pvt. Ltd. and Ors. etc. v. Union of India and Ors. : [1986]159ITR856(SC) , the observations of the aforesaid decision in Thalidomide case were relied upon. 44. Reliance was also placed on the observations of the House of Lords in Gouriot and Ors v. H.M. Attorney General [1978] A C 435. There it held the initiation of litigation and the determination of the question whether it is a proper case for the Attorney General to proceed in, is a matter entirely beyond the jurisdiction of that or any other Court. It is a question which the law has made, to reside exclusively in the Attorney General. The House of Lords was reversing the decision of the Court of Appeal in the celebrated case of Gouriet v. Union of Post Office Workers [1978] A C 435 where the House of Lords could find no legal basis for the lower courts attempt to outflank the Attorney Generals refusal to grant his fiat to Mr. Gouriet. In the Court of Appeal, all the three Judges, Denning M.R., Lawton and Ormrod LJ, upheld the plaintiffs claim for declaration and interim injunction even in the absence of fiat by the Attorney General. The statutory provisions were entirely different. It may be in the context that the Attorney General had to move in his discretion which is not justiciable. But in our opinion it is justiciable. English decisions are of persuasive value and we would prefer to rest out decision on the observations of Lord Denning in Gouriet v. Union of Post Office Workers and Ors. [1977] 1 Q.B. 729 though made in connection with the Attorney Generals discretion in giving consent in instituting a suit for injunction by a member of the public. In U.K. the position of Attorney General as a member of the Cabinet is different. There the contempt of Court is regulated by different statutory provisions which were examined by a Committee known as Phillimore Committee Report. See also the observations of Sikri J. as the Chief Justice then was, in C.K. Daphtary and Ors. (supra) at page 109 of the report. 45. Our attention was drawn to the decision of the Andhra Pradesh High Court in Rajagopal Rao v. Murtza Mutjahdi [1974] 1 ALT 170. We are unable to accept the ratio stated in view of the terms of Section 15 of the Act. Our attention was also drawn to the case of N. Venkataramanappa v. D.K. Naikar AIR1978Kant57 . It is also not possible to accept the position that under no circumstances the exercise of discretion by the Attorney General or Solicitor General cannot be enquired into. 46. Having considered the peculiar facts and circumstances of this case and the allegation of bias which were made against the Attorney General and the Solicitor General, it appears that the Attorney General and the Solicitor General acted properly in declining to deal with the matter and the Court could deal with the matter on attention being drawn to this Court. | 0[ds]10. In the instant case we have examined the entire speech. In the speech Shri P. Shiv Shankar has examined the class composition of the Supreme Court. His view was that the class composition of any instrument indicates its pre-disposition, its prejudices. This is inevitable. Justice Holmes in his dissenting opinion in Joseph Lochner v. People of the State of New York 49 Lawyers Edition 195-198 U.S. 1904 had observed General propositions do not decide concrete cases. The decision will depend on a judgment or intuition more subtle than any articulate major premise. That intuition more subtle than major premise is the pride and the prejudice of a human instrument of a Judge through which objectively the Judge seeks to administer justice according to law. So, therefore, in a study of accountability if class composition of the people manning the institution is analysed we forewarn ourselves of certain inclination it cannot be said that an expression or view or propagation of that view hampers the dignity of the Courts or impairs the administration of justice.11. The question of contempt of court by newspaper article criticising the Judges of the Court came up for consideration in the case of Re: Shri S. Mulgaokar [1978]3SCR162 . In order to appreciate the controversy in this case it has to be stated that the issue dated 13th December, 1977, of the Indian Express published a news item that the High Courts had reacted very strongly to the suggestion of introducing a code of judicial ethics and propriety and that so adverse has been the criticism that the Supreme Court Judges, some of whom had prepared the draft code, have disowned it. In its issue dated December 21, 1977 an article entitled behaving like a Judge was published which inter alia stated that the Supreme Court of India was packed by Mrs. Indira Gandhi with pliant and submissive judges except for a few. It was further stated that the suggestion that a code of ethics should be formulated by Judges themselves was so utterly inimical to the independence of the judiciary, violative of the Constitutional safeguards in that respect and offensive to the self-respect of the Judges as to make one wonder how it was conceived in the first place. A notice had been issued to the Editor-in-Chief of the Newspaper to show-cause why proceedings for contempt under Article 129 of the Constitution should not be initiated against him in respect of the above two news items.12. It was observed by Chief Justice Beg in that decision that national interest required that all criticisms of the judiciary must be strictly rational and sober and proceed from the highest motives without being coloured by any partisan spirit or tactics. This should be a part of national ethics. The comments about Judges of the Supreme Court suggesting that they lack moral courage to the extent of having disowned what they had done or in other words, to the extent of uttering what was untrue, at least verge on contempt. None could say that such suggestions would not make Judges of this Court look ridiculous or even unworthy, in the estimation of the public, of the very high office they hold if they could so easily disown what they had done after having really done it. It was reiterated that the judiciary can not be immune from criticism. But, when that criticism was based on obvious distortion or gross misstatement and made in a manner which seems designed to lower respect for the judiciary and destroy public confidence in it, it could not be ignored. A decision on the question whether the discretion to take action for Contempt of Court should be exercised must depend on the totality of facts and circumstances of the case. The Chief Justice agreed with the other two learned Judges in that decision that in those facts the proceedings should be dropped. Krishna Iyer, J. in his judgment observed that the Court should act with seriousness and severity where justice is jeopardised by a gross and/or unfounded attack on the Judges, where the attack was calculated to obstruct or destroy the judicial process. The Court must harmonise the constitutional values of free criticism, and the need for a fearless curial process and its presiding functionary, the judge. To criticise a judge fairly albeit fiercely, is no crime but a necessary right. Where freedom of expression subserves public interest in reasonable measure, public justice cannot gag it or manacle it. The Court must avoid confusion between personal protection of a libelled judge and prevention of obstruction of public justice and the communitys confidence in that great process. The former is not contempt but latter is, although overlapping spaces abound. The fourth functional canon is that the Fourth Estate should be given free play within responsible limits even when the focus of its critical attention is the court, including the highest court. The fifth normative guideline for the Judges to observe is not to be hypersensitive even where distortions and criticisms overstep the limits, but to deflate vulgar denunciation by dignified bearing, and the sixth consideration is that if the Court considers the attack on the judge or judges scurrilous, offensive, intimidator or malicious beyond condonable limits, the strong arm of the law must strike a blow on him who challenges the supremacy of the rule of law by fouling its sources and stream.13. It is well to remember the observations of Justice Brennan of U.S. Supreme Court (though made in the context of law of libel) in New York Times Company v. L.B. Sullivan 376 U.S. 254 that it is a prized privilege to speak ones mind, although not always with perfect good taste, on all public institutions and this opportunity should be afforded for vigorous advocacy no less than abstract discussion.14. Lord Denning in Regina v. Commissioner of Police of the Metropolis, Ex parte Blackburn [1968] 2 W.L.R. 1204 observed as follows.Let me say at once that we will never use this jurisdiction as a means to uphold our own dignity. That must rest on surer foundations. Nor will we use it to suppress those who speak against us. We do not fear criticism, nor do we resent it. For there is something far more important at stake. It is no less than freedom of speech itself.It is the right of every man, in Parliament or out of it, in the Press or over the broadcast, to make fair comment, even outspoken comment on matters of public interest. Those who comment can deal faithfully with all that is done in a court of justice. They can say that we are mistaken, and our decisions erroneous, whether they are subject to appeal or not. All we would ask is that those who criticise us will remember that, from the nature of our office, we cannot reply to their criticisms. We cannot enter into public controversy. Still less into political controversy. We must rely on our conduct itself to be its own vindication.Exposed as we are to the winds of criticism, nothing which is said by this person or that, nothing which is written by this pen or that, will deter us from doing what we believe is right; nor, I would add, from saying what the occasion requires, provided that it is pertinent to the matter in hand. Silence is not an option when things are ill done.15. The aforesaid observations were made in respect of an article written by Mr. Quintin Hogg in Punch (as later Lord Hailsham then was) more or less in a critical language as the Honble Ministers speech in the instant case.21. If anyone draws attention to this danger and aspect and measures an institution by the class content he does not minimize its dignity or denigrate its authority. Looked in that perspective though at places little intemperate, the statement of the Minister in this case cannot be said to amount to interference with the administration of justice and as to amount to contempt of court. The Ministers statement does not interfere with the administration of justice. Administration of justice in this country stands on surer foundation.25. Reference may also be made to the decision of this Court in Conscientious Group v. Mohammed Yunus and Ors. 1987CriLJ1182 . In that case there was publication in the Indian Express which carried the news that Mr. Mohammed Yunus, Chairman, Trade Fair Authority of India said that the Supreme Court Judge who held that the singing of the National Anthem was not compulsory had no right to be called either an Indian or a Judge. The Conscientious Group approached this Court for contempt alleging that the conduct of Mr. Mohammed Yunus in making certain adverse comments about the Judges who delivered the judgment of this Court in Civil Appeal No. 860 of 1986 National Anthem case 1986CriLJ1736 constituted criminal contempt and it should be so dealt with. Notice on this petition was issued. When the matter subsequently came up before a Bench of three Judges consisting of Bhagwati, C.J., Oza and K.N. Singh, JJ., the contemnor filed a reply stating that the petition was not maintainable inasmuch as the petitioner had not obtained the consent in writing of the Attorney General as required under Section 15 of the Act. It appears that the petitioner was directed by the Division Bench to move the Attorney General for his consent and the petition was adjourned. The Attorney General on being moved by the petitioner for the grant of consent replied to the petitioner stating that since he was himself a party in his capacity as Attorney General in the National Anthem case, it was not appropriate for him to deal with the petitioners application. When the case later on came up before the same three Judges Bench on December 12, 1986, the learned Judges directed the withdrawal of the petition with liberty to the petitioner to refile the application after obtaining consent of the Attorney General as soon as the National Anthem case was over. It was further observed by this Court that everyone is entitled to criticise the judgment of the court but no one should attack the Judges who delivered the judgment as that denigrates the judicial institution and in the long term impairs the democratic process.26. Subsequently the petitioner in that case filed Criminal Miscellaneous Petition No. 5244 of 1986 praying for recalling the aforesaid order on the ground that at the time when he applied to the court for withdrawal of the petition he was not aware that under Rule 3(c) of the Rules framed by this Court, the contempt petition could be maintained with the consent of the Solicitor General, if the Attorney General, for any reason, was not in a position to give consent to the filing of the petition. He was so allowed. Thereafter the petitioner approached the Solicitor General. But the Solicitor General declined to give the consent in public interest. He gave certain reasons in support of his conclusion. The Court in the aforesaid decision by scrutinising reasons was of the opinion that the reasons stated by the Solicitor General refusing to grant consent could not be said to be irrelevant and the petition was dismissed. In dismissing this application this Court observed at page 93 of the report No doubt, by the last of the sentence of the said Order, the Bench has also observed that the petitioner will not be without remedy, if the Solicitor General refuses his consent on any irrelevant ground but this only means that such a refusal can be called in question before this Court by the petitioner by appropriate process. In other words, the effect of the decision is that the reasons given by the Attorney General or the Solicitor General in giving or not giving his consent were justiciable.27. As we have mentioned before the speech of the Minister has to be read in its entirety. In the speech as we have set out hereinbefore it appears that Shri P. Shiv Shankar was making a study of the attitude of this Court. In the portion set out hereinbefore, it was stated that the Supreme Court was composed of the element from the elite class. Whether it is factually correct or not is another matter. In our public life, where the champions of the downtrodden and the politicians are mostly from the so-called elite class, if the class composition is analysed, it may reveal interesting factors as to whether elite class is dominant as the champions of the oppressed or of social legislations and the same is the position in the judiciary. But the Minister went on to say that because the Judges had their unconcealed sympathy for the haves interpreted the expression compensation in the manner they did. The expression unconcealed is unfortunate. But this is also an expression of opinion about an institutional pattern. Then the Minister went on to say that because of this the word compensation in Article 31 was interpreted contrary to the spirit and the intendment of the Constitution. The Constitution therefore had to be amended by the 1st, 14th and 17th Amendments to remove this oligarchic approach of the Supreme Court with little or no help. The inter-action of the decisions of this Court and the Constitutional amendments have been viewed by the Minister in his speech, but that is nothing new. This by itself does not affect the administration of justice. On the other hand, such a study perhaps is important for the understanding of the evolution of the constitutional development. The next portion to which reference may be made where the speaker has referred to Holmes Alexander in his column entitled 9 Men of Terror Squad making a frontal attack on the functions of the U.S. Supreme Court. There was a comparison after making the quotation as we have set out hereinbefore: One should ask the question how true Holmes Alexander was in the Indian context. This is also a poser on the performance of the Supreme Court. According to the speaker twenty years of valuable time was lost in this confrontation presented by the judiciary in introducing and implementing basic agrarian reforms for removal of poverty what is the ultimate result. The nation did not exhibit the political will to implement the land reform laws. The removal of the Maharajas and Rajas and privy purses were criticised because of the view taken by this Court which according to the speaker was contrary to the whole national upsurge. This is a study in the historical perspective. Then he made a reference to the Keshavananda Bharatis and Golaknaths cases and observed that a representative of the elitist culture of this country, ably supported by industrialists and beneficiaries of independence, got higher compensation by the intervention of the Supreme Court in Coopers case. This is also a criticism of the judgment in R.C. Coopers case. Whether that is right or wrong is another matter, but criticism of judgments is permissible in a free society. There is, however, one paragraph which appears to us to be rather intemperate and that is to the following effect:Antisocial elements i.e. FERA violators, bride burners and a whole horde of reactionaries have found their heaven in the Supreme Court.28. This, of course, if true, is a criticism of the laws. The Supreme Court as it is bound to do has implemented the laws and in implementing the laws, it is a tribute to the Supreme Court that it has not discriminated between persons and persons. Criminals are entitled to be judged in accordance with law. If antisocial elements and criminals have benefited by decisions of the Supreme Court, the fault rests with the laws and the loopholes in the legislation. The Courts are not deterred by such criticisms.29. Bearing in mind the trend in the law of contempt as noticed before, as well as some of the decisions noticed by Krishna Iyer, J. in S. Mulgaokars case (supra) the speech of the Minister read in its proper perspective, did not bring the administration of justice into disrepute or impair administration of justice. In some portions of the speech the language used could have been avoided by the Minister having the background of being a former Judge of the High Court. The Minister perhaps could have achieved his purpose by making his language mild but his facts deadly. With these observations, it must be held that there was no imminent danger of interference with the administration of justice, nor of bringing a institution into disrepute. In that view it must be held that the Minister was not guilty of contempt of this Court.30. The view we have taken on this aspect of the matter would have been sufficient to dispose of this petition. But another question of law of some importance has arisen in this matter. Under the Act in case of criminal contempt other than a contempt referred to in Section 14 which is not the facts of this case, namely, a contempt in the fact of this Court or a High Court, this Court or the High Court may take action either on its own motion or on a motion made by the Advocate General which in relation to this Court means the Attorney General or the Solicitor General or any other person with the consent of the Attorney General in terms of Section 15 of the Act. Therefore, cognizance for criminal contempt could be taken by the Court by three methods namely, on its own motion, or on the motion of the Attorney General or the Solicitor General or on motion by any other person with the consent of the Attorney General or the Solicitor General. Therefore, the only course open to a citizen for initiating proceedings for contempt where the Court does not take cognizance on its motion or where the Attorney General or the Solicitor General does not take action is to move for consent in writing of the Attorney General or the Solicitor General. The question is, does it cast a duty upon the Attorney General or the Solicitor General to consider application for grant of such consent and whether the granting or non-granting of such consent is justiciable by the Court and if so whether the question of non-granting can be brought up in a rolled application moved by a person to bring it to the notice of the Court to take action suo motu and at the same time to consider whether in the same proceeding the action of the Attorney General or the Solicitor General in granting or not granting consent can be challenged or it must be always by an independent proceeding. The consent certainly is linked up with contempt proceedings. Indeed Mohammed Yunus case (supra) was dismissed because no consent was obtained. In the instant case the Minister has taken the plea that consideration of this case cannot be taken because there is no consent of the law officers. Does it or does it not tend to interfere with due course of judicial proceedings in terms of Clause (ii) of Section 3(c) of the Act? If so is it justiciable in these proceedings? Attorney General and Solicitor General of India in respect of this Court occupy positions of great importance and relevance. Attorney General, though unlike England is not a member of the Cabinet yet is a friend of the Court, and in some respects acts as the friend, philosopher and guide of the Court. (See Article 76 of the Constitution). Yet the Act vests him with certain discretions. All statutory discretions are justiciable in a society governed by the rule of law. One must remember the remarks of Thomas Fuller-Be you ever so high, the law is above you and this Court is the finder and interpreter of that law in cases of this nature with the assistance of Attorney General and in his absence or inability the Solicitor General.31. It is well to remember what Burke said in the House of Commons in 1772 in connection with the motion for select committee for enquiry into the affairs of the East India Company and Clive. He said that when discretionary power is lodged in the hands of any man or class of men, experience proves that it will always be abused. Where no laws exist men must be arbitrary and very necessary acts of government will often be, in such cases, represented by the interested and malevolent as instances of wanton oppression (Clive of India- Nirad C. Chaudhry, page 381). Times have changed here; the discretion is vested on a very high dignitary and a friend of the Court, yet it is subject to scrutiny.It is not a question of making the Attorney General or the Solicitor General a party to a contempt proceeding in the sense that they are liable for contempt, but if the hearing of the contempt proceedings can be better proceeded by obtaining the consent of the Attorney General or the Solicitor General and the question of justiciability of giving the consent is interlinked on the analogy of Order II Rule I of the CPC which has application to a civil proceeding and not to a criminal proceeding, it is permissible to go into this question. Indeed, in the case of Conscientious Group (supra) precisely this was done, where an application for contempt was filed and which was revived pursuant to the previous order and the Court while doing so had reserved the right to consider on the previous occasion the question if the Solicitor General refuses to give consent improperly or on irrelevant ground the Court could consider that question. In the case of Conscientious Group (supra) the Court went into the reasons given by the Solicitor General declining consent. this Court in that case held on examination that such consent was properly refused. This is a complete answer to the contention that in a contempt petition the grounds for either giving consent or not giving consent or for not considering the application for consent are justiciable and that question can not be gone into in that proceeding though it must be emphasised in that proceeding that the Solicitor General was not made a party to the proceeding. In my opinion it will be more appropriate for an officer of the Court whose action is being investigated to be made a party in the proceedings otherwise it would be violative of the rule of audi alteram partem.It is not possible to accept this submission. It was contended that there was no doctrine of necessity applicable in this case because even if the Attorney General or the Solicitor General does not give consent a party is not without a remedy and can bring this to the notice of the Court. Discretion vested in law officers of this Court to be used for a public purpose in a society governed by rule of law is justiciable. Indeed, it was gone into in the case of Conscientious Group (supra) and it will be more appropriate that it should be gone into upon notice to the law officer concerned. It is a case where appropriate ground for refusal to act can be looked into by the Court. It cannot be said as was argued by Shri Ganguly that the refusal to grant consent decides no right and it is not reviewable. Refusal to give consent closes one channel of initiation of contempt. As mentioned hereinbefore there are three different channels, namely (1) the Court taking cognizance on its own motion; (2) on the motion by the Attorney General or the Solicitor General; and (3) by any other person with the consent in writing of the Attorney General or the Solicitor General. In this case apparently the Attorney General and the Solicitor General have not moved on their own. The petitioner could not move in accordance with law without the consent of Attorney General and the Solicitor General though he has a right to move and the third is the court taking notice suo motu. But irrespective of that there was right granted to the citizen of the country to move a motion with the consent. In this case whether consent was to be given or not was not considered for the reasons stated by the Attorney General. Those reasons are linked up with the Court taking up the matter on its own motion, these are interlinked. In that view of the matter these are justiciable and indeed it may be instructive to consider why this practice grew up of having the consent. This was explained in S.K. Sarkar v. V.C. Misra. 1981CriLJ283 where Sarkaria, J. speaking for the Court observed at page 339 of the report that the whole object of prescribing these procedural modes of taking cognizance under Section 15 of the Act was to safeguard the valuable time of the High Court or the Supreme Court being wasted by frivolous complaints of contempt of court. Frequent use of this suo motu power on the information furnished by an incompetent petition, may render these procedural safeguards provided in Sub-section (2), otiose. In such cases, the High Court may be well advised to avail of the advice and assistance of the Advocate-General before initiating proceedings. In this connection the Court referred to the observations of Sanyal Committee appointed to examine this question where it was observed: In the case of criminal contempt, not being contempt committed in the face of the court, we are of the opinion that it would lighten the burden of the court, without in any way interfering with the sanctity of the administration of justice, if action is taken on a motion by some other agency. Such a course of action would give considerable assurance to the individual charged and the public at large. Indeed, some High Courts have already made rules for the association of the Advocate-General in some categories of cases at least.... It was the practice that except where the Court feels inclined to take action suo motu parties were entitled to move only by the consent. If no justiciable reason was given in an appropriate case and such consent was refused can it be said that it would not be proper for the Court to investigate the same?38. The question of contempt of court came up for consideration in the case of C.K. Daphtary and Ors. v. O.P. Gupta and Ors. [1971] Su. S.C.R. 76. In that case a petition under Article 129 of the Constitution was filed by Shri C.K. Daphtary and three other advocates bringing to the notice of this Court alleged contempt committed by the respondents. There this Court held that under Article 129 of the Constitution this Court had the power to punish for contempt of itself and under Article 143(2) it could investigate any such contempt. this Court reiterated that the Constitution made this Court the guardian of fundamental rights. this Court further held that under the existing law of contempt of court any publication which was calculated to interfere with the due course of justice or proper administration of law would amount to contempt of court. A scurrilous attack on a judge, in respect of a judgment or past conduct has in our country the inevitable effect of undermining the confidence of the public in the Judiciary; and if confidence in Judiciary goes administration of justice definitely suffers. In that case a pamphlet was alleged to have contained statements amounting to contempt of the Court. As the Attorney General did not move in the matter, the President of the Supreme Court Bar and the other petitioners chose to bring the matter to the notice of the Court. It was alleged that the said President and the other members of the Bar have no locus standi. this Court held that the Court could issue a notice suo motu. The President of the Supreme Court Bar and other petitioners were perfectly entitled to bring to the notice of the Court any contempt of the Court. The first respondent referred to Lord Shawcross Committees recommendation in U.K. that proceedings should be instituted only if the Attorney-General in his discretion considers them necessary. This was only a recommendation made in the light of circumstances prevailing in England. But that is not the law in India, this Court reiterated. It has to be borne that decision was rendered on 19th March, 1971 and the present Act in India was passed on 24th December, 1971. Therefore that decision cannot be of any assistance. We have noticed Sanyal Committees recommendations in India as to why the Attorney General should be associated with it, and thereafter in U.K. there was report of Phillimore Committee in 1974. In India the reason for having the consent of the Attorney General was examined and explained by Sanyal Committee Report as noticed before.Therefore cognizance could be taken suo motu and information contained in the application by a private individual could be utilised. As we have mentioned hereinbefore indubitably cognizance could be taken suo motu by the Court but members of the public have also the right to move the Court. That right of bringing to the notice of the Court is dependent upon consent being given either by the Attorney General or the Solicitor General and if that consent is withheld without reasons or without consideration of that right granted to any other person under Section 15 of the Act that could be investigated on an application made to the Court.In that case under an order passed by the appellant, a Magistrate, one G was put in possession of some property on October 14, 1955. In revision the order was set aside by the High Court on August 27, 1957 and the opposite party S applied on November 20, 1957 to the appellant for redelivery of possession. G applied to the High Court for a review of its previous order and on November 25, 1957, the application was admitted and an interim stay was granted of the proceedings before the appellant. A telegram addressed to a pleader, not the counsel for G, was filed along with the application. The appellant refused to act on this application and telegram and on November 27, 1957, he allowed the application of S for restitution. On November 28, 1957, a copy of the order of the High Court was received and thereupon the writ for redelivery of possession was not issued. The High Court convicted the appellant for contempt of court for passing the order for restitution on November 27, when the High Court had stayed the proceedings. The appellant appealed to this Court and impleaded the Chief Justice and Judges of the High Court as respondents. this Court held that the appellant was not guilty of contempt of court. It further held that in a contempt matter the Chief Justice and Judges of the High Court should not be made parties and the title of such a proceeding should be In re... the alleged contemnor. Mudholkar, J. speaking for the Court observed at page 321 of the report that the decision of Judges given in a contempt matter is like any other decision of those Judges, that is, in matters which come up before them by way of suit, petition, appeal or reference. Since that was the real position, this Court observed that there was no warrant for the practice which was in vogue in India there, and which had been in vogue for over a century, of making the Chief Justice and Judges parties to an appeal against the decision of a High Court in a contempt matter. The said observations were sought to be relied in aid of the proposition that where the decision of the Attorney General or the Solicitor General was involved, they were not necessary or proper parties. Reliance on this decision for this purpose is entirely misconceived. Where an appeal comes to this Court, which is a judicial decision, the Judges who rendered the decision are not necessary parties. There is no lis between a suitor and a judge in a judicial adjudication. But the position is entirely different where there is suitor claiming the exercise of a statutory right in his favour which he alleges is hampered by an official act of a named official in the Act. In respect of justiciability of that act of the official there is a lis and if that lis is inter-linked with the proceeding for contempt, there is warrant for making him party in that proceeding though the prayers and the notice must be issued differently.41. As mentioned hereinbefore in the case of S.C. Sarkar v. V.C. Misra (supra) this Court had observed that it may well be advices to avail of the advised and assistance of the Advocate General before initiating proceedings.Shri Ganguly appearing for the Solicitor General sought to urge before us that advice and assistance could not be compelled by a suitor.This cannot be agreed to. The statute gives a right to a suitor to move the Court in one of the contingencies for contempt or bring to the notice of the Court the contempt with the advice and assistance of the Attorney General or the Solicitor General. If such right is not considered on relevant materials then that action is justiciable in an appropriate proceeding for contempt.43. Lord Cross has noticed in his speech that if the Attorney General declines to take up the case, it will not prevent the complainant from seeking to persuade the Court that notwithstanding refusal of the Attorney General to act, the matter complained of does, in fact, constitute a contempt of which the Court should take notice. But that does not derogate the rights of the individual to move the Court. See the observations of Lord Reid. In Indian Express Newspapers (Bombay) Pvt. Ltd. and Ors. etc. v. Union of India and Ors. : [1986]159ITR856(SC) , the observations of the aforesaid decision in Thalidomide case were relied upon.44. Reliance was also placed on the observations of the House of Lords in Gouriot and Ors v. H.M. Attorney General [1978] A C 435. There it held the initiation of litigation and the determination of the question whether it is a proper case for the Attorney General to proceed in, is a matter entirely beyond the jurisdiction of that or any other Court. It is a question which the law has made, to reside exclusively in the Attorney General. The House of Lords was reversing the decision of the Court of Appeal in the celebrated case of Gouriet v. Union of Post Office Workers [1978] A C 435 where the House of Lords could find no legal basis for the lower courts attempt to outflank the Attorney Generals refusal to grant his fiat to Mr. Gouriet. In the Court of Appeal, all the three Judges, Denning M.R., Lawton and Ormrod LJ, upheld the plaintiffs claim for declaration and interim injunction even in the absence of fiat by the Attorney General. The statutory provisions were entirely different. It may be in the context that the Attorney General had to move in his discretion which is not justiciable. But in our opinion it is justiciable. English decisions are of persuasive value and we would prefer to rest out decision on the observations of Lord Denning in Gouriet v. Union of Post Office Workers and Ors. [1977] 1 Q.B. 729 though made in connection with the Attorney Generals discretion in giving consent in instituting a suit for injunction by a member of the public. In U.K. the position of Attorney General as a member of the Cabinet is different. There the contempt of Court is regulated by different statutory provisions which were examined by a Committee known as Phillimore Committee Report. See also the observations of Sikri J. as the Chief Justice then was, in C.K. Daphtary and Ors. (supra) at page 109 of the report.45. Our attention was drawn to the decision of the Andhra Pradesh High Court in Rajagopal Rao v. Murtza Mutjahdi [1974] 1 ALT 170. We are unable to accept the ratio stated in view of the terms of Section 15 of the Act. Our attention was also drawn to the case of N. Venkataramanappa v. D.K. Naikar AIR1978Kant57 . It is also not possible to accept the position that under no circumstances the exercise of discretion by the Attorney General or Solicitor General cannot be enquired into.46. Having considered the peculiar facts and circumstances of this case and the allegation of bias which were made against the Attorney General and the Solicitor General, it appears that the Attorney General and the Solicitor General acted properly in declining to deal with the matter and the Court could deal with the matter on attention being drawn to this Court. | 0 | 14,194 | 6,624 | ### Instruction:
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the law gives to some problem is regarded by many people as unjust. Lord Cross further observed that there must be no prejudging of the issues in a case is one thing. To say that no one must in any circumstances exert any pressure on a party to litigation to induce him to act in relation to the litigation in a way in which he would otherwise not choose to act is another and a very different thing. Lord Cross at page 87 of the report observed as follows: In conclusion I would say that I disagree with the views expressed by Lord Denning MR and Phillimore LJ 1973 1 All E.R. 815 as to the role of the Attorney-General in cases of alleged contempt of court. If he takes them up he does not do so as a Minister of the Crown putting the authority of the Crown behind the complaint-but as amicus curiae bringing to the notice of the court some matter of which he considers that the court shall be informed in the interests of the administration of justice. It is, I think, most desirable that in civil as well as in criminal cases anyone who thinks that a criminal contempt of court has been or is about to be committed should, if possible, place the facts before the Attorney-General for him to consider whether or not those facts appear to disclose a contempt of court of sufficient gravity to warrant his bringing the matter to the notice of the court. Of course, in some cases it may be essential if an application is to be made at all for it to be made promptly and there may be no time for the person affected by the contempt to put the facts before the attorney before moving himself. Again the fact that the attorney declines to take up the case will not prevent the complainant from seeking to persuade the court that notwithstanding the refusal of the attorney to act the matter complained of does in fact constitute a contempt of which the court should take notice. Yet, again, of course, there may be cases where a serious contempt appears to have been committed but for one reason or another none of the parties affected by it wishes any action to be taken in respect of it. In such cases if the facts come to the knowledge of the attorney from some other source he will naturally himself bring the matter to the attention of the court. 43. Lord Cross has noticed in his speech that if the Attorney General declines to take up the case, it will not prevent the complainant from seeking to persuade the Court that notwithstanding refusal of the Attorney General to act, the matter complained of does, in fact, constitute a contempt of which the Court should take notice. But that does not derogate the rights of the individual to move the Court. See the observations of Lord Reid. In Indian Express Newspapers (Bombay) Pvt. Ltd. and Ors. etc. v. Union of India and Ors. : [1986]159ITR856(SC) , the observations of the aforesaid decision in Thalidomide case were relied upon. 44. Reliance was also placed on the observations of the House of Lords in Gouriot and Ors v. H.M. Attorney General [1978] A C 435. There it held the initiation of litigation and the determination of the question whether it is a proper case for the Attorney General to proceed in, is a matter entirely beyond the jurisdiction of that or any other Court. It is a question which the law has made, to reside exclusively in the Attorney General. The House of Lords was reversing the decision of the Court of Appeal in the celebrated case of Gouriet v. Union of Post Office Workers [1978] A C 435 where the House of Lords could find no legal basis for the lower courts attempt to outflank the Attorney Generals refusal to grant his fiat to Mr. Gouriet. In the Court of Appeal, all the three Judges, Denning M.R., Lawton and Ormrod LJ, upheld the plaintiffs claim for declaration and interim injunction even in the absence of fiat by the Attorney General. The statutory provisions were entirely different. It may be in the context that the Attorney General had to move in his discretion which is not justiciable. But in our opinion it is justiciable. English decisions are of persuasive value and we would prefer to rest out decision on the observations of Lord Denning in Gouriet v. Union of Post Office Workers and Ors. [1977] 1 Q.B. 729 though made in connection with the Attorney Generals discretion in giving consent in instituting a suit for injunction by a member of the public. In U.K. the position of Attorney General as a member of the Cabinet is different. There the contempt of Court is regulated by different statutory provisions which were examined by a Committee known as Phillimore Committee Report. See also the observations of Sikri J. as the Chief Justice then was, in C.K. Daphtary and Ors. (supra) at page 109 of the report. 45. Our attention was drawn to the decision of the Andhra Pradesh High Court in Rajagopal Rao v. Murtza Mutjahdi [1974] 1 ALT 170. We are unable to accept the ratio stated in view of the terms of Section 15 of the Act. Our attention was also drawn to the case of N. Venkataramanappa v. D.K. Naikar AIR1978Kant57 . It is also not possible to accept the position that under no circumstances the exercise of discretion by the Attorney General or Solicitor General cannot be enquired into. 46. Having considered the peculiar facts and circumstances of this case and the allegation of bias which were made against the Attorney General and the Solicitor General, it appears that the Attorney General and the Solicitor General acted properly in declining to deal with the matter and the Court could deal with the matter on attention being drawn to this Court.
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### Explanation:
held that in a contempt matter the Chief Justice and Judges of the High Court should not be made parties and the title of such a proceeding should be In re... the alleged contemnor. Mudholkar, J. speaking for the Court observed at page 321 of the report that the decision of Judges given in a contempt matter is like any other decision of those Judges, that is, in matters which come up before them by way of suit, petition, appeal or reference. Since that was the real position, this Court observed that there was no warrant for the practice which was in vogue in India there, and which had been in vogue for over a century, of making the Chief Justice and Judges parties to an appeal against the decision of a High Court in a contempt matter. The said observations were sought to be relied in aid of the proposition that where the decision of the Attorney General or the Solicitor General was involved, they were not necessary or proper parties. Reliance on this decision for this purpose is entirely misconceived. Where an appeal comes to this Court, which is a judicial decision, the Judges who rendered the decision are not necessary parties. There is no lis between a suitor and a judge in a judicial adjudication. But the position is entirely different where there is suitor claiming the exercise of a statutory right in his favour which he alleges is hampered by an official act of a named official in the Act. In respect of justiciability of that act of the official there is a lis and if that lis is inter-linked with the proceeding for contempt, there is warrant for making him party in that proceeding though the prayers and the notice must be issued differently.41. As mentioned hereinbefore in the case of S.C. Sarkar v. V.C. Misra (supra) this Court had observed that it may well be advices to avail of the advised and assistance of the Advocate General before initiating proceedings.Shri Ganguly appearing for the Solicitor General sought to urge before us that advice and assistance could not be compelled by a suitor.This cannot be agreed to. The statute gives a right to a suitor to move the Court in one of the contingencies for contempt or bring to the notice of the Court the contempt with the advice and assistance of the Attorney General or the Solicitor General. If such right is not considered on relevant materials then that action is justiciable in an appropriate proceeding for contempt.43. Lord Cross has noticed in his speech that if the Attorney General declines to take up the case, it will not prevent the complainant from seeking to persuade the Court that notwithstanding refusal of the Attorney General to act, the matter complained of does, in fact, constitute a contempt of which the Court should take notice. But that does not derogate the rights of the individual to move the Court. See the observations of Lord Reid. In Indian Express Newspapers (Bombay) Pvt. Ltd. and Ors. etc. v. Union of India and Ors. : [1986]159ITR856(SC) , the observations of the aforesaid decision in Thalidomide case were relied upon.44. Reliance was also placed on the observations of the House of Lords in Gouriot and Ors v. H.M. Attorney General [1978] A C 435. There it held the initiation of litigation and the determination of the question whether it is a proper case for the Attorney General to proceed in, is a matter entirely beyond the jurisdiction of that or any other Court. It is a question which the law has made, to reside exclusively in the Attorney General. The House of Lords was reversing the decision of the Court of Appeal in the celebrated case of Gouriet v. Union of Post Office Workers [1978] A C 435 where the House of Lords could find no legal basis for the lower courts attempt to outflank the Attorney Generals refusal to grant his fiat to Mr. Gouriet. In the Court of Appeal, all the three Judges, Denning M.R., Lawton and Ormrod LJ, upheld the plaintiffs claim for declaration and interim injunction even in the absence of fiat by the Attorney General. The statutory provisions were entirely different. It may be in the context that the Attorney General had to move in his discretion which is not justiciable. But in our opinion it is justiciable. English decisions are of persuasive value and we would prefer to rest out decision on the observations of Lord Denning in Gouriet v. Union of Post Office Workers and Ors. [1977] 1 Q.B. 729 though made in connection with the Attorney Generals discretion in giving consent in instituting a suit for injunction by a member of the public. In U.K. the position of Attorney General as a member of the Cabinet is different. There the contempt of Court is regulated by different statutory provisions which were examined by a Committee known as Phillimore Committee Report. See also the observations of Sikri J. as the Chief Justice then was, in C.K. Daphtary and Ors. (supra) at page 109 of the report.45. Our attention was drawn to the decision of the Andhra Pradesh High Court in Rajagopal Rao v. Murtza Mutjahdi [1974] 1 ALT 170. We are unable to accept the ratio stated in view of the terms of Section 15 of the Act. Our attention was also drawn to the case of N. Venkataramanappa v. D.K. Naikar AIR1978Kant57 . It is also not possible to accept the position that under no circumstances the exercise of discretion by the Attorney General or Solicitor General cannot be enquired into.46. Having considered the peculiar facts and circumstances of this case and the allegation of bias which were made against the Attorney General and the Solicitor General, it appears that the Attorney General and the Solicitor General acted properly in declining to deal with the matter and the Court could deal with the matter on attention being drawn to this Court.
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POST GRADUATE INSTITUTE OF MEDICAL EDUCATION AND RESEARCH CHANDIGARH Vs. M/S KALSI CONSTRUCTION COMPANY | R. BANUMATHI, J. 1. Leave granted. 2. This appeal arises out of the impugned judgment and order dated 10.05.2019 passed by the High Court of Punjab and Haryana at Chandigarh in FAO No.4045 of 2003 in and by which the High Court has dismissed the appeal of the appellant herein filed under Section 37 of the Arbitration and Conciliation Act and affirmed the Award passed by the Arbitrator including with regard to the rate of interest awarded by the arbitrator at the rate of 18% per annum. 3. The respondent-M/s. Kalsi Construction Company was allotted a contract for construction of Advanced Pediatrics Centre of the Post Graduate Institute of Medical Research and Education. Regarding the completion of the work, dispute arose between the parties which was referred to arbitration. Learned Arbitrator by the Award dated 31.12.1999 awarded an amount of Rs.1,17,00,000/- (Rupees one crore seventeen lakhs) against claim of Rs.10,63,00,000/- (Rupees ten crore sixty three lakhs) made by the respondent-Company. After referring to Section 31(7) of the Arbitration and Conciliation Act which vests authority to award the interest, learned Arbitrator awarded interest at the rate of 18% per annum. Challenging the award, the appeal preferred by the appellant-Institution under Section 34 of the said Act came to be dismissed which was affirmed by the High Court by the impugned judgment in the appeal preferred by the appellant under Section 37 of the said Act. 4. We have heard Mr. Sudarshan Rajan, learned counsel appearing for the appellanat-Institution and also Mr. Naresh Markanda, learned senior counsel appearing for the respondent-Company. 5. Mr. Sudarshan Rajan, learned counsel appearing for the appellant-Institution, on instruction, has submitted that the appellant-Institution is not pressing other grounds enumerated in the grounds of the appeal and is only praying for reduction of rate of interest. 6. Mr. Naresh Markanda, learned senior counsel appearing for the respondent-Company, has submitted that so far as the rate of interest, the respondent is leaving that aspect to the discretion of this Court for considering the rate of interest. However, learned Senior counsel submitted that it should be a reasonable rate of interest since the award was passed in 1999 and the respondent is yet to be paid the award amount. 7. In the absence of agreement to the contrary between the parties, Section 31(7)(a) of the said Act confers jurisdiction upon the Arbitral Tribunal to award interest unless otherwise agreed by the parties at such rate as the Arbitral Tribunal considers reasonable, on the whole or any part of the money, for the whole or any part of the period between the date on which the cause of action arises and the date on which the award is made. In the present case, the parties have agreed for the rate of interest at 18% per annum. However, since the award is of the year 1999 and considering the facts that the learned Senior counsel had left the matter to the discretion of the court. Considering the facts and circumstances of the case, in our view in exercise of the power under Article 142 of the Constitution of India, the interest at the rate of 18% awarded by the Arbitral Tribunal is to be reduced. 8. Considering the fact that the contract relates to construction of Advanced Pediatrics Centre of the Post Graduate Institute of Medical Research and Education, Chandigarh and also other facts and circumstances of the case, in exercise of our power under Article 142 of the Constitution of India, the orders of the learned Arbitrator as affirmed by the High Court so far as the rate of interest is concerned is modified and the same is reduced from 18% to 10% per annum simple interest. | 0[ds]In the present case, the parties have agreed for the rate of interest at 18% per annum. However, since the award is of the year 1999 and considering the facts that the learned Senior counsel had left the matter to the discretion of the court. Considering the facts and circumstances of the case, in our view in exercise of the power under Article 142 of the Constitution of India, the interest at the rate of 18% awarded by the Arbitral Tribunal is to be reduced.Considering the fact that the contract relates to construction of Advanced Pediatrics Centre of the Post Graduate Institute of Medical Research and Education, Chandigarh and also other facts and circumstances of the case, in exercise of our power under Article 142 of the Constitution of India, the orders of the learned Arbitrator as affirmed by the High Court so far as the rate of interest is concerned is modified and the same is reduced from 18% to 10% per annum simple interest. | 0 | 684 | 184 | ### 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:
R. BANUMATHI, J. 1. Leave granted. 2. This appeal arises out of the impugned judgment and order dated 10.05.2019 passed by the High Court of Punjab and Haryana at Chandigarh in FAO No.4045 of 2003 in and by which the High Court has dismissed the appeal of the appellant herein filed under Section 37 of the Arbitration and Conciliation Act and affirmed the Award passed by the Arbitrator including with regard to the rate of interest awarded by the arbitrator at the rate of 18% per annum. 3. The respondent-M/s. Kalsi Construction Company was allotted a contract for construction of Advanced Pediatrics Centre of the Post Graduate Institute of Medical Research and Education. Regarding the completion of the work, dispute arose between the parties which was referred to arbitration. Learned Arbitrator by the Award dated 31.12.1999 awarded an amount of Rs.1,17,00,000/- (Rupees one crore seventeen lakhs) against claim of Rs.10,63,00,000/- (Rupees ten crore sixty three lakhs) made by the respondent-Company. After referring to Section 31(7) of the Arbitration and Conciliation Act which vests authority to award the interest, learned Arbitrator awarded interest at the rate of 18% per annum. Challenging the award, the appeal preferred by the appellant-Institution under Section 34 of the said Act came to be dismissed which was affirmed by the High Court by the impugned judgment in the appeal preferred by the appellant under Section 37 of the said Act. 4. We have heard Mr. Sudarshan Rajan, learned counsel appearing for the appellanat-Institution and also Mr. Naresh Markanda, learned senior counsel appearing for the respondent-Company. 5. Mr. Sudarshan Rajan, learned counsel appearing for the appellant-Institution, on instruction, has submitted that the appellant-Institution is not pressing other grounds enumerated in the grounds of the appeal and is only praying for reduction of rate of interest. 6. Mr. Naresh Markanda, learned senior counsel appearing for the respondent-Company, has submitted that so far as the rate of interest, the respondent is leaving that aspect to the discretion of this Court for considering the rate of interest. However, learned Senior counsel submitted that it should be a reasonable rate of interest since the award was passed in 1999 and the respondent is yet to be paid the award amount. 7. In the absence of agreement to the contrary between the parties, Section 31(7)(a) of the said Act confers jurisdiction upon the Arbitral Tribunal to award interest unless otherwise agreed by the parties at such rate as the Arbitral Tribunal considers reasonable, on the whole or any part of the money, for the whole or any part of the period between the date on which the cause of action arises and the date on which the award is made. In the present case, the parties have agreed for the rate of interest at 18% per annum. However, since the award is of the year 1999 and considering the facts that the learned Senior counsel had left the matter to the discretion of the court. Considering the facts and circumstances of the case, in our view in exercise of the power under Article 142 of the Constitution of India, the interest at the rate of 18% awarded by the Arbitral Tribunal is to be reduced. 8. Considering the fact that the contract relates to construction of Advanced Pediatrics Centre of the Post Graduate Institute of Medical Research and Education, Chandigarh and also other facts and circumstances of the case, in exercise of our power under Article 142 of the Constitution of India, the orders of the learned Arbitrator as affirmed by the High Court so far as the rate of interest is concerned is modified and the same is reduced from 18% to 10% per annum simple interest.
### Response:
0
### Explanation:
In the present case, the parties have agreed for the rate of interest at 18% per annum. However, since the award is of the year 1999 and considering the facts that the learned Senior counsel had left the matter to the discretion of the court. Considering the facts and circumstances of the case, in our view in exercise of the power under Article 142 of the Constitution of India, the interest at the rate of 18% awarded by the Arbitral Tribunal is to be reduced.Considering the fact that the contract relates to construction of Advanced Pediatrics Centre of the Post Graduate Institute of Medical Research and Education, Chandigarh and also other facts and circumstances of the case, in exercise of our power under Article 142 of the Constitution of India, the orders of the learned Arbitrator as affirmed by the High Court so far as the rate of interest is concerned is modified and the same is reduced from 18% to 10% per annum simple interest.
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STATE OF ORISSA & ORS Vs. M/S UTKAL DISTILLERIES LTD | sale. But from the scheme of entries in the three lists it is clear that taxing entries have been specifically en- acted conferring powers of taxation whereas other entries pertain to the au- thority of the legislature to enact laws for purposes of regulation. If we compare En- try 8 in List II with Entry 51 it is clear that when Entry 51 authorises the State legislature to levy tax and duties on alco- holic liquors falling in Entry 51, Entry 8 confers authority on the State legislature to enact laws for regulation. Similarly are entries in List I. As regards regulation or regulatory fees it was contended that En- try 52 in List I empowers the Parliament to declare the industries which the Union proposes to control in public interest un- der Industries Development and Regula- tion Act. 99. Entry 52 List I reads as under: 52. Industries, the control of which by the Union is declared by Parliament by law to be expedient in the public in- terest. 100. Such a declaration is made by the Parliament and this industry that is in- dustry based on fermentation and alcohol has been declared to be an industry un- der that Act and therefore is directly un- der the control of the Centre and there- fore even in respect of regulation the au- thority of the State legislature in Entry 8 List II could only be subject to the Indus- tries Development and Regulation Act or Rules made by the Centre. 101. Under these circumstances there- fore it is clear that the State legislature had no authority to levy duty or tax on al- cohol which is not for human consump- tion as that could only be levied by the Centre. 17. It could thus be seen that the Constitution Bench has held that the Constitution makers distributed the term alcohol liquor into two heads, viz., (a) for human consumption; and (b) other than for human consumption. It has been held that the alcoholic liquors, which are for human consumption, are put in Entry 51 List II authorizing the State Legislature to levy tax on them, whereas alcoholic liquors other than for human consumption have been left to the Central Legislature under Entry 84 for levy of duty of excise. It has been held that what has been excluded in Entry 84 has specifically been put within the authority of the State for purposes of taxation. The Constitution Bench clearly held that the State Legislature had no authority to levy duty or tax on alcohol, which is not for human consumption as that could be levied only by the Centre. 18. A three Judge Bench of this Court in the case of State of U.P. and others vs. Modi Distillery and others (1995) 5 SCC 753 was considering the power of the State Government to levy excise duty on wastage of liquor after distillation. Following the judgment of the Constitution Bench of this Court in the case of Synthetics and Chemicals Ltd. (supra), this Court observed thus: 10. What the State seeks to levy excise duty upon in the Group B cases is the wastage of liquor after distillation, but be- fore dilution; and, in the Group D cases, the pipeline loss of liquor during the process of manufacture, before dilution. It is clear, therefore, that what the State seeks to levy excise duty upon is not alco- holic liquor for human consumption but the raw material or input still in process of being rendered fit for consumption by human beings. The State is not empow- ered to levy excise duty on the raw mate- rial or input that is in the process of be- ing made into alcoholic liquor for human consumption. 19. It could thus be seen that this Court held that the State was only empowered to levy excise duty on alcoholic liquor for human consumption. This Court held that the State has no power to levy excise duty on wastage of liquor after distillation. 20. Even the perusal of Section 27(1) read with Section 2(6) of the erstwhile Bihar and Orissa Excise Act, 1915, (hereinafter referred to as the said Act), which governed the field at the relevant time, would clarify the position. They are reproduced hereunder: Section 2(6) 2. Definitions- In this Act, unless there is anything repugnant in the subject or context; (6) excisable article means- (a) any alcoholic liquor for human consumption; or (b) Any intoxicating drug; Section 27(1) 27. Power to impose duty on import, transport and manufacture - (1) An excise duty or countervailing duty, as the case may be, at such rate or rates as the State Government may direct, may be imposed either generally or for any specified local area, on (a) any excisable article imported; or (b) any excisable article exported; or (c) any excisable article transported; or (d) any excisable article (other than tari) manufactured under any licence granted in respect of Clause (a) of Section 13; or (e) any hemp plant cultivated, or any portion of such plant collected, under any licence granted in respect of Clause (b) or Clause (c) of Section 13; or (f) any excisable article manufactured in any distillery or brewery licensed, established, authorised or continued under this Act. Explanation - Duty may be imposed on any article under this sub- section at different rates according to the places to which such article is to be removed for consumption, or according to the varying strengths and quality of such article. 21. Perusal of Section 27(1) of the said Act would reveal that the States power to impose duty on import, export, transport and manufacture is only in respect of any excisable articles imported, exported, transported and manufactured. Excisable article has been defined to be any alcoholic liquor for human consumption or any intoxicating drug. It is thus clear that even under the relevant statute, the State has power to levy excise duty only in respect of the alcoholic liquor for human consumption. | 0[ds]14. It is not in dispute that the license, which was granted to the respondent--Company, is for the purpose of manufacturing, bottling, blending and reduction of IMFL. It is also not in dispute that as required under the license, the respondent--Company has installed one ENA column to rectify the rectified spirit to be used in the manufacturing of IMFL. It is also not in dispute that the sample of wastage generated in the manufacturing process was sent for examination to the State Drugs Testing and Research Laboratory, Orissa.15. It is thus clear that the wastage generated has been found to be unfit and unsafe for potable purpose.16. The Constitution Bench of this Court in the case of Synthetics and Chemicals Ltd. (supra) was considering the issue, as to whether the States are entitled to levy excise duty in respect of industrial alcohol. Different legislations in the different States dealing with such a power of the State Government came up for consideration before the Constitution Bench of this Court in the said case. The Constitution Bench observed thus:95. It was also contended that the State ultimately falls back on the consideration for parting with the privilege to sell alco- holic liquors which has been the basis of series of decisions of this Court based on English and American decisions but ac- cording to the learned counsel for the pe- titioners this doctrine of privilege and consideration for sale of privilege also could be available to the State only in re- spect of alcohol or alcoholic liquors which are for human consumption. According to the learned counsel by merely widening the definition of intoxicating liquors in re-spective excise laws enacted by the States the ambit of authority of taxation could not be enlarged by the State legislature when in List II Entry 51 the words used are alcoholic liquors for human consump- tion. Entry 84 in List I reads:84. Duties of excise on tobacco and other goods manufactured or produced in India except—(a) alcoholic liquors for human con- sumption;(b) opium, Indian hemp and other narcotic drugs and narcotics,but including medicinal and toilet prepa- rations containing alcohol or any sub- stance included in sub-paragraph (b) of this entry.96. Entry 51 in List II reads:51. Duties of excise on the follow- ing goods manufactured or produced in the State and countervailing duties at the same or lower rates on similar goods manufactured or produced else- where in India:—(a) alcoholic liquors for human con- sumption;(b) opium, Indian hemp and other nar- cotic drugs and narcotics;but not including medicinal and toilet preparations containing alcohol or any substance included in sub-paragraph (b) of this entry.97. A comparison of the language of these two entries clearly demonstrates that the powers of taxation on alcoholic liquors have been based on the way in which they are used as admittedly alco- holic liquor is a very wide term and may include variety of types of alcoholic liquors but our Constitution-makers dis- tributed them into two heads:(a) for human consumption(b) other than for human consumption Alcoholic liquors which are for human consumption were put in Entry 51 List II authorising the State legislature to levy tax on them whereas alcoholic liquors other than for human consumption have been left to the central legislature under Entry 84 for levy of duty of excise. This scheme of these two entries in Lists I and II is clear enough to indicate the line of demarcation for purposes of taxation of alcoholic liquors. What has been ex- cluded in Entry 84 has specifically been put within the authority of the State for purposes of taxation.98. Entry 8 in List II reads:8. Intoxicating liquors, that is to say, the production, manufacture, pos- session, transport, purchase and sale of intoxicating liquors.This entry talks of intoxicating liquors and further on refers to production, man- ufacture, possession, transport, purchase and sale of these liquors. It appears that the State has levied some kind of duties in various names at each of these stages used in this entry, that is, production, manufacture, possession, transport, pur- chase and sale. But from the scheme of entries in the three lists it is clear that taxing entries have been specifically en- acted conferring powers of taxation whereas other entries pertain to the au- thority of the legislature to enact laws for purposes of regulation. If we compare En- try 8 in List II with Entry 51 it is clear that when Entry 51 authorises the State legislature to levy tax and duties on alco- holic liquors falling in Entry 51, Entry 8 confers authority on the State legislature to enact laws for regulation. Similarly are entries in List I. As regards regulation or regulatory fees it was contended that En- try 52 in List I empowers the Parliament to declare the industries which the Union proposes to control in public interest un- der Industries Development and Regula- tion Act.99. Entry 52 List I reads as under:52. Industries, the control of which by the Union is declared by Parliament by law to be expedient in the public in- terest.100. Such a declaration is made by the Parliament and this industry that is in- dustry based on fermentation and alcohol has been declared to be an industry un- der that Act and therefore is directly un- der the control of the Centre and there- fore even in respect of regulation the au- thority of the State legislature in Entry 8 List II could only be subject to the Indus- tries Development and Regulation Act or Rules made by the Centre.101. Under these circumstances there- fore it is clear that the State legislature had no authority to levy duty or tax on al- cohol which is not for human consump- tion as that could only be levied by the Centre.17. It could thus be seen that the Constitution Bench has held that the Constitution makers distributed the term alcohol liquor into two heads, viz.,and (b) other than for human consumption. It has been held that the alcoholic liquors, which are for human consumption, are put in Entry 51 List II authorizing the State Legislature to levy tax on them, whereas alcoholic liquors other than for human consumption have been left to the Central Legislature under Entry 84 for levy of duty of excise. It has been held that what has been excluded in Entry 84 has specifically been put within the authority of the State for purposes of taxation. The Constitution Bench clearly held that the State Legislature had no authority to levy duty or tax on alcohol, which is not for human consumption as that could be levied only by the Centre.18. A three Judge Bench of this Court in the case of State of U.P. and others vs. Modi Distillery and others (1995) 5 SCC 753 was considering the power of the State Government to levy excise duty on wastage of liquor after distillation. Following the judgment of the Constitution Bench of this Court in the case of Synthetics and Chemicals Ltd. (supra), this Court observed thus:10. What the State seeks to levy excise duty upon in the Group B cases is the wastage of liquor after distillation, but be- fore dilution; and, in the Group D cases, the pipeline loss of liquor during the process of manufacture, before dilution. It is clear, therefore, that what the State seeks to levy excise duty upon is not alco- holic liquor for human consumption but the raw material or input still in process of being rendered fit for consumption by human beings. The State is not empow- ered to levy excise duty on the raw mate- rial or input that is in the process of be- ing made into alcoholic liquor for human consumption.19. It could thus be seen that this Court held that the State was only empowered to levy excise duty on alcoholic liquor for human consumption. This Court held that the State has no power to levy excise duty on wastage of liquor after distillation.20. Even the perusal of Section 27(1) read with Section 2(6) of the erstwhile Bihar and Orissa Excise Act, 1915, (hereinafter referred to as the said Act), which governed the field at the relevant time, would clarify the position.21. Perusal of Section 27(1) of the said Act would reveal that the States power to impose duty on import, export, transport and manufacture is only in respect of any excisable articles imported, exported, transported and manufactured. Excisable article has been defined to be any alcoholic liquor for human consumption or any intoxicating drug. It is thus clear that even under the relevant statute, the State has power to levy excise duty only in respect of the alcoholic liquor for human consumption. | 0 | 3,255 | 1,604 | ### 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:
sale. But from the scheme of entries in the three lists it is clear that taxing entries have been specifically en- acted conferring powers of taxation whereas other entries pertain to the au- thority of the legislature to enact laws for purposes of regulation. If we compare En- try 8 in List II with Entry 51 it is clear that when Entry 51 authorises the State legislature to levy tax and duties on alco- holic liquors falling in Entry 51, Entry 8 confers authority on the State legislature to enact laws for regulation. Similarly are entries in List I. As regards regulation or regulatory fees it was contended that En- try 52 in List I empowers the Parliament to declare the industries which the Union proposes to control in public interest un- der Industries Development and Regula- tion Act. 99. Entry 52 List I reads as under: 52. Industries, the control of which by the Union is declared by Parliament by law to be expedient in the public in- terest. 100. Such a declaration is made by the Parliament and this industry that is in- dustry based on fermentation and alcohol has been declared to be an industry un- der that Act and therefore is directly un- der the control of the Centre and there- fore even in respect of regulation the au- thority of the State legislature in Entry 8 List II could only be subject to the Indus- tries Development and Regulation Act or Rules made by the Centre. 101. Under these circumstances there- fore it is clear that the State legislature had no authority to levy duty or tax on al- cohol which is not for human consump- tion as that could only be levied by the Centre. 17. It could thus be seen that the Constitution Bench has held that the Constitution makers distributed the term alcohol liquor into two heads, viz., (a) for human consumption; and (b) other than for human consumption. It has been held that the alcoholic liquors, which are for human consumption, are put in Entry 51 List II authorizing the State Legislature to levy tax on them, whereas alcoholic liquors other than for human consumption have been left to the Central Legislature under Entry 84 for levy of duty of excise. It has been held that what has been excluded in Entry 84 has specifically been put within the authority of the State for purposes of taxation. The Constitution Bench clearly held that the State Legislature had no authority to levy duty or tax on alcohol, which is not for human consumption as that could be levied only by the Centre. 18. A three Judge Bench of this Court in the case of State of U.P. and others vs. Modi Distillery and others (1995) 5 SCC 753 was considering the power of the State Government to levy excise duty on wastage of liquor after distillation. Following the judgment of the Constitution Bench of this Court in the case of Synthetics and Chemicals Ltd. (supra), this Court observed thus: 10. What the State seeks to levy excise duty upon in the Group B cases is the wastage of liquor after distillation, but be- fore dilution; and, in the Group D cases, the pipeline loss of liquor during the process of manufacture, before dilution. It is clear, therefore, that what the State seeks to levy excise duty upon is not alco- holic liquor for human consumption but the raw material or input still in process of being rendered fit for consumption by human beings. The State is not empow- ered to levy excise duty on the raw mate- rial or input that is in the process of be- ing made into alcoholic liquor for human consumption. 19. It could thus be seen that this Court held that the State was only empowered to levy excise duty on alcoholic liquor for human consumption. This Court held that the State has no power to levy excise duty on wastage of liquor after distillation. 20. Even the perusal of Section 27(1) read with Section 2(6) of the erstwhile Bihar and Orissa Excise Act, 1915, (hereinafter referred to as the said Act), which governed the field at the relevant time, would clarify the position. They are reproduced hereunder: Section 2(6) 2. Definitions- In this Act, unless there is anything repugnant in the subject or context; (6) excisable article means- (a) any alcoholic liquor for human consumption; or (b) Any intoxicating drug; Section 27(1) 27. Power to impose duty on import, transport and manufacture - (1) An excise duty or countervailing duty, as the case may be, at such rate or rates as the State Government may direct, may be imposed either generally or for any specified local area, on (a) any excisable article imported; or (b) any excisable article exported; or (c) any excisable article transported; or (d) any excisable article (other than tari) manufactured under any licence granted in respect of Clause (a) of Section 13; or (e) any hemp plant cultivated, or any portion of such plant collected, under any licence granted in respect of Clause (b) or Clause (c) of Section 13; or (f) any excisable article manufactured in any distillery or brewery licensed, established, authorised or continued under this Act. Explanation - Duty may be imposed on any article under this sub- section at different rates according to the places to which such article is to be removed for consumption, or according to the varying strengths and quality of such article. 21. Perusal of Section 27(1) of the said Act would reveal that the States power to impose duty on import, export, transport and manufacture is only in respect of any excisable articles imported, exported, transported and manufactured. Excisable article has been defined to be any alcoholic liquor for human consumption or any intoxicating drug. It is thus clear that even under the relevant statute, the State has power to levy excise duty only in respect of the alcoholic liquor for human consumption.
### Response:
0
### Explanation:
of taxation on alcoholic liquors have been based on the way in which they are used as admittedly alco- holic liquor is a very wide term and may include variety of types of alcoholic liquors but our Constitution-makers dis- tributed them into two heads:(a) for human consumption(b) other than for human consumption Alcoholic liquors which are for human consumption were put in Entry 51 List II authorising the State legislature to levy tax on them whereas alcoholic liquors other than for human consumption have been left to the central legislature under Entry 84 for levy of duty of excise. This scheme of these two entries in Lists I and II is clear enough to indicate the line of demarcation for purposes of taxation of alcoholic liquors. What has been ex- cluded in Entry 84 has specifically been put within the authority of the State for purposes of taxation.98. Entry 8 in List II reads:8. Intoxicating liquors, that is to say, the production, manufacture, pos- session, transport, purchase and sale of intoxicating liquors.This entry talks of intoxicating liquors and further on refers to production, man- ufacture, possession, transport, purchase and sale of these liquors. It appears that the State has levied some kind of duties in various names at each of these stages used in this entry, that is, production, manufacture, possession, transport, pur- chase and sale. But from the scheme of entries in the three lists it is clear that taxing entries have been specifically en- acted conferring powers of taxation whereas other entries pertain to the au- thority of the legislature to enact laws for purposes of regulation. If we compare En- try 8 in List II with Entry 51 it is clear that when Entry 51 authorises the State legislature to levy tax and duties on alco- holic liquors falling in Entry 51, Entry 8 confers authority on the State legislature to enact laws for regulation. Similarly are entries in List I. As regards regulation or regulatory fees it was contended that En- try 52 in List I empowers the Parliament to declare the industries which the Union proposes to control in public interest un- der Industries Development and Regula- tion Act.99. Entry 52 List I reads as under:52. Industries, the control of which by the Union is declared by Parliament by law to be expedient in the public in- terest.100. Such a declaration is made by the Parliament and this industry that is in- dustry based on fermentation and alcohol has been declared to be an industry un- der that Act and therefore is directly un- der the control of the Centre and there- fore even in respect of regulation the au- thority of the State legislature in Entry 8 List II could only be subject to the Indus- tries Development and Regulation Act or Rules made by the Centre.101. Under these circumstances there- fore it is clear that the State legislature had no authority to levy duty or tax on al- cohol which is not for human consump- tion as that could only be levied by the Centre.17. It could thus be seen that the Constitution Bench has held that the Constitution makers distributed the term alcohol liquor into two heads, viz.,and (b) other than for human consumption. It has been held that the alcoholic liquors, which are for human consumption, are put in Entry 51 List II authorizing the State Legislature to levy tax on them, whereas alcoholic liquors other than for human consumption have been left to the Central Legislature under Entry 84 for levy of duty of excise. It has been held that what has been excluded in Entry 84 has specifically been put within the authority of the State for purposes of taxation. The Constitution Bench clearly held that the State Legislature had no authority to levy duty or tax on alcohol, which is not for human consumption as that could be levied only by the Centre.18. A three Judge Bench of this Court in the case of State of U.P. and others vs. Modi Distillery and others (1995) 5 SCC 753 was considering the power of the State Government to levy excise duty on wastage of liquor after distillation. Following the judgment of the Constitution Bench of this Court in the case of Synthetics and Chemicals Ltd. (supra), this Court observed thus:10. What the State seeks to levy excise duty upon in the Group B cases is the wastage of liquor after distillation, but be- fore dilution; and, in the Group D cases, the pipeline loss of liquor during the process of manufacture, before dilution. It is clear, therefore, that what the State seeks to levy excise duty upon is not alco- holic liquor for human consumption but the raw material or input still in process of being rendered fit for consumption by human beings. The State is not empow- ered to levy excise duty on the raw mate- rial or input that is in the process of be- ing made into alcoholic liquor for human consumption.19. It could thus be seen that this Court held that the State was only empowered to levy excise duty on alcoholic liquor for human consumption. This Court held that the State has no power to levy excise duty on wastage of liquor after distillation.20. Even the perusal of Section 27(1) read with Section 2(6) of the erstwhile Bihar and Orissa Excise Act, 1915, (hereinafter referred to as the said Act), which governed the field at the relevant time, would clarify the position.21. Perusal of Section 27(1) of the said Act would reveal that the States power to impose duty on import, export, transport and manufacture is only in respect of any excisable articles imported, exported, transported and manufactured. Excisable article has been defined to be any alcoholic liquor for human consumption or any intoxicating drug. It is thus clear that even under the relevant statute, the State has power to levy excise duty only in respect of the alcoholic liquor for human consumption.
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Eastern Coalfields Ltd. Vs. Kalyan Banerjee | and U.P. Rashtriya Chini Mill Adhikari Parishad, Lucknow vs. State of U.P. and others [(1995) 4 SCC 738] to hold: "26. The view taken by this Court in U.P. Rashtriya Chini Mill Adhikari Parishad that the situs of issue of an order or notification by the Government would come within the meaning of the expression "cases arising" in clause 14 of the (Amalgamation) Order is not a correct view of law for the reason hereafter stated and to that extent the said decision is overruled. In fact, a legislation, it is trite, is not confined to a statute enacted by Parliament or the legislature of a State, which would include delegated legislation and subordinate legislation or an executive order made by the Union of India, State or any other statutory authority. In a case where the field is not covered by any statutory rule, executive instructions issued in this behalf shall also come within the purview thereof. Situs of office of Parliament, legislature of a State or authorities empowered to make subordinate legislation would not by itself constitute any cause of action or cases arising. In other words, framing of a statute, statutory rule or issue of an executive order or instruction would not confer jurisdiction upon a court only because of the situs of the office of the maker thereof.27. When an order, however, is passed by a court or tribunal or an executive authority whether under provisions of a statute or otherwise, a part of cause of action arises at that place. Even in a given case, when the original authority is constituted at one place and the appellate authority is constituted at another, a writ petition would be maintainable at both the places. In other words, as order of the appellate authority constitutes a part of cause of action, a writ petition would be maintainable in the High Court within whose jurisdiction it is situate having regard to the fact that the order of the appellate authority is also required to be set aside and as the order of the original authority merges with that of the appellate authority." 8. Kusum Ingots & Alloys Ltd. (supra) has been followed by this Court in Mosaraf Hossain Khan v. Bhagheeratha Engg. Ltd. and Others [(2006) 3 SCC 658] stating: "26. In Kusum Ingots & Alloys Ltd. v. Union of India 14 a three-Judge Bench of this Court clearly held that with a view to determine the jurisdiction of one High Court vis-à-vis the other the facts pleaded in the writ petition must have a nexus on the basis whereof a prayer can be made and the facts which have nothing to do therewith cannot give rise to a cause of action to invoke the jurisdiction of a court. In that case it was clearly held that only because the High Court within whose jurisdiction a legislation is passed, it would not have the sole territorial jurisdiction but all the High Courts where cause of action arises, will have jurisdiction." 9. In Om Prakash Srivastava v. Union of India and Another [(2006) 6 SCC 207] , this Court held: "12. The expression "cause of action" has acquired a judicially settled meaning. In the restricted sense "cause of action" means the circumstances forming the infraction of the right or the immediate occasion for the reaction. In the wider sense, it means the necessary conditions for the maintenance of the suit, including not only the infraction of the right, but also the infraction coupled with the right itself. Compendiously, as noted above, the expression means every fact, which it would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the court. Every fact, which is necessary to be proved, as distinguished from every piece of evidence, which is necessary to prove each fact, comprises in "cause of action". (See Rajasthan High Court Advocates Assn. v. Union of India)" 10. In Uttaranchal Forest Rangers Assn. (Direct Recruit) and Others v. State of U.P. and Others [(2006) 10 SCC 346], this Court held: "44. The second impugned order dated 12-4-2004 is further vitiated for the following reasons:(a) Forum.-The seniority list under challenge in the second writ petition was the seniority list of the Uttaranchal State Government of 2002 and such challenge could not have been made before the Lucknow Bench of the Allahabad High Court.(b) Parties.-None of the direct recruits who would be directly affected by the order were made parties to the writ petition. Therefore the High Court did not have the benefit of competing arguments in the matter. Even though, the Principal Secretary of the State of Uttaranchal was made a party, the said party was never served. The only respondent which was heard was the State of U.P. which had no stake in the matter at all since all of the writ petitioners before the Lucknow Bench of the Allahabad High Court were employees of the State of Uttaranchal on the relevant date. It is, therefore, evident that the relevant material was not placed before the Allahabad High Court for the purpose of deciding the writ petition. Accordingly, the permission had to be taken from this Court by the present appellants to prefer the SLPs." These directions are authorities for the proposition that only that court will have jurisdiction within which, the entire cause of action had arisen. In this case, no part of cause of action arose within the jurisdiction of the Calcutta High Court.11. In view of the decision of the Division Bench of the Calcutta High Court that the entire cause of action arose in Mugma Area within the State of Jharkhand, we are of the opinion that only because the Head Office of the appellant - company was situated in the State of West Bengal, the same by itself will not confer any jurisdiction upon the Calcutta High Court, particularly when the Head Office had nothing to do with the order of punishment passed against the respondent.12. | 1[ds]6. The jurisdiction to issue a writ of or in the nature of mandamus is conferred upon the High Court under Article 226 of the Constitution of India. Article 226(2), however, provides that if cause of action had arisen in more than one court, any of the courts where part of cause of action arises will have jurisdiction to entertain the writ petition.7. Cause of action, for the purpose of Article 226(2) of the Constitution of India, for all intent and purport, must be assigned the same meaning as envisaged under Section 20(c) of the Code of Civil Procedure. It means a bundle of facts which are required to be proved. The entire bundle of facts pleaded, however, need not constitute a cause of action as what is necessary to be proved is material facts whereupon a writ petition can be allowed. The question to some extent was considered by a Three-Judge Bench of this Court in Kusum Ingots & Alloys Ltd. v. Union of India and Another [(2004) 6 SCC 254] The facts pleaded in the writ petition must have a nexus on the basis whereof a prayer can be granted. Those facts which have nothing to do with the prayer made therein cannot be said to give rise to a cause of action which would confer jurisdiction on theregards the question as to whether situs of office of the appellant would be relevant, this Court noticed decisions of this Court in Nasiruddin v. State Transport Appellate Tribunal [AIR 1976 SC 331 ] and U.P. Rashtriya Chini Mill Adhikari Parishad, Lucknow vs. State of U.P. and others [(1995) 4 SCC 738] toThe view taken by this Court in U.P. Rashtriya Chini Mill Adhikari Parishad that the situs of issue of an order or notification by the Government would come within the meaning of the expression "cases arising" in clause 14 of the (Amalgamation) Order is not a correct view of law for the reason hereafter stated and to that extent the said decision is overruled. In fact, a legislation, it is trite, is not confined to a statute enacted by Parliament or the legislature of a State, which would include delegated legislation and subordinate legislation or an executive order made by the Union of India, State or any other statutory authority. In a case where the field is not covered by any statutory rule, executive instructions issued in this behalf shall also come within the purview thereof. Situs of office of Parliament, legislature of a State or authorities empowered to make subordinate legislation would not by itself constitute any cause of action or cases arising. In other words, framing of a statute, statutory rule or issue of an executive order or instruction would not confer jurisdiction upon a court only because of the situs of the office of the maker thereof.27. When an order, however, is passed by a court or tribunal or an executive authority whether under provisions of a statute or otherwise, a part of cause of action arises at that place. Even in a given case, when the original authority is constituted at one place and the appellate authority is constituted at another, a writ petition would be maintainable at both the places. In other words, as order of the appellate authority constitutes a part of cause of action, a writ petition would be maintainable in the High Court within whose jurisdiction it is situate having regard to the fact that the order of the appellate authority is also required to be set aside and as the order of the original authority merges with that of the appellate authority.Kusum Ingots & Alloys Ltd. (supra) has been followed by this Court in Mosaraf Hossain Khan v. Bhagheeratha Engg. Ltd. and Others [(2006) 3 SCC 658] In Kusum Ingots & Alloys Ltd. v. Union of India 14 a three-Judge Bench of this Court clearly held that with a view to determine the jurisdiction of one High Court vis-à-vis the other the facts pleaded in the writ petition must have a nexus on the basis whereof a prayer can be made and the facts which have nothing to do therewith cannot give rise to a cause of action to invoke the jurisdiction of a court. In that case it was clearly held that only because the High Court within whose jurisdiction a legislation is passed, it would not have the sole territorial jurisdiction but all the High Courts where cause of action arises, will have jurisdiction.In Om Prakash Srivastava v. Union of India and Another [(2006) 6 SCC 207] , this CourtThe expression "cause of action" has acquired a judicially settled meaning. In the restricted sense "cause of action" means the circumstances forming the infraction of the right or the immediate occasion for the reaction. In the wider sense, it means the necessary conditions for the maintenance of the suit, including not only the infraction of the right, but also the infraction coupled with the right itself. Compendiously, as noted above, the expression means every fact, which it would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the court. Every fact, which is necessary to be proved, as distinguished from every piece of evidence, which is necessary to prove each fact, comprises in "cause of action". (See Rajasthan High Court Advocates Assn. v. Union ofIn Uttaranchal Forest Rangers Assn. (Direct Recruit) and Others v. State of U.P. and Others [(2006) 10 SCC 346], this CourtThe second impugned order dated 12-4-2004 is further vitiated for the following reasons:(a) Forum.-The seniority list under challenge in the second writ petition was the seniority list of the Uttaranchal State Government of 2002 and such challenge could not have been made before the Lucknow Bench of the Allahabad High Court.(b) Parties.-None of the direct recruits who would be directly affected by the order were made parties to the writ petition. Therefore the High Court did not have the benefit of competing arguments in the matter. Even though, the Principal Secretary of the State of Uttaranchal was made a party, the said party was never served. The only respondent which was heard was the State of U.P. which had no stake in the matter at all since all of the writ petitioners before the Lucknow Bench of the Allahabad High Court were employees of the State of Uttaranchal on the relevant date. It is, therefore, evident that the relevant material was not placed before the Allahabad High Court for the purpose of deciding the writ petition. Accordingly, the permission had to be taken from this Court by the present appellants to prefer thedirections are authorities for the proposition that only that court will have jurisdiction within which, the entire cause of action had arisen. In this case, no part of cause of action arose within the jurisdiction of the Calcutta High Court.11. In view of the decision of the Division Bench of the Calcutta High Court that the entire cause of action arose in Mugma Area within the State of Jharkhand, we are of the opinion that only because the Head Office of the appellant - company was situated in the State of West Bengal, the same by itself will not confer any jurisdiction upon the Calcutta High Court, particularly when the Head Office had nothing to do with the order of punishment passed against the respondent. | 1 | 2,457 | 1,379 | ### 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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and U.P. Rashtriya Chini Mill Adhikari Parishad, Lucknow vs. State of U.P. and others [(1995) 4 SCC 738] to hold: "26. The view taken by this Court in U.P. Rashtriya Chini Mill Adhikari Parishad that the situs of issue of an order or notification by the Government would come within the meaning of the expression "cases arising" in clause 14 of the (Amalgamation) Order is not a correct view of law for the reason hereafter stated and to that extent the said decision is overruled. In fact, a legislation, it is trite, is not confined to a statute enacted by Parliament or the legislature of a State, which would include delegated legislation and subordinate legislation or an executive order made by the Union of India, State or any other statutory authority. In a case where the field is not covered by any statutory rule, executive instructions issued in this behalf shall also come within the purview thereof. Situs of office of Parliament, legislature of a State or authorities empowered to make subordinate legislation would not by itself constitute any cause of action or cases arising. In other words, framing of a statute, statutory rule or issue of an executive order or instruction would not confer jurisdiction upon a court only because of the situs of the office of the maker thereof.27. When an order, however, is passed by a court or tribunal or an executive authority whether under provisions of a statute or otherwise, a part of cause of action arises at that place. Even in a given case, when the original authority is constituted at one place and the appellate authority is constituted at another, a writ petition would be maintainable at both the places. In other words, as order of the appellate authority constitutes a part of cause of action, a writ petition would be maintainable in the High Court within whose jurisdiction it is situate having regard to the fact that the order of the appellate authority is also required to be set aside and as the order of the original authority merges with that of the appellate authority." 8. Kusum Ingots & Alloys Ltd. (supra) has been followed by this Court in Mosaraf Hossain Khan v. Bhagheeratha Engg. Ltd. and Others [(2006) 3 SCC 658] stating: "26. In Kusum Ingots & Alloys Ltd. v. Union of India 14 a three-Judge Bench of this Court clearly held that with a view to determine the jurisdiction of one High Court vis-à-vis the other the facts pleaded in the writ petition must have a nexus on the basis whereof a prayer can be made and the facts which have nothing to do therewith cannot give rise to a cause of action to invoke the jurisdiction of a court. In that case it was clearly held that only because the High Court within whose jurisdiction a legislation is passed, it would not have the sole territorial jurisdiction but all the High Courts where cause of action arises, will have jurisdiction." 9. In Om Prakash Srivastava v. Union of India and Another [(2006) 6 SCC 207] , this Court held: "12. The expression "cause of action" has acquired a judicially settled meaning. In the restricted sense "cause of action" means the circumstances forming the infraction of the right or the immediate occasion for the reaction. In the wider sense, it means the necessary conditions for the maintenance of the suit, including not only the infraction of the right, but also the infraction coupled with the right itself. Compendiously, as noted above, the expression means every fact, which it would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the court. Every fact, which is necessary to be proved, as distinguished from every piece of evidence, which is necessary to prove each fact, comprises in "cause of action". (See Rajasthan High Court Advocates Assn. v. Union of India)" 10. In Uttaranchal Forest Rangers Assn. (Direct Recruit) and Others v. State of U.P. and Others [(2006) 10 SCC 346], this Court held: "44. The second impugned order dated 12-4-2004 is further vitiated for the following reasons:(a) Forum.-The seniority list under challenge in the second writ petition was the seniority list of the Uttaranchal State Government of 2002 and such challenge could not have been made before the Lucknow Bench of the Allahabad High Court.(b) Parties.-None of the direct recruits who would be directly affected by the order were made parties to the writ petition. Therefore the High Court did not have the benefit of competing arguments in the matter. Even though, the Principal Secretary of the State of Uttaranchal was made a party, the said party was never served. The only respondent which was heard was the State of U.P. which had no stake in the matter at all since all of the writ petitioners before the Lucknow Bench of the Allahabad High Court were employees of the State of Uttaranchal on the relevant date. It is, therefore, evident that the relevant material was not placed before the Allahabad High Court for the purpose of deciding the writ petition. Accordingly, the permission had to be taken from this Court by the present appellants to prefer the SLPs." These directions are authorities for the proposition that only that court will have jurisdiction within which, the entire cause of action had arisen. In this case, no part of cause of action arose within the jurisdiction of the Calcutta High Court.11. In view of the decision of the Division Bench of the Calcutta High Court that the entire cause of action arose in Mugma Area within the State of Jharkhand, we are of the opinion that only because the Head Office of the appellant - company was situated in the State of West Bengal, the same by itself will not confer any jurisdiction upon the Calcutta High Court, particularly when the Head Office had nothing to do with the order of punishment passed against the respondent.12.
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1
### Explanation:
be relevant, this Court noticed decisions of this Court in Nasiruddin v. State Transport Appellate Tribunal [AIR 1976 SC 331 ] and U.P. Rashtriya Chini Mill Adhikari Parishad, Lucknow vs. State of U.P. and others [(1995) 4 SCC 738] toThe view taken by this Court in U.P. Rashtriya Chini Mill Adhikari Parishad that the situs of issue of an order or notification by the Government would come within the meaning of the expression "cases arising" in clause 14 of the (Amalgamation) Order is not a correct view of law for the reason hereafter stated and to that extent the said decision is overruled. In fact, a legislation, it is trite, is not confined to a statute enacted by Parliament or the legislature of a State, which would include delegated legislation and subordinate legislation or an executive order made by the Union of India, State or any other statutory authority. In a case where the field is not covered by any statutory rule, executive instructions issued in this behalf shall also come within the purview thereof. Situs of office of Parliament, legislature of a State or authorities empowered to make subordinate legislation would not by itself constitute any cause of action or cases arising. In other words, framing of a statute, statutory rule or issue of an executive order or instruction would not confer jurisdiction upon a court only because of the situs of the office of the maker thereof.27. When an order, however, is passed by a court or tribunal or an executive authority whether under provisions of a statute or otherwise, a part of cause of action arises at that place. Even in a given case, when the original authority is constituted at one place and the appellate authority is constituted at another, a writ petition would be maintainable at both the places. In other words, as order of the appellate authority constitutes a part of cause of action, a writ petition would be maintainable in the High Court within whose jurisdiction it is situate having regard to the fact that the order of the appellate authority is also required to be set aside and as the order of the original authority merges with that of the appellate authority.Kusum Ingots & Alloys Ltd. (supra) has been followed by this Court in Mosaraf Hossain Khan v. Bhagheeratha Engg. Ltd. and Others [(2006) 3 SCC 658] In Kusum Ingots & Alloys Ltd. v. Union of India 14 a three-Judge Bench of this Court clearly held that with a view to determine the jurisdiction of one High Court vis-à-vis the other the facts pleaded in the writ petition must have a nexus on the basis whereof a prayer can be made and the facts which have nothing to do therewith cannot give rise to a cause of action to invoke the jurisdiction of a court. In that case it was clearly held that only because the High Court within whose jurisdiction a legislation is passed, it would not have the sole territorial jurisdiction but all the High Courts where cause of action arises, will have jurisdiction.In Om Prakash Srivastava v. Union of India and Another [(2006) 6 SCC 207] , this CourtThe expression "cause of action" has acquired a judicially settled meaning. In the restricted sense "cause of action" means the circumstances forming the infraction of the right or the immediate occasion for the reaction. In the wider sense, it means the necessary conditions for the maintenance of the suit, including not only the infraction of the right, but also the infraction coupled with the right itself. Compendiously, as noted above, the expression means every fact, which it would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the court. Every fact, which is necessary to be proved, as distinguished from every piece of evidence, which is necessary to prove each fact, comprises in "cause of action". (See Rajasthan High Court Advocates Assn. v. Union ofIn Uttaranchal Forest Rangers Assn. (Direct Recruit) and Others v. State of U.P. and Others [(2006) 10 SCC 346], this CourtThe second impugned order dated 12-4-2004 is further vitiated for the following reasons:(a) Forum.-The seniority list under challenge in the second writ petition was the seniority list of the Uttaranchal State Government of 2002 and such challenge could not have been made before the Lucknow Bench of the Allahabad High Court.(b) Parties.-None of the direct recruits who would be directly affected by the order were made parties to the writ petition. Therefore the High Court did not have the benefit of competing arguments in the matter. Even though, the Principal Secretary of the State of Uttaranchal was made a party, the said party was never served. The only respondent which was heard was the State of U.P. which had no stake in the matter at all since all of the writ petitioners before the Lucknow Bench of the Allahabad High Court were employees of the State of Uttaranchal on the relevant date. It is, therefore, evident that the relevant material was not placed before the Allahabad High Court for the purpose of deciding the writ petition. Accordingly, the permission had to be taken from this Court by the present appellants to prefer thedirections are authorities for the proposition that only that court will have jurisdiction within which, the entire cause of action had arisen. In this case, no part of cause of action arose within the jurisdiction of the Calcutta High Court.11. In view of the decision of the Division Bench of the Calcutta High Court that the entire cause of action arose in Mugma Area within the State of Jharkhand, we are of the opinion that only because the Head Office of the appellant - company was situated in the State of West Bengal, the same by itself will not confer any jurisdiction upon the Calcutta High Court, particularly when the Head Office had nothing to do with the order of punishment passed against the respondent.
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The Jhagrakhan Collieries Ltd Vs. Shri G.C. Agrawal, Presiding Officer, Central Government Industrial Tribunal-Cum-Labour Court, Jabalpur and Ors | does not stand a close examination.13. We have already noticed that ac cording to the scheme of s. 18, read with s. 2(d), an agreement, made otherwise than in the course of conciliation proceedings, to be a settlement within the meaning of the Act must be a written agreement signed in the manner prescribed by the Rules framed under the Act. As rightly pointed out by Mr. Ramamurthy, learned Counsel for the Respondents an implied agreement by acquiescence, or conduct such as acceptance of a benefit under an agreement in which the worker acquiescing or accepting the benefit was not a party being outside the purview of the Act, is not binding on such a worker either under sub-section (1) or under sub-section (3) of s. 18. It follows, therefore, that even if 99% of the workers have impliedly accepted the agreement arrived at on October 22, 1969, by drawing V.D.A., under it, it will not-whatever its effect under the general law-put an end to the dispute before the Labour Court and make it functus officio under the Act.14. The refusal of the Labour Court to allow the appellant to lead evidence at this stage, has not caused any prejudice to the appellant. The issue decided as a preliminary issue involved a question of law which could be decided on the, basis of material on record. For its it was not necessary to prove that 99% of the workers had accepted the agreement dated October 22, 1969. Even on an assumption of that fact in favour of the Company, the claim before the Labour Court could not be deemed to have been settled qua respondents 4 to 173.15. Furthermore. the decision of the Labour Court neither debars the appellant from bringing on record evidence relevant to the issues; which still remain to be decided, nor does it rule out the agreement dated October 22, 1969, for all purposes. Indeed, the Labour Court has in its order, towards the end, expressly said that the settlement, dated October 22, 1969, can be binding under s. 18 (1) of the Act between the contracting parties.16. In view of the above, we would negative contention (2) canvassed by Mr. Malhotra.17. This takes us to the third contention. Assuming that the Act does not inhibit the employers and the workmen from arriving at a settlement during the pendency of proceedings under s. 33-C(2) of the Act, such a settlement, not being one arrived at in the course of conciliation proceedings would be enforceable only against the parties thereto. In the present case, Respondents 4 to 173 and others who were not parties to the settlement dated October 22, 1969, would not be bound by it.18. In the case of Amalgamated Coffee Estates Ltd. v. Their workmen (supra) cited by Mr. Malhotra, pending the appeals by the management before this Court, the subject-matter of the award were settled between most of the managements and most of their employees represented by certain Unions. An application was made requesting the Court to dispose of the appeals in terms of such settlement. It was opposed on behalf of some of the employees. This Court called for a finding from the Industrial Tribunal on this issue"In view of the fact that admittedly a large number of workmen employed by the appellants have accepted payments consistently with the terms of the agreements set up by the employers. in their present petition, is it shown by the respondents that the said agreement is not valid and binding on them ?"19. The Tribunal submitted the finding that in every estate payments were made in terms of the settlement and such payments were voluntary and knowingly accepted by the workmen. It also held that the terms of the settlement were fair. This Court accepted the finding of the Tribunal holding that "the settlement appears to us also to be a fair one". It therefore, decided the appeals in terms of the settlement.20. It will be seen that the decision in Amalgamated Coffee Estates case (supra) stands on its own facts. There the appeals arose, out of an award of the Special Industrial Tribunal for plantations in a dispute between 228 coffee, tea and rubber estates in South India and their employees referred to it under S. 10(1) whereas the instant appeal arises out of proceedings under S. 33-C(2) for the recovery of money on the basis of the Wage Boards award and the dispute, if any, is about the computation of V.D.A. in implementation of that award. The scope of S. 33-C(2) is not the same as that of s. 10(1) of the Act. In East India Coal Company Ltd. Banares Colliery, Dhanbad v. Raweshwar and Ors.([1968] 1 L.L. J. 6.) this Court held that although the scope of s. 33-C(2) is wider than that of a 33-C(1), cases which would appropriately be adjudicated under S. 10(1) are outside the purview of S. 33 C(2). The provisions of S. 33-C are, broadly speaking, in the nature of executing provisions.21. An appeal being a rehearing of the case, in Amalgamated Coffee Estates case, the jurisdiction of the Court to decide the dispute in a just manner was co-extensive with that of the Tribunal to which it was referred under s. 10(1). This Court found in agreement with the re port of the Tribunal that the settlement arrived at between the most of the Unions representing most of the workers and the managements was fair and conducive to industrial peace, and therefore, it was just and appropriate to decide the dispute and dispose of the appeals in terms of the settlement.22. In the case before us, the jurisdiction of the Labour Court is not only circumscribed by s 33-C(2) but the matter also is yet at the initial stage. The controversy between the parties still re mains to be determined on merits. We. therefore, do not think it necessary to say anything more with regard to contention No. 3 than what we have broadly indicated above.23. | 0[ds]As analysis of. the above definition would show that it contemplates only two kinds of settlement (i) A settlement arrived at in the course of conciliation, proceedings under the Act and (ii) a written agreement between the employer and the workmen arrived at otherwise than in the course of conciliation proceedings. But a written agreement of the latter kind in order to fall within the definition must satisfy two more conditions, namely: (a) it must have been signed by the parties thereto in the prescribed manner, and (b) a copy thereof must have been sent to the authorities indicated in s.is clear from a perusal of Section 18, that a settlement arrived at in the course of conciliation proceedings is binding not only on the actual parties to the industrial dispute but also on the heirs, successors or assigns of the employer on the one hand, and all the workmen in the establishment, present or future, on the other. In extending the operation of such a settlement beyond the parties thereto, sub-section (3) of the Section departs from the ordinary law of contract and gives effect to the principle of collective bargaining. Thus, had Mr. B. D. Sharma been a duly appointed Conciliation Officer, the settlement arrived at in the conciliation proceedings, duly conducted by him under Section 12, would have been binding on the entire body of the workers including Respondents 4 to 173 represented by the Federation. and others who are members of the Sabha. Since the finding of the High Court to the effect that the settlement between the Panchayat and the management cannot be deemed to be settlement arrived at in the course of conciliation proceedings under the Act, now stands unassailed. the aforesaid sub-section (3) cannot be invoked to make it binding on Respondents 4 tothat the Act does not inhibit the employers and the workmen from arriving at a settlement during the pendency of proceedings under s. 33-C(2) of the Act, such a settlement, not being one arrived at in the course of conciliation proceedings would be enforceable only against the parties thereto. In the present case, Respondents 4 to 173 and others who were not parties to the settlement dated October 22, 1969, would not be bound bywill be seen that the decision in Amalgamated Coffee Estates case (supra) stands on its own facts. There the appeals arose, out of an award of the Special Industrial Tribunal for plantations in a dispute between 228 coffee, tea and rubber estates in South India and their employees referred to it under S. 10(1) whereas the instant appeal arises out of proceedings under S. 33-C(2) for the recovery of money on the basis of the Wage Boards award and the dispute, if any, is about the computation of V.D.A. in implementation of that award. The scope of S. 33-C(2) is not the same as that of s. 10(1) of the Act. In East India Coal Company Ltd. Banares Colliery, Dhanbad v. Raweshwar and Ors.([1968] 1 L.L. J. 6.) this Court held that although the scope of s. 33-C(2) is wider than that of a 33-C(1), cases which would appropriately be adjudicated under S. 10(1) are outside the purview of S. 33 C(2). The provisions of S. 33-C are, broadly speaking, in the nature of executingappeal being a rehearing of the case, in Amalgamated Coffee Estates case, the jurisdiction of the Court to decide the dispute in a just manner was co-extensive with that of the Tribunal to which it was referred under s. 10(1). This Court found in agreement with the re port of the Tribunal that the settlement arrived at between the most of the Unions representing most of the workers and the managements was fair and conducive to industrial peace, and therefore, it was just and appropriate to decide the dispute and dispose of the appeals in terms of thethe case before us, the jurisdiction of the Labour Court is not only circumscribed by s 33-C(2) but the matter also is yet at the initial stage. The controversy between the parties still re mains to be determined on merits. We. therefore, do not think it necessary to say anything more with regard to contention No. 3 than what we have broadly indicated above. | 0 | 3,272 | 824 | ### 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:
does not stand a close examination.13. We have already noticed that ac cording to the scheme of s. 18, read with s. 2(d), an agreement, made otherwise than in the course of conciliation proceedings, to be a settlement within the meaning of the Act must be a written agreement signed in the manner prescribed by the Rules framed under the Act. As rightly pointed out by Mr. Ramamurthy, learned Counsel for the Respondents an implied agreement by acquiescence, or conduct such as acceptance of a benefit under an agreement in which the worker acquiescing or accepting the benefit was not a party being outside the purview of the Act, is not binding on such a worker either under sub-section (1) or under sub-section (3) of s. 18. It follows, therefore, that even if 99% of the workers have impliedly accepted the agreement arrived at on October 22, 1969, by drawing V.D.A., under it, it will not-whatever its effect under the general law-put an end to the dispute before the Labour Court and make it functus officio under the Act.14. The refusal of the Labour Court to allow the appellant to lead evidence at this stage, has not caused any prejudice to the appellant. The issue decided as a preliminary issue involved a question of law which could be decided on the, basis of material on record. For its it was not necessary to prove that 99% of the workers had accepted the agreement dated October 22, 1969. Even on an assumption of that fact in favour of the Company, the claim before the Labour Court could not be deemed to have been settled qua respondents 4 to 173.15. Furthermore. the decision of the Labour Court neither debars the appellant from bringing on record evidence relevant to the issues; which still remain to be decided, nor does it rule out the agreement dated October 22, 1969, for all purposes. Indeed, the Labour Court has in its order, towards the end, expressly said that the settlement, dated October 22, 1969, can be binding under s. 18 (1) of the Act between the contracting parties.16. In view of the above, we would negative contention (2) canvassed by Mr. Malhotra.17. This takes us to the third contention. Assuming that the Act does not inhibit the employers and the workmen from arriving at a settlement during the pendency of proceedings under s. 33-C(2) of the Act, such a settlement, not being one arrived at in the course of conciliation proceedings would be enforceable only against the parties thereto. In the present case, Respondents 4 to 173 and others who were not parties to the settlement dated October 22, 1969, would not be bound by it.18. In the case of Amalgamated Coffee Estates Ltd. v. Their workmen (supra) cited by Mr. Malhotra, pending the appeals by the management before this Court, the subject-matter of the award were settled between most of the managements and most of their employees represented by certain Unions. An application was made requesting the Court to dispose of the appeals in terms of such settlement. It was opposed on behalf of some of the employees. This Court called for a finding from the Industrial Tribunal on this issue"In view of the fact that admittedly a large number of workmen employed by the appellants have accepted payments consistently with the terms of the agreements set up by the employers. in their present petition, is it shown by the respondents that the said agreement is not valid and binding on them ?"19. The Tribunal submitted the finding that in every estate payments were made in terms of the settlement and such payments were voluntary and knowingly accepted by the workmen. It also held that the terms of the settlement were fair. This Court accepted the finding of the Tribunal holding that "the settlement appears to us also to be a fair one". It therefore, decided the appeals in terms of the settlement.20. It will be seen that the decision in Amalgamated Coffee Estates case (supra) stands on its own facts. There the appeals arose, out of an award of the Special Industrial Tribunal for plantations in a dispute between 228 coffee, tea and rubber estates in South India and their employees referred to it under S. 10(1) whereas the instant appeal arises out of proceedings under S. 33-C(2) for the recovery of money on the basis of the Wage Boards award and the dispute, if any, is about the computation of V.D.A. in implementation of that award. The scope of S. 33-C(2) is not the same as that of s. 10(1) of the Act. In East India Coal Company Ltd. Banares Colliery, Dhanbad v. Raweshwar and Ors.([1968] 1 L.L. J. 6.) this Court held that although the scope of s. 33-C(2) is wider than that of a 33-C(1), cases which would appropriately be adjudicated under S. 10(1) are outside the purview of S. 33 C(2). The provisions of S. 33-C are, broadly speaking, in the nature of executing provisions.21. An appeal being a rehearing of the case, in Amalgamated Coffee Estates case, the jurisdiction of the Court to decide the dispute in a just manner was co-extensive with that of the Tribunal to which it was referred under s. 10(1). This Court found in agreement with the re port of the Tribunal that the settlement arrived at between the most of the Unions representing most of the workers and the managements was fair and conducive to industrial peace, and therefore, it was just and appropriate to decide the dispute and dispose of the appeals in terms of the settlement.22. In the case before us, the jurisdiction of the Labour Court is not only circumscribed by s 33-C(2) but the matter also is yet at the initial stage. The controversy between the parties still re mains to be determined on merits. We. therefore, do not think it necessary to say anything more with regard to contention No. 3 than what we have broadly indicated above.23.
### Response:
0
### Explanation:
As analysis of. the above definition would show that it contemplates only two kinds of settlement (i) A settlement arrived at in the course of conciliation, proceedings under the Act and (ii) a written agreement between the employer and the workmen arrived at otherwise than in the course of conciliation proceedings. But a written agreement of the latter kind in order to fall within the definition must satisfy two more conditions, namely: (a) it must have been signed by the parties thereto in the prescribed manner, and (b) a copy thereof must have been sent to the authorities indicated in s.is clear from a perusal of Section 18, that a settlement arrived at in the course of conciliation proceedings is binding not only on the actual parties to the industrial dispute but also on the heirs, successors or assigns of the employer on the one hand, and all the workmen in the establishment, present or future, on the other. In extending the operation of such a settlement beyond the parties thereto, sub-section (3) of the Section departs from the ordinary law of contract and gives effect to the principle of collective bargaining. Thus, had Mr. B. D. Sharma been a duly appointed Conciliation Officer, the settlement arrived at in the conciliation proceedings, duly conducted by him under Section 12, would have been binding on the entire body of the workers including Respondents 4 to 173 represented by the Federation. and others who are members of the Sabha. Since the finding of the High Court to the effect that the settlement between the Panchayat and the management cannot be deemed to be settlement arrived at in the course of conciliation proceedings under the Act, now stands unassailed. the aforesaid sub-section (3) cannot be invoked to make it binding on Respondents 4 tothat the Act does not inhibit the employers and the workmen from arriving at a settlement during the pendency of proceedings under s. 33-C(2) of the Act, such a settlement, not being one arrived at in the course of conciliation proceedings would be enforceable only against the parties thereto. In the present case, Respondents 4 to 173 and others who were not parties to the settlement dated October 22, 1969, would not be bound bywill be seen that the decision in Amalgamated Coffee Estates case (supra) stands on its own facts. There the appeals arose, out of an award of the Special Industrial Tribunal for plantations in a dispute between 228 coffee, tea and rubber estates in South India and their employees referred to it under S. 10(1) whereas the instant appeal arises out of proceedings under S. 33-C(2) for the recovery of money on the basis of the Wage Boards award and the dispute, if any, is about the computation of V.D.A. in implementation of that award. The scope of S. 33-C(2) is not the same as that of s. 10(1) of the Act. In East India Coal Company Ltd. Banares Colliery, Dhanbad v. Raweshwar and Ors.([1968] 1 L.L. J. 6.) this Court held that although the scope of s. 33-C(2) is wider than that of a 33-C(1), cases which would appropriately be adjudicated under S. 10(1) are outside the purview of S. 33 C(2). The provisions of S. 33-C are, broadly speaking, in the nature of executingappeal being a rehearing of the case, in Amalgamated Coffee Estates case, the jurisdiction of the Court to decide the dispute in a just manner was co-extensive with that of the Tribunal to which it was referred under s. 10(1). This Court found in agreement with the re port of the Tribunal that the settlement arrived at between the most of the Unions representing most of the workers and the managements was fair and conducive to industrial peace, and therefore, it was just and appropriate to decide the dispute and dispose of the appeals in terms of thethe case before us, the jurisdiction of the Labour Court is not only circumscribed by s 33-C(2) but the matter also is yet at the initial stage. The controversy between the parties still re mains to be determined on merits. We. therefore, do not think it necessary to say anything more with regard to contention No. 3 than what we have broadly indicated above.
|
T.S. Krishna Vs. Commissioner of Income Tax Madras | of Section 40 which Explanation mutatis mutandis is by reference to be read into sub-s. (1A) of Section 58 so far as may be applicable in computing the income chargeable under the income from other sources as they apply in computing the income chargeable under the head "profits and gains of business and profession" saves the excess profits tax chargeable with reference to the value of any particular asset of the business or profession. In other words, this contention amounts to saying that the legislature left untouched the decision of this Court in Indian Aluminium Co. 84 ITR 735 = (AIR 1972 SC 1880 ). Reliance for this submission is based on the words "but does not include any tax chargeable with reference to the value of any particular asset of the business or profession" in the last part of the Explanation to the said sub-clause because according to him the prohibition to deduction under S. 2 of the Amending Act is the amount paid on account of wealth-tax which expression has been given an extended meaning to cover the wealth-tax payable under the wealth-tax Act in this country as well as taxes of similar character and other taxes on assets of or the capital employed in the business or profession carried on by the assessee payable under the law of any country outside India. The learned advocate further proceeds to submit that the Explanation however excludes from the prohibition to deduct wealth-tax under the sub-chause or sub-section the tax chargeable with reference to a particular asset whether such charge is either under the laws of this country i. e. the Wealth-tax Act or under the laws in force outside India. There is no warrant for this construction because the words upon which reliance has been placed are related to the tax chargeable under a law in force in any country outside India with reference to the value of the assets of a employed in a business or profession carried on by the assessee. The exclusion contemplated by the exception on which emphasis is placed is wholly unrelated to the scheme of the Wealth-tax Act because wealth-tax under the Act is not chargeable with reference to the value of any particular asset of the business or profession but under S. 3 the charge is in respect of the net wealth on the corresponding valuation date of every individual Hindu undivided family and company at the rate or rates specified in the Schedule. Net wealth under S. 2 (m) means the amount by which the aggregate value computed in accordance with the provisions of the Wealth-tax Act of all the assets, wherever located, belonging to the assessee on the valuation date, including assets required to be included in his net wealth as on that date under that Act, is in excess of the aggregate value of all the debts owed by the assessee on the valuation date other than those specified in items (i), (ii) and (iii) of that section. Section 4 includes certain assets in the net wealth while S. 5 provides for exemption in respect of specified assets on which wealth-tax is not payable and such assets are not to be taken into account in computing the net wealth of the assessee. Section 6 concerns with the exclusion of assets and debts outside India and S. 7 deals with the determination of the value of the as sets which are to be included in the net wealth. It is thus clear that under the scheme of the Wealth-tax Act, tax is leviable not on any separate or particular asset but on the net wealth as defined under that Act. The learned advocate wanted us to read "any particular asset" in Explanation to sub-cl. (iia) of cl. (a) of S. 40 "as the aggregate of the assets as defined in net wealth" under S.2 (m).To accept such an argument would be to give a go-by to the scheme of the Wealth-tax Act where though each asset comprised in the net wealth can be separately valued under S. 7, nevertheless net wealth would be the amount by which the aggregate value of all those assets, exceed the aggregate value of debts owed by the assessee on the valuation date. Even otherwise to read the exception "but does not include any tax chargeable with reference to the value of any particular asset of the business or profession" with the first part of the Explanation "wealth-tax means wealth-tax chargeable under the Wealth-tax Act, 1957" would not grammatically make any sense. These two read together would make the following sentence "wealth-tax" means wealth-tax chargeable under the Wealth-tax Act, 1957" "but does not include any tax chargeable with reference to the value of any particular asset of the business or profession." As already pointed out, on the scheme of the Act there is not logical connection between the import of the two parts of that sentence, the first definitely indicates the wealth-tax chargeable under the Wealth-tax Act while the latter seeks to except a tax chargeable with reference to the value of any particular business or profession, which is not a tax leviable as such under the Wealth-tax Act and hence does not relate to that part of the Explanation where wealth-tax in sub-cl. (iia) means that it is the wealth-tax chargeable under the Wealth-tax Act. In our view, sub-section (1A) of Section 58 clearly excludes any deduction as claimed.5. Even apart from the amendment disallowing the deduction the very nature of the income from dividends in respect of which deduction of wealth tax is claimed does not, as pointed out by the High Court, bear any relationship direct or incidental to the earning of that income and cannot therefore be said to be laid out or expended exclusively for the purpose of making or earning such income within the meaning of sub-cl. (iii) of S. 57 of the Act or under the corresponding provisions of S.10 (2) (xv) of the Indian Income-tax Act, 1922. | 0[ds]4. What the learned advocate seeks to contend is that the Explanation to sub-clause (iia) of cl. (a) of Section 40 which Explanation mutatis mutandis is by reference to be read into sub-s. (1A) of Section 58 so far as may be applicable in computing the income chargeable under the income from other sources as they apply in computing the income chargeable under the head "profits and gains of business and profession" saves the excess profits tax chargeable with reference to the value of any particular asset of the business or profession. In other words, this contention amounts to saying that the legislature left untouched the decision of this Court in Indian Aluminium Co. 84 ITR 735 = (AIR 1972 SC 1880 ). Reliance for this submission is based on the words "but does not include any tax chargeable with reference to the value of any particular asset of the business or profession" in the last part of the Explanation to the said sub-clause because according to him the prohibition to deduction under S. 2 of the Amending Act is the amount paid on account of wealth-tax which expression has been given an extended meaning to cover the wealth-tax payable under the wealth-tax Act in this country as well as taxes of similar character and other taxes on assets of or the capital employed in the business or profession carried on by the assessee payable under the law of any country outside India. The learned advocate further proceeds to submit that the Explanation however excludes from the prohibition to deduct wealth-tax under the sub-chause or sub-section the tax chargeable with reference to a particular asset whether such charge is either under the laws of this country i. e. the Wealth-tax Act or under the laws in force outside India. There is no warrant for this construction because the words upon which reliance has been placed are related to the tax chargeable under a law in force in any country outside India with reference to the value of the assets of a employed in a business or profession carried on by the assessee. The exclusion contemplated by the exception on which emphasis is placed is wholly unrelated to the scheme of the Wealth-tax Act because wealth-tax under the Act is not chargeable with reference to the value of any particular asset of the business or profession but under S. 3 the charge is in respect of the net wealth on the corresponding valuation date of every individual Hindu undivided family and company at the rate or rates specified in the Schedule. Net wealth under S. 2 (m) means the amount by which the aggregate value computed in accordance with the provisions of the Wealth-tax Act of all the assets, wherever located, belonging to the assessee on the valuation date, including assets required to be included in his net wealth as on that date under that Act, is in excess of the aggregate value of all the debts owed by the assessee on the valuation date other than those specified in items (i), (ii) and (iii) of that section. Section 4 includes certain assets in the net wealth while S. 5 provides for exemption in respect of specified assets on which wealth-tax is not payable and such assets are not to be taken into account in computing the net wealth of the assessee. Section 6 concerns with the exclusion of assets and debts outside India and S. 7 deals with the determination of the value of the as sets which are to be included in the net wealth. It is thus clear that under the scheme of the Wealth-tax Act, tax is leviable not on any separate or particular asset but on the net wealth as defined under that Act. The learned advocate wanted us to read "any particular asset" in Explanation to sub-cl. (iia) of cl. (a) of S. 40 "as the aggregate of the assets as defined in net wealth" under S.2 (m).To accept such an argument would be to give a go-by to the scheme of the Wealth-tax Act where though each asset comprised in the net wealth can be separately valued under S. 7, nevertheless net wealth would be the amount by which the aggregate value of all those assets, exceed the aggregate value of debts owed by the assessee on the valuation date. Even otherwise to read the exception "but does not include any tax chargeable with reference to the value of any particular asset of the business or profession" with the first part of the Explanation "wealth-tax means wealth-tax chargeable underthe Wealth-tax Act, 1957" would not grammatically make any sense. These two read together would make the following sentence "wealth-tax" means wealth-tax chargeable underthe Wealth-tax Act, 1957" "but does not include any tax chargeable with reference to the value of any particular asset of the business or profession." As already pointed out, on the scheme of the Act there is not logical connection between the import of the two parts of that sentence, the first definitely indicates the wealth-tax chargeable under the Wealth-tax Act while the latter seeks to except a tax chargeable with reference to the value of any particular business or profession, which is not a tax leviable as such under the Wealth-tax Act and hence does not relate to that part of the Explanation where wealth-tax in sub-cl. (iia) means that it is the wealth-tax chargeable under the Wealth-tax Act. In our view, sub-section (1A) of Section 58 clearly excludes any deduction as claimed.5. Even apart from the amendment disallowing the deduction the very nature of the income from dividends in respect of which deduction of wealth tax is claimed does not, as pointed out by the High Court, bear any relationship direct or incidental to the earning of that income and cannot therefore be said to be laid out or expended exclusively for the purpose of making or earning such income within the meaning of sub-cl. (iii) of S. 57 of the Act or under the corresponding provisions of S.10 (2) (xv) of the Indian Income-tax Act, 1922. | 0 | 3,493 | 1,110 | ### 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:
of Section 40 which Explanation mutatis mutandis is by reference to be read into sub-s. (1A) of Section 58 so far as may be applicable in computing the income chargeable under the income from other sources as they apply in computing the income chargeable under the head "profits and gains of business and profession" saves the excess profits tax chargeable with reference to the value of any particular asset of the business or profession. In other words, this contention amounts to saying that the legislature left untouched the decision of this Court in Indian Aluminium Co. 84 ITR 735 = (AIR 1972 SC 1880 ). Reliance for this submission is based on the words "but does not include any tax chargeable with reference to the value of any particular asset of the business or profession" in the last part of the Explanation to the said sub-clause because according to him the prohibition to deduction under S. 2 of the Amending Act is the amount paid on account of wealth-tax which expression has been given an extended meaning to cover the wealth-tax payable under the wealth-tax Act in this country as well as taxes of similar character and other taxes on assets of or the capital employed in the business or profession carried on by the assessee payable under the law of any country outside India. The learned advocate further proceeds to submit that the Explanation however excludes from the prohibition to deduct wealth-tax under the sub-chause or sub-section the tax chargeable with reference to a particular asset whether such charge is either under the laws of this country i. e. the Wealth-tax Act or under the laws in force outside India. There is no warrant for this construction because the words upon which reliance has been placed are related to the tax chargeable under a law in force in any country outside India with reference to the value of the assets of a employed in a business or profession carried on by the assessee. The exclusion contemplated by the exception on which emphasis is placed is wholly unrelated to the scheme of the Wealth-tax Act because wealth-tax under the Act is not chargeable with reference to the value of any particular asset of the business or profession but under S. 3 the charge is in respect of the net wealth on the corresponding valuation date of every individual Hindu undivided family and company at the rate or rates specified in the Schedule. Net wealth under S. 2 (m) means the amount by which the aggregate value computed in accordance with the provisions of the Wealth-tax Act of all the assets, wherever located, belonging to the assessee on the valuation date, including assets required to be included in his net wealth as on that date under that Act, is in excess of the aggregate value of all the debts owed by the assessee on the valuation date other than those specified in items (i), (ii) and (iii) of that section. Section 4 includes certain assets in the net wealth while S. 5 provides for exemption in respect of specified assets on which wealth-tax is not payable and such assets are not to be taken into account in computing the net wealth of the assessee. Section 6 concerns with the exclusion of assets and debts outside India and S. 7 deals with the determination of the value of the as sets which are to be included in the net wealth. It is thus clear that under the scheme of the Wealth-tax Act, tax is leviable not on any separate or particular asset but on the net wealth as defined under that Act. The learned advocate wanted us to read "any particular asset" in Explanation to sub-cl. (iia) of cl. (a) of S. 40 "as the aggregate of the assets as defined in net wealth" under S.2 (m).To accept such an argument would be to give a go-by to the scheme of the Wealth-tax Act where though each asset comprised in the net wealth can be separately valued under S. 7, nevertheless net wealth would be the amount by which the aggregate value of all those assets, exceed the aggregate value of debts owed by the assessee on the valuation date. Even otherwise to read the exception "but does not include any tax chargeable with reference to the value of any particular asset of the business or profession" with the first part of the Explanation "wealth-tax means wealth-tax chargeable under the Wealth-tax Act, 1957" would not grammatically make any sense. These two read together would make the following sentence "wealth-tax" means wealth-tax chargeable under the Wealth-tax Act, 1957" "but does not include any tax chargeable with reference to the value of any particular asset of the business or profession." As already pointed out, on the scheme of the Act there is not logical connection between the import of the two parts of that sentence, the first definitely indicates the wealth-tax chargeable under the Wealth-tax Act while the latter seeks to except a tax chargeable with reference to the value of any particular business or profession, which is not a tax leviable as such under the Wealth-tax Act and hence does not relate to that part of the Explanation where wealth-tax in sub-cl. (iia) means that it is the wealth-tax chargeable under the Wealth-tax Act. In our view, sub-section (1A) of Section 58 clearly excludes any deduction as claimed.5. Even apart from the amendment disallowing the deduction the very nature of the income from dividends in respect of which deduction of wealth tax is claimed does not, as pointed out by the High Court, bear any relationship direct or incidental to the earning of that income and cannot therefore be said to be laid out or expended exclusively for the purpose of making or earning such income within the meaning of sub-cl. (iii) of S. 57 of the Act or under the corresponding provisions of S.10 (2) (xv) of the Indian Income-tax Act, 1922.
### Response:
0
### Explanation:
(a) of Section 40 which Explanation mutatis mutandis is by reference to be read into sub-s. (1A) of Section 58 so far as may be applicable in computing the income chargeable under the income from other sources as they apply in computing the income chargeable under the head "profits and gains of business and profession" saves the excess profits tax chargeable with reference to the value of any particular asset of the business or profession. In other words, this contention amounts to saying that the legislature left untouched the decision of this Court in Indian Aluminium Co. 84 ITR 735 = (AIR 1972 SC 1880 ). Reliance for this submission is based on the words "but does not include any tax chargeable with reference to the value of any particular asset of the business or profession" in the last part of the Explanation to the said sub-clause because according to him the prohibition to deduction under S. 2 of the Amending Act is the amount paid on account of wealth-tax which expression has been given an extended meaning to cover the wealth-tax payable under the wealth-tax Act in this country as well as taxes of similar character and other taxes on assets of or the capital employed in the business or profession carried on by the assessee payable under the law of any country outside India. The learned advocate further proceeds to submit that the Explanation however excludes from the prohibition to deduct wealth-tax under the sub-chause or sub-section the tax chargeable with reference to a particular asset whether such charge is either under the laws of this country i. e. the Wealth-tax Act or under the laws in force outside India. There is no warrant for this construction because the words upon which reliance has been placed are related to the tax chargeable under a law in force in any country outside India with reference to the value of the assets of a employed in a business or profession carried on by the assessee. The exclusion contemplated by the exception on which emphasis is placed is wholly unrelated to the scheme of the Wealth-tax Act because wealth-tax under the Act is not chargeable with reference to the value of any particular asset of the business or profession but under S. 3 the charge is in respect of the net wealth on the corresponding valuation date of every individual Hindu undivided family and company at the rate or rates specified in the Schedule. Net wealth under S. 2 (m) means the amount by which the aggregate value computed in accordance with the provisions of the Wealth-tax Act of all the assets, wherever located, belonging to the assessee on the valuation date, including assets required to be included in his net wealth as on that date under that Act, is in excess of the aggregate value of all the debts owed by the assessee on the valuation date other than those specified in items (i), (ii) and (iii) of that section. Section 4 includes certain assets in the net wealth while S. 5 provides for exemption in respect of specified assets on which wealth-tax is not payable and such assets are not to be taken into account in computing the net wealth of the assessee. Section 6 concerns with the exclusion of assets and debts outside India and S. 7 deals with the determination of the value of the as sets which are to be included in the net wealth. It is thus clear that under the scheme of the Wealth-tax Act, tax is leviable not on any separate or particular asset but on the net wealth as defined under that Act. The learned advocate wanted us to read "any particular asset" in Explanation to sub-cl. (iia) of cl. (a) of S. 40 "as the aggregate of the assets as defined in net wealth" under S.2 (m).To accept such an argument would be to give a go-by to the scheme of the Wealth-tax Act where though each asset comprised in the net wealth can be separately valued under S. 7, nevertheless net wealth would be the amount by which the aggregate value of all those assets, exceed the aggregate value of debts owed by the assessee on the valuation date. Even otherwise to read the exception "but does not include any tax chargeable with reference to the value of any particular asset of the business or profession" with the first part of the Explanation "wealth-tax means wealth-tax chargeable underthe Wealth-tax Act, 1957" would not grammatically make any sense. These two read together would make the following sentence "wealth-tax" means wealth-tax chargeable underthe Wealth-tax Act, 1957" "but does not include any tax chargeable with reference to the value of any particular asset of the business or profession." As already pointed out, on the scheme of the Act there is not logical connection between the import of the two parts of that sentence, the first definitely indicates the wealth-tax chargeable under the Wealth-tax Act while the latter seeks to except a tax chargeable with reference to the value of any particular business or profession, which is not a tax leviable as such under the Wealth-tax Act and hence does not relate to that part of the Explanation where wealth-tax in sub-cl. (iia) means that it is the wealth-tax chargeable under the Wealth-tax Act. In our view, sub-section (1A) of Section 58 clearly excludes any deduction as claimed.5. Even apart from the amendment disallowing the deduction the very nature of the income from dividends in respect of which deduction of wealth tax is claimed does not, as pointed out by the High Court, bear any relationship direct or incidental to the earning of that income and cannot therefore be said to be laid out or expended exclusively for the purpose of making or earning such income within the meaning of sub-cl. (iii) of S. 57 of the Act or under the corresponding provisions of S.10 (2) (xv) of the Indian Income-tax Act, 1922.
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Subhra Mukherjee Vs. Bharat Coking Coal Ltd | of the Act of 1973. 8. We have perused the deposition of P.W.8 - accountant - and the impugned judgment. There can be no doubt that the High Court in para 13 of its judgment mentioned that the resolution of the company dated September 21, 1970 (Ext.12), receipt evidencing payment of Rs. 7,000- on December 30, 1970 (Ext.10) under which one of the directors, husband of appellant No. 1, received the said amount and the sale deed executed on March 20, 1972 (Ext.9), had been proved by the appellants. But, then the High Court also noted with approval the following circumstances, pointed out by the first Appellate Court : firstly, the resolution dated September 21, 1970 (Ext.12) was an ante dated document. Mr. Srivastava submitted that the government authorities were in possession of all the records of the Company and they should have produced the original record to substantiate the allegation that the resolution was antedated and in the absence of such record the High Court was not justified in confirming the finding of the First Appellate Court. The fact remains that the appellants themselves took no steps to summon the record from the custody of the concerned authority. That apart, there is no mention of the resolution dated September 21, 1970 (Ext.12) either in the receipt (Ext.10) signed by one of the directors or in the agreement for sale of January 3, 1971 (Ext.8) or in the sale deed dated March 20, 1972 (Ext.9). On the basis of the intrinsic evidence, pointed out above, the conclusion that the resolution was an antedated document, appears to be irresistible. Secondly, it is pointed out by the High Court that though the resolution mentions the sale consideration as Rs. 5,000-, there is no explanation as to why it was enhanced to Rs. 7,000- for which receipt was signed by one of the directors of the Company. Thirdly, a more telling aspect is that the appellants did not exercise their rights as purchasers over the suit property till the date of the filing of the suit; the water and electricity connections were obtained during the pendency of the suit by them; further till the date of vesting of the suit property under the Act of 1973, it was maintained by the Company for the use of the directors. 9. It is rightly commented by the High Court that the agreement for sale (Ext.8) of the suit property is not a registered document; it recites the suit property will be sold for Rs. 7,000- even though the consideration of Rs. 7,000- was paid on December 30, 1970 (Ext.10) itself and neither the agreement nor the sale deed is in terms of the resolution. 10. Two other aspects which have weighed with the High Court are : the transaction of sale was between the husbands and the wives and that they had no independent source of their income, which cannot be ignored altogether as irrelevant. 11. Mr. Srivastava submitted that undue emphasis was given to the fact that the directors of the Company were brothers and the appellants are their wives. He argued that the Company is a separate legal entity which is independent of its directors and shareholders and repeatedly referred to the oft-quoted decision in Solomon v. Solomon. The principle laid down in Salomans case more than a century ago in 1897 by the Houses of Lords that the company is at law a different person altogether from the subscribers who have limited liability, is the foundation of joint stock company and a basic incidence of incorporation both under English law and Indian Law. Lifting the veil of incorporation under statutes and decisions of the courts is equally settled position of law. This is more readily done under American law. To look at the realities of the situation and to know the real state of affairs behind the facade of the principle of the corporate personality, the courts have pierced the veil of incorporation. Where a transaction of sale of its immovable property by a Company in favour of the wives of the directors is alleged to be sham and collusive, as in the instant case, the Court will be justified in piercing the veil of incorporation to ascertain the true nature of the transaction as to who were the real parties to the sale and whether it was genuine and bona fide or whether it was between the husbands and the wives behind the facade of separate entity of the Company. That is what was done by the High Court in this case. 12. There can be no dispute that a person who attacks a transaction as sham, bogus and fictitious must prove the same. But a plain reading of question No. 1 discloses that it is in two parts; the first part says, `whether the transaction, in question, is bona fide and genuine one which has to be proved by the appellants. It is only when this has been done that the respondent had to dislodge it by proving that it is a sham and fictitious transaction. When circumstances of the case and the intrinsic evidence on record clearly point out that the transaction is not bona fide and genuine, it is unnecessary for the court to find out whether the respondent has led any evidence to show that the transaction is sham, bogus or fictitious. 13. For the afore-mentioned reasons, we are unable to say that the High Court erred in taking the view that the sale, in favour of the appellants, is neither bona fide nor genuine and confers no right on them. 14. In view of the finding on point No. 1, the suit property remained the property of the Company and, therefore, it vested in the Central Government under Section 3(1) of the Act of 1973. This is what the High Court held on point No. 2, which is supported by the judgment of this Court in Bharat Coking Coal Ltd. v. Madanlal Agrawal, 1997(1) SCC 177. | 0[ds]9. It is rightly commented by the High Court that the agreement for sale (Ext.8) of the suit property is not a registered document; it recites the suit property will be sold for Rs. 7,000even though the consideration of Rs. 7,000was paid on December 30, 1970 (Ext.10) itself and neither the agreement nor the sale deed is in terms of the resolution10. Two other aspects which have weighed with the High Court are : the transaction of sale was between the husbands and the wives and that they had no independent source of their income, which cannot be ignored altogether as irrelevantThe principle laid down in Salomans case more than a century ago in 1897 by the Houses of Lords that the company is at law a different person altogether from the subscribers who have limited liability, is the foundation of joint stock company and a basic incidence of incorporation both under English law and Indian Law. Lifting the veil of incorporation under statutes and decisions of the courts is equally settled position of law. This is more readily done under American law. To look at the realities of the situation and to know the real state of affairs behind the facade of the principle of the corporate personality, the courts have pierced the veil of incorporation. Where a transaction of sale of its immovable property by a Company in favour of the wives of the directors is alleged to be sham and collusive, as in the instant case, the Court will be justified in piercing the veil of incorporation to ascertain the true nature of the transaction as to who were the real parties to the sale and whether it was genuine and bona fide or whether it was between the husbands and the wives behind the facade of separate entity of the Company. That is what was done by the High Court in this case12. There can be no dispute that a person who attacks a transaction as sham, bogus and fictitious must prove the same. But a plain reading of question No. 1 discloses that it is in two parts; the first part says, `whether the transaction, in question, is bona fide and genuine one which has to be proved by the appellants. It is only when this has been done that the respondent had to dislodge it by proving that it is a sham and fictitious transaction. When circumstances of the case and the intrinsic evidence on record clearly point out that the transaction is not bona fide and genuine, it is unnecessary for the court to find out whether the respondent has led any evidence to show that the transaction is sham, bogus or fictitiousd reasons, we are unable to say that the High Court erred in taking the view that the sale, in favour of the appellants, is neither bona fide nor genuine and confers no right on them14. In view of the finding on point No. 1, the suit property remained the property of the Company and, therefore, it vested in the Central Government under Section 3(1) of the Act of 1973. This is what the High Court held on point No. 2, which is supported by the judgment of this Court in Bharat Coking Coal Ltd. v. Madanlal Agrawal, 1997(1) SCC 177 | 0 | 2,492 | 606 | ### 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 Act of 1973. 8. We have perused the deposition of P.W.8 - accountant - and the impugned judgment. There can be no doubt that the High Court in para 13 of its judgment mentioned that the resolution of the company dated September 21, 1970 (Ext.12), receipt evidencing payment of Rs. 7,000- on December 30, 1970 (Ext.10) under which one of the directors, husband of appellant No. 1, received the said amount and the sale deed executed on March 20, 1972 (Ext.9), had been proved by the appellants. But, then the High Court also noted with approval the following circumstances, pointed out by the first Appellate Court : firstly, the resolution dated September 21, 1970 (Ext.12) was an ante dated document. Mr. Srivastava submitted that the government authorities were in possession of all the records of the Company and they should have produced the original record to substantiate the allegation that the resolution was antedated and in the absence of such record the High Court was not justified in confirming the finding of the First Appellate Court. The fact remains that the appellants themselves took no steps to summon the record from the custody of the concerned authority. That apart, there is no mention of the resolution dated September 21, 1970 (Ext.12) either in the receipt (Ext.10) signed by one of the directors or in the agreement for sale of January 3, 1971 (Ext.8) or in the sale deed dated March 20, 1972 (Ext.9). On the basis of the intrinsic evidence, pointed out above, the conclusion that the resolution was an antedated document, appears to be irresistible. Secondly, it is pointed out by the High Court that though the resolution mentions the sale consideration as Rs. 5,000-, there is no explanation as to why it was enhanced to Rs. 7,000- for which receipt was signed by one of the directors of the Company. Thirdly, a more telling aspect is that the appellants did not exercise their rights as purchasers over the suit property till the date of the filing of the suit; the water and electricity connections were obtained during the pendency of the suit by them; further till the date of vesting of the suit property under the Act of 1973, it was maintained by the Company for the use of the directors. 9. It is rightly commented by the High Court that the agreement for sale (Ext.8) of the suit property is not a registered document; it recites the suit property will be sold for Rs. 7,000- even though the consideration of Rs. 7,000- was paid on December 30, 1970 (Ext.10) itself and neither the agreement nor the sale deed is in terms of the resolution. 10. Two other aspects which have weighed with the High Court are : the transaction of sale was between the husbands and the wives and that they had no independent source of their income, which cannot be ignored altogether as irrelevant. 11. Mr. Srivastava submitted that undue emphasis was given to the fact that the directors of the Company were brothers and the appellants are their wives. He argued that the Company is a separate legal entity which is independent of its directors and shareholders and repeatedly referred to the oft-quoted decision in Solomon v. Solomon. The principle laid down in Salomans case more than a century ago in 1897 by the Houses of Lords that the company is at law a different person altogether from the subscribers who have limited liability, is the foundation of joint stock company and a basic incidence of incorporation both under English law and Indian Law. Lifting the veil of incorporation under statutes and decisions of the courts is equally settled position of law. This is more readily done under American law. To look at the realities of the situation and to know the real state of affairs behind the facade of the principle of the corporate personality, the courts have pierced the veil of incorporation. Where a transaction of sale of its immovable property by a Company in favour of the wives of the directors is alleged to be sham and collusive, as in the instant case, the Court will be justified in piercing the veil of incorporation to ascertain the true nature of the transaction as to who were the real parties to the sale and whether it was genuine and bona fide or whether it was between the husbands and the wives behind the facade of separate entity of the Company. That is what was done by the High Court in this case. 12. There can be no dispute that a person who attacks a transaction as sham, bogus and fictitious must prove the same. But a plain reading of question No. 1 discloses that it is in two parts; the first part says, `whether the transaction, in question, is bona fide and genuine one which has to be proved by the appellants. It is only when this has been done that the respondent had to dislodge it by proving that it is a sham and fictitious transaction. When circumstances of the case and the intrinsic evidence on record clearly point out that the transaction is not bona fide and genuine, it is unnecessary for the court to find out whether the respondent has led any evidence to show that the transaction is sham, bogus or fictitious. 13. For the afore-mentioned reasons, we are unable to say that the High Court erred in taking the view that the sale, in favour of the appellants, is neither bona fide nor genuine and confers no right on them. 14. In view of the finding on point No. 1, the suit property remained the property of the Company and, therefore, it vested in the Central Government under Section 3(1) of the Act of 1973. This is what the High Court held on point No. 2, which is supported by the judgment of this Court in Bharat Coking Coal Ltd. v. Madanlal Agrawal, 1997(1) SCC 177.
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9. It is rightly commented by the High Court that the agreement for sale (Ext.8) of the suit property is not a registered document; it recites the suit property will be sold for Rs. 7,000even though the consideration of Rs. 7,000was paid on December 30, 1970 (Ext.10) itself and neither the agreement nor the sale deed is in terms of the resolution10. Two other aspects which have weighed with the High Court are : the transaction of sale was between the husbands and the wives and that they had no independent source of their income, which cannot be ignored altogether as irrelevantThe principle laid down in Salomans case more than a century ago in 1897 by the Houses of Lords that the company is at law a different person altogether from the subscribers who have limited liability, is the foundation of joint stock company and a basic incidence of incorporation both under English law and Indian Law. Lifting the veil of incorporation under statutes and decisions of the courts is equally settled position of law. This is more readily done under American law. To look at the realities of the situation and to know the real state of affairs behind the facade of the principle of the corporate personality, the courts have pierced the veil of incorporation. Where a transaction of sale of its immovable property by a Company in favour of the wives of the directors is alleged to be sham and collusive, as in the instant case, the Court will be justified in piercing the veil of incorporation to ascertain the true nature of the transaction as to who were the real parties to the sale and whether it was genuine and bona fide or whether it was between the husbands and the wives behind the facade of separate entity of the Company. That is what was done by the High Court in this case12. There can be no dispute that a person who attacks a transaction as sham, bogus and fictitious must prove the same. But a plain reading of question No. 1 discloses that it is in two parts; the first part says, `whether the transaction, in question, is bona fide and genuine one which has to be proved by the appellants. It is only when this has been done that the respondent had to dislodge it by proving that it is a sham and fictitious transaction. When circumstances of the case and the intrinsic evidence on record clearly point out that the transaction is not bona fide and genuine, it is unnecessary for the court to find out whether the respondent has led any evidence to show that the transaction is sham, bogus or fictitiousd reasons, we are unable to say that the High Court erred in taking the view that the sale, in favour of the appellants, is neither bona fide nor genuine and confers no right on them14. In view of the finding on point No. 1, the suit property remained the property of the Company and, therefore, it vested in the Central Government under Section 3(1) of the Act of 1973. This is what the High Court held on point No. 2, which is supported by the judgment of this Court in Bharat Coking Coal Ltd. v. Madanlal Agrawal, 1997(1) SCC 177
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Okara Electric Supply Company Limited & Another Vs. State of Punjab & Another | the Act.16. Besides, the provisions of Ss. 5, 6 and 7 also afford assistance in the matter. They clearly show that in the case of a licence specific provisions have been made for the acquisition of the undertaking in cases of revocation or cancellation of licences. The reason for thus providing for compulsory acquisition of licensees undertaking is equally relevant in the case of the sanction with which S. 28 (1) deals. It is true that S. 28 does not specifically and expressly provide for compensation as the other sections do; but that must be because recourse to the provisions of Pt. III was intended not to be the rule but only as a temporary measure wherever it was deemed necessary to do so; and so the Legislature left it to the State Government to provide for compulsory acquisition in the light of the guidance given by the provisions contained in Ss. 5, 6 and 7.17. Let us then look at S. 28 (1) in the light of these considerations.It authorises the State Government to give sanction to a person to engage in the business of supplying energy on conditions in that behalf. The expression "such conditions in this behalf" in the context should take in conditions dealing with the position which would inevitably arise when the business comes to an end. There is no doubt that the grant of sanction contemplated by S. 28 cannot be permanent. It was always bound to be temporary, issued on an ad hoc basis according to the requirement of each case, and when granting sanction for a specified number of years it is in the interest of the grantee himself that some provision should be made for payment of compensation to him in respect of the investment made by him in carrying out the business of supplying energy when otherwise it would be difficult for him to collect his assets in that behalf. That is whey we think that the relevant words should not be given a narrow and limited construction for which the petitioners contend. In our opinion, the context requires that the said words should receive a wider and liberal construction. A condition for the acquisition of the property of the petitioners, like Cl. 11 would, therefore, fall within the scope of S. 28 (1).The challenge to the validity of this condition on the ground that it is ultra vires S. 28 (1) must accordingly fail.18. If S. 28 permits the imposition of such a condition, does it violate Art. 19 or Art. 31 of the Constitution? That is the next question which must be considered. It is not seriously disputed that Art. 31 (2) on which reliance is placed by the petitioners cannot be of much help to them for Art 31 (5) provides inter alia that nothing in Cl. (2) shall affect the provisions of any existing law other than the law to which the provisions of Cl. (6) apply. It is conceded that Cl. (6) does not apply to the Act, so that it follows that Art. 31 (2) cannot be invoked to challenge the validity of the Act. Mr. Veda Vyas attempted to contend that the vires of the Act could be challenged if not under Art. 31 (2) at least under S. 299 (2) of the Government of India Act,1935; but he realised that he was up against a similar difficulty created by the provisions of S. 299 (4) which says that nothing in S. 299 shall affect the provisions of any law in force at the date of the passing of the Act; and he conceded that in 1910 when the Act was passed the Legislature was competent to pass it and it then suffered from no infirmity. That is why though an attempt was made to press into service Art. 31 (2) it was ultimately given up. We need not, therefore, discuss this point any further.19. In regard to the attack on S. 28 on the ground that if offends Art. 19 (f) or (g) the answer is obvious.The limitations imposed by S. 28 quite clearly are reasonable restrictions and have been imposed in the interests of the general public within the meaning of Art. 19 (5) of the Constitution. As we have already seen such limitations are generally imposed on the business of supplying energy and their reasonableness cannot be and has in fact not been seriously challenged. Therefore we have no hesitation in holding that the vires of S. 28 cannot be successfully challenged.20. Incidentally we may observe that on the day when the Constitution came into force what vested in the petitioners was the property subject to the liability imposed on it by Cl.11 of the notification; and so, when the Constitution came into force the only rights which the petitioners had in their property in question were rights of a limited character which were subject to the exercise by the State of its election to acquire the said property. In this connection the respondents rely on the decision of this Court in Director of Endowments, Govt. of Hyderabad v. Akram Ali, (S) AIR 1956 SC 60 , and seke to urge that the exercise of the option given to respondent 1 by Cl. 11 of the notification cannot be successfully challenged as ultra vires under Art. 19 of the Constitution; we do not, however, think it necessary to decide this point because it was fairly conceded before us that if S. 28 is valid and is construed to include a condition like Cl. 11 of the notification no other point would survive.21. There is one more minor point to which reference may be made. In the petition the validity of the notice given by respondent 1 to the petitioners prohibiting them dealing with the property was challenged; but that is no longer a matter in dispute between the parties since respondent 1 has in substance withdrawn the said notice. This fact, however, would be relevant on the question of costs. | 0[ds]15. Let us look at this question from a practical point of view. If a person is granted sanction to engage in the business of supplying energy it is not denied that S. 28 (1) would justify the imposition of a time limit on the grant of sanction. If sanction is granted for a specified number of years, and it comes to an end, what would happen to the constructions made by the supplier for the purpose of supplying energy? He cannot dismantle them because thereby he would cause damage to public property such as streets, and so he cannot take them away. In such a case the Legislature may well provide for the acquisition of such constructions in order to safeguard the interest of the person to whom temporary sanction is granted. Such a provision also serves another public purpose. It guarantees the availability of suitable constructions and works which may be used for the continuance of the supply of electricity by another agency. In other words, the statutory provision which deals with the grant of sanction to a person to engage in the business of supplying energy must, having regard to the special features of the business, necessarily deal with the position which would arise on the termination of the sanction; and so it would not be unreasonable to assume that the statutory provision which deals with this question would think of making adequate provision empowering the State Government to provide for the compulsory acquisition of the assets of the supplier on payment of proper compensation. It is in the light of this special feature of the business of supplying energy that we must construe S. 28 (1) of the Act.16. Besides, the provisions of Ss. 5, 6 and 7 also afford assistance in the matter. They clearly show that in the case of a licence specific provisions have been made for the acquisition of the undertaking in cases of revocation or cancellation of licences. The reason for thus providing for compulsory acquisition of licensees undertaking is equally relevant in the case of the sanction with which S. 28 (1) deals. It is true that S. 28 does not specifically and expressly provide for compensation as the other sections do; but that must be because recourse to the provisions of Pt. III was intended not to be the rule but only as a temporary measure wherever it was deemed necessary to do so; and so the Legislature left it to the State Government to provide for compulsory acquisition in the light of the guidance given by the provisions contained in Ss. 5, 6 and 7.17. Let us then look at S. 28 (1) in the light of these considerations.It authorises the State Government to give sanction to a person to engage in the business of supplying energy on conditions in that behalf. The expression "such conditions in this behalf" in the context should take in conditions dealing with the position which would inevitably arise when the business comes to an end. There is no doubt that the grant of sanction contemplated by S. 28 cannot be permanent. It was always bound to be temporary, issued on an ad hoc basis according to the requirement of each case, and when granting sanction for a specified number of years it is in the interest of the grantee himself that some provision should be made for payment of compensation to him in respect of the investment made by him in carrying out the business of supplying energy when otherwise it would be difficult for him to collect his assets in that behalf. That is whey we think that the relevant words should not be given a narrow and limited construction for which the petitioners contend. In our opinion, the context requires that the said words should receive a wider and liberal construction. A condition for the acquisition of the property of the petitioners, like Cl. 11 would, therefore, fall within the scope of S. 28 (1).The challenge to the validity of this condition on the ground that it is ultra vires S. 28 (1) must accordingly fail.In regard to the attack on S. 28 on the ground that if offends Art. 19 (f) or (g) the answer is obvious.The limitations imposed by S. 28 quite clearly are reasonable restrictions and have been imposed in the interests of the general public within the meaning of Art. 19 (5) of the Constitution. As we have already seen such limitations are generally imposed on the business of supplying energy and their reasonableness cannot be and has in fact not been seriously challenged. Therefore we have no hesitation in holding that the vires of S. 28 cannot be successfully challenged.20. Incidentally we may observe that on the day when the Constitution came into force what vested in the petitioners was the property subject to the liability imposed on it by Cl.11 of the notification; and so, when the Constitution came into force the only rights which the petitioners had in their property in question were rights of a limited character which were subject to the exercise by the State of its election to acquire the said property. In this connection the respondents rely on the decision of this Court in Director of Endowments, Govt. of Hyderabad v. Akram Ali, (S) AIR 1956 SC 60 , and seke to urge that the exercise of the option given to respondent 1 by Cl. 11 of the notification cannot be successfully challenged as ultra vires under Art. 19 of the Constitution; we do not, however, think it necessary to decide this point because it was fairly conceded before us that if S. 28 is valid and is construed to include a condition like Cl. 11 of the notification no other point would survive.21. There is one more minor point to which reference may be made. In the petition the validity of the notice given by respondent 1 to the petitioners prohibiting them dealing with the property was challenged; but that is no longer a matter in dispute between the parties since respondent 1 has in substance withdrawn the said notice. This fact, however, would be relevant on the question of costs.If S. 28 permits the imposition of such a condition, does it violate Art. 19 or Art. 31 of the Constitution? That is the next question which must be considered. It is not seriously disputed that Art. 31 (2) on which reliance is placed by the petitioners cannot be of much help to them for Art 31 (5) provides inter alia that nothing in Cl. (2) shall affect the provisions of any existing law other than the law to which the provisions of Cl. (6) apply. It is conceded that Cl. (6) does not apply to the Act, so that it follows that Art. 31 (2) cannot be invoked to challenge the validity of the Act. Mr. Veda Vyas attempted to contend that the vires of the Act could be challenged if not under Art. 31 (2) at least under S. 299 (2) of the Government of India Act,1935; but he realised that he was up against a similar difficulty created by the provisions of S. 299 (4) which says that nothing in S. 299 shall affect the provisions of any law in force at the date of the passing of the Act; and he conceded that in 1910 when the Act was passed the Legislature was competent to pass it and it then suffered from no infirmity. That is why though an attempt was made to press into service Art. 31 (2) it was ultimately given up. We need not, therefore, discuss this point any further. | 0 | 4,607 | 1,421 | ### 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 Act.16. Besides, the provisions of Ss. 5, 6 and 7 also afford assistance in the matter. They clearly show that in the case of a licence specific provisions have been made for the acquisition of the undertaking in cases of revocation or cancellation of licences. The reason for thus providing for compulsory acquisition of licensees undertaking is equally relevant in the case of the sanction with which S. 28 (1) deals. It is true that S. 28 does not specifically and expressly provide for compensation as the other sections do; but that must be because recourse to the provisions of Pt. III was intended not to be the rule but only as a temporary measure wherever it was deemed necessary to do so; and so the Legislature left it to the State Government to provide for compulsory acquisition in the light of the guidance given by the provisions contained in Ss. 5, 6 and 7.17. Let us then look at S. 28 (1) in the light of these considerations.It authorises the State Government to give sanction to a person to engage in the business of supplying energy on conditions in that behalf. The expression "such conditions in this behalf" in the context should take in conditions dealing with the position which would inevitably arise when the business comes to an end. There is no doubt that the grant of sanction contemplated by S. 28 cannot be permanent. It was always bound to be temporary, issued on an ad hoc basis according to the requirement of each case, and when granting sanction for a specified number of years it is in the interest of the grantee himself that some provision should be made for payment of compensation to him in respect of the investment made by him in carrying out the business of supplying energy when otherwise it would be difficult for him to collect his assets in that behalf. That is whey we think that the relevant words should not be given a narrow and limited construction for which the petitioners contend. In our opinion, the context requires that the said words should receive a wider and liberal construction. A condition for the acquisition of the property of the petitioners, like Cl. 11 would, therefore, fall within the scope of S. 28 (1).The challenge to the validity of this condition on the ground that it is ultra vires S. 28 (1) must accordingly fail.18. If S. 28 permits the imposition of such a condition, does it violate Art. 19 or Art. 31 of the Constitution? That is the next question which must be considered. It is not seriously disputed that Art. 31 (2) on which reliance is placed by the petitioners cannot be of much help to them for Art 31 (5) provides inter alia that nothing in Cl. (2) shall affect the provisions of any existing law other than the law to which the provisions of Cl. (6) apply. It is conceded that Cl. (6) does not apply to the Act, so that it follows that Art. 31 (2) cannot be invoked to challenge the validity of the Act. Mr. Veda Vyas attempted to contend that the vires of the Act could be challenged if not under Art. 31 (2) at least under S. 299 (2) of the Government of India Act,1935; but he realised that he was up against a similar difficulty created by the provisions of S. 299 (4) which says that nothing in S. 299 shall affect the provisions of any law in force at the date of the passing of the Act; and he conceded that in 1910 when the Act was passed the Legislature was competent to pass it and it then suffered from no infirmity. That is why though an attempt was made to press into service Art. 31 (2) it was ultimately given up. We need not, therefore, discuss this point any further.19. In regard to the attack on S. 28 on the ground that if offends Art. 19 (f) or (g) the answer is obvious.The limitations imposed by S. 28 quite clearly are reasonable restrictions and have been imposed in the interests of the general public within the meaning of Art. 19 (5) of the Constitution. As we have already seen such limitations are generally imposed on the business of supplying energy and their reasonableness cannot be and has in fact not been seriously challenged. Therefore we have no hesitation in holding that the vires of S. 28 cannot be successfully challenged.20. Incidentally we may observe that on the day when the Constitution came into force what vested in the petitioners was the property subject to the liability imposed on it by Cl.11 of the notification; and so, when the Constitution came into force the only rights which the petitioners had in their property in question were rights of a limited character which were subject to the exercise by the State of its election to acquire the said property. In this connection the respondents rely on the decision of this Court in Director of Endowments, Govt. of Hyderabad v. Akram Ali, (S) AIR 1956 SC 60 , and seke to urge that the exercise of the option given to respondent 1 by Cl. 11 of the notification cannot be successfully challenged as ultra vires under Art. 19 of the Constitution; we do not, however, think it necessary to decide this point because it was fairly conceded before us that if S. 28 is valid and is construed to include a condition like Cl. 11 of the notification no other point would survive.21. There is one more minor point to which reference may be made. In the petition the validity of the notice given by respondent 1 to the petitioners prohibiting them dealing with the property was challenged; but that is no longer a matter in dispute between the parties since respondent 1 has in substance withdrawn the said notice. This fact, however, would be relevant on the question of costs.
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of the Act.16. Besides, the provisions of Ss. 5, 6 and 7 also afford assistance in the matter. They clearly show that in the case of a licence specific provisions have been made for the acquisition of the undertaking in cases of revocation or cancellation of licences. The reason for thus providing for compulsory acquisition of licensees undertaking is equally relevant in the case of the sanction with which S. 28 (1) deals. It is true that S. 28 does not specifically and expressly provide for compensation as the other sections do; but that must be because recourse to the provisions of Pt. III was intended not to be the rule but only as a temporary measure wherever it was deemed necessary to do so; and so the Legislature left it to the State Government to provide for compulsory acquisition in the light of the guidance given by the provisions contained in Ss. 5, 6 and 7.17. Let us then look at S. 28 (1) in the light of these considerations.It authorises the State Government to give sanction to a person to engage in the business of supplying energy on conditions in that behalf. The expression "such conditions in this behalf" in the context should take in conditions dealing with the position which would inevitably arise when the business comes to an end. There is no doubt that the grant of sanction contemplated by S. 28 cannot be permanent. It was always bound to be temporary, issued on an ad hoc basis according to the requirement of each case, and when granting sanction for a specified number of years it is in the interest of the grantee himself that some provision should be made for payment of compensation to him in respect of the investment made by him in carrying out the business of supplying energy when otherwise it would be difficult for him to collect his assets in that behalf. That is whey we think that the relevant words should not be given a narrow and limited construction for which the petitioners contend. In our opinion, the context requires that the said words should receive a wider and liberal construction. A condition for the acquisition of the property of the petitioners, like Cl. 11 would, therefore, fall within the scope of S. 28 (1).The challenge to the validity of this condition on the ground that it is ultra vires S. 28 (1) must accordingly fail.In regard to the attack on S. 28 on the ground that if offends Art. 19 (f) or (g) the answer is obvious.The limitations imposed by S. 28 quite clearly are reasonable restrictions and have been imposed in the interests of the general public within the meaning of Art. 19 (5) of the Constitution. As we have already seen such limitations are generally imposed on the business of supplying energy and their reasonableness cannot be and has in fact not been seriously challenged. Therefore we have no hesitation in holding that the vires of S. 28 cannot be successfully challenged.20. Incidentally we may observe that on the day when the Constitution came into force what vested in the petitioners was the property subject to the liability imposed on it by Cl.11 of the notification; and so, when the Constitution came into force the only rights which the petitioners had in their property in question were rights of a limited character which were subject to the exercise by the State of its election to acquire the said property. In this connection the respondents rely on the decision of this Court in Director of Endowments, Govt. of Hyderabad v. Akram Ali, (S) AIR 1956 SC 60 , and seke to urge that the exercise of the option given to respondent 1 by Cl. 11 of the notification cannot be successfully challenged as ultra vires under Art. 19 of the Constitution; we do not, however, think it necessary to decide this point because it was fairly conceded before us that if S. 28 is valid and is construed to include a condition like Cl. 11 of the notification no other point would survive.21. There is one more minor point to which reference may be made. In the petition the validity of the notice given by respondent 1 to the petitioners prohibiting them dealing with the property was challenged; but that is no longer a matter in dispute between the parties since respondent 1 has in substance withdrawn the said notice. This fact, however, would be relevant on the question of costs.If S. 28 permits the imposition of such a condition, does it violate Art. 19 or Art. 31 of the Constitution? That is the next question which must be considered. It is not seriously disputed that Art. 31 (2) on which reliance is placed by the petitioners cannot be of much help to them for Art 31 (5) provides inter alia that nothing in Cl. (2) shall affect the provisions of any existing law other than the law to which the provisions of Cl. (6) apply. It is conceded that Cl. (6) does not apply to the Act, so that it follows that Art. 31 (2) cannot be invoked to challenge the validity of the Act. Mr. Veda Vyas attempted to contend that the vires of the Act could be challenged if not under Art. 31 (2) at least under S. 299 (2) of the Government of India Act,1935; but he realised that he was up against a similar difficulty created by the provisions of S. 299 (4) which says that nothing in S. 299 shall affect the provisions of any law in force at the date of the passing of the Act; and he conceded that in 1910 when the Act was passed the Legislature was competent to pass it and it then suffered from no infirmity. That is why though an attempt was made to press into service Art. 31 (2) it was ultimately given up. We need not, therefore, discuss this point any further.
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New Bank Of India Ltd Vs. Pearey Lal | the plaintiffs claim was not liable to be reduced under the scheme sanctioned by the High Court of East Punjab. The Court also negatived the plea of the Bank that the amount at Rs. 1,35,000/- was deposited with the Bank at Lahore for opening a fixed deposit account subject to the conditions which the Bank set up. The findings of the trial Court were confirmed in appeal, by a Division Bench of the High Court at Calcutta. 7. The facts found proved, according to the findings of the trial Court and confirmed by the High Court are therefore that the plaintiff delivered an amount of Rs. 1,25,000/- on July 18, 1947, and Rs. 10,000/- on July 19, 1947, to the Bank a Lahore for transmission to Calcutta, with instructions to await the directions of the plaintiff regarding the opening of accounts for keeping the same in fix deposit or otherwise in the Calcutta Branch of the Bank, and the plaintiff never gave instructions for opening any account, fixed deposit or otherwise, in regard to the amounts after they reached Calcutta. 8. Delivery of the amount for transmission to the Bank created ex facie a relationship of a fiduciary character. But counsel for the Bank contends that when the amount was handed over at Lahore to the Bank by the plaintiff who was an old constituent of the Bank it must be presumed that a relationship of debtor and creditor arose and by the addition of instructions for transmission of the amount to another branch the relationship of trustee and cestui que trust did not arise. He submitted that the contention that the relation between the plaintiff and the Bank was of creditor and debtor was supported by three important circumstances : (1) that the Bank agreed to pay interest on the amount delivered by the plaintiff ; (2) that the Bank charged no commission or remuneration for transmission of the amount and 3. that even on the plaintiffs case the amount was to be utilized for opening fixed deposit accounts at Calcutta. It is true that in the absence of other evidence a person paying money into a Bank, whether he is a constituent of the Bank or not, may be presumed to have paid the money to be held as bankers ordinarily hold the moneys of their constituents. If no specific instructions are given at the time of payment or thereafter, and even if the money is held in a suspense account the Bank does not thereby become a trustee for the amount paid. In other words, when a person dealing with a bank delivers money to the Bank an intention to create a relation of creditor and debtor between him and the Bank is presumed, it being the normal course of the business of the Bank to accept deposits from its customers. But this presumption is one of fact arising from the nature of the business carried on by the Bank and is rebutted by proof of special instructions, or circumstances attending the transaction. Where the money is paid to a bank with special instructions to retain the same pending further instructions (Official Assignee, Madras v. Natesam Pillai, ILR (1940) Mad 845 : (AIR 1940 Mad 441 )), or to pay over the same to another person who has no banking account with the bank and the bank accepts the instructions and holds the money pending instructions from that other person, Official Assignee of Madras v. D. Rajam Ayyar, ILR 36 Mad 499 (FB) ), or where instructions are given by a customer to his banker that a part of the amount lying in his account be forwarded to another bank to meet a bill to become due and payable by him and the amount is sent by the banker as directed, (Farley v. Turner, (1857) 26 LJ Ch 710), a trust results and the presumption which ordinarily arises by reason of payment of the money to the bank is rebutted. 9. It is not necessary in this appeal to consider whether because of an agreement to pay interest the relationship may be deemed to be of debtor and creditor, because it was field by both the courts below that no such agreement is proved, and according to the settled practice of this Court the finding is regarded as binding. 10. The Bank charged no commission or remuneration for transmitting the amount to Calcutta, but that, in our judgment, is a circumstance which permits of no inference against the plaintiff. Undoubtedly, when the amount was delivered to the Bank by the plaintiff it was his intention to open fixed deposit account in Calcutta with the Banks branch but the fixed deposit accounts were to be opened after instructions were received. 11. The transaction, as evidenced by the two receipts, was primarily one of entrustment of the amount to the Bank for transmission to Calcutta. After the purpose for which the moneys were entrusted was carried out, in the absence of further instructions the defendant did not cease to be a trustee. So long as instructions were not given by the plaintiff for appropriation of the amounts the Bank continued to hold the amounts transmitted for and on behalf of the plaintiff and there is no evidence that the plaintiff gave instructions or acquiesced in the opening of a fixed deposit account after the same reached Calcutta. It is immaterial that the Bank purported to open fixed deposit account in the name of the plaintiff with the amounts received at its head office at Lahore. That course of action was adopted without the consent of the plaintiff and it could not bind the plaintiff. The High Court was, therefore, right in holding that the amount delivered by the plaintiff to the Bank at Lahore remained in trust even after it reached Calcutta, and it was not held by the Bank, in deposit for the plaintiff within the meaning of the scheme sanctioned by the High Court of East Punjab. | 0[ds]It is true that in the absence of other evidence a person paying money into a Bank, whether he is a constituent of the Bank or not, may be presumed to have paid the money to be held as bankers ordinarily hold the moneys of their constituents.If no specific instructions are given at the time of payment or thereafter, and even if the money is held in a suspense account the Bank does not thereby become a trustee for the amount paid. In other words, when a person dealing with a bank delivers money to the Bank an intention to create a relation of creditor and debtor between him and the Bank is presumed, it being the normal course of the business of the Bank to accept deposits from its customers. But this presumption is one of fact arising from the nature of the business carried on by the Bank and is rebutted by proof of special instructions, or circumstances attending the transaction. Where the money is paid to a bank with special instructions to retain the same pending further instructions (Official Assignee, Madras v. Natesam Pillai, ILR (1940) Mad 845 : (AIR 1940 Mad 441 )), or to pay over the same to another person who has no banking account with the bank and the bank accepts the instructions and holds the money pending instructions from that other person, Official Assignee of Madras v. D. Rajam Ayyar, ILR 36 Mad 499 (FB) ), or where instructions are given by a customer to his banker that a part of the amount lying in his account be forwarded to another bank to meet a bill to become due and payable by him and the amount is sent by the banker as directed,y v. Turner, (1857) 26 LJ Ch, a trust results and the presumption which ordinarily arises by reason of payment of the money to the bank is rebutted9. It is not necessary in this appeal to consider whether because of an agreement to pay interest the relationship may be deemed to be of debtor and creditor, because it was field by both the courts below that no such agreement is proved, and according to the settled practice of this Court the finding is regarded as binding10. The Bank charged no commission or remuneration for transmitting the amount to Calcutta, but that, in our judgment, is a circumstance which permits of no inference against the plaintiff. Undoubtedly, when the amount was delivered to the Bank by the plaintiff it was his intention to open fixed deposit account in Calcutta with the Banks branch but the fixed deposit accounts were to be opened after instructions were received11. The transaction, as evidenced by the two receipts, was primarily one of entrustment of the amount to the Bank for transmission to Calcutta. After the purpose for which the moneys were entrusted was carried out, in the absence of further instructions the defendant did not cease to be a trustee. So long as instructions were not given by the plaintiff for appropriation of the amounts the Bank continued to hold the amounts transmitted for and on behalf of the plaintiff and there is no evidence that the plaintiff gave instructions or acquiesced in the opening of a fixed deposit account after the same reached Calcutta. It is immaterial that the Bank purported to open fixed deposit account in the name of the plaintiff with the amounts received at its head office at Lahore. That course of action was adopted without the consent of the plaintiff and it could not bind the plaintiff. The High Court was, therefore, right in holding that the amount delivered by the plaintiff to the Bank at Lahore remained in trust even after it reached Calcutta, and it was not held by the Bank, in deposit for the plaintiff within the meaning of the scheme sanctioned by the High Court of East Punjab. | 0 | 2,351 | 707 | ### Instruction:
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the plaintiffs claim was not liable to be reduced under the scheme sanctioned by the High Court of East Punjab. The Court also negatived the plea of the Bank that the amount at Rs. 1,35,000/- was deposited with the Bank at Lahore for opening a fixed deposit account subject to the conditions which the Bank set up. The findings of the trial Court were confirmed in appeal, by a Division Bench of the High Court at Calcutta. 7. The facts found proved, according to the findings of the trial Court and confirmed by the High Court are therefore that the plaintiff delivered an amount of Rs. 1,25,000/- on July 18, 1947, and Rs. 10,000/- on July 19, 1947, to the Bank a Lahore for transmission to Calcutta, with instructions to await the directions of the plaintiff regarding the opening of accounts for keeping the same in fix deposit or otherwise in the Calcutta Branch of the Bank, and the plaintiff never gave instructions for opening any account, fixed deposit or otherwise, in regard to the amounts after they reached Calcutta. 8. Delivery of the amount for transmission to the Bank created ex facie a relationship of a fiduciary character. But counsel for the Bank contends that when the amount was handed over at Lahore to the Bank by the plaintiff who was an old constituent of the Bank it must be presumed that a relationship of debtor and creditor arose and by the addition of instructions for transmission of the amount to another branch the relationship of trustee and cestui que trust did not arise. He submitted that the contention that the relation between the plaintiff and the Bank was of creditor and debtor was supported by three important circumstances : (1) that the Bank agreed to pay interest on the amount delivered by the plaintiff ; (2) that the Bank charged no commission or remuneration for transmission of the amount and 3. that even on the plaintiffs case the amount was to be utilized for opening fixed deposit accounts at Calcutta. It is true that in the absence of other evidence a person paying money into a Bank, whether he is a constituent of the Bank or not, may be presumed to have paid the money to be held as bankers ordinarily hold the moneys of their constituents. If no specific instructions are given at the time of payment or thereafter, and even if the money is held in a suspense account the Bank does not thereby become a trustee for the amount paid. In other words, when a person dealing with a bank delivers money to the Bank an intention to create a relation of creditor and debtor between him and the Bank is presumed, it being the normal course of the business of the Bank to accept deposits from its customers. But this presumption is one of fact arising from the nature of the business carried on by the Bank and is rebutted by proof of special instructions, or circumstances attending the transaction. Where the money is paid to a bank with special instructions to retain the same pending further instructions (Official Assignee, Madras v. Natesam Pillai, ILR (1940) Mad 845 : (AIR 1940 Mad 441 )), or to pay over the same to another person who has no banking account with the bank and the bank accepts the instructions and holds the money pending instructions from that other person, Official Assignee of Madras v. D. Rajam Ayyar, ILR 36 Mad 499 (FB) ), or where instructions are given by a customer to his banker that a part of the amount lying in his account be forwarded to another bank to meet a bill to become due and payable by him and the amount is sent by the banker as directed, (Farley v. Turner, (1857) 26 LJ Ch 710), a trust results and the presumption which ordinarily arises by reason of payment of the money to the bank is rebutted. 9. It is not necessary in this appeal to consider whether because of an agreement to pay interest the relationship may be deemed to be of debtor and creditor, because it was field by both the courts below that no such agreement is proved, and according to the settled practice of this Court the finding is regarded as binding. 10. The Bank charged no commission or remuneration for transmitting the amount to Calcutta, but that, in our judgment, is a circumstance which permits of no inference against the plaintiff. Undoubtedly, when the amount was delivered to the Bank by the plaintiff it was his intention to open fixed deposit account in Calcutta with the Banks branch but the fixed deposit accounts were to be opened after instructions were received. 11. The transaction, as evidenced by the two receipts, was primarily one of entrustment of the amount to the Bank for transmission to Calcutta. After the purpose for which the moneys were entrusted was carried out, in the absence of further instructions the defendant did not cease to be a trustee. So long as instructions were not given by the plaintiff for appropriation of the amounts the Bank continued to hold the amounts transmitted for and on behalf of the plaintiff and there is no evidence that the plaintiff gave instructions or acquiesced in the opening of a fixed deposit account after the same reached Calcutta. It is immaterial that the Bank purported to open fixed deposit account in the name of the plaintiff with the amounts received at its head office at Lahore. That course of action was adopted without the consent of the plaintiff and it could not bind the plaintiff. The High Court was, therefore, right in holding that the amount delivered by the plaintiff to the Bank at Lahore remained in trust even after it reached Calcutta, and it was not held by the Bank, in deposit for the plaintiff within the meaning of the scheme sanctioned by the High Court of East Punjab.
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It is true that in the absence of other evidence a person paying money into a Bank, whether he is a constituent of the Bank or not, may be presumed to have paid the money to be held as bankers ordinarily hold the moneys of their constituents.If no specific instructions are given at the time of payment or thereafter, and even if the money is held in a suspense account the Bank does not thereby become a trustee for the amount paid. In other words, when a person dealing with a bank delivers money to the Bank an intention to create a relation of creditor and debtor between him and the Bank is presumed, it being the normal course of the business of the Bank to accept deposits from its customers. But this presumption is one of fact arising from the nature of the business carried on by the Bank and is rebutted by proof of special instructions, or circumstances attending the transaction. Where the money is paid to a bank with special instructions to retain the same pending further instructions (Official Assignee, Madras v. Natesam Pillai, ILR (1940) Mad 845 : (AIR 1940 Mad 441 )), or to pay over the same to another person who has no banking account with the bank and the bank accepts the instructions and holds the money pending instructions from that other person, Official Assignee of Madras v. D. Rajam Ayyar, ILR 36 Mad 499 (FB) ), or where instructions are given by a customer to his banker that a part of the amount lying in his account be forwarded to another bank to meet a bill to become due and payable by him and the amount is sent by the banker as directed,y v. Turner, (1857) 26 LJ Ch, a trust results and the presumption which ordinarily arises by reason of payment of the money to the bank is rebutted9. It is not necessary in this appeal to consider whether because of an agreement to pay interest the relationship may be deemed to be of debtor and creditor, because it was field by both the courts below that no such agreement is proved, and according to the settled practice of this Court the finding is regarded as binding10. The Bank charged no commission or remuneration for transmitting the amount to Calcutta, but that, in our judgment, is a circumstance which permits of no inference against the plaintiff. Undoubtedly, when the amount was delivered to the Bank by the plaintiff it was his intention to open fixed deposit account in Calcutta with the Banks branch but the fixed deposit accounts were to be opened after instructions were received11. The transaction, as evidenced by the two receipts, was primarily one of entrustment of the amount to the Bank for transmission to Calcutta. After the purpose for which the moneys were entrusted was carried out, in the absence of further instructions the defendant did not cease to be a trustee. So long as instructions were not given by the plaintiff for appropriation of the amounts the Bank continued to hold the amounts transmitted for and on behalf of the plaintiff and there is no evidence that the plaintiff gave instructions or acquiesced in the opening of a fixed deposit account after the same reached Calcutta. It is immaterial that the Bank purported to open fixed deposit account in the name of the plaintiff with the amounts received at its head office at Lahore. That course of action was adopted without the consent of the plaintiff and it could not bind the plaintiff. The High Court was, therefore, right in holding that the amount delivered by the plaintiff to the Bank at Lahore remained in trust even after it reached Calcutta, and it was not held by the Bank, in deposit for the plaintiff within the meaning of the scheme sanctioned by the High Court of East Punjab.
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M/s. Godrej Sara Lee Limited Vs. Reckitt Benckiser Australia Pty.Ltd. & Another | design at any time after the registration of the design, to the Controller on any of the following grounds, namely:-(a) that the design has been previously registered in India; or(b) that it has been published in India or in any other country prior to the date of registration; or(c) that the design is not a new or original design; or(d) that the design is not registrable under this Act; or(e) that it is not a design as defined under clause (d) of section 2.(2) An appeal shall lie from any order of the Controller under this section to the High Court, and the Controller may at any time refer any such petition to the High Court, and the High Court shall decide any petition so referred." 21. In contrast to the provisions of Section 51A(1)(a) of the 1911 Act, Section 19(1) of the 2000 Act, which also deals with cancellation of registration, provides for a petition for cancellation of registration of a design to be filed before the Controller and not to the High Court. On a comparison of the two provisions of the two enactments, it will be obvious that under the 2000 Act the intention of the Legislature was that an application for cancellation of a design would lie to the Controller exclusively without the High Court having a parallel jurisdiction to entertain such matters. It is also very clear that all the appeals from any order of the Controller under Section 19 of the 2000 Act shall lie to the High Court. The basic difference, therefore, as was pointed out to the High Court and noticed by it, is that while under Section 19 of the 2000 Act an application for cancellation would have to be made to the Controller of Designs, under Section 51A of the 1911 Act an application could be preferred either to the High Court or within one year from the date of registration to the Controller on the grounds specified under Sub-clauses (i) and (ii) of Clause (a) of Section 51A(1). Under Section 19 of the 2000 Act the power of cancellation of the registration lies wholly with the Controller. On the other hand, an application for cancellation of a design could be made directly to the High Court under Section 51A of the 1911 Act. Under the 2000 Act, the High Court would be entitled to assume jurisdiction only at the appellate stage, whereas under Section 51A of the 1911 Act the High Court could itself directly cancel the registration. Whereas in Girdharilal Guptas case (supra), the question of jurisdiction of the High Court was in relation to an application made to the High Court directly, in the instant case, we are concerned with an order of the Controller against which an appeal is required to be filed before the High Court. While in Girdharilal Guptas case the Court was considering the expression "High Court" in the context of a fall-out in respect of the ground of registration and the cause of action arising on account of such fall-out, in the present case, there is no question of any consequential impact since the application for cancellation of registration was on the basis of fake documents created in order to perpetrate a fraud. 22. The reliance placed by the High Court on the judgment in Girdharilal Guptas case (supra) appears to be misplaced, inasmuch as, while under the 1911 Act the High Court acts as an Original forum, under the 2000 Act the High Court acts as an Appellate forum, which are two separate jurisdictions operating in two different fields. In the instant case, the doctrine of cause of action, as understood under Section 20 C.P.C., has been imported on the basis of the provisions of Section 51A of the Designs Act, 1911, whereas the case of the appellant would fall under Section 19 of the Designs Act, 2000, where the High Court functions as the Appellate forum. The cause of action for the instant proceedings is most certainly the cancellation of the registered design of the appellant which happened in the State of West Bengal which gave the Calcutta High Court the jurisdiction to deal with the matter. The Delhi High Court, in our view, erred in holding that the cause of action had arisen within its local jurisdiction, whereas the jurisdiction of the High Court was on account of the cancellation of registration of the design and not on account of the impact thereof in any particular State. This is what distinguishes the decision in Girdharilal Guptas case from the facts of this case.23. Apart from the fact that the parties to the suit were in Kolkata, it is clear that the cause of action for the suit arose in Kolkata by virtue of the order passed by the Controller in relation to the appellants design. As the facts indicate, the cause of action for the suit arose in Kolkata, which, in any event, had jurisdiction to entertain the suit. Having erroneously applied the decision in Girdharilal Guptas case (supra) to the facts of the case, the High Court was led into error in holding that the consequence of the cancellation gave jurisdiction to the Delhi High Court to entertain the suit, without considering in its proper perspective the provisions of Section 51A of the 1911 Act in contrast to the provisions of Section 19 of the 2000 Act.24. The various decisions cited by Mr. Dave to support his submissions that the question as to which High Court would have jurisdiction to entertain an appeal under Section 19, had to be determined on the basis of the statutory provisions and not on the basis of dominus litus or the situs of the Appellate Tribunal or the cause of action. We are inclined to accept Mr. Daves submission that the Delhi High Court had erred in making a comparison between the provisions of Section 51A of the 1911 Act and Section 19(2) of the 2000 Act, which operate on different planes. | 1[ds]22. The reliance placed by the High Court on the judgment in Girdharilal Guptas case (supra) appears to be misplaced, inasmuch as, while under the 1911 Act the High Court acts as an Original forum, under the 2000 Act the High Court acts as an Appellate forum, which are two separate jurisdictions operating in two different fields. In the instant case, the doctrine of cause of action, as understood under Section 20 C.P.C., has been imported on the basis of the provisions of Section 51A of the Designs Act, 1911, whereas the case of the appellant would fall under Section 19 of the Designs Act, 2000, where the High Court functions as the Appellate forum. The cause of action for the instant proceedings is most certainly the cancellation of the registered design of the appellant which happened in the State of West Bengal which gave the Calcutta High Court the jurisdiction to deal with the matter. The Delhi High Court, in our view, erred in holding that the cause of action had arisen within its local jurisdiction, whereas the jurisdiction of the High Court was on account of the cancellation of registration of the design and not on account of the impact thereof in any particular State. This is what distinguishes the decision in Girdharilal Guptas case from the facts of this case.23. Apart from the fact that the parties to the suit were in Kolkata, it is clear that the cause of action for the suit arose in Kolkata by virtue of the order passed by the Controller in relation to the appellants design. As the facts indicate, the cause of action for the suit arose in Kolkata, which, in any event, had jurisdiction to entertain the suit. Having erroneously applied the decision in Girdharilal Guptas case (supra) to the facts of the case, the High Court was led into error in holding that the consequence of the cancellation gave jurisdiction to the Delhi High Court to entertain the suit, without considering in its proper perspective the provisions of Section 51A of the 1911 Act in contrast to the provisions of Section 19 of the 2000 Act.24. The various decisions cited by Mr. Dave to support his submissions that the question as to which High Court would have jurisdiction to entertain an appeal under Section 19, had to be determined on the basis of the statutory provisions and not on the basis of dominus litus or the situs of the Appellate Tribunal or the cause of action. We are inclined to accept Mr. Daves submission that the Delhi High Court had erred in making a comparison between the provisions of Section 51A of the 1911 Act and Section 19(2) of the 2000 Act, which operate on different planes. | 1 | 4,008 | 504 | ### Instruction:
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design at any time after the registration of the design, to the Controller on any of the following grounds, namely:-(a) that the design has been previously registered in India; or(b) that it has been published in India or in any other country prior to the date of registration; or(c) that the design is not a new or original design; or(d) that the design is not registrable under this Act; or(e) that it is not a design as defined under clause (d) of section 2.(2) An appeal shall lie from any order of the Controller under this section to the High Court, and the Controller may at any time refer any such petition to the High Court, and the High Court shall decide any petition so referred." 21. In contrast to the provisions of Section 51A(1)(a) of the 1911 Act, Section 19(1) of the 2000 Act, which also deals with cancellation of registration, provides for a petition for cancellation of registration of a design to be filed before the Controller and not to the High Court. On a comparison of the two provisions of the two enactments, it will be obvious that under the 2000 Act the intention of the Legislature was that an application for cancellation of a design would lie to the Controller exclusively without the High Court having a parallel jurisdiction to entertain such matters. It is also very clear that all the appeals from any order of the Controller under Section 19 of the 2000 Act shall lie to the High Court. The basic difference, therefore, as was pointed out to the High Court and noticed by it, is that while under Section 19 of the 2000 Act an application for cancellation would have to be made to the Controller of Designs, under Section 51A of the 1911 Act an application could be preferred either to the High Court or within one year from the date of registration to the Controller on the grounds specified under Sub-clauses (i) and (ii) of Clause (a) of Section 51A(1). Under Section 19 of the 2000 Act the power of cancellation of the registration lies wholly with the Controller. On the other hand, an application for cancellation of a design could be made directly to the High Court under Section 51A of the 1911 Act. Under the 2000 Act, the High Court would be entitled to assume jurisdiction only at the appellate stage, whereas under Section 51A of the 1911 Act the High Court could itself directly cancel the registration. Whereas in Girdharilal Guptas case (supra), the question of jurisdiction of the High Court was in relation to an application made to the High Court directly, in the instant case, we are concerned with an order of the Controller against which an appeal is required to be filed before the High Court. While in Girdharilal Guptas case the Court was considering the expression "High Court" in the context of a fall-out in respect of the ground of registration and the cause of action arising on account of such fall-out, in the present case, there is no question of any consequential impact since the application for cancellation of registration was on the basis of fake documents created in order to perpetrate a fraud. 22. The reliance placed by the High Court on the judgment in Girdharilal Guptas case (supra) appears to be misplaced, inasmuch as, while under the 1911 Act the High Court acts as an Original forum, under the 2000 Act the High Court acts as an Appellate forum, which are two separate jurisdictions operating in two different fields. In the instant case, the doctrine of cause of action, as understood under Section 20 C.P.C., has been imported on the basis of the provisions of Section 51A of the Designs Act, 1911, whereas the case of the appellant would fall under Section 19 of the Designs Act, 2000, where the High Court functions as the Appellate forum. The cause of action for the instant proceedings is most certainly the cancellation of the registered design of the appellant which happened in the State of West Bengal which gave the Calcutta High Court the jurisdiction to deal with the matter. The Delhi High Court, in our view, erred in holding that the cause of action had arisen within its local jurisdiction, whereas the jurisdiction of the High Court was on account of the cancellation of registration of the design and not on account of the impact thereof in any particular State. This is what distinguishes the decision in Girdharilal Guptas case from the facts of this case.23. Apart from the fact that the parties to the suit were in Kolkata, it is clear that the cause of action for the suit arose in Kolkata by virtue of the order passed by the Controller in relation to the appellants design. As the facts indicate, the cause of action for the suit arose in Kolkata, which, in any event, had jurisdiction to entertain the suit. Having erroneously applied the decision in Girdharilal Guptas case (supra) to the facts of the case, the High Court was led into error in holding that the consequence of the cancellation gave jurisdiction to the Delhi High Court to entertain the suit, without considering in its proper perspective the provisions of Section 51A of the 1911 Act in contrast to the provisions of Section 19 of the 2000 Act.24. The various decisions cited by Mr. Dave to support his submissions that the question as to which High Court would have jurisdiction to entertain an appeal under Section 19, had to be determined on the basis of the statutory provisions and not on the basis of dominus litus or the situs of the Appellate Tribunal or the cause of action. We are inclined to accept Mr. Daves submission that the Delhi High Court had erred in making a comparison between the provisions of Section 51A of the 1911 Act and Section 19(2) of the 2000 Act, which operate on different planes.
### Response:
1
### Explanation:
22. The reliance placed by the High Court on the judgment in Girdharilal Guptas case (supra) appears to be misplaced, inasmuch as, while under the 1911 Act the High Court acts as an Original forum, under the 2000 Act the High Court acts as an Appellate forum, which are two separate jurisdictions operating in two different fields. In the instant case, the doctrine of cause of action, as understood under Section 20 C.P.C., has been imported on the basis of the provisions of Section 51A of the Designs Act, 1911, whereas the case of the appellant would fall under Section 19 of the Designs Act, 2000, where the High Court functions as the Appellate forum. The cause of action for the instant proceedings is most certainly the cancellation of the registered design of the appellant which happened in the State of West Bengal which gave the Calcutta High Court the jurisdiction to deal with the matter. The Delhi High Court, in our view, erred in holding that the cause of action had arisen within its local jurisdiction, whereas the jurisdiction of the High Court was on account of the cancellation of registration of the design and not on account of the impact thereof in any particular State. This is what distinguishes the decision in Girdharilal Guptas case from the facts of this case.23. Apart from the fact that the parties to the suit were in Kolkata, it is clear that the cause of action for the suit arose in Kolkata by virtue of the order passed by the Controller in relation to the appellants design. As the facts indicate, the cause of action for the suit arose in Kolkata, which, in any event, had jurisdiction to entertain the suit. Having erroneously applied the decision in Girdharilal Guptas case (supra) to the facts of the case, the High Court was led into error in holding that the consequence of the cancellation gave jurisdiction to the Delhi High Court to entertain the suit, without considering in its proper perspective the provisions of Section 51A of the 1911 Act in contrast to the provisions of Section 19 of the 2000 Act.24. The various decisions cited by Mr. Dave to support his submissions that the question as to which High Court would have jurisdiction to entertain an appeal under Section 19, had to be determined on the basis of the statutory provisions and not on the basis of dominus litus or the situs of the Appellate Tribunal or the cause of action. We are inclined to accept Mr. Daves submission that the Delhi High Court had erred in making a comparison between the provisions of Section 51A of the 1911 Act and Section 19(2) of the 2000 Act, which operate on different planes.
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Union Public Service Commission & Others Vs. Angesh Kumar & Others | was referred to :“(B) Problems in showing evaluated answer books to candidates.—(i) Final awards subsume earlier stages of evaluation. Disclosing answer books would reveal intermediate stages too, including the so-called ‘raw marks’ which would have negative implications for the integrity of the examination system, as detailed in Section (C) below.(ii) The evaluation process involves several stages. Awards assigned initially by an examiner can be struck out and revised due to (a) totalling mistakes, portions unevaluated, extra attempts (beyond prescribed number) being later corrected as a result of clerical scrutiny, (b) The examiner changing his own awards during the course of evaluation either because he/she marked it differently initially due to an inadvertent error or because he/she corrected himself/herself to be more in conformity with the accepted standards, after discussion with Head Examiner/colleague examiners, (c) Initial awards of the Additional Examiner being revised by the Head Examiner during the latter’s check of the former’s work, (d) the Additional Examiner’s work having been found erratic by the Head Examiner, been rechecked entirely by another examiner, with or without the Head Examiner again rechecking this work.(iii) The corrections made in the answer book would likely arouse doubt and perhaps even suspicion in the candidate’s mind. Where such corrections lead to a lowering of earlier awards, this would not only breed representations/grievances, but would likely lead to litigation. In the only evaluated answer book that has so far been shown to a candidate (Shri Gaurav Gupta in WP No. 3683 of 2012 in Gaurav Gupta v. UPSC dated 6.7.2012(Del.)) on the orders of the High Court, Delhi and that too, with the marks assigned masked; the candidate has nevertheless filed a fresh WP alleging improper evaluation.(iv) As relative merit and not absolute merit is the criterion here (unlike academic examinations), a feeling of the initial marks/revision made being considered harsh when looking at the particular answer script in isolation could arise without appreciating that similar standards have been applied to all others in the field. Non-appreciation of this would lead to erosion of faith and credibility in the system and challenges to the integrity of the system, including through litigation.(v) With the disclosure of evaluated answer books, the danger of coaching institutes collecting copies of these from candidates (after perhaps encouraging/inducing them to apply for copies of their answer books under the RTI Act) is real, with all its attendant implications.(vi) With disclosure of answer books to candidates, it is likely that at least some of the relevant examiners also get access to these. Their possible resentment at their initial awards (that they would probably recognise from the fictitious code numbers and/or their markings, especially for low-candidature subjects) having been superseded (either due to inter-examiner or inter-subject moderation) would lead to bad blood between Additional Examiners and the Head Examiner on the one hand, and between examiners and the Commission, on the other hand. The free and frank manner in which Head Examiners, for instance, review the work of their colleague Additional Examiners, would likely be impacted. Quality of assessment standards would suffer.(vii) Some of the optional papers have very low candidature (sometimes only one), especially the literature papers. Even if all examiners’ initials are masked (which too is difficult logistically, as each answer book has several pages, and examiners often record their initials and comments on several pages with revisions/corrections, where done, adding to the size of the problem), the way marks are awarded could itself be a give away in revealing the examiner’s identity. If the masking falters at any stage, then the examiner’s identity is pitilessly exposed. The ‘catchment area’ of candidates and examiners in some of these low-candidature papers is known to be limited. Any such possibility of the examiner’s identity getting revealed in such a high-stakes examination would have serious implications, both for the integrity and fairness of the examination system and for the security and safety of the examiner. The matter is compounded by the fact that we have publicly stated in different contexts earlier that the paper-setter is also generally the Head Examiner.(viii) UPSC is now able to get some of the best teachers and scholars in the country to be associated in its evaluation work. An important reason for this is no doubt the assurance of their anonymity, for which the Commission goes to great lengths. Once disclosure of answer books starts and the inevitable challenges (including litigation) from disappointed candidates starts, it is only a matter of time before these examiners who would be called upon to explain their assessment/award, decline to accept further assignments from the Commission. A resultant corollary would be that examiners who then accept this assignment would be sorely tempted to play safe in their marking, neither awarding outstanding marks nor very low marks, even where these are deserved. Mediocrity would reign supreme and not only the prestige, but the very integrity of the system would be compromised markedly.”9. This Court thereafter approved the method of moderation adopted by the UPSC relying upon earlier judgment in Sanjay Singh v. U.P. Public Service Commission, (2007) 3 SCC 720 and U.P. Public Service Commission v. Subhash Chandra Dixit, (2003) 12 SCC 701. 10. Weighing the need for transparency and accountability on the one hand and requirement of optimum use of fiscal resources and confidentiality of sensitive information on the other, we are of the view that information sought with regard to marks in Civil Services Exam cannot be directed to be furnished mechanically. Situation of exams of other academic bodies may stand on different footing. Furnishing raw marks will cause problems as pleaded by the UPSC as quoted above which will not be in public interest. However, if a case is made out where the Court finds that public interest requires furnishing of information, the Court is certainly entitled to so require in a given fact situation. If rules or practice so require, certainly such rule or practice can be enforced. In the present case, direction has been issued without considering these parameters.11. | 0[ds]Thus, it is clear that in interpreting the scheme of the Act, this Court has, while adopting purposive interpretation, read inherent limitation in Sections 3 and 6 based on the Third Recital in the Preamble to the Act. While balancing the right to information, public interest including efficient working of the Government, optimum use of fiscal resources and preservation of confidentiality of sensitive information has to be balanced and can be a guiding factor to deal with a given situation de hors Sections 8,9 and 11. The High Court has not applied the saidWeighing the need for transparency and accountability on the one hand and requirement of optimum use of fiscal resources and confidentiality of sensitive information on the other, we are of the view that information sought with regard to marks in Civil Services Exam cannot be directed to be furnished mechanically. Situation of exams of other academic bodies may stand on different footing. Furnishing raw marks will cause problems as pleaded by the UPSC as quoted above which will not be in public interest. However, if a case is made out where the Court finds that public interest requires furnishing of information, the Court is certainly entitled to so require in a given fact situation. If rules or practice so require, certainly such rule or practice can be enforced. In the present case, direction has been issued without considering these parameters. | 0 | 2,487 | 257 | ### 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:
was referred to :“(B) Problems in showing evaluated answer books to candidates.—(i) Final awards subsume earlier stages of evaluation. Disclosing answer books would reveal intermediate stages too, including the so-called ‘raw marks’ which would have negative implications for the integrity of the examination system, as detailed in Section (C) below.(ii) The evaluation process involves several stages. Awards assigned initially by an examiner can be struck out and revised due to (a) totalling mistakes, portions unevaluated, extra attempts (beyond prescribed number) being later corrected as a result of clerical scrutiny, (b) The examiner changing his own awards during the course of evaluation either because he/she marked it differently initially due to an inadvertent error or because he/she corrected himself/herself to be more in conformity with the accepted standards, after discussion with Head Examiner/colleague examiners, (c) Initial awards of the Additional Examiner being revised by the Head Examiner during the latter’s check of the former’s work, (d) the Additional Examiner’s work having been found erratic by the Head Examiner, been rechecked entirely by another examiner, with or without the Head Examiner again rechecking this work.(iii) The corrections made in the answer book would likely arouse doubt and perhaps even suspicion in the candidate’s mind. Where such corrections lead to a lowering of earlier awards, this would not only breed representations/grievances, but would likely lead to litigation. In the only evaluated answer book that has so far been shown to a candidate (Shri Gaurav Gupta in WP No. 3683 of 2012 in Gaurav Gupta v. UPSC dated 6.7.2012(Del.)) on the orders of the High Court, Delhi and that too, with the marks assigned masked; the candidate has nevertheless filed a fresh WP alleging improper evaluation.(iv) As relative merit and not absolute merit is the criterion here (unlike academic examinations), a feeling of the initial marks/revision made being considered harsh when looking at the particular answer script in isolation could arise without appreciating that similar standards have been applied to all others in the field. Non-appreciation of this would lead to erosion of faith and credibility in the system and challenges to the integrity of the system, including through litigation.(v) With the disclosure of evaluated answer books, the danger of coaching institutes collecting copies of these from candidates (after perhaps encouraging/inducing them to apply for copies of their answer books under the RTI Act) is real, with all its attendant implications.(vi) With disclosure of answer books to candidates, it is likely that at least some of the relevant examiners also get access to these. Their possible resentment at their initial awards (that they would probably recognise from the fictitious code numbers and/or their markings, especially for low-candidature subjects) having been superseded (either due to inter-examiner or inter-subject moderation) would lead to bad blood between Additional Examiners and the Head Examiner on the one hand, and between examiners and the Commission, on the other hand. The free and frank manner in which Head Examiners, for instance, review the work of their colleague Additional Examiners, would likely be impacted. Quality of assessment standards would suffer.(vii) Some of the optional papers have very low candidature (sometimes only one), especially the literature papers. Even if all examiners’ initials are masked (which too is difficult logistically, as each answer book has several pages, and examiners often record their initials and comments on several pages with revisions/corrections, where done, adding to the size of the problem), the way marks are awarded could itself be a give away in revealing the examiner’s identity. If the masking falters at any stage, then the examiner’s identity is pitilessly exposed. The ‘catchment area’ of candidates and examiners in some of these low-candidature papers is known to be limited. Any such possibility of the examiner’s identity getting revealed in such a high-stakes examination would have serious implications, both for the integrity and fairness of the examination system and for the security and safety of the examiner. The matter is compounded by the fact that we have publicly stated in different contexts earlier that the paper-setter is also generally the Head Examiner.(viii) UPSC is now able to get some of the best teachers and scholars in the country to be associated in its evaluation work. An important reason for this is no doubt the assurance of their anonymity, for which the Commission goes to great lengths. Once disclosure of answer books starts and the inevitable challenges (including litigation) from disappointed candidates starts, it is only a matter of time before these examiners who would be called upon to explain their assessment/award, decline to accept further assignments from the Commission. A resultant corollary would be that examiners who then accept this assignment would be sorely tempted to play safe in their marking, neither awarding outstanding marks nor very low marks, even where these are deserved. Mediocrity would reign supreme and not only the prestige, but the very integrity of the system would be compromised markedly.”9. This Court thereafter approved the method of moderation adopted by the UPSC relying upon earlier judgment in Sanjay Singh v. U.P. Public Service Commission, (2007) 3 SCC 720 and U.P. Public Service Commission v. Subhash Chandra Dixit, (2003) 12 SCC 701. 10. Weighing the need for transparency and accountability on the one hand and requirement of optimum use of fiscal resources and confidentiality of sensitive information on the other, we are of the view that information sought with regard to marks in Civil Services Exam cannot be directed to be furnished mechanically. Situation of exams of other academic bodies may stand on different footing. Furnishing raw marks will cause problems as pleaded by the UPSC as quoted above which will not be in public interest. However, if a case is made out where the Court finds that public interest requires furnishing of information, the Court is certainly entitled to so require in a given fact situation. If rules or practice so require, certainly such rule or practice can be enforced. In the present case, direction has been issued without considering these parameters.11.
### Response:
0
### Explanation:
Thus, it is clear that in interpreting the scheme of the Act, this Court has, while adopting purposive interpretation, read inherent limitation in Sections 3 and 6 based on the Third Recital in the Preamble to the Act. While balancing the right to information, public interest including efficient working of the Government, optimum use of fiscal resources and preservation of confidentiality of sensitive information has to be balanced and can be a guiding factor to deal with a given situation de hors Sections 8,9 and 11. The High Court has not applied the saidWeighing the need for transparency and accountability on the one hand and requirement of optimum use of fiscal resources and confidentiality of sensitive information on the other, we are of the view that information sought with regard to marks in Civil Services Exam cannot be directed to be furnished mechanically. Situation of exams of other academic bodies may stand on different footing. Furnishing raw marks will cause problems as pleaded by the UPSC as quoted above which will not be in public interest. However, if a case is made out where the Court finds that public interest requires furnishing of information, the Court is certainly entitled to so require in a given fact situation. If rules or practice so require, certainly such rule or practice can be enforced. In the present case, direction has been issued without considering these parameters.
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M/s. Total Environment Building Systems Pvt. Ltd. And Ors Vs. The Deputy Commissioner of Commercial Taxes & Ors | Court in the case of Larsen and Toubro Limited (supra) has stood the test of time and has never been doubted earlier. As observed hereinabove, the said decision has been followed consistently by this Court as well as by various High Courts and the Tribunals. Therefore, if the prayer made on behalf of the Revenue to re- consider and/or review the judgment of this Court in the case of Larsen and Toubro Limited (supra) is accepted, in that case, it will affect so many other assesses in whose favour the decisions have already been taken relying upon and/or following the decision of this Court in the case of Larsen and Toubro Limited (supra) and It may unsettle the law, which has been consistently followed since 2015 onwards. There are all possibilities of contradictory orders. Therefore, on the principle of stare decisis, we are of the firm view that the judgment of this Court in the case of Larsen and Toubro Limited (supra), neither needs to be revisited, nor referred to a Larger Bench of this Court as prayed, i.e., after a period of almost seven years and as observed hereinabove when no efforts were made to file any review application requesting to review the judgment on the grounds, which are now canvassed before this Court. 13. At this stage, it is required to be noted that one of the appeals being Civil Appeal No. 6523 of 2014 filed by M/s. G.D. Builders is against the decision of the Delhi High Court in the case of G.D. Builders Vs. Union of India reported in (2013) 32 STR 673 (Delhi). It is to be noted that the said decision of the Delhi High Court in the case of G.D. Builders (supra) has been specifically overruled by this court in the case of Larsen and Toubro Limited (supra). The decision of the Delhi High Court in the case of G.D. Builders (supra) has been considered by this Court in the case of Larsen and Toubro Limited (supra) in paragraphs 28, 29, 30, 32, 33, 38 and 39 and ultimately, this Court opined that the decision of the Delhi High Court in the case of G.D. Builders (supra) is in fact contrary to a long line of decisions. It is further specifically observed and held that the decision of the Delhi High Court in the case of G.D. Builders (supra) is wholly incorrect in its conclusion that the Finance Act, 1994 contains both the charge and machinery for levy and assessment of service tax on indivisible works contracts. It is reported that while deciding the group of matters in the case of Larsen and Toubro Limited (supra), the papers of the appeal filed by M/s. G.D. Builders being Civil Appeal No. 6523 of 2014 were also called and the learned counsel appearing on behalf of the G.D. Builders was also heard. It appears that, however, the Civil Appeal No. 6523 of 2014 filed by M/s. G.D. Builders against the decision of the Delhi High Court has not been specifically disposed of. Therefore, once the decision of the Delhi High Court in the case of G.D. Builders (supra), which is the subject matter of Civil Appeal No. 6523 of 2014 has been held to be wholly incorrect, Civil Appeal No. 6523 of 2014 filed by M/s. G.D. Builders has to be allowed and the judgment and order passed by the Delhi High Court has to be quashed and set aside. 13.1 Now, so far as Civil Appeal No. 6525 of 2014, Civil Appeal No. 6526 of 2014 and Civil Appeal No. 2666 of 2022 are concerned, the High Court has dismissed the said writ petitions preferred by the respective assesses relying upon its earlier decision in the case of G.D. Builders (supra). Once the decision of the Delhi High Court in the case of G.D. Builders (supra) is held to be wholly incorrect by this Court in the case of Larsen and Toubro Limited (supra), Civil Appeal No. 6525 of 2014, Civil Appeal No. 6526 of 2014 and Civil Appeal No. 2666 of 2022 are also to be allowed. 13.2 So far as Civil Appeal Nos. 8673-8684 of 2013 preferred by the assessee – M/s. Total Environment Building Systems Pvt. Ltd. are concerned, the same are against the judgment and order passed by the High Court of Karnataka in Writ Appeal Nos. 3481-3492 of 2009 by which the Division Bench of the High Court has dismissed the said writ appeals and has confirmed the judgment and order passed by the learned Single Judge dismissing the writ petitions in which the appellant - assessee challenged the assessment orders levying Service Tax, on the ground of alternative remedy available by way of statutory appeal. However, in view of the binding decision of this Court in the case of Larsen and Toubro Limited (supra), the assessee is not liable to pay the service tax till the date of amendment of the provision on the indivisible/composite works contracts and therefore, the said appeals also deserve to be allowed and the assessment orders levying the service tax are to be set aside. 13.3 Following the binding decision of this Court in the case of Larsen and Toubro Limited (supra), taking the view that for the period pre- Finance Act, 2007, service tax was not leviable on the indivisible/composite works contracts, the Civil Appeal Nos. 4547-4548 of 2014, Civil Appeal No. 2667 of 2022 and Civil Appeal No. 2668 of 2022 arising out of the common judgment and order passed by the Guwahati High Court and the respective decisions of the CESTAT passed against the respective assesses are also to be allowed. 13.4 Now, so far as Civil Appeal No. 6792 of 2010 preferred by the Revenue against the judgment and order passed by the CESTAT, West Zonal Bench in Appeal No. ST/275 of 2006 is concerned, in view of the binding decision of this Court in the case of Larsen and Toubro Limited (supra), the same deserves to be dismissed. | 1[ds]5. At the outset, it is required to be noted that the very issue had been considered by this Court in the case of Commissioner, Central Excise and Customs, Kerala Vs. Larsen and Toubro Limited, (2016) 1 SCC 170 . In the aforesaid decision, after considering the entire scheme of levy of service tax pre-2007 and post-2007, this Court has specifically observed and held that on indivisible works contracts, for the period prior to introduction of Finance Act, 2007, service tax was not leviable under Finance Act, 1994. It is specifically observed and held that works contracts on which the service tax was levied under the Finance Act, 1994 is distinct from contracts of service.10. At the outset, it is required to be noted that whether post-2007, the service tax was leviable on Composite Works Contracts is now no longer res integra in view of the direct decision of this Court in the case of Larsen and Toubro Limited, (supra).10.2 While appreciating the prayer/submission made on behalf of the Revenue to re-consider the binding decision of this Court in the case of Larsen and Toubro Limited (supra) and to refer the matter to the Larger Bench, few facts are required to be taken into consideration, which are as under:-(i) The decision of this Court in the case of Larsen and Toubro Limited (supra) has been delivered/passed in the year 2015, in which, it is specifically observed and held that on indivisible works contracts for the period pre-Finance Act, 2007, the service tax was not leviable;(ii) After considering the entire scheme and the levy of service tax pre-Finance Act, 2007 and after giving cogent reasons, a conscious decision has been taken by this Court holding that the service tax was not leviable pre-Finance Act, 2007 on indivisible/Composite Works Contracts;(iii) While holding that for the period pre-Finance Act, 2007, on indivisible/Composite Works Contracts, the service tax is not leviable, number of decisions have been dealt with and considered by this Court in the aforesaid decision;(iv) That subsequently, the decision of this court in the case of Larsen and Toubro Limited (supra) has been followed and considered by this Court in the case of Bhayana Builders Private Limited and Ors., (supra);(v) That after the decision of this Court in the case of Larsen and Toubro Limited (supra) rendered in the year 2015, the said decision has been consistently followed by various High Courts and the Tribunals;(vi) The decisions of the various High Courts and the Tribunals, which were passed after following the decision of this Court in the case of Larsen and Toubro Limited (supra) have attained finality and in many cases, the Revenue has not challenged the said decisions;(vii) No efforts were made by the Revenue to file any review application to review and/or recall the judgment and order passed by this Court in the case of Larsen and Toubro Limited (supra). If the Revenue was so serious in their view that decision of this Court in the case of Larsen and Toubro Limited (supra) requires re-consideration, Revenue ought to have filed the review application at that stage and/or even thereafter. No such review application has been filed even as on today.(viii) Merely because in the subsequent cases, the amount of tax involved may be higher, cannot be a ground to pray for re- consideration of the earlier binding decision, which has been consistently followed by various High Courts and the Tribunals in the entire country.10.3 Keeping in mind the aforesaid factual aspects, the prayer made on behalf of Revenue to re-consider the decision of this Court in the case of Larsen and Toubro Limited (supra) and to refer the matter to the Larger Bench is required to be considered.10.4 While considering the prayer made on behalf of the Revenue to review and/or revisit the earlier decision of this Court in the case of Larsen and Toubro Limited (supra), few decisions on the principle of stare decisis are required to be referred to and considered.10.5 In the case of Dr. Jaishri Laxmanrao Patil Vs. Chief Minister and Ors., (2021) 8 SCC 1, after considering the earlier decision of the Seven Judge Constitution Bench in the case of Keshav Mills Co. Ltd. Vs. Commissioner of Income Tax, Bombay North, Ahmedabad, AIR 1965 SC 1636 , it is observed and held that before reviewing and revising its earlier decision the Court must satisfy itself whether it is necessary to do so in the interest of public good or for any other compelling reason and the Court must endeavour to maintain certainty and continuity in the interpretation of the law in the country.10.5.1 After discussing the law on the principle of stare decisis, it is observed and held that the relevance and significance of the principle of stare decisis have to be kept in mind and that in law, certainty, consistency and continuity are highly desirable features. While holding so, in paragraphs 453 to 456, it is observed and held as under:-453. The seven-Judge Constitution Bench judgment in Keshav Mills [Keshav Mills Co. Ltd. v. CIT, AIR 1965 SC 1636 : (1965) 2 SCR 908 ] has unanimously held that before reviewing and revising its earlier decision the Court must itself satisfy whether it is necessary to do so in the interest of public good or for any other compelling reason and the Court must endeavour to maintain a certainty and continuity in the interpretation of the law in the country.454. In Jarnail Singh v. Lachhmi Narain Gupta [(2018) 10 SCC 396] , the prayer to refer the Constitution Bench judgment in M. Nagaraj [M. Nagaraj v. Union of India, (2006) 8 SCC 212] was rejected by the Constitution Bench relying on the law as laid down in Keshav Mills case [Keshav Mills Co. Ltd. v. CIT, AIR 1965 SC 1636 : (1965) 2 SCR 908 ]. In para 9 the following has been laid down : (Jarnail Singh case [Jarnail Singh v. Lachhmi Narain Gupta, (2018) 10 SCC 396] , SCC pp. 410-11)9. Since we are asked to revisit a unanimous Constitution Bench judgment, it is important to bear in mind the admonition of the Constitution Bench judgment in Keshav Mills [Keshav Mills Co. Ltd. v. CIT, AIR 1965 SC 1636 : (1965) 2 SCR 908 ]. This Court said : (SCR pp. 921-22 : AIR p. 1644, para 23)23. … in reviewing and revising its earlier decision, this Court should ask itself whether in the interests of the public good or for any other valid and compulsive reasons, it is necessary that the earlier decision should be revised. When this Court decides questions of law, its decisions are, under Article 141, binding on all courts within the territory of India, and so, it must be the constant endeavour and concern of this Court to introduce and maintain an element of certainty and continuity in the interpretation of law in the country. Frequent exercise by this Court of its power to review its earlier decisions on the ground that the view pressed before it later appears to the Court to be more reasonable, may incidentally tend to make law uncertain and introduce confusion which must be consistently avoided. That is not to say that if on a subsequent occasion, the Court is satisfied that its earlier decision was clearly erroneous, it should hesitate to correct the error; but before a previous decision is pronounced to be plainly erroneous, the Court must be satisfied with a fair amount of unanimity amongst its members that a revision of the said view is fully justified. It is not possible or desirable, and in any case it would be inexpedient to lay down any principles which should govern the approach of the Court in dealing with the question of reviewing and revising its earlier decisions. It would always depend upon several relevant considerations — What is the nature of the infirmity or error on which a plea for a review and revision of the earlier view is based? On the earlier occasion, did some patent aspects of the question remain unnoticed, or was the attention of the Court not drawn to any relevant and material statutory provision, or was any previous decision of this Court bearing on the point not noticed? Is the Court hearing such plea fairly unanimous that there is such an error in the earlier view? What would be the impact of the error on the general administration of law or on public good? Has the earlier decision been followed on subsequent occasions either by this Court or by the High Courts? And, would the reversal of the earlier decision lead to public inconvenience, hardship or mischief? These and other relevant considerations must be carefully borne in mind whenever this Court is called upon to exercise its jurisdiction to review and revise its earlier decisions. These considerations become still more significant when the earlier decision happens to be a unanimous decision of a Bench of five learned Judges of this Court.455. The principle of stare decisis also commends us not to accept the submissions of Shri Rohatgi. the Constitution Bench of this Court in State of Gujarat v. Mirzapur Moti Kureshi Kassab Jamat [(2005) 8 SCC 534] , explaining the principle of stare decisis laid down the following in paras 111 and 118 : (SCC pp. 589 & 591)111. Stare decisis is a Latin phrase which means to stand by decided cases; to uphold precedents; to maintain former adjudication. This principle is expressed in the maxim stare decisis et non quieta movere which means to stand by decisions and not to disturb what is settled. This was aptly put by Lord Coke in his classic English version as Those things which have been so often adjudged ought to rest in peace. However, according to Frankfurter, J., the doctrine of stare decisis is not an imprisonment of reason (Advanced Law Lexicon, P. Ramanatha Aiyer, 3rd Edn. 2005, Vol. 4, P. 4456). The underlying logic of the doctrine is to maintain consistency and avoid uncertainty. The guiding philosophy is that a view which has held the field for a long time should not be disturbed only because another view is possible.118. The doctrine of stare decisis is generally to be adhered to, because well-settled principles of law founded on a series of authoritative pronouncements ought to be followed. Yet, the demands of the changed facts and circumstances, dictated by forceful factors supported by logic, amply justify the need for a fresh look.456. the Constitution Bench in Indra Sawhney [Indra Sawhney v. Union of India, 1992 Supp (3) SCC 217] speaking through B.P. Jeevan Reddy, J. has held that the relevance and significance of the principle of stare decisis have to be kept in mind. It was reiterated that in law certainty, consistency and continuity are highly desirable features. Following are the exact words in para 683 : (SCC p. 657)683. … Though, we are sitting in a larger Bench, we have kept in mind the relevance and significance of the principle of stare decisis. We are conscious of the fact that in law certainty, consistency and continuity are highly desirable features. Where a decision has stood the test of time and has never been doubted, we have respected it … unless, of course, there are compelling and strong reasons to depart from it. Where, however, such uniformity is not found, we have tried to answer the question on principle keeping in mind the scheme and goal of our Constitution and the material placed before us.10.6 In the case of Dr. Shah Faesal and Ors. Vs. Union of India and Anr., (2020) 4 SCC 1, the Constitution Bench of this Court had occasion to consider the principle of stare decisis and the law of precedents/re- consideration/review of earlier decision. After considering the decision of this Court in the case of Chandra Prakash and Ors. Vs. State of U.P. and Anr., (2002) 4 SCC 234 (paragraph 22), it is observed and held by this Court that doctrines of precedents and stare decisis are the core values of our legal system. They form the tools which further the goal of certainty, stability and continuity in our legal system. When a decision is rendered by this Court, it acquires a reliance interest and the society organises itself based on the present legal order. By observing and holding so, it is observed in paragraphs 17 to 19 as under:-17. This Courts jurisprudence has shown that usually the courts do not overrule the established precedents unless there is a social, constitutional or economic change mandating such a development. The numbers themselves speak of restraint and the value this Court attaches to the doctrine of precedent. This Court regards the use of precedent as indispensable bedrock upon which this Court renders justice. The use of such precedents, to some extent, creates certainty upon which individuals can rely and conduct their affairs. It also creates a basis for the development of the rule of law. As the Chief Justice of the Supreme Court of the United States, John Roberts observed during his Senate confirmation hearing, It is a jolt to the legal system when you overrule a precedent. Precedent plays an important role in promoting stability and even- handedness. [Congressional Record—Senate, Vol. 156, Pt. 7, 10018 (7-6-2010).]18. Doctrines of precedents and stare decisis are the core values of our legal system. They form the tools which further the goal of certainty, stability and continuity in our legal system. Arguably, Judges owe a duty to the concept of certainty of law, therefore they often justify their holdings by relying upon the established tenets of law.19. When a decision is rendered by this Court, it acquires a reliance interest and the society organises itself based on the present legal order. When substantial judicial time and resources are spent on references, the same should not be made in a casual or cavalier manner. It is only when a proposition is contradicted by a subsequent judgment of the same Bench, or it is shown that the proposition laid down has become unworkable or contrary to a well-established principle, that a reference will be made to a larger Bench. In this context, a five-Judge Bench of this Court in Chandra Prakash v. State of U.P. [(2002) 4 SCC 234] , after considering series of earlier rulings reiterated that : (SCC p. 245, para 22)22. … The doctrine of binding precedent is of utmost importance in the administration of our judicial system. It promotes certainty and consistency in judicial decisions. Judicial consistency promotes confidence in the system, therefore, there is this need for consistency in the enunciation of legal principles in the decisions of this Court.10.7 It is observed and held in the aforesaid decision that even the rule of overruling the judgments should be applied with great caution, and only when the previous decision is manifestly wrong, as, for instance, if it proceeded upon a mistaken assumption of the continuance of a repealed or expired Statute, or is contrary to a decision of another court which the court is bound to follow; not, upon a mere suggestion, that some or all of the members of the court might later arrive at a different conclusion if the matter was res integra. It is further observed that otherwise there would be great danger of want of continuity in the interpretation of law. It is further observed and held that the decisions rendered by a coordinate Bench is binding on the subsequent Benches of equal or lesser strength and a coordinate Bench of the same strength cannot take a contrary view than what has been held by another coordinate Bench unless it is shown to be per incuriam.11.1 This Court in Government of Andhra Pradesh Vs. A.P. Jaswal, (2001) 1 SCC 748 has observed as under:-Consistency is the cornerstone of the administration of justice. It is consistency which creates confidence in the system and this consistency can never be achieved without respect to the rule of finality. It is with a view to achieve consistency in judicial pronouncements, the courts have evolved the rule of precedents, principle of stare decisis etc. These rules and principles are based on public policy………The aforesaid observations are equally, if not more meaningful and relevant to tax matters.11.3 In K. Ajit Babu and Ors. Vs. Union of India and Ors., (1997) 6 SCC 473, this Court again emphasized on the aspect of consistency, certainty and uniformity in the field of judicial decisions as it sets a pattern upon which future conduct may be based. One of the basic principles of the administration of justice is that identical/similar cases should be decided alike. This is the foundation of the doctrine of precedent, which has considerable benefits and advantages. Emphasis on the law of precedent, which promotes certainty and consistency, was also noticed in Sundarjas Kanyalal Bhatija and Ors. Vs. Collector Thane, Maharashtra and Ors., (1989) 3 SCC 396, by emphasizing that it is the duty of the courts to make the law more predictable. Law must be made more effective as a guide to behaviour, otherwise, the lawyers or, for that matter, laymen would be in a predicament and would not know how to advise or conduct themselves. The general public should not be in a dilemma to obey or not to obey such law.11.4 In Medley Pharmaceuticals Limited v. Commissioner of Central Excise and Customs, Daman, (2011) 2 SCC 6014, the question before this Court was whether, physicians samples are excisable goods considering that they are prohibited from being sold under the Drugs and Cosmetics Act, 1940. Observing that since this Court has consistently held that the medical supplies supplied to the doctors are liable to excise duty, the issue involved in this case was no longer res integra. Relying on the Constitutional Bench decision in Waman Rao v. Union of India, (1981) 2 SCC 362, it was held:43. It is settled law that this Court should follow an earlier decision that has withstood the changes in time, irrespective of the rationale of the view taken. It was held by a Constitution Bench in Waman Rao v. Union of India [(1981) 2 SCC 362] : (SCC p. 393, para 40)40. It is also true to say that for the application of the rule of stare decisis, it is not necessary that the earlier decision or decisions of longstanding should have considered and either accepted or rejected the particular argument which is advanced in the case on hand. Were it so, the previous decisions could more easily be treated as binding by applying the law of precedent and it will be unnecessary to take resort to the principle of stare decisis. It is, therefore, sufficient for invoking the rule of stare decisis that a certain decision was arrived at on a question which arose or was argued, no matter on what reason the decision rests or what is the basis of the decision. In other words, for the purpose of applying the rule of stare decisis, it is unnecessary to enquire or determine as to what was the rationale of the earlier decision which is said to operate as stare decisis.12. What was said by the Constitution Bench in Indra Sawhney Vs. Union of India, 1992 Supp (3) SCC 217 and Keshav Mills Co. Ltd. Vs. Commissioner of Income Tax, Bombay North, Ahmedabad, AIR 1965 SC 1636 , on the principle of stare decisis clearly bind us. The judgment of this Court in the case of Larsen and Toubro Limited (supra) has stood the test of time and has never been doubted earlier. As observed hereinabove, the said decision has been followed consistently by this Court as well as by various High Courts and the Tribunals. Therefore, if the prayer made on behalf of the Revenue to re- consider and/or review the judgment of this Court in the case of Larsen and Toubro Limited (supra) is accepted, in that case, it will affect so many other assesses in whose favour the decisions have already been taken relying upon and/or following the decision of this Court in the case of Larsen and Toubro Limited (supra) and It may unsettle the law, which has been consistently followed since 2015 onwards. There are all possibilities of contradictory orders. Therefore, on the principle of stare decisis, we are of the firm view that the judgment of this Court in the case of Larsen and Toubro Limited (supra), neither needs to be revisited, nor referred to a Larger Bench of this Court as prayed, i.e., after a period of almost seven years and as observed hereinabove when no efforts were made to file any review application requesting to review the judgment on the grounds, which are now canvassed before this Court.13. At this stage, it is required to be noted that one of the appeals being Civil Appeal No. 6523 of 2014 filed by M/s. G.D. Builders is against the decision of the Delhi High Court in the case of G.D. Builders Vs. Union of India reported in (2013) 32 STR 673 (Delhi). It is to be noted that the said decision of the Delhi High Court in the case of G.D. Builders (supra) has been specifically overruled by this court in the case of Larsen and Toubro Limited (supra). The decision of the Delhi High Court in the case of G.D. Builders (supra) has been considered by this Court in the case of Larsen and Toubro Limited (supra) in paragraphs 28, 29, 30, 32, 33, 38 and 39 and ultimately, this Court opined that the decision of the Delhi High Court in the case of G.D. Builders (supra) is in fact contrary to a long line of decisions. It is further specifically observed and held that the decision of the Delhi High Court in the case of G.D. Builders (supra) is wholly incorrect in its conclusion that the Finance Act, 1994 contains both the charge and machinery for levy and assessment of service tax on indivisible works contracts. It is reported that while deciding the group of matters in the case of Larsen and Toubro Limited (supra), the papers of the appeal filed by M/s. G.D. Builders being Civil Appeal No. 6523 of 2014 were also called and the learned counsel appearing on behalf of the G.D. Builders was also heard. It appears that, however, the Civil Appeal No. 6523 of 2014 filed by M/s. G.D. Builders against the decision of the Delhi High Court has not been specifically disposed of. Therefore, once the decision of the Delhi High Court in the case of G.D. Builders (supra), which is the subject matter of Civil Appeal No. 6523 of 2014 has been held to be wholly incorrect, Civil Appeal No. 6523 of 2014 filed by M/s. G.D. Builders has to be allowed and the judgment and order passed by the Delhi High Court has to be quashed and set aside.13.1 Now, so far as Civil Appeal No. 6525 of 2014, Civil Appeal No. 6526 of 2014 and Civil Appeal No. 2666 of 2022 are concerned, the High Court has dismissed the said writ petitions preferred by the respective assesses relying upon its earlier decision in the case of G.D. Builders (supra). Once the decision of the Delhi High Court in the case of G.D. Builders (supra) is held to be wholly incorrect by this Court in the case of Larsen and Toubro Limited (supra), Civil Appeal No. 6525 of 2014, Civil Appeal No. 6526 of 2014 and Civil Appeal No. 2666 of 2022 are also to be allowed.13.2 So far as Civil Appeal Nos. 8673-8684 of 2013 preferred by the assessee – M/s. Total Environment Building Systems Pvt. Ltd. are concerned, the same are against the judgment and order passed by the High Court of Karnataka in Writ Appeal Nos. 3481-3492 of 2009 by which the Division Bench of the High Court has dismissed the said writ appeals and has confirmed the judgment and order passed by the learned Single Judge dismissing the writ petitions in which the appellant - assessee challenged the assessment orders levying Service Tax, on the ground of alternative remedy available by way of statutory appeal. However, in view of the binding decision of this Court in the case of Larsen and Toubro Limited (supra), the assessee is not liable to pay the service tax till the date of amendment of the provision on the indivisible/composite works contracts and therefore, the said appeals also deserve to be allowed and the assessment orders levying the service tax are to be set aside.13.3 Following the binding decision of this Court in the case of Larsen and Toubro Limited (supra), taking the view that for the period pre- Finance Act, 2007, service tax was not leviable on the indivisible/composite works contracts, the Civil Appeal Nos. 4547-4548 of 2014, Civil Appeal No. 2667 of 2022 and Civil Appeal No. 2668 of 2022 arising out of the common judgment and order passed by the Guwahati High Court and the respective decisions of the CESTAT passed against the respective assesses are also to be allowed.13.4 Now, so far as Civil Appeal No. 6792 of 2010 preferred by the Revenue against the judgment and order passed by the CESTAT, West Zonal Bench in Appeal No. ST/275 of 2006 is concerned, in view of the binding decision of this Court in the case of Larsen and Toubro Limited (supra), the same deserves to be dismissed. | 1 | 7,972 | 4,783 | ### Instruction:
Predict whether the case will result in an affirmative (1) or negative (0) decision for the appeal, and then provide a thorough explanation using key sentences to support your prediction.
### Input:
Court in the case of Larsen and Toubro Limited (supra) has stood the test of time and has never been doubted earlier. As observed hereinabove, the said decision has been followed consistently by this Court as well as by various High Courts and the Tribunals. Therefore, if the prayer made on behalf of the Revenue to re- consider and/or review the judgment of this Court in the case of Larsen and Toubro Limited (supra) is accepted, in that case, it will affect so many other assesses in whose favour the decisions have already been taken relying upon and/or following the decision of this Court in the case of Larsen and Toubro Limited (supra) and It may unsettle the law, which has been consistently followed since 2015 onwards. There are all possibilities of contradictory orders. Therefore, on the principle of stare decisis, we are of the firm view that the judgment of this Court in the case of Larsen and Toubro Limited (supra), neither needs to be revisited, nor referred to a Larger Bench of this Court as prayed, i.e., after a period of almost seven years and as observed hereinabove when no efforts were made to file any review application requesting to review the judgment on the grounds, which are now canvassed before this Court. 13. At this stage, it is required to be noted that one of the appeals being Civil Appeal No. 6523 of 2014 filed by M/s. G.D. Builders is against the decision of the Delhi High Court in the case of G.D. Builders Vs. Union of India reported in (2013) 32 STR 673 (Delhi). It is to be noted that the said decision of the Delhi High Court in the case of G.D. Builders (supra) has been specifically overruled by this court in the case of Larsen and Toubro Limited (supra). The decision of the Delhi High Court in the case of G.D. Builders (supra) has been considered by this Court in the case of Larsen and Toubro Limited (supra) in paragraphs 28, 29, 30, 32, 33, 38 and 39 and ultimately, this Court opined that the decision of the Delhi High Court in the case of G.D. Builders (supra) is in fact contrary to a long line of decisions. It is further specifically observed and held that the decision of the Delhi High Court in the case of G.D. Builders (supra) is wholly incorrect in its conclusion that the Finance Act, 1994 contains both the charge and machinery for levy and assessment of service tax on indivisible works contracts. It is reported that while deciding the group of matters in the case of Larsen and Toubro Limited (supra), the papers of the appeal filed by M/s. G.D. Builders being Civil Appeal No. 6523 of 2014 were also called and the learned counsel appearing on behalf of the G.D. Builders was also heard. It appears that, however, the Civil Appeal No. 6523 of 2014 filed by M/s. G.D. Builders against the decision of the Delhi High Court has not been specifically disposed of. Therefore, once the decision of the Delhi High Court in the case of G.D. Builders (supra), which is the subject matter of Civil Appeal No. 6523 of 2014 has been held to be wholly incorrect, Civil Appeal No. 6523 of 2014 filed by M/s. G.D. Builders has to be allowed and the judgment and order passed by the Delhi High Court has to be quashed and set aside. 13.1 Now, so far as Civil Appeal No. 6525 of 2014, Civil Appeal No. 6526 of 2014 and Civil Appeal No. 2666 of 2022 are concerned, the High Court has dismissed the said writ petitions preferred by the respective assesses relying upon its earlier decision in the case of G.D. Builders (supra). Once the decision of the Delhi High Court in the case of G.D. Builders (supra) is held to be wholly incorrect by this Court in the case of Larsen and Toubro Limited (supra), Civil Appeal No. 6525 of 2014, Civil Appeal No. 6526 of 2014 and Civil Appeal No. 2666 of 2022 are also to be allowed. 13.2 So far as Civil Appeal Nos. 8673-8684 of 2013 preferred by the assessee – M/s. Total Environment Building Systems Pvt. Ltd. are concerned, the same are against the judgment and order passed by the High Court of Karnataka in Writ Appeal Nos. 3481-3492 of 2009 by which the Division Bench of the High Court has dismissed the said writ appeals and has confirmed the judgment and order passed by the learned Single Judge dismissing the writ petitions in which the appellant - assessee challenged the assessment orders levying Service Tax, on the ground of alternative remedy available by way of statutory appeal. However, in view of the binding decision of this Court in the case of Larsen and Toubro Limited (supra), the assessee is not liable to pay the service tax till the date of amendment of the provision on the indivisible/composite works contracts and therefore, the said appeals also deserve to be allowed and the assessment orders levying the service tax are to be set aside. 13.3 Following the binding decision of this Court in the case of Larsen and Toubro Limited (supra), taking the view that for the period pre- Finance Act, 2007, service tax was not leviable on the indivisible/composite works contracts, the Civil Appeal Nos. 4547-4548 of 2014, Civil Appeal No. 2667 of 2022 and Civil Appeal No. 2668 of 2022 arising out of the common judgment and order passed by the Guwahati High Court and the respective decisions of the CESTAT passed against the respective assesses are also to be allowed. 13.4 Now, so far as Civil Appeal No. 6792 of 2010 preferred by the Revenue against the judgment and order passed by the CESTAT, West Zonal Bench in Appeal No. ST/275 of 2006 is concerned, in view of the binding decision of this Court in the case of Larsen and Toubro Limited (supra), the same deserves to be dismissed.
### Response:
1
### Explanation:
us. The judgment of this Court in the case of Larsen and Toubro Limited (supra) has stood the test of time and has never been doubted earlier. As observed hereinabove, the said decision has been followed consistently by this Court as well as by various High Courts and the Tribunals. Therefore, if the prayer made on behalf of the Revenue to re- consider and/or review the judgment of this Court in the case of Larsen and Toubro Limited (supra) is accepted, in that case, it will affect so many other assesses in whose favour the decisions have already been taken relying upon and/or following the decision of this Court in the case of Larsen and Toubro Limited (supra) and It may unsettle the law, which has been consistently followed since 2015 onwards. There are all possibilities of contradictory orders. Therefore, on the principle of stare decisis, we are of the firm view that the judgment of this Court in the case of Larsen and Toubro Limited (supra), neither needs to be revisited, nor referred to a Larger Bench of this Court as prayed, i.e., after a period of almost seven years and as observed hereinabove when no efforts were made to file any review application requesting to review the judgment on the grounds, which are now canvassed before this Court.13. At this stage, it is required to be noted that one of the appeals being Civil Appeal No. 6523 of 2014 filed by M/s. G.D. Builders is against the decision of the Delhi High Court in the case of G.D. Builders Vs. Union of India reported in (2013) 32 STR 673 (Delhi). It is to be noted that the said decision of the Delhi High Court in the case of G.D. Builders (supra) has been specifically overruled by this court in the case of Larsen and Toubro Limited (supra). The decision of the Delhi High Court in the case of G.D. Builders (supra) has been considered by this Court in the case of Larsen and Toubro Limited (supra) in paragraphs 28, 29, 30, 32, 33, 38 and 39 and ultimately, this Court opined that the decision of the Delhi High Court in the case of G.D. Builders (supra) is in fact contrary to a long line of decisions. It is further specifically observed and held that the decision of the Delhi High Court in the case of G.D. Builders (supra) is wholly incorrect in its conclusion that the Finance Act, 1994 contains both the charge and machinery for levy and assessment of service tax on indivisible works contracts. It is reported that while deciding the group of matters in the case of Larsen and Toubro Limited (supra), the papers of the appeal filed by M/s. G.D. Builders being Civil Appeal No. 6523 of 2014 were also called and the learned counsel appearing on behalf of the G.D. Builders was also heard. It appears that, however, the Civil Appeal No. 6523 of 2014 filed by M/s. G.D. Builders against the decision of the Delhi High Court has not been specifically disposed of. Therefore, once the decision of the Delhi High Court in the case of G.D. Builders (supra), which is the subject matter of Civil Appeal No. 6523 of 2014 has been held to be wholly incorrect, Civil Appeal No. 6523 of 2014 filed by M/s. G.D. Builders has to be allowed and the judgment and order passed by the Delhi High Court has to be quashed and set aside.13.1 Now, so far as Civil Appeal No. 6525 of 2014, Civil Appeal No. 6526 of 2014 and Civil Appeal No. 2666 of 2022 are concerned, the High Court has dismissed the said writ petitions preferred by the respective assesses relying upon its earlier decision in the case of G.D. Builders (supra). Once the decision of the Delhi High Court in the case of G.D. Builders (supra) is held to be wholly incorrect by this Court in the case of Larsen and Toubro Limited (supra), Civil Appeal No. 6525 of 2014, Civil Appeal No. 6526 of 2014 and Civil Appeal No. 2666 of 2022 are also to be allowed.13.2 So far as Civil Appeal Nos. 8673-8684 of 2013 preferred by the assessee – M/s. Total Environment Building Systems Pvt. Ltd. are concerned, the same are against the judgment and order passed by the High Court of Karnataka in Writ Appeal Nos. 3481-3492 of 2009 by which the Division Bench of the High Court has dismissed the said writ appeals and has confirmed the judgment and order passed by the learned Single Judge dismissing the writ petitions in which the appellant - assessee challenged the assessment orders levying Service Tax, on the ground of alternative remedy available by way of statutory appeal. However, in view of the binding decision of this Court in the case of Larsen and Toubro Limited (supra), the assessee is not liable to pay the service tax till the date of amendment of the provision on the indivisible/composite works contracts and therefore, the said appeals also deserve to be allowed and the assessment orders levying the service tax are to be set aside.13.3 Following the binding decision of this Court in the case of Larsen and Toubro Limited (supra), taking the view that for the period pre- Finance Act, 2007, service tax was not leviable on the indivisible/composite works contracts, the Civil Appeal Nos. 4547-4548 of 2014, Civil Appeal No. 2667 of 2022 and Civil Appeal No. 2668 of 2022 arising out of the common judgment and order passed by the Guwahati High Court and the respective decisions of the CESTAT passed against the respective assesses are also to be allowed.13.4 Now, so far as Civil Appeal No. 6792 of 2010 preferred by the Revenue against the judgment and order passed by the CESTAT, West Zonal Bench in Appeal No. ST/275 of 2006 is concerned, in view of the binding decision of this Court in the case of Larsen and Toubro Limited (supra), the same deserves to be dismissed.
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Vasumatiben Gaurishankar Bhatt Vs. Navairam Manchharam Vora And Ors | to pay the arrears at any time during the pendency of the suit, or even during the pendency of the appeal, and so, when the tenant failed or neglected to pay the arrears due from him immediately after receiving the notice of demand from the landlord, it is easy to imagine that she knew that her failure to pay the arrears of rent immediately on receiving the notice would not lead to her eviction and that she would have the option to deposit the amount as required by S. 12 (3) either in the trial Court or in the Court of Appeal. That being so, he suggests that in order to avoid hardship to the tenants, S. 12 (3) (a) should be read as requiring the landlord to issue a fresh notice after the amended section came into force. The notice given by the landlord prior to the date of the amendment did not convey to the tenant the knowledge that her failure to comply with it would necessarily lead to her ejectment, and so. the relevant provisions of this beneficent statute should be construed in a liberal way. That, in substance, is the first contention raised by Mr. Pai before us.7. We are unable to accept this argument. What S. 12 (3) (a) requires is that in cases where there is no dispute between the landlord and the tenant regarding the amount of standard rent or permitted increases, if the landlord is able to show that the tenant is in arrears for a period of six months or more and the said arrears continued in spite of the fact that a notice was served on him before the institution of the suit and no payment was made within a month thereafter, the landlord is entitled to get a decree for ejectment against the tenant. It is true that S. 12 (3) (a) refers to a notice, but in terms, it refers to a notice served by the landlord as required by Section 12 (2), and in S. 12 (2) the legislature has made no amendment when it amended sub-s. (3). If we turn to S. 12 (2), it would be noticed that the notice given by the respondents to the appellant in the present case satisfies the requirements of the said sub-section. The respondents told the appellant by their notice that arrears were due from her, and there is no doubt that the arrears were not paid up by the appellant until the expiration of one month next after the notice in writing was served on her in that behalf. Section 12 (2) never required the landlord to state to the tenant what the consequences would be if the tenant neglected to pay the arrears demanded from him/her by the notice. Therefore, if the notice served by the respondents on the appellant prior to the institution of the present suit is in order and it is shown that the arrears have not been paid as required, then S. 12 (2) has been complied with, and it is on that footing that the case between the parties has to be tried under S. 12 (3) (a).8. Mr. Pai then contends that Sec-12 (3) (a) seems to suggest that the neglect or failure of the tenant to make the payment of arrears must be subsequent to the date on which the Amending Act came into force. He relies on the fact that S. 12 (3) (a) refers to the case where the tenant "neglects to make payment" of the rent. The section does not say "has neglected to make payment", says Mr. Pail In our opinion, there is no substance in this argument. The use of the word `neglect" in the present tense has to be construed in the light of the fact that the clause refers to the tenant neglecting to make payment of the rent until the expiration of one month next after receipt of the notice, and that clearly would have made the use of the past tense inappropriate. The position therefore, is that if notice has been served as required by Section 12 (2) and the tenant is shown to have neglected to comply with the notice until the expiration of one month thereafter, Section 12 (2) satisfied and S. 12 (3) (a) comes into operation.9. Mr. Pai also argued that the right given to the tenant to pay the arrears at the hearing of the suit was a vested right, and so in construing S. 12 (3) (a) we should not adopt the construction which would defeat that vested right. It is not easy to accept the contention that the provisions of Section 12 (3) (a) really confer any vested right as such ml the tenant. What S. 12 (3) (a) provided was that a decree shall not be passed in favour of the landlord in case the tenant pays or tenders ill Court the standard rent at the hearing of the suit. This provision cannot prima facie be said to confer any right or vested right on the tenant. But even if the tenant had a vested right to pay the money in Court at the hearing of the suit, we do not see flow that consideration can alter the plain effect of the words used in S. 12 (3) (a). The suit was filed after the amended section came into force, and clearly the amended provision applies to the suit and governs the decision of the dispute between the parties. If that is so, the plain meanings of S. 12 (3)( a) is that if a notice is served on the tenant and he has not made the payment as required within the time specified in S. 12 (3)(a), the Court is bound to pass a decree for eviction against the tenant. That is the view taken by the Gujarat High Court and we are satisfied that that view clearly gives effect to the provisions of S. 12 (3) (a) as amended in 1953. | 0[ds]7. We are unable to accept this argument. What S. 12 (3) (a) requires is that in cases where there is no dispute between the landlord and the tenant regarding the amount of standard rent or permitted increases, if the landlord is able to show that the tenant is in arrears for a period of six months or more and the said arrears continued in spite of the fact that a notice was served on him before the institution of the suit and no payment was made within a month thereafter, the landlord is entitled to get a decree for ejectment against the tenant. It is true that S. 12 (3) (a) refers to a notice, but in terms, it refers to a notice served by the landlord as required by Section 12 (2), and in S. 12 (2) the legislature has made no amendment when it amended sub-s. (3). If we turn to S. 12 (2), it would be noticed that the notice given by the respondents to the appellant in the present case satisfies the requirements of the said sub-section. The respondents told the appellant by their notice that arrears were due from her, and there is no doubt that the arrears were not paid up by the appellant until the expiration of one month next after the notice in writing was served on her in that behalf. Section 12 (2) never required the landlord to state to the tenant what the consequences would be if the tenant neglected to pay the arrears demanded from him/her by the notice. Therefore, if the notice served by the respondents on the appellant prior to the institution of the present suit is in order and it is shown that the arrears have not been paid as required, then S. 12 (2) has been complied with, and it is on that footing that the case between the parties has to be tried under S. 12 (3)our opinion, there is no substance in this argument. The use of the word `neglect" in the present tense has to be construed in the light of the fact that the clause refers to the tenant neglecting to make payment of the rent until the expiration of one month next after receipt of the notice, and that clearly would have made the use of the past tense inappropriate. The position therefore, is that if notice has been served as required by Section 12 (2) and the tenant is shown to have neglected to comply with the notice until the expiration of one month thereafter, Section 12 (2) satisfied and S. 12 (3) (a) comes intois not easy to accept the contention that the provisions of Section 12 (3) (a) really confer any vested right as such ml the tenant. What S. 12 (3) (a) provided was that a decree shall not be passed in favour of the landlord in case the tenant pays or tenders ill Court the standard rent at the hearing of the suit. This provision cannot prima facie be said to confer any right or vested right on the tenant. But even if the tenant had a vested right to pay the money in Court at the hearing of the suit, we do not see flow that consideration can alter the plain effect of the words used in S. 12 (3) (a). The suit was filed after the amended section came into force, and clearly the amended provision applies to the suit and governs the decision of the dispute between the parties. If that is so, the plain meanings of S. 12 (3)( a) is that if a notice is served on the tenant and he has not made the payment as required within the time specified in S. 12 (3)(a), the Court is bound to pass a decree for eviction against the tenant. That is the view taken by the Gujarat High Court and we are satisfied that that view clearly gives effect to the provisions of S. 12 (3) (a) as amended in 1953. | 0 | 2,551 | 769 | ### Instruction:
Judge the probable resolution of the case (approval (1) or disapproval (0)), and elaborate on this forecast by extracting and interpreting significant sentences from the proceeding.
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to pay the arrears at any time during the pendency of the suit, or even during the pendency of the appeal, and so, when the tenant failed or neglected to pay the arrears due from him immediately after receiving the notice of demand from the landlord, it is easy to imagine that she knew that her failure to pay the arrears of rent immediately on receiving the notice would not lead to her eviction and that she would have the option to deposit the amount as required by S. 12 (3) either in the trial Court or in the Court of Appeal. That being so, he suggests that in order to avoid hardship to the tenants, S. 12 (3) (a) should be read as requiring the landlord to issue a fresh notice after the amended section came into force. The notice given by the landlord prior to the date of the amendment did not convey to the tenant the knowledge that her failure to comply with it would necessarily lead to her ejectment, and so. the relevant provisions of this beneficent statute should be construed in a liberal way. That, in substance, is the first contention raised by Mr. Pai before us.7. We are unable to accept this argument. What S. 12 (3) (a) requires is that in cases where there is no dispute between the landlord and the tenant regarding the amount of standard rent or permitted increases, if the landlord is able to show that the tenant is in arrears for a period of six months or more and the said arrears continued in spite of the fact that a notice was served on him before the institution of the suit and no payment was made within a month thereafter, the landlord is entitled to get a decree for ejectment against the tenant. It is true that S. 12 (3) (a) refers to a notice, but in terms, it refers to a notice served by the landlord as required by Section 12 (2), and in S. 12 (2) the legislature has made no amendment when it amended sub-s. (3). If we turn to S. 12 (2), it would be noticed that the notice given by the respondents to the appellant in the present case satisfies the requirements of the said sub-section. The respondents told the appellant by their notice that arrears were due from her, and there is no doubt that the arrears were not paid up by the appellant until the expiration of one month next after the notice in writing was served on her in that behalf. Section 12 (2) never required the landlord to state to the tenant what the consequences would be if the tenant neglected to pay the arrears demanded from him/her by the notice. Therefore, if the notice served by the respondents on the appellant prior to the institution of the present suit is in order and it is shown that the arrears have not been paid as required, then S. 12 (2) has been complied with, and it is on that footing that the case between the parties has to be tried under S. 12 (3) (a).8. Mr. Pai then contends that Sec-12 (3) (a) seems to suggest that the neglect or failure of the tenant to make the payment of arrears must be subsequent to the date on which the Amending Act came into force. He relies on the fact that S. 12 (3) (a) refers to the case where the tenant "neglects to make payment" of the rent. The section does not say "has neglected to make payment", says Mr. Pail In our opinion, there is no substance in this argument. The use of the word `neglect" in the present tense has to be construed in the light of the fact that the clause refers to the tenant neglecting to make payment of the rent until the expiration of one month next after receipt of the notice, and that clearly would have made the use of the past tense inappropriate. The position therefore, is that if notice has been served as required by Section 12 (2) and the tenant is shown to have neglected to comply with the notice until the expiration of one month thereafter, Section 12 (2) satisfied and S. 12 (3) (a) comes into operation.9. Mr. Pai also argued that the right given to the tenant to pay the arrears at the hearing of the suit was a vested right, and so in construing S. 12 (3) (a) we should not adopt the construction which would defeat that vested right. It is not easy to accept the contention that the provisions of Section 12 (3) (a) really confer any vested right as such ml the tenant. What S. 12 (3) (a) provided was that a decree shall not be passed in favour of the landlord in case the tenant pays or tenders ill Court the standard rent at the hearing of the suit. This provision cannot prima facie be said to confer any right or vested right on the tenant. But even if the tenant had a vested right to pay the money in Court at the hearing of the suit, we do not see flow that consideration can alter the plain effect of the words used in S. 12 (3) (a). The suit was filed after the amended section came into force, and clearly the amended provision applies to the suit and governs the decision of the dispute between the parties. If that is so, the plain meanings of S. 12 (3)( a) is that if a notice is served on the tenant and he has not made the payment as required within the time specified in S. 12 (3)(a), the Court is bound to pass a decree for eviction against the tenant. That is the view taken by the Gujarat High Court and we are satisfied that that view clearly gives effect to the provisions of S. 12 (3) (a) as amended in 1953.
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7. We are unable to accept this argument. What S. 12 (3) (a) requires is that in cases where there is no dispute between the landlord and the tenant regarding the amount of standard rent or permitted increases, if the landlord is able to show that the tenant is in arrears for a period of six months or more and the said arrears continued in spite of the fact that a notice was served on him before the institution of the suit and no payment was made within a month thereafter, the landlord is entitled to get a decree for ejectment against the tenant. It is true that S. 12 (3) (a) refers to a notice, but in terms, it refers to a notice served by the landlord as required by Section 12 (2), and in S. 12 (2) the legislature has made no amendment when it amended sub-s. (3). If we turn to S. 12 (2), it would be noticed that the notice given by the respondents to the appellant in the present case satisfies the requirements of the said sub-section. The respondents told the appellant by their notice that arrears were due from her, and there is no doubt that the arrears were not paid up by the appellant until the expiration of one month next after the notice in writing was served on her in that behalf. Section 12 (2) never required the landlord to state to the tenant what the consequences would be if the tenant neglected to pay the arrears demanded from him/her by the notice. Therefore, if the notice served by the respondents on the appellant prior to the institution of the present suit is in order and it is shown that the arrears have not been paid as required, then S. 12 (2) has been complied with, and it is on that footing that the case between the parties has to be tried under S. 12 (3)our opinion, there is no substance in this argument. The use of the word `neglect" in the present tense has to be construed in the light of the fact that the clause refers to the tenant neglecting to make payment of the rent until the expiration of one month next after receipt of the notice, and that clearly would have made the use of the past tense inappropriate. The position therefore, is that if notice has been served as required by Section 12 (2) and the tenant is shown to have neglected to comply with the notice until the expiration of one month thereafter, Section 12 (2) satisfied and S. 12 (3) (a) comes intois not easy to accept the contention that the provisions of Section 12 (3) (a) really confer any vested right as such ml the tenant. What S. 12 (3) (a) provided was that a decree shall not be passed in favour of the landlord in case the tenant pays or tenders ill Court the standard rent at the hearing of the suit. This provision cannot prima facie be said to confer any right or vested right on the tenant. But even if the tenant had a vested right to pay the money in Court at the hearing of the suit, we do not see flow that consideration can alter the plain effect of the words used in S. 12 (3) (a). The suit was filed after the amended section came into force, and clearly the amended provision applies to the suit and governs the decision of the dispute between the parties. If that is so, the plain meanings of S. 12 (3)( a) is that if a notice is served on the tenant and he has not made the payment as required within the time specified in S. 12 (3)(a), the Court is bound to pass a decree for eviction against the tenant. That is the view taken by the Gujarat High Court and we are satisfied that that view clearly gives effect to the provisions of S. 12 (3) (a) as amended in 1953.
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Union Of India Vs. West Punjab Factories Ltd | during which under the rules no wharfage is charged. The responsibility of the railway is under S. 72 of the Indian Railways Act (No. 9 of 1890) and that responsibility cannot be cut down by any rule. It may be that the railway may not charge wharfage for three days and it is excepted that a consignee would take away the goods within three days.It is, however, urged that the railway is a carrier and its responsibility as a carrier must come to an end within a reasonable time after the arrival of goods at the destination, and thereafter there can be no responsibility whatsoever of the railway. It is further urged that three days during which the railway keeps goods without charging wharfage should be taken as reasonable time when its responsibility as a carrier ends; thereafter it has no responsibility whatsoever. Under S. 72 of the Indian Railways Act, the responsibility of the railway administration for the loss, destruction or deterioration of animals or goods delivered to the administration to be carried by railway is, subject to the other provisions of the Act, that of a baliee under Ss. 151, 152 and 161 of the Indian Contract Act, (No. 9 of 1872). This responsibility in our opinion continues until terminated in accordance with Ss. 55 and 56 of the Railways Act. The railway has framed rules in this connection which lay down that unclaimed goods are kept at the railway station to which they are booked for a period of not less than one month during which time the notice prescribed under S. 56 of the Railway Act is issued if the owner of the goods or person entitled thereto is known. If delivery is not taken within this period, the unclaimed goods are sent to the unclaimed goods office where if they are not of dangerous, perishable or offensive character they are retained in the possession of the railway. Thereafter public sales by auction can be held of unclaimed goods which remain with the railway for over six months. This being the position under the rules so far as the application of Ss. 55 and 56 is concerned, it follows that even though the responsibility of the railway as a carrier may come to an end within a reasonable time after the goods have reached the destination-station, its responsibility as a warehouseman continues and that responsibility is also the same as that of a bailee. Reference in this connection is made to Chapman v. Great Western Rly. Co., (1880) 5 QBD 278. In that case what had happened was that certain goods had arrived on March 24 and 25. On the morning of March 27, a fire accidentally broke out and the goods were consumed by the fire. The consignor then sued the railway as common carrier on the ground that that liability still subsisted when the goods were destroyed. The question in that case was whether the liability of the railways was still as common carrier, on March 27 or was that of warehouseman. The question was of importance in English law, for a common carrier under the English law is an insurer and is liable for the loss even though not arising from any default on his part while a warehouseman was only liable were there was want of proper care. It was held that the liability as a common carrier would come to end not immediately on the arrival of the goods at the destination but sometime must elapse between the arrival of goods and its delivery. This interval, however, must be reasonable and it was held in that case that reasonable time had elapsed when the fire broke out on March 27 and, therefore, the railways responsibility was not that of a carrier but only as warehouseman. The position of law in India is slightly different from that in England, for here the railway is only a bailee in the absence of any special contract and it is only when it is proved that the railway did not take such care of the goods as a man of ordinary prudence would under similar circumstances take of his own goods of the same bulk, quality and value as the goods bailed, that the railways responsibility arises. A warehouseman is also a bailee and, therefore, the railway will continue to be a warehouseman under the bailment, even if its responsibility as a carrier after the lapse of a reasonable time after arrival of goods at the destination comes to an end. But in both cases the responsibility in India is the same, namely, that of a bailee, and negligence has to be proved. In view of the rules to which we have already referred it is clear that the railways responsibility as a warehouseman continues even if its responsibility as a carrier comes to end after the lapse of a reasonable time after the arrival of goods at the destination. The responsibility as a warehouseman can only come to end in the manner provided by Ss. 55 and 56 of the Railways Act and the Rules which have been framed and to which we have already referred as to the disposal of unclaimed goods. In the present case under the Rules the goods had to remain at Morar Road Railway Station for a period of one month after their arrival there and Ishwara Nand came to take delivery of them on March 10 - well within that period. It may be that as he did not come within three days he has to pay wharfage or what is called demurrage in railway parlance, but the responsibility of the railway as a warehouseman certainly continued till March 10 when Ishawar Nand went to take delivery of the goods. As it is has been found that there had been negligence within the meaning of Sections 151 and 152 of the Indian Contract Act the railway would be liable to make good the loss caused by the fire. | 0[ds]The mere fact that the consignee is different from the consignor does not necessarily pass title to the goods from the consignor to the consignee, and the question whether title to goods has passed to the consignee will have to be decided on other evidence. It is quite possible for the consignor to retain title in the goods himself while the consignment is booked in the name of another person. Take a simple case where a consignment is booked by the owner and the consignee is the owners servant, the intention being that the servant will take delivery at the place of destination. In such a case the title to the goods would not pass from the owner to the consignee and would still remain with the owner, the consignee being merely a servant or agent of the owner or consignor for purposes of taking delivery at the place of destination. It cannot therefore, be accepted simply because a consignee in a railway receipt is different from a consignor that the consignee must be held to be the owner of the goods and he alone can sue and not the consignor11. The contract between the Factory and the J. C. Mills was that delivery would be made by the seller at the godown of the J. C. Mills. The contract also provided that the goods would be despatched by railway on the sellers risk upto the point named above (namely, the godowns of the J. C. Mills). Therefore, the property in the goods would only pass to the J. C. Mills when delivery was made at the godown and till then the consignor would be the owner of the goods and the goods would be at its risk. Ordinarily, the consignments would have been booked in the name of "self" but it seems that there was some legal difficulty in booking the consignments in the name of self and, therefore, the J. C. Mills agreed that the consignments might be booked in the Mills name as consignee; but it was made clear by the J. C. Mills that the contract would stand unaffected by this method of consignment and all risk, responsibility and liability regarding these cotton consignments would be of the Factory till they were delivered to the J. C. Mills in its godowns as already agreed upon under the contract and all losses arising from whatever cause to the cotton thus consigned would be borne by the Factory till its delivery as indicated above. This being the nature of the contract between the consignor and the consignee in the present case we have no hesitation in agreeing with the Courts below that the property in the goods was still with the Factory when the fire broke out on March 8, 1943. Therefore, the ordinary rule that it is the consignor who can sue will prevail here because it is no proved that the consignor had parted with the property in the goods, even though the consignments were booked in the name of the J. C. Mills. We are, therefore, of opinion that the suit of the Factory was in view of these circumstances maintainable13. Thus there are concurrent findings of the two Courts below that Ishwaraa Nand was the owner of the goods and that was why the railway receipt was endorsed in his favour. In these circumstances he is certainly entitled to maintain the suit. The contention that the plaintiffs in the two suits could not maintain them must, therefore, be rejectedWe are of opinion that on the evidence the view taken by the High Court is correct. Though there was a token delivery as appears from the fact that railway receipts had been surrendered and the delivery book had been signed, there was no real delivery by the railway to the consignee, for the goods had not been unloaded and were still under the control and custody of the railway and Har Prashads evidence is that his permission had still to be taken before the goods could be actually removed by the consignee. The contention that the delivery had been made to be consignee before March 8, 1943 must, therefore, in the peculiar circumstances of this case fail15. It is next contended that damages should have been awarded at the rate of Rs. 38 per bale which was the contract price between the factory and the J. C. Mills.This contract was made in November 1942. The contract price is in our opinion no measure of damages to be awarded in a case like the present. It is well settled that it is the market price at the time the damage occurred which is the measure of damages to be awarded.It is not in dispute that the trial Court has calculated damages on the basis of the market price prevalent on March 8. In these circumstances this contention must also be rejectedThe position of law in India is slightly different from that in England, for here the railway is only a bailee in the absence of any special contract and it is only when it is proved that the railway did not take such care of the goods as a man of ordinary prudence would under similar circumstances take of his own goods of the same bulk, quality and value as the goods bailed, that the railways responsibility arises. A warehouseman is also a bailee and, therefore, the railway will continue to be a warehouseman under the bailment, even if its responsibility as a carrier after the lapse of a reasonable time after arrival of goods at the destination comes to an end. But in both cases the responsibility in India is the same, namely, that of a bailee, and negligence has to be proved. In view of the rules to which we have already referred it is clear that the railways responsibility as a warehouseman continues even if its responsibility as a carrier comes to end after the lapse of a reasonable time after the arrival of goods at the destination. The responsibility as a warehouseman can only come to end in the manner provided by Ss. 55 and 56 of the Railways Act and the Rules which have been framed and to which we have already referred as to the disposal of unclaimed goods. In the present case under the Rules the goods had to remain at Morar Road Railway Station for a period of one month after their arrival there and Ishwara Nand came to take delivery of them on March 10 - well within that period. It may be that as he did not come within three days he has to pay wharfage or what is called demurrage in railway parlance, but the responsibility of the railway as a warehouseman certainly continued till March 10 when Ishawar Nand went to take delivery of the goods. As it is has been found that there had been negligence within the meaning of Sections 151 and 152 of the Indian Contract Act the railway would be liable to make good the loss caused by the fire. | 0 | 5,788 | 1,252 | ### 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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during which under the rules no wharfage is charged. The responsibility of the railway is under S. 72 of the Indian Railways Act (No. 9 of 1890) and that responsibility cannot be cut down by any rule. It may be that the railway may not charge wharfage for three days and it is excepted that a consignee would take away the goods within three days.It is, however, urged that the railway is a carrier and its responsibility as a carrier must come to an end within a reasonable time after the arrival of goods at the destination, and thereafter there can be no responsibility whatsoever of the railway. It is further urged that three days during which the railway keeps goods without charging wharfage should be taken as reasonable time when its responsibility as a carrier ends; thereafter it has no responsibility whatsoever. Under S. 72 of the Indian Railways Act, the responsibility of the railway administration for the loss, destruction or deterioration of animals or goods delivered to the administration to be carried by railway is, subject to the other provisions of the Act, that of a baliee under Ss. 151, 152 and 161 of the Indian Contract Act, (No. 9 of 1872). This responsibility in our opinion continues until terminated in accordance with Ss. 55 and 56 of the Railways Act. The railway has framed rules in this connection which lay down that unclaimed goods are kept at the railway station to which they are booked for a period of not less than one month during which time the notice prescribed under S. 56 of the Railway Act is issued if the owner of the goods or person entitled thereto is known. If delivery is not taken within this period, the unclaimed goods are sent to the unclaimed goods office where if they are not of dangerous, perishable or offensive character they are retained in the possession of the railway. Thereafter public sales by auction can be held of unclaimed goods which remain with the railway for over six months. This being the position under the rules so far as the application of Ss. 55 and 56 is concerned, it follows that even though the responsibility of the railway as a carrier may come to an end within a reasonable time after the goods have reached the destination-station, its responsibility as a warehouseman continues and that responsibility is also the same as that of a bailee. Reference in this connection is made to Chapman v. Great Western Rly. Co., (1880) 5 QBD 278. In that case what had happened was that certain goods had arrived on March 24 and 25. On the morning of March 27, a fire accidentally broke out and the goods were consumed by the fire. The consignor then sued the railway as common carrier on the ground that that liability still subsisted when the goods were destroyed. The question in that case was whether the liability of the railways was still as common carrier, on March 27 or was that of warehouseman. The question was of importance in English law, for a common carrier under the English law is an insurer and is liable for the loss even though not arising from any default on his part while a warehouseman was only liable were there was want of proper care. It was held that the liability as a common carrier would come to end not immediately on the arrival of the goods at the destination but sometime must elapse between the arrival of goods and its delivery. This interval, however, must be reasonable and it was held in that case that reasonable time had elapsed when the fire broke out on March 27 and, therefore, the railways responsibility was not that of a carrier but only as warehouseman. The position of law in India is slightly different from that in England, for here the railway is only a bailee in the absence of any special contract and it is only when it is proved that the railway did not take such care of the goods as a man of ordinary prudence would under similar circumstances take of his own goods of the same bulk, quality and value as the goods bailed, that the railways responsibility arises. A warehouseman is also a bailee and, therefore, the railway will continue to be a warehouseman under the bailment, even if its responsibility as a carrier after the lapse of a reasonable time after arrival of goods at the destination comes to an end. But in both cases the responsibility in India is the same, namely, that of a bailee, and negligence has to be proved. In view of the rules to which we have already referred it is clear that the railways responsibility as a warehouseman continues even if its responsibility as a carrier comes to end after the lapse of a reasonable time after the arrival of goods at the destination. The responsibility as a warehouseman can only come to end in the manner provided by Ss. 55 and 56 of the Railways Act and the Rules which have been framed and to which we have already referred as to the disposal of unclaimed goods. In the present case under the Rules the goods had to remain at Morar Road Railway Station for a period of one month after their arrival there and Ishwara Nand came to take delivery of them on March 10 - well within that period. It may be that as he did not come within three days he has to pay wharfage or what is called demurrage in railway parlance, but the responsibility of the railway as a warehouseman certainly continued till March 10 when Ishawar Nand went to take delivery of the goods. As it is has been found that there had been negligence within the meaning of Sections 151 and 152 of the Indian Contract Act the railway would be liable to make good the loss caused by the fire.
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the goods and he alone can sue and not the consignor11. The contract between the Factory and the J. C. Mills was that delivery would be made by the seller at the godown of the J. C. Mills. The contract also provided that the goods would be despatched by railway on the sellers risk upto the point named above (namely, the godowns of the J. C. Mills). Therefore, the property in the goods would only pass to the J. C. Mills when delivery was made at the godown and till then the consignor would be the owner of the goods and the goods would be at its risk. Ordinarily, the consignments would have been booked in the name of "self" but it seems that there was some legal difficulty in booking the consignments in the name of self and, therefore, the J. C. Mills agreed that the consignments might be booked in the Mills name as consignee; but it was made clear by the J. C. Mills that the contract would stand unaffected by this method of consignment and all risk, responsibility and liability regarding these cotton consignments would be of the Factory till they were delivered to the J. C. Mills in its godowns as already agreed upon under the contract and all losses arising from whatever cause to the cotton thus consigned would be borne by the Factory till its delivery as indicated above. This being the nature of the contract between the consignor and the consignee in the present case we have no hesitation in agreeing with the Courts below that the property in the goods was still with the Factory when the fire broke out on March 8, 1943. Therefore, the ordinary rule that it is the consignor who can sue will prevail here because it is no proved that the consignor had parted with the property in the goods, even though the consignments were booked in the name of the J. C. Mills. We are, therefore, of opinion that the suit of the Factory was in view of these circumstances maintainable13. Thus there are concurrent findings of the two Courts below that Ishwaraa Nand was the owner of the goods and that was why the railway receipt was endorsed in his favour. In these circumstances he is certainly entitled to maintain the suit. The contention that the plaintiffs in the two suits could not maintain them must, therefore, be rejectedWe are of opinion that on the evidence the view taken by the High Court is correct. Though there was a token delivery as appears from the fact that railway receipts had been surrendered and the delivery book had been signed, there was no real delivery by the railway to the consignee, for the goods had not been unloaded and were still under the control and custody of the railway and Har Prashads evidence is that his permission had still to be taken before the goods could be actually removed by the consignee. The contention that the delivery had been made to be consignee before March 8, 1943 must, therefore, in the peculiar circumstances of this case fail15. It is next contended that damages should have been awarded at the rate of Rs. 38 per bale which was the contract price between the factory and the J. C. Mills.This contract was made in November 1942. The contract price is in our opinion no measure of damages to be awarded in a case like the present. It is well settled that it is the market price at the time the damage occurred which is the measure of damages to be awarded.It is not in dispute that the trial Court has calculated damages on the basis of the market price prevalent on March 8. In these circumstances this contention must also be rejectedThe position of law in India is slightly different from that in England, for here the railway is only a bailee in the absence of any special contract and it is only when it is proved that the railway did not take such care of the goods as a man of ordinary prudence would under similar circumstances take of his own goods of the same bulk, quality and value as the goods bailed, that the railways responsibility arises. A warehouseman is also a bailee and, therefore, the railway will continue to be a warehouseman under the bailment, even if its responsibility as a carrier after the lapse of a reasonable time after arrival of goods at the destination comes to an end. But in both cases the responsibility in India is the same, namely, that of a bailee, and negligence has to be proved. In view of the rules to which we have already referred it is clear that the railways responsibility as a warehouseman continues even if its responsibility as a carrier comes to end after the lapse of a reasonable time after the arrival of goods at the destination. The responsibility as a warehouseman can only come to end in the manner provided by Ss. 55 and 56 of the Railways Act and the Rules which have been framed and to which we have already referred as to the disposal of unclaimed goods. In the present case under the Rules the goods had to remain at Morar Road Railway Station for a period of one month after their arrival there and Ishwara Nand came to take delivery of them on March 10 - well within that period. It may be that as he did not come within three days he has to pay wharfage or what is called demurrage in railway parlance, but the responsibility of the railway as a warehouseman certainly continued till March 10 when Ishawar Nand went to take delivery of the goods. As it is has been found that there had been negligence within the meaning of Sections 151 and 152 of the Indian Contract Act the railway would be liable to make good the loss caused by the fire.
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PIONEER URBAN LAND AND INFRASTRUCTURE LIMITED Vs. UNION OF INDIA | inevitable corollaries of that state of affairs.? (See EastEnd Dwellings Co. Ltd. v. Finsbury Borough Council [1952 AC 109 : (1951) 2 All ER 587 (HL)] at AC pp. 132-33.) ‘… The word ?deemed? is used a great deal in modern legislation. Sometimes it is used to impose for the purposes of a statute an artificial construction of a word or phrase that would not otherwise prevail. Sometimes it is used to put beyond doubt a particular construction that might otherwise be uncertain. Sometimes it is used to give a comprehensive description that includes what is obvious, what is uncertain and what is, in the ordinary sense, impossible.? [Per Lord Radcliffe in St. Aubyn v. Attorney General (No. 2) [1952 AC 15 : (1951) 2 All ER 473 (HL)] , AC p. 53.] 14. ‘Deemed?, as used in statutory definitions [is meant] ‘to extend the denotation of the defined term to things it would not in ordinary parlance denote, is often a convenient devise for reducing the verbiage of an enactment, but that does not mean that wherever it is used it has that effect; to deem means simply to judge or reach a conclusion about something, and the words ?deem? and ?deemed? when used in a statute thus simply state the effect or meaning which some matter or thing has — the way in which it is to be adjudged; this need not import artificiality or fiction; it may simply be the statement of an undisputable conclusion.? (Per Windener, J. in Hunter Douglas Australia Pty. v. Perma Blinds [(1970) 44 Aust LJ R 257] .) 15. When a thing is to be ‘deemed? something else, it is to be treated as that something else with the attendant consequences, but it is not that something else (per Cave, J., in R. v. Norfolk County Court [(1891) 60 LJ QB 379] ). ‘When a statute gives a definition and then adds that certain things shall be ?deemed? to be covered by the definition, it matters not whether without that addition the definition would have covered them or not.? (Per Lord President Cooper in Ferguson v. McMillan [1954 SLT 109] .) 16. Whether the word ‘deemed? when used in a statute established a conclusive or a rebuttable presumption depended upon the context (see St. Leon Village Consolidated School Distt. v. Ronceray [(1960) 23 DLR (2d) 32] ). ‘…. I … regard its primary function as to bring in something which would otherwise be excluded.? (Per Viscount Simonds in Barclays Bank v. IRC [1961 AC 509 : (1960) 3 WLR 280 : (1960) 2 All ER 817 (HL)] at AC p. 523.) ‘Deems? means ‘is of opinion? or ‘considers? or ‘decides? and there is no implication of steps to be taken before the opinion is formed or the decision is taken. [See R. v. Brixton Prison (Governor), ex p Soblen [(1963) 2 QB 243 : (1962) 3 WLR 1154 : (1962) 3 All ER 641 (CA)] at QB p. 315.]? [Ed.: As observed in Ali M.K. v. State of Kerala, (2003) 11 SCC 632 : 2004 SCC (L&S) 136, SCC at pp. 639- 40, paras 13-16.]? In the present case, it is clear that the deeming fiction that is used by the explanation is to put beyond doubt the fact that allottees are to be regarded as financial creditors within the enacting part contained in Section 5(8)(f) of the Code. 85. It was also argued that an explanation does not enlarge the scope of the original section and for this purpose S. Sundaram Pillai (supra) was relied upon. This very judgment recognises, in paragraph 46, that an explanation does not ordinarily enlarge the scope of the original Section. But if it does, effect must be given to the legislative intent notwithstanding the fact that the legislature has named a provision as an explanation. [See Hiralal Ratanlal Etc. v. State of U.P and Anr. Etc. (1973) 1 SCC 216 at 225, followed in paragraph 51 of Sundram Pillai (supra)]. In any case, it has been found by us that the explanation was added by the Amendment Act only to clarify doubts that had arisen as to whether home buyers/allottees were subsumed within Section 5(8)(f). The explanation added to Section 5(8)(f) of the Code by the Amendment Act does not in fact enlarge the scope of the original Section as home buyers/allottees would be subsumed within Section 5(8)(f) as it originally stood as has been held by us hereinabove. As a matter of statutory interpretation, that interpretation, which accords with the objects of the statute in question, particularly when we are dealing with a beneficial legislation, is always the better interpretation or the ?creative interpretation? which is the modern trend of authority, and which is reflected in the concurring judgment of Eera (through Dr. Manjula Krippendorf) v. State (NCT of Delhi) and Anr. (2017) 15 SCC 133 at paragraphs 122 and 127. This argument must, therefore, also be rejected. 86. We, therefore, hold that allottees/home buyers were included in the main provision, i.e. Section 5(8)(f) with effect from the inception of the Code, the explanation being added in 2018 merely to clarify doubts that had arisen. Conclusion i. The Amendment Act to the Code does not infringe Articles 14, 19(1)(g) read with Article 19(6), or 300-A of the Constitution of India. ii. The RERA is to be read harmoniously with the Code, as amended by the Amendment Act. It is only in the event of conflict that the Code will prevail over the RERA. Remedies that are given to allottees of flats/apartments are therefore concurrent remedies, such allottees of flats/apartments being in a position to avail of remedies under the Consumer Protection Act, 1986, RERA as well as the triggering of the Code. iii. Section 5(8)(f) as it originally appeared in the Code being a residuary provision, always subsumed within it allottees of flats/apartments. The explanation together with the deeming fiction added by the Amendment Act is only clarificatory of this position in law. Postscript | 1[ds]15. In Swiss Ribbons (supra), this Court was at pains to point out, referring, inter alia, to various American decisions in paragraphs 17 to 24, that the legislature must be given free play in the joints when it comes to economic legislation. Apart from the presumption of constitutionality which arises in such cases, the legislative judgment in economic choices must be given a certain degree of deference by the courts. In paragraph 120 of the said judgment, this Court120. The Insolvency Code is a legislation which deals with economic matters and, in the larger sense, deals with the economy of the country as a whole. Earlier experiments, as we have seen, in terms of legislations having failed, ?trial? having led to repeated ?errors?, ultimately led to the enactment of the Code. The experiment contained in the Code, judged by the generality of its provisions and not by so- called crudities and inequities that have been pointed out by the petitioners, passes constitutional muster. To stay experimentation in things economic is a grave responsibility, and denial of the right to experiment is fraught with serious consequences to the nation. We have also seen that the working of the Code is being monitored by the Central Government by Expert Committees that have been set up in this behalf. Amendments have been made in the short period in which the Code has operated, both to the Code itself as well as to subordinate legislation made under it. This process is an ongoing process which involves all stakeholders, including theis in this background that the constitutional challenge to the Amendment Act will have to be decided.It can be seen that the Insolvency Law Committee found, as a matter of fact, that delay in completion of flats/apartments has become a common phenomenon, and that amounts raised from home buyers contributes significantly to the financing of the construction of such flats/apartments. This being the case, it was important, therefore, to clarify that home buyers are treated as financial creditors so that they can trigger the Code under Section 7 and have their rightful place on the Committee of Creditors when it comes to making important decisions as to the future of the building construction company, which is the execution of the real estate project in which such home buyers are ultimately to bethe dissent of Shri Shroff recognises that in the case of home buyers, who have taken loans from banks, such banks ought to be on the Committee of Creditors. If such banks ought to be on the Committee of Creditors as representatives of the home buyers, and they are to vote only in accordance with the home buyer?s instructions, why should the home buyer himself then not be on the Committee of Creditors, and why should it make any difference as to whether he has borrowed money from banks in order to pay instalments under the agreement for sale or whether he does it from his own finances? These matters have not been addressed by the dissenting view which in principle, as we have seen, supports home buyers who have taken loans as against home buyers who have used their own finances. Perhaps the real reason for Shri Shroff?s dissent is the fact that unsecured, as opposed to secured, financial creditors are being put on the Committee of Creditors. If there is otherwise good reason as to why this particular group of unsecured creditors, like deposit holders, should be part of the Committee of Creditors, it is difficult to appreciate how such a group can be excluded.A perusal of the aforesaid provisions would show that, on and from the coming into force of the RERA, all real estate projects (as defined) would first have to be registered with the Real Estate Regulatory Authority, which, before registering such projects, would look into all relevant details, including delay in completion of other projects by the developer. Importantly, the promoter is now to make a declaration supported by an affidavit, that he undertakes to complete the project within a certain time period, and that 70% of the amounts realised for the project from allottees, from time to time, shall be deposited in a separate account, which would be spent only to defray the cost of construction and land cost for that particular project. Registration is granted by the authority only when it is satisfied that the promoter is a bona fide promoter who is likely to perform his part of the bargain satisfactorily. Registration of the project enures only for a certain period and can only be extended due to force majeure events for a maximum period of one year by the authority, on being satisfied that such events have, in fact, taken place. Registration once granted, may be revoked if it is found that the promoter defaults in complying with the various statutory requirements or indulges in unfair practices or irregularities. Importantly, upon revocation of registration, the authority is to facilitate the remaining development work, which can then be carried out either by the ?competent authority? as defined by the RERA or by the association of allottees or otherwise. The promoter at the time of booking and issue of allotment letters has to make available to the allottees information, inter alia, as to the stage-wise time schedule of completion of the project. Deposits or advances beyond 10% of the estimated cost as advance payment cannot be taken without first entering into an agreement for sale. Importantly, the agreement for sale will now no longer be a one-sided contract of adhesion, but in such form as may be prescribed, which balances the rights and obligations of both the promoter and the allottees. Importantly, under Section 18, if the promoter fails to complete or is unable to give possession of an apartment, plot or building in accordance with the terms of the agreement for sale, he must return the amount received by him in respect of such apartment etc. with such interest as may be prescribed and must, in addition, compensate the allottee in case of any loss caused to him. Under Section 19, the allottee shall be entitled to claim possession of the apartment, plot or building, as the case may be, or refund of amount paid along with interest in accordance with the terms of the agreement for sale. In addition, all allottees are to be responsible for making necessary payments in instalments within the time specified in the agreement for sale and shall be liable to pay interest at such rate as may be prescribed for any delay in such payment. Under Section 31, any aggrieved person may file a complaint with the authority or the adjudicating officers set up by such authority against any promoter, allottee or real estate agent, as the case may be, for violation or contravention of the RERA, and rules and regulations made thereunder. Also, if after adjudication a promoter, allottee or real estate agent fails to pay interest, penalty or compensation imposed on him by the authorities under the RERA, the same shall be recoverable as arrears of land revenue. Appeals may be filed to the Real Estate Appellate Tribunal against decisions or orders of the authority or the adjudicating officer. From orders of the Appellate Tribunal, appeals may thereafter be filed to the High Court. Stiff penalties are to be awarded for breach and/or contravention of the provisions of the RERA. Importantly, under Section 72, the adjudicating officer must first determine that the complainant has established ?default? on the part of the respondent, after which consequential orders may then follow. Under Section 88, the provisions of RERA are in addition to and not in derogation of the provisions of any other law for time being in force and under Section 89, RERA is to have effect notwithstanding anything inconsistent contained in any other law for the time being in force.It is significant to note that there is no provision similar to that of Section 88 of RERA in the Code, which is meant to be a complete and exhaustive statement of the law insofar as its subject matter is concerned. Also, the non-obstante clause of RERA came into force on 1 st May, 2016, as opposed to the non- obstante clause of the Code which came into force on 1 st December, 2016. Further, the amendment with which we are concerned has come into force only on 6 th June, 2018. Given these circumstances, it is a little difficult to accede to arguments made on behalf of learned senior counsel for the Petitioners, that RERA is a special enactment which deals with real estate development projects and must, therefore, be given precedence over the Code, which is only a general enactment dealing with insolvency generally. From the introduction of the explanation to Section 5(8)(f) of the Code, it is clear that Parliament was aware of RERA, and applied some of its definition provisions so that they could apply when the Code is to be interpreted. The fact that RERA is in addition to and not in derogation of the provisions of any other law for the time being in force, also makes it clear that the remedies under RERA to allottees were intended to be additional and not exclusive remedies. Also, it is important to remember that as the authorities under RERA were to be set up within one year from 1 st May, 2016, remedies before those authorities would come into effect only on and from 1 st May, 2017 making it clear that the provisions of the Code, which came into force on 1 st December, 2016, would apply in addition to the RERA.It is clear, therefore, that even by a process of harmonious construction, RERA and the Code must be held to co-exist, and, in the event of a clash, RERA must give way to the Code. RERA, therefore, cannot be held to be a special statute which, in the case of a conflict, would override the general statute, viz. the Code.A perusal of the aforesaid provisions would show that, on and from the coming into force of the RERA, all real estate projects (as defined) would first have to be registered with the Real Estate Regulatory Authority, which, before registering such projects, would look into all relevant details, including delay in completion of other projects by the developer. Importantly, the promoter is now to make a declaration supported by an affidavit, that he undertakes to complete the project within a certain time period, and that 70% of the amounts realised for the project from allottees, from time to time, shall be deposited in a separate account, which would be spent only to defray the cost of construction and land cost for that particular project. Registration is granted by the authority only when it is satisfied that the promoter is a bona fide promoter who is likely to perform his part of the bargain satisfactorily. Registration of the project enures only for a certain period and can only be extended due to force majeure events for a maximum period of one year by the authority, on being satisfied that such events have, in fact, taken place. Registration once granted, may be revoked if it is found that the promoter defaults in complying with the various statutory requirements or indulges in unfair practices or irregularities. Importantly, upon revocation of registration, the authority is to facilitate the remaining development work, which can then be carried out either by the ?competent authority? as defined by the RERA or by the association of allottees or otherwise. The promoter at the time of booking and issue of allotment letters has to make available to the allottees information, inter alia, as to the stage-wise time schedule of completion of the project. Deposits or advances beyond 10% of the estimated cost as advance payment cannot be taken without first entering into an agreement for sale. Importantly, the agreement for sale will now no longer be a one-sided contract of adhesion, but in such form as may be prescribed, which balances the rights and obligations of both the promoter and the allottees. Importantly, under Section 18, if the promoter fails to complete or is unable to give possession of an apartment, plot or building in accordance with the terms of the agreement for sale, he must return the amount received by him in respect of such apartment etc. with such interest as may be prescribed and must, in addition, compensate the allottee in case of any loss caused to him. Under Section 19, the allottee shall be entitled to claim possession of the apartment, plot or building, as the case may be, or refund of amount paid along with interest in accordance with the terms of the agreement for sale. In addition, all allottees are to be responsible for making necessary payments in instalments within the time specified in the agreement for sale and shall be liable to pay interest at such rate as may be prescribed for any delay in such payment. Under Section 31, any aggrieved person may file a complaint with the authority or the adjudicating officers set up by such authority against any promoter, allottee or real estate agent, as the case may be, for violation or contravention of the RERA, and rules and regulations made thereunder. Also, if after adjudication a promoter, allottee or real estate agent fails to pay interest, penalty or compensation imposed on him by the authorities under the RERA, the same shall be recoverable as arrears of land revenue. Appeals may be filed to the Real Estate Appellate Tribunal against decisions or orders of the authority or the adjudicating officer. From orders of the Appellate Tribunal, appeals may thereafter be filed to the High Court. Stiff penalties are to be awarded for breach and/or contravention of the provisions of the RERA. Importantly, under Section 72, the adjudicating officer must first determine that the complainant has established ?default? on the part of the respondent, after which consequential orders may then follow. Under Section 88, the provisions of RERA are in addition to and not in derogation of the provisions of any other law for time being in force and under Section 89, RERA is to have effect notwithstanding anything inconsistent contained in any other law for the time being in force.As a matter of fact, the Code and RERA operate in completely different spheres. The Code deals with a proceeding in rem in which the focus is the rehabilitation of the corporate debtor. This is to take place by replacing the management of the corporate debtor by means of a resolution plan which must be accepted by 66% of the Committee of Creditors, which is now put at the helm of affairs, in deciding the fate of the corporate debtor. Such resolution plan then puts the same or another management in the saddle, subject to the provisions of the Code, so that the corporate debtor may be pulled out of the woods and may continue as a going concern, thus benefitting all stakeholders involved. It is only as a last resort that winding up of the corporate debtor is resorted to, so that its assets may be liquidated and paid out in the manner provided by Section 53 of the Code. On the other hand, RERA protects the interests of the individual investor in real estate projects by requiring the promoter to strictly adhere to its provisions. The object of RERA is to see that real estate projects come to fruition within the stated period and to see that allottees of such projects are not left in the lurch and are finally able to realise their dream of a home, or be paid compensation if such dream is shattered, or at least get back monies that they had advanced towards the project with interest. At the same time, recalcitrant allottees are not to be tolerated, as they must also perform their part of the bargain, namely, to pay instalments as and when they become due and payable. Given the different spheres within which these two enactments operate, different parallel remedies are given to allottees – under RERA to see that their flat/apartment is constructed and delivered to them in time, barring which compensation for the same and/or refund of amounts paid together with interest at the very least comes their way. If, however, the allottee wants that the corporate debtor?s management itself be removed and replaced, so that the corporate debtor can be rehabilitated, he may prefer a Section 7 application under the Code. That another parallel remedy is available is recognised by RERA itself in the proviso to Section 71(1), by which an allottee may continue with an application already filed before the Consumer Protection fora, he being given the choice to withdraw such complaint and file an application before the adjudicating officer under RERA read with Section 88. In similar circumstances, this Court in Swaraj Infrastructure Private Limited v. Kotak Mahindra Bank Limited (2019) 3 SCC 620 has held that Debt Recovery Tribunal proceedings under the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 and winding up proceedings under the Companies Act, 1956 can carry on in parallel streams (see paragraphs 21 and 22Ram Krishna Dalmia v. Justice S.R. Tendolkar (1959) SCR 279 , this Court laid down the oft quoted principles that apply when challenges on the ground of discrimination are made to statutes. This Courtprinciple enunciated above has been consistently adopted and applied in subsequent cases. The decisions of this Court furtherthat a law may be constitutional even though it relates to a single individual if, on account of some special circumstances or reasons applicable to him and not applicable to others, that single individual may be treated as a class bythat there is always a presumption in favour of the constitutionality of an enactment and the burden is upon him who attacks it to show that there has been a clear transgression of the constitutionalthat it must be presumed that the legislature understands and correctly appreciates the need of its own people, that its laws are directed to problems made manifest by experience and that its discriminations are based on adequatethat the legislature is free to recognise degrees of harm and may confine its restrictions to those cases where the need is deemed to be thethat in order to sustain the presumption of constitutionality the court may take into consideration matters of common knowledge, matters of common report, the history of the times and may assume every state of facts which can be conceived existing at the time of legislation;that while good faith and knowledge of the existing conditions on the part of a legislature are to be presumed, if there is nothing on the face of the law or the surrounding circumstances brought to the notice of the court on which the classification may reasonably be regarded as based, the presumption of constitutionality cannot be carried to the extent of always holding that there must be some undisclosed and un- known reasons for subjecting certain individuals or corporations to hostile or discriminating legislation. (at page 297,principle contained in Swiss Ribbons (supra), that far greater deference is accorded to economic legislation, as the legislature is given free play in the joints and is at liberty to conduct economic experiments in public interest, finds an early application in Shri Ambica Mills (supra), and applies on all fours in this case. Sub- paras (b), (c), (d) and (f) of Ram Krishna Dalmia (supra) are all also attracted in the present case.It is also important to remember that the Code is not meant to be a debt recovery mechanism [see paragraph 28 of Swiss Ribbons (supra)]. It is a proceeding in rem which, after being triggered, goes completely outside the control of the allottee who triggers it. Thus, any allottee/home buyer who prefers an application under Section 7 of the Code takes the risk of his flat/apartment not being completed in the near future, in the event of there being a breach on the part of the developer. Under the Code, he may never get a refund of the entire principal, let alone interest. This is because, the moment a petition is admitted under Section 7, the resolution professional must first advertise for and find a resolution plan by somebody, usually another developer, which has then to pass muster under the Code, i.e. that it must be approved by at least 66% of the Committee of Creditors and must further go through challenges before NCLT and NCLAT before the new management can take over and either complete construction, or pay out or refund amounts. Depending on the kind of resolution plan that is approved, such home buyer/allottee may have to wait for a very long period for the successful completion of the project. He may never get his full money back together with interest in the event that no suitable resolution plan is forthcoming, in which case, winding up of the corporate debtor alone would ensue. On the other hand, if such allottee were to approach the Real Estate Regulatory Authority under RERA, it is more than likely that the project would be completed early by the persons mentioned therein, and/or full amount of refund and interest together with compensation and penalty, if any, would be awarded. Thus, given the bona fides of the allottee who moves an application under Section 7 of the Code, it is only such allottee who has completely lost faith in the management of the real estate developer who would come before the NCLT under the Code hoping that some other developer takes over and completes the project, while always taking the risk that if no one were to come forward, corporate death must ensue and the allottee must then stand in line to receive whatever is given to him in winding up. Given the reasons of the Insolvency Committee Report, which show that experience of the real estate sector in this country has not been encouraging, in that huge amounts are advanced by ordinary people to finance housing projects which end up in massive delays on the part of the developer or even worse, i.e. failure of the project itself, and given the state of facts which was existing at the time of the legislation, as adverted to by the Insolvency Committee Report, it is clear that any alleged discrimination has to meet the tests laid down in Ram Krishna Dalmia (supra), V.C. Shukla (supra), Shri Ambica Mills (supra), Venkateshwara Theatre (supra) and Mardia Chemicals (supra).It is impossible to say that classifying real estate developers is not founded upon an intelligible differentia which distinguishes them from other operational creditors, nor is it possible to say that such classification is palpably arbitrary having no rational relation to the objects of the Code. It was vehemently argued by learned counsel on behalf of the Petitioners that if at all real estate developers were to be brought within the clutches of the Code, being like operational debtors, at best they could have been brought in under this rubric and not as financial debtors. Here again, what is unique to real estate developers vis-à-vis operational debts, is the fact that, in operational debts generally, when a person supplies goods and services, such person is the creditor and the person who has to pay for such goods and services is the debtor. In the case of real estate developers, the developer who is the supplier of the flat/apartment is the debtor inasmuch as the home buyer/allottee funds his own apartment by paying amounts in advance to the developer for construction of the building in which his apartment is to be found. Another vital difference between operational debts and allottees of real estate projects is that an operational creditor has no interest in or stake in the corporate debtor, unlike the case of an allottee of a real estate project, who is vitally concerned with the financial health of the corporate debtor, for otherwise, the real estate project may not be brought to fruition. Also, in such event, no compensation, nor refund together with interest, which is the other option, will be recoverable from the corporate debtor. One other important distinction is that in an operational debt, there is no consideration for the time value of money – the consideration of the debt is the goods or services that are either sold or availed of from the operational creditor. Payments made in advance for goods and services are not made to fund manufacture of such goods or provision of such services. Examples given of advance payments being made for turnkey projects and capital goods, where customisation and uniqueness of such goods are important by reason of which advance payments are made, are wholly inapposite as examples vis-à-vis advance payments made by allottees. In real estate projects, money is raised from the allottee, being raised against consideration for the time value of money. Even the total consideration agreed at a time when the flat/apartment is non-existent or incomplete, is significantly less than the price the buyer would have to pay for a ready/complete flat/apartment, and therefore, he gains the time value of money. Likewise, the developer who benefits from the amounts disbursed also gains from the time value of money. The fact that the allottee makes such payments in instalments which are co-terminus with phases of completion of the real estate project does not any the less make such payments as payments involving ?exchange?, i.e. advances paid only in order to obtain a flat/apartment. What is predominant, insofar as the real estate developer is concerned, is the fact that such instalment payments are used as a means of finance qua the real estate project. One other vital difference with operational debts is the fact that the documentary evidence for amounts being due and payable by the real estate developer is there in the form of the information provided by the real estate developer compulsorily under RERA. This information, like the information from information utilities under the Code, makes it easy for home buyers/allottees to approach the NCLT under Section 7 of the Code to trigger the Code on the real estate developer?s own information given on its webpage as to delay in construction, etc. It is these fundamental differences between the real estate developer and the supplier of goods and services that the legislature has focused upon and included real estate developers as financial debtors. This being the case, it is clear that there cannot be said to be any infraction of equal protection of theobject of dividing debts into two categories under the Code, namely, financial and operational debts, is broadly to sub-divide debts into those in which money is lent and those where debts are incurred on account of goods being sold or services being rendered. We have no doubt that real estate developers fall squarely within the object of the Code as originally enacted insofar as they are financial debtors and not operational debtors, as has been pointed out hereinabove. So far as unequals being treated as equals is concerned, home buyers/allottees can be assimilated with other individual financial creditors like debenture holders and fixed deposit holders, who have advanced certain amounts to the corporate debtor. For example, fixed deposit holders, though financial creditors, would be like real estate allottees in that they are unsecured creditors. Financial contracts in the case of these individuals need not involve large sums of money. Debenture holders and fixed deposit holders, unlike real estate holders, are involved in seeing that they recover the amounts that are lent and are thus not directly involved or interested in assessing the viability of the corporate debtors. Though not having the expertise or information to be in a position to evaluate feasibility and viability of resolution plans, such individuals, by virtue of being financial creditors, have a right to be on the Committee of Creditors to safeguard theirthe question that is to be asked when a debenture holder or fixed deposit holder prefers a Section 7 application under the Code will be asked in the case of allottees of real estate developers – is a debt due in fact or in law? Thus, allottees, being individual financial creditors like debenture holders and fixed deposit holders and classified as such, show that they within the larger class of financial creditors, there being no infraction of Article 14 on this score.The presumption that the legislature has understood and correctly appreciated the need of its people and that the amendment to the Code is directed to problems made manifest by experience, as was pointed out by the Insolvency Law Committee findings (supra) demonstrates that the presumption of constitutionality that attaches to the Amendment Act has not been displaced by the Petitioners.It was also argued with reference to Regulation 9A of the Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2016 that home buyers would really fall within ?other creditors? as a residuary class, who would have to stand in line with their claims which would be made to the resolution professional once the Code ishave already held that given the fact that home buyers/allottees give advances to the real estate developer and thereby finance the real estate project at hand, are really financial creditors. Given this finding, this plea of the Petitioners must also be rejected. This challenge must also, therefore, fail.As has been pointed out by us hereinabove, it is clear that the context of Swiss Ribbons (supra) was a challenge under Article 14 stating that financial creditors have been discriminated against because there is no real difference between financial and operational creditors, and that such artificial distinction made by the Code, not having been made anywhere else in the world, would be discriminatory, having no rational relation with the object sought to be achieved by the Code and would have, therefore, to be struck down under Article 14. As has been pointed out by us hereinabove, the context of this argument was financial institutions and banks on the one hand vis-à-vis operational creditors i.e. those who supply goods and services, on the other. It is in this context that the various differences that have been pointed out hereinabove were made. However, the judgment itself recognises - as has been pointed out by us hereinabove - in paragraphs 46 to 49, that it was not dealing with individual financial creditors, such as debenture holders, fixed deposit holders and home buyers. To apply a judgment rendered in a wholly different context to the facts in the present cases would itself be an arbitrary exercise. What has been stated hereinabove as to allottees being individual financial creditors like deposit holders and debenture holders, applies on all fours to repel this argument based on another facet of Article 14. In fact, the object of the Code, as originally set out in paragraphs 27 and 28 of Swiss Ribbons (supra) is asAs is discernible, the Preamble gives an insight into what is sought to be achieved by the Code. The Code is first and foremost, a Code for reorganisation and insolvency resolution of corporate debtors. Unless such reorganisation is effected in a time-bound manner, the value of the assets of such persons will deplete. Therefore, maximisation of value of the assets of such persons so that they are efficiently run as going concerns is another very important objective of the Code. This, in turn, will promote entrepreneurship as the persons in management of the corporate debtor are removed and replaced by entrepreneurs. When, therefore, a resolution plan takes off and the corporate debtor is brought back into the economic mainstream, it is able to repay its debts, which, in turn, enhances the viability of credit in the hands of banks and financial institutions. Above all, ultimately, the interests of all stakeholders are looked after as the corporate debtor itself becomes a beneficiary of the resolution scheme—workers are paid, the creditors in the long run will be repaid in full, and shareholders/investors are able to maximise their investment. Timely resolution of a corporate debtor who is in the red, by an effective legal framework, would go a long way to support the development of credit markets. Since more investment can be made with funds that have come back into the economy, business then eases up, which leads, overall, to higher economic growth and development of the Indian economy. What is interesting to note is that the Preamble does not, in any manner, refer to liquidation, which is only availed of as a last resort if there is either no resolution plan or the resolution plans submitted are not up to the mark. Even in liquidation, the liquidator can sell the business of the corporate debtor as a going concern. (See ArcelorMittal [ArcelorMittal (India) (P) Ltd. v. Satish Kumar Gupta, (2019) 2 SCC 1 ] at para 83, fn 3).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 thesereading of these paragraphs will show these very objects are sub-served by treating allottees as financial creditors. The Code is thus a beneficial legislation which can be triggered to put the corporate debtor back on its feet in the interest of unsecured creditors like allottees, who are vitally interested in the financial health of the corporate debtor, so that a replaced management may then carry out the real estate project as originally envisaged and deliver the flat/apartment as soon as possible and/or pay compensation in the event of late delivery, or non-delivery, or refund amounts advanced together with interest. Thus, applying the Shayara Bano v. Union of India (2017) 9 SCC 1 test, it cannot be said that a square peg has been forcibly fixed into a round hole so as to render Section 5(8)(f) manifestly arbitrary i.e. excessive, disproportionate or without adequate determining principle. For the same reason, it cannot be said that Article 19(1)(g) has been infracted and not saved by Article 19(6) as the Amendment Act is made in public interest, and it cannot be said to be an unreasonable restriction on the Petitioner?s fundamental right under Article 19(1)(g). Also, there is no infraction of Article 300-A as no person is deprived of its property without authority of a constitutionally valid law.It was also argued that the UNCITRAL Legislative Guide, from which most of the provisions of the Code derive their succour, have also been breached. This is for the reason that financial contracts being different from operational contracts, the one should not be confused with the other. Also, treatment of similarly situated creditors should be the same, and as allottees are like operational creditors, they should not be treated as financial creditors. We have already answered these questions in the context of discrimination and manifest arbitrariness and have found that, in point of fact, real estate allottees are really in the nature of financial creditors, and thus the UNCITRAL Legislative Guide has been followed, and not breached. Equally, it was argued that creating new creditors? rights in Insolvency Law, as opposed to recognising existing creditors? rights, will infract the UNCITRAL Legislative Guide. As will be pointed out hereinbelow, since allottees of real estate projects have always been subsumed within Section 5(8)(f), no new rights or claims have been created. It was also contended that since allottees are then said to have no expertise or knowledge in the working of the corporate debtor, they cannot participate effectively in the Committee of Creditors, and should therefore be kept out. The same answer as has been given hereinabove, i.e. that allottees, like individual financial creditors who are already on the Committee of Creditors, are to have a voice in determining the corporate debtor and their own future. This contention, therefore, also fails.One other argument that is made on behalf of the counsel for the Petitioners is that allottees of flats/apartments who do not want refunds, but who want their flats/apartments constructed so that they may occupy and live in their flats/apartments, will be jeopardised, as a single allottee who does not want the flat/apartments, but wants a refund of amounts paid for reasons best known to him, can trigger the Code and upset the construction and handing over of such flats/apartments to the vast bulk of allottees of a project who may be genuine buyers who wish to occupy such flats/apartments as roofs over their heads. Another facet of this argument is that the bulk of such persons will never be on the Committee of Creditors, as they may not be persons who trigger the Code at all. These arguments are met by the fact that all the allottees of the project in question can either join together under the explanation to Section 7(1) of the Code, or file their own individual petitions after the Code gets triggered by a single allottee, stating that in addition to the construction of their flat/apartment, they are also entitled to compensation under RERA and/or under the general law, and would thus be persons who have a ?claim?, i.e. a right to remedy for breach of contract which gives rise to a right to compensation, whether or not such right is reduced to judgment, and would therefore be persons to whom a liability or obligation in respect of a ?claim? is due. Such persons would, therefore, have a voice in the Committee of Creditors as to future plans for completion of the project, and compensation for late delivery of the flat/apartment. This contention therefore also has no legs to stand upon.It was then argued that placing allottees as financial creditors is directly contrary to the object of the Code in maximising the value of assets and putting the corporate debtor back on its feet. We may only state that if a Section 7 application is admitted in favour of an allottee, and if the management of the corporate debtor is in fact a strong and stable one, nothing debars the same erstwhile management from offering a resolution plan, subject to Section 29A of the Code, which may well be accepted by the Committee of Creditors in which home buyers now have a voice. Equally, to assume that the moment the insolvency resolution process starts, corporate death must ensue is wholly incorrect. If the real estate project is otherwise viable, resolution plans from others may well be accepted and the best of these would then work in order to maximise the value of the assets of the corporate debtor. Corporate death, as has been stated in Swiss Ribbons (supra) is the last resort under the Code after all other available options have failed. This argument again need not deter us further.It was then stated that there will be a flood of petitions before the NCLT, and as the NCLT has to decide within a period of 14 days, there will only be a summary decision in which a complicated agreement entered into between home buyer and real estate developer will not be gone into in order to discover whether a debt is due and payable. Coupled with this argument, is the alternative argument that, given the fact that RERA adequately looks after the rights and interests of allottees, to apply the Code would then be manifestly arbitrary, as a management which may have infused large funds to develop the real estate project would then be summarily removed. A supplementary argument was made that this would also infract Article 19(1)(g) and 300-A, as a person who invests a huge sum of money from its own resources or borrowed resources, would then be left in the lurch the moment the insolvency resolution process iscan thus be seen that just as information utilities provide the kind of information as to default that banks and financial institutions are provided under Sections 214 to 216 of the Code read with Regulations 25 and 27 of the Insolvency and Bankruptcy Board of India (Information Utilities) Regulations, 2017, allottees of real estate projects can come armed with the same kind of information, this time provided by the promoter or real estate developer itself, on the basis of which, prima facie at least, a ?default? relating to amounts due and payable to the allottee is made out in an application under Section 7 of the Code. We may mention here that once this prima facie case is made out, the burden shifts on the promoter/real estate developer to point out in their reply and in the hearing before the NCLT, that the allottee is himself a defaulter and would, therefore, on a reading of the agreement and the applicable RERA Rules and Regulations, not be entitled to any relief including payment of compensation and/or refund, entailing a dismissal of the said application. At this stage also, it is important to point out, in answer to the arguments made by the Petitioners, that under Section 65 of the Code, the real estate developer can also point out that the insolvency resolution process under the Code has been invoked fraudulently, with malicious intent, or for any purpose other than the resolution of insolvency. This the real estate developer may do by pointing out, for example, that the allottee who has knocked at the doors of the NCLT is a speculative investor and not a person who is genuinely interested in purchasing a flat/apartment. They can also point out that in a real estate market which is falling, the allottee does not, in fact, want to go ahead with its obligation to take possession of the flat/apartment under RERA, but wants to jump ship and really get back, by way of this coercive measure, monies already paid by it. Given the above, it is clear that it is very difficult to accede to the Petitioners? contention that a wholly one-sided and futile hearing will take place before the NCLT by trigger-happy allottees who would be able to ignite the process of removal of the management of the real estate project and/or lead the corporate debtor to itsThis Court, while dealing with timelines provided qua operational creditors, in Surendra Trading Company (supra), held that the timelines contained in the provisos to Section 7(5), Section 9(5) and Section 10(4) of the Code are all directory and not mandatory. This is for the obvious reason that no consequence is provided if the periods so mentioned are exceeded. Though this decision is not in the context of the 14-day period provided by Section 7(4), we are of the view that this judgment would apply squarely on all fours so that the period of 14 days given to the NCLT for decision under Section 7(4) would be directory. We are conscious of the fact that under Section 64(1) of the Code, the NCLT President or the Chairperson of the NCLAT may, after taking into account reasons by the NCLT or NCLAT for exceeding the period mentioned by statute, extend the period of 14 days by a period not exceeding 10 days. We may note that even this provision is directory, in that no consequence is provided either if the period is not extended, or after the extension expires. This is also for the good reason that an act of the court cannot harm the litigant before it. Unfortunately, both the NCLT and NCLAT do not have sufficient members to deal with the flood of applications and appeals that is before them. The time taken in the queue by applicants who knock at their doors cannot, for no fault of theirs, be put against them. This Court, in State of Bihar v. Bihar Rajya Bhumi Vikas Bank Samiti (2018) 9 SCC 472 , has held in the context of Section 34(5) of the Arbitration and Conciliation Act, 1996, that the absence of any consequences for infraction of a procedural provision implies that such a provision must be interpreted as being directory and not mandatory. The Court heldIt will thus be seen that Section 34(5) does not deal with the power of the Court to condone the non-compliance thereof. It is imperative to note that the provision is procedural, the object behind which is to dispose of applications under Section 34 expeditiously. One must remember the wise observation contained in Kailash [Kailash v. Nanhku, (2005) 4 SCC 480 ] , where the object of such a provision is only to expedite the hearing and not to scuttle the same. All rules of procedure are the handmaids of justice and if, in advancing the cause of justice, it is made clear that such provision should be construed as directory, then so be it.Section 80, though a procedural provision, has been held to be mandatory as it is conceived in public interest, the public purpose underlying it being the advancement of justice by giving the Government the opportunity to scrutinise and take immediate action to settle a just claim without driving the person who has issued a notice having to institute a suit involving considerable expenditure and delay. This is to be contrasted with Section 34(5), also a procedural provision, the infraction of which leads to no consequence. To construe such a provision as being mandatory would defeat the advancement of justice as it would provide the consequence of dismissing an application filed without adhering to the requirements of Section 34(5), thereby scuttling the process of justice by burying the element ofargument must also therefore be rejected.It has been argued that different instructions may be given by different allottees making it difficult for the authorised representatives to vote on the Committee of Creditors and that in any case, the collegiality of the secured creditors will be disturbed. To this the answer is that like other financial creditors, be they banks and financial institutions, or other individuals, all persons who have advanced monies to the corporate debtor should have the right to be on the Committee of Creditors. True, allottees are unsecured creditors, but they have a vital interest in amounts that are advanced for completion of the project, maybe to the extent of 100% of the project being funded by them alone. As has been correctly argued by the learned Additional Solicitor General, under the proviso to Section 21(8) of the Code if the corporate debtor has no financial creditors, then under Regulation 16 of the Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2016, up to 18 operational creditors then become the Committee of Creditors or, if there are more than 18 operational creditors, the highest in order of debt owed to operational creditors to the extent of the first 18 are then represented on the Committee of Creditors together, with a representative of the workers. If allottees who have funded a real estate project of the corporate debtor to the extent of 100% are neither financial creditors nor operational creditors, the mechanism of the Committee of Creditors, who is now to take decisions after the Code is triggered as to the future of the corporate debtor, will be non-existent in a case where there are no operational creditors and no secured creditors, because 100% of the project is funded by the allottees. Even otherwise, as correctly argued by the learned Additional Solicitor General, it would in fact be manifestly arbitrary to omit allottees from the Committee of Creditors when they are vitally interested in the future of the corporate debtor as they have funded anywhere from 50% to 100% of the project in mostthe fact that allottees may not be a homogenous group, yet there are only two ways in which they can vote on the Committee of Creditors – either to approve or to disapprove of a proposed resolution plan. Sub-section (3A) goes a long way to ironing out any creases that may have been felt in the working of Section 25A in that the authorised representative now casts his vote on behalf of all financial creditors that he represents. If a decision taken by a vote of more than 50% of the voting share of the financial creditors that he represents is that a particular plan be either accepted or rejected, it is clear that the minority of those who vote, and all others, will now be bound by this decision. As has been stated by us in Swiss Ribbons (supra), the legislature must be given free play in the joints to experiment. Minor hiccups that may arise in implementation can always be sorted out later. Thus, any challenge to the machinery provisions contained in Sections 21(6A) and 25A of the Code must bethese arguments were really made based on the presumption that some allottees who may now want to back out of the transaction and get a return of their money owing to factors which may be endemic to them, or owing to the fact that the market may have slumped as a result of which the investment made by them in the flat/apartment would fall flat requiring them to pull out of the transaction, would then be able to trigger the Code mala fide, and a reading down of these provisions would, therefore, obviate such problem. All these arguments have been refuted in detail earlier in this judgment. In a Section 7 application made by an allottee, the NCLT?s ‘satisfaction? will be with both eyes open – the NCLT will not turn a Nelson?s eye to legitimate defences by a real estate developer, as outlined by us hereinabove. There is, therefore, no necessity to read into or read down any of these provisions. Also, in Cellular Operators Association of India v. TRAI (2016) 7 SCC 703 , this Court held that when a provision is cast in definite and unambiguous language, it is not permissible either to mend or bend it, even if such recasting is in accord with good reason and conscience. This CourtBut it was said that the aforesaid Regulation should be read down to mean that it would apply only when the fault is that of the service provider. We are afraid that such a course is not open to us in law, for it is well settled that the doctrine of reading down would apply only when general words used in a statute or regulation can be confined in a particular manner so as not to infringe a constitutional right. This was best exemplified in one of the earliest judgments dealing with the doctrine of reading down, namely, the judgment of the Federal Court in Hindu Womens Rights to Property Act, 1937, In re [Hindu Womens Rights to Property Act, 1937, In re, 1941 SCC OnLine FC 3 : AIR 1941 FC 72] . In that judgment, the word ?property? in Section 3 of the Hindu Womens Rights to Property Act was read down so as not to include agricultural land, which would be outside the Central Legislatures powers under the Government of India Act, 1935. This is done because it is presumed that the legislature did not intend to transgress constitutional limitations. While so reading down the word ?property?, the Federal Court held: (SCC OnLineIf the restriction of the general words to purposes within the power of the legislature would be to leave an Act with nothing or next to nothing in it, or an Act different in kind, and not merely in degree, from an Act in which the general words were given the wider meaning, then it is plain that the Act as a whole must be held invalid, because in such circumstances it is impossible to assert with any confidence that the legislature intended the general words which it has used to be construed only in the narrower sense: Owners of SS Kalibia v. Wilson [Owners of SS Kalibia v. Wilson, (1910) 11 CLR 689 (Aust)] , Vacuum Oil Co. Pty. Ltd. v. Queensland [Vacuum Oil Co. Pty. Ltd.v. Queensland, (1934) 51 CLR 677 (Aust)] , R. v. Commonwealth Court of Conciliation and Arbitration, ex p Whybrow & Co. [R. v. Commonwealth Court of Conciliation and Arbitration, ex p Whybrow & Co., (1910) 11 CLR 1 (Aust)] and British Imperial Oil Co. Ltd. v. Federal Commr. of Taxation [British Imperial Oil Co. Ltd. v. Federal Commr. of Taxation, (1925) 35 CLR 422 (Aust)] .This judgment was followed by a Constitution Bench of this Court in DTC v. Mazdoor Congress [DTC v. Mazdoor Congress, 1991 Supp (1) SCC 600 : 1991 SCC (L&S) 1213] . In that case, a question arose as to whether a particular regulation which conferred power on an authority to terminate the services of a permanent and confirmed employee by issuing a notice terminating his services, or by making payment in lieu of such notice without assigning any reasons and without any opportunity of hearing to the employee, could be said to be violative of the appellants fundamental rights. Four of the learned Judges who heard the case, the Chief Justice alone dissenting on this aspect, decided that the regulation cannot be read down, and must, therefore, be held to be unconstitutional. In the lead judgment on this aspect by Sawant, J., this Court stated: (SCC pp. 728-29, paraIt is thus clear that the doctrine of reading down or of recasting the statute can be applied in limited situations. It is essentially used, firstly, for saving a statute from being struck down on account of its unconstitutionality. It is an extension of the principle that when two interpretations are possible—one rendering it constitutional and the other making it unconstitutional, the former should be preferred. The unconstitutionality may spring from either the incompetence of the legislature to enact the statute or from its violation of any of the provisions of the Constitution. The second situation which summons its aid is where the provisions of the statute are vague and ambiguous and it is possible to gather the intentions of the legislature from the object of the statute, the context in which the provision occurs and the purpose for which it is made. However, when the provision is cast in a definite and unambiguous language and its intention is clear, it is not permissible either to mend or bend it even if such recasting is in accord with good reason and conscience. In such circumstances, it is not possible for the court to remake the statute. Its only duty is to strike it down and leave it to the legislature if it so desires, to amend it. What is further, if the remaking of the statute by the courts is to lead to its distortion that course is to be scrupulously avoided. One of the situations further where the doctrine can never be called into play is where the statute requires extensive additions and deletions. Not only it is no part of the courts duty to undertake such exercise, but it is beyond its jurisdiction to do7. Given the fact that the Amendment Act has been held to be constitutionally valid, and considering that its language is clear and unambiguous, it is not possible to accede to the contentions of the Petitioners to read down the clear provisions of the Amendment Act in the manner suggested by them. Interpretation of Section 5(8)(f) of theThus, in order to be a ?debt?, there ought to be a liability or obligation in respect of a ?claim? which is due from any person. ?Claim? then means either a right to payment or a right to payment arising out of breach of contract, and this claim can be made whether or not such right to payment is reduced to judgment. Then comes ?default?, which in turn refers to non-payment of debt when whole or any part of the debt has become due and payable and is not paid by the corporateis precisely to do away with judgments such as Raman Iron Foundry (supra) that ?claim? is defined to mean a right to payment or a right to remedy for breach of contract whether or not such right is reduced to judgment. What is clear, therefore, is that a debt is a liability or obligation in respect of a right to payment, even if it arises out of breach of contract, which is due from any person, notwithstanding that there is no adjudication of the said breach, followed by a judgment or decree or order. The expression ?payment? is again an expression which is elastic enough to include ?recompense?, and includes repayment. For this purpose, see Himachal Pradesh Housing and Urban Development Authority and Anr. v. Ranjit Singh Rana (2012) 4 SCC 505 ( at paragraphs 13 and 14 therein), where the Webster?s Comprehensive Dictionary (International Edn.) Vol. 2 and the Law Lexicon by P. Ramanatha Aiyar (2 nd Edn., Reprint) arethe present context, it is clear that the expression ?disburse? would refer to the payment of instalments by the allottee to the real estate developer for the particular purpose of funding the real estate project in which the allottee is to be allotted a flat/apartment. The expression ?disbursed? refers to money which has been paid against consideration for the ?time value of money?. In short, the ?disbursal? must be money and must be against consideration for the ?time value of money?, meaning thereby, the fact that such money is now no longer with the lender, but is with the borrower, who then utilises the money. Thus far, it is clear that an allottee ?disburses? money in the form of advance payments made towards construction of the real estate project.When compared with Section 5(8), it is clear that Section 5(8) seems to owe its genesis to the definition of ?financial indebtedness? that is contained for the purposes of Investment Grade Agreements.What is clear from what Shri Venugopal has read to us is that a wide range of transactions are subsumed by paragraph (f) and that the precise scope of paragraph (f) is uncertain. Equally, paragraph (f) seems to be a ?catch all? provision which is really residuary in nature, and which would subsume within it transactions which do not, in fact, fall under any of the other sub- clauses of Section 5(8).And now to the precise language of Section 5(8)(f). First and foremost, the sub-clause does appear to be a residuary provision which is ?catch all? in nature. This is clear from the words ?any amount? and ?any other transaction? which means that amounts that are ?raised? under ?transactions? not covered by any of the other clauses, would amount to a financial debt if they had the commercial effect of acorrectly argued by the learned Additional Solicitor General, the expression ?any other transaction? would include an arrangement in writing for the transfer of funds to the corporate debtor and would thus clearly include the kind of financing arrangement by allottees to real estate developers when they pay instalments at various stages of construction, so that they themselves then fund the project either partially or completely.A perusal of these definitions would show that even though the Petitioners may be right in stating that a ?borrowing? is a loan of money for temporary use, they are not necessarily right in stating that the transaction must culminate in money being given back to the lender. The expression ?borrow? is wide enough to include an advance given by the home buyers to a real estate developer for ?temporary use? i.e. for use in the construction project so long as it is intended by the agreement to give ?something equivalent? to money back to the home buyers. The ?something equivalent? in these matters is obviously the flat/apartment. Also of importance is the expression ?commercial effect?. ?Commercial? would generally involve transactions having profit as their main aim. Piecing the threads together, therefore, so long as an amount is ?raised? under a real estate agreement, which is done with profit as the main aim, such amount would be subsumed within Section 5(8)(f) as the sale agreement between developer and home buyer would have the ?commercial effect? of a borrowing, in that, money is paid in advance for temporary use so that a flat/apartment is given back to the lender. Both parties have ?commercial? interests in the same – the real estate developer seeking to make a profit on the sale of the apartment, and the flat/apartment purchaser profiting by the sale of the apartment. Thus construed, there can be no difficulty in stating that the amounts raised from allottees under real estate projects would, in fact, be subsumed within Section 5(8)(f) even without adverting to the explanation introduced by the Amendment Act.However, Dr. Singhvi strongly relied upon the report of the Bankruptcy Law Reforms Committee of November, 2015 and in particular paragraph 3 of ‘Box 5.2 – Trigger for IRP? which states that financial creditors are persons where the liability to the debtor arises from a ?solely? financial transaction. This Committee report, which led to the enactment of the Code, is an important guide in understanding the provisions of the Code. However, where the provisions of the Code, as construed in the light of the objects of the Code, are clear, the fact that from a huge report one word is picked up to indicate that all financial creditors must have debtors who owe money ?solely? from financial transactions cannot possibly have the effect of negating the plain language of Section 5(8)(f) of the Code. In fact, what is important is that the threshold limit to trigger the Code is purposely kept low – at only one lakh rupees – making it clear that small individuals may also trigger the Code as financial creditors (as financial creditors include debenture holders and bond holders), along with banks and financial institutions to whom crores of money may be due.That this amendment is in fact clarificatory is also made clear by the Insolvency Committee Report, which expressly uses the word ?clarify?, indicating that the Insolvency Law Committee also thought that since there were differing judgments and doubts raised on whether home buyers would or would not be included within Section 5(8)(f), it was best to set these doubts at rest by explicitly stating that they would be so covered by adding an explanation to Section 5(8)(f). Incidentally, the Insolvency Law Committee itself had no doubt that given the ‘financing? of the project by the allottees, they would fall within Section 5(8)(f) of the Code as originally enacted.This statement of the law, as can be seen from the quotation hereinabove, is without citation of any authority. In fact, in Jagir Singh & Ors. v. State of Bihar & Anr. (1976) 2 SCC 942 at paragraphs 11 and 19 to 21 and Mahalakshmi Oil Mills v. State of Andhra Pradesh & Ors. (1989) 1 SCC 164 , at paragraphs 8 and 11 (which has been cited in P. Kasilingam (supra)), this Court set out definition sections where the expression ?means? was followed by some words, after which came the expression ?and includes? followed by other words, just as in the Krishi Utpadan Mandi Samiti (supra) case. In two other recent judgments, Bharat Coop. Bank (Mumbai) Ltd. v. Coop. Bank Employees Union (2007) 4 SCC 685 , at paragraphs 12 and 23, and State of West Bengal and Ors. v. Associated Contractors (2015) 1 SCC 32 at paragraph 14, this Court has held that wherever the expression ?means? is followed by the expression ?and includes? whether with or without additional words separating ?means? from ?includes?, these expressions indicate that the definition provision is exhaustive as a matter of statutory interpretation. It has also been held that the expression ?and includes? is an expression which extends the definition contained in words which follow the expression ?means?. From this discussion, two things follow. Krishi Utpadan Mandi Samiti (supra) cannot be said to be good law insofar as its exposition on ?means? and ?includes? is concerned, as it ignores earlier precedents of larger and coordinate benches and is out of sync with later decisions on the same point. Equally, Dr. Singhvi?s argument that sub-clauses (a) to (i) of Section 5(8) of the Code must all necessarily reflect the fact that a financial debt can only be a debt which is disbursed against the consideration for the time value of money, and which permeates clauses (a) to (i), cannot be accepted as a matter of statutory interpretation, as the expression ?and includes? speaks of subject matters which may not necessarily be reflected in the main part of the definition.In any event, as was correctly argued by learned Additional Solicitor General Mrs. Madhavi Divan, the legislature is not precluded by way of amendment from inserting words into what may even be an exhaustive definition. What is an exhaustive definition is exhaustive for purposes of interpretation of a statute by the Courts, which cannot bind the legislature when it adds something to the statute by way of amendment. On this score also, there is no substance in the aforesaid argument.It was then argued, relying on a large number of judgments that Section 5(8)(f) must be construed noscitur a sociis with sub- clauses (a) to (e) and (g) to (i), and so construed would only refer to loans or other financial transactions which would involve money at both ends. This, again, is not correct in view of the fact that Section 5(8)(f) is clearly a residuary ?catch all? provision, taking within it matters which are not subsumed within the other sub- clauses.It was then argued, relying on a large number of judgments that Section 5(8)(f) must be construed noscitur a sociis with sub- clauses (a) to (e) and (g) to (i), and so construed would only refer to loans or other financial transactions which would involve money at both ends. This, again, is not correct in view of the fact that Section 5(8)(f) is clearly a residuary ?catch all? provision, taking within it matters which are not subsumed within the other sub- clauses.Even otherwise, in Controller of Estate Duty v. Kantilal Trikamlal (1976) 4 SCC 643 , this Court has held that when an expression is a residuary one, ejusdem generis will not apply. It was thus21…We have also to stress the expression ?other right? in the explanation which is of the widest import and cannot be constricted by reading it ejusdem generis with ?debt?. ?Other right?, in the context, is expressly meant considerably to widen the concept and therefore suggests a somewhat contrary intention to the application of the ejusdem generis rule. We may derive instruction from Greens construction of the identical expression in the English Act. [Section 45 (2)]. The learned authordisclaimer is an extinguishment of a right for this purpose. Although in the event the person disclaiming never has any right in the property, he has the right to obtain it, this inchoate right is a right for the purposes of Section 45(2). The ejusdem generis rule does not apply to the words a debt or other right and the word right is a word of the widest import. Moreover, the expression at the expense of the deceased is used in an ordinary and natural manner; and is apt to cover not only cases where the extinguishment involves a loss to the deceased of a benefit he already enjoyed, but also those where it prevents him from acquiring the benefit.In every case in which a deeming fiction is to be construed, the observations of Lord Asquith in a concurring judgment in East End Dwellings Co. Ltd. v. Finsbury Borough Council (1952) Appeal Cases 109 are cited. These observations read asyou are bidden to treat an imaginary state of affairs as real, you must surely, unless prohibited from doing so, also imagine as real the consequences and incidents which, if the putative state of affairs had in fact existed, must inevitably have flowed from or accompanied it…. The statute says that you must imagine a certain state of affairs. It does not say that, having done so, you must cause or permit your imagination to boggle when it comes to the inevitable corollaries of that state ofobservations have been followed time out of number by the decisions of this Court. (See for example, M. Venugopal v. Divisional Manager, LIC (1994) 2 SCC 323 at page 329).But then it was argued that, relying upon Commissioner of Income Tax, Bombay v. Bombay Trust Corporation AIR 1930 PC 54 at 55, that the reason that a deeming fiction is introduced is that the subject matter of that fiction is not so in reality, which why Parliament requires such subject matter be treated as if it were real. To similar effect are the observations in K. Kamaraja Nadar v. Kunju Thevar and Ors. AIR 1958 SC 687 at paragraph 28, where this Court put iteffect of such a legal fiction, however, is that a position which otherwise would not obtain is deemed to obtain under those circumstances.It was also argued, relying upon Delhi Cloth & General Mills Co. Ltd. and Anr. v. State of Rajasthan and Ors. (1996) 2 SCC 449 , that a deeming fiction can only be as to facts and cannot be the deeming of a legal position. It was further argued relying upon Daiichi Sankyo Company Limited v. Jayaram Chigurupati and Ors. (2010) 7 SCC 449 , that a deeming provision cannot be destructive of the main provision and cannot be construed as such.A closer look at Delhi Cloth & General Mills Co. Ltd. (supra) would show that the judgment in essence followed this Court?s judgment in Shri Prithvi Cotton Mills Ltd. & Anr. v. Broach Borough Municipality & Ors. 1969 (2) SCC 283 , in that the validating statute in question had not cured the defect that was pointed out. This becomes clear on a reading of paragraph 16 and 17 of the judgment which read asThe Validating Act provides that, notwithstanding anything contained in Sections 4 to 7 of the 1959 Act or in any judgment, decree, order or direction of any court, the villages of Raipura and Ummedganj should be deemed always to have continued to exist and they continue to exist within the limits of the Kota Municipality, to all intents and for all purposes. This provision requires the deeming of the legal position that the villages of Raipura and Ummedganj fall within the limits of the Kota Municipality, not the deeming of facts from which this legal consequence would flow. A legal consequence cannot be deemed nor, therefrom, can the events that should have preceded it. Facts may be deemed and, therefrom, the legal consequences that follow.Sections 4 to 7 remained on the statute book unamended when the Validating Act was passed. Their provisions were mandatory. They had admittedly not been followed. The defect of not following these mandatory provisions in the case of the villages of Raipura and Ummedganj was not cured by the Validating Act. The curing of the defect was an essential requirement for the passing of a valid validating statute, as held by the Constitution Bench in the case of Prithvi Cotton Mills Ltd. [(1969) 2 SCC 283 : (1970) 1 SCR 388 ] It must, therefore, be held that the Validating Act is bad in law and it must be struck down.It was in this context that it was stated that the fiction of a legal consequence cannot be deemed, whereas facts which preceded such consequence can so be deemed. In the present case, the deeming provision, as has been held by us, is only clarificatory of the true legal position as it already obtained. The present case does not concern itself with validating statutes at all. The ratio of this judgment, therefore, would have no application to this case.Although a deeming provision is to deem what is not there in reality, thereby requiring the subject matter to be treated as if it were real, yet several authorities and judgments show that a deeming fiction can also be used to put beyond doubt a particular construction that might otherwise bethe present case, it is clear that the deeming fiction that is used by the explanation is to put beyond doubt the fact that allottees are to be regarded as financial creditors within the enacting part contained in Section 5(8)(f) of the Code.It was also argued that an explanation does not enlarge the scope of the original section and for this purpose S. Sundaram Pillai (supra) was relied upon. This very judgment recognises, in paragraph 46, that an explanation does not ordinarily enlarge the scope of the original Section. But if it does, effect must be given to the legislative intent notwithstanding the fact that the legislature has named a provision as an explanation. [See Hiralal Ratanlal Etc. v. State of U.P and Anr. Etc. (1973) 1 SCC 216 at 225, followed in paragraph 51 of Sundram Pillai (supra)]. In any case, it has been found by us that the explanation was added by the Amendment Act only to clarify doubts that had arisen as to whether home buyers/allottees were subsumed within Section 5(8)(f). The explanation added to Section 5(8)(f) of the Code by the Amendment Act does not in fact enlarge the scope of the original Section as home buyers/allottees would be subsumed within Section 5(8)(f) as it originally stood as has been held by us hereinabove. As a matter of statutory interpretation, that interpretation, which accords with the objects of the statute in question, particularly when we are dealing with a beneficial legislation, is always the better interpretation or the ?creative interpretation? which is the modern trend of authority, and which is reflected in the concurring judgment of Eera (through Dr. Manjula Krippendorf) v. State (NCT of Delhi) and Anr. (2017) 15 SCC 133 at paragraphs 122 and 127. This argument must, therefore, also be rejected.We, therefore, hold that allottees/home buyers were included in the main provision, i.e. Section 5(8)(f) with effect from the inception of the Code, the explanation being added in 2018 merely to clarify doubts that had arisen.The Amendment Act to the Code does not infringe Articles 14, 19(1)(g) read with Article 19(6), or 300-A of the Constitution of India.The RERA is to be read harmoniously with the Code, as amended by the Amendment Act. It is only in the event of conflict that the Code will prevail over the RERA. Remedies that are given to allottees of flats/apartments are therefore concurrent remedies, such allottees of flats/apartments being in a position to avail of remedies under the Consumer Protection Act, 1986, RERA as well as the triggering of the Code.Section 5(8)(f) as it originally appeared in the Code being a residuary provision, always subsumed within it allottees of flats/apartments. The explanation together with the deeming fiction added by the Amendment Act is only clarificatory of this position in law. | 1 | 48,414 | 14,267 | ### Instruction:
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inevitable corollaries of that state of affairs.? (See EastEnd Dwellings Co. Ltd. v. Finsbury Borough Council [1952 AC 109 : (1951) 2 All ER 587 (HL)] at AC pp. 132-33.) ‘… The word ?deemed? is used a great deal in modern legislation. Sometimes it is used to impose for the purposes of a statute an artificial construction of a word or phrase that would not otherwise prevail. Sometimes it is used to put beyond doubt a particular construction that might otherwise be uncertain. Sometimes it is used to give a comprehensive description that includes what is obvious, what is uncertain and what is, in the ordinary sense, impossible.? [Per Lord Radcliffe in St. Aubyn v. Attorney General (No. 2) [1952 AC 15 : (1951) 2 All ER 473 (HL)] , AC p. 53.] 14. ‘Deemed?, as used in statutory definitions [is meant] ‘to extend the denotation of the defined term to things it would not in ordinary parlance denote, is often a convenient devise for reducing the verbiage of an enactment, but that does not mean that wherever it is used it has that effect; to deem means simply to judge or reach a conclusion about something, and the words ?deem? and ?deemed? when used in a statute thus simply state the effect or meaning which some matter or thing has — the way in which it is to be adjudged; this need not import artificiality or fiction; it may simply be the statement of an undisputable conclusion.? (Per Windener, J. in Hunter Douglas Australia Pty. v. Perma Blinds [(1970) 44 Aust LJ R 257] .) 15. When a thing is to be ‘deemed? something else, it is to be treated as that something else with the attendant consequences, but it is not that something else (per Cave, J., in R. v. Norfolk County Court [(1891) 60 LJ QB 379] ). ‘When a statute gives a definition and then adds that certain things shall be ?deemed? to be covered by the definition, it matters not whether without that addition the definition would have covered them or not.? (Per Lord President Cooper in Ferguson v. McMillan [1954 SLT 109] .) 16. Whether the word ‘deemed? when used in a statute established a conclusive or a rebuttable presumption depended upon the context (see St. Leon Village Consolidated School Distt. v. Ronceray [(1960) 23 DLR (2d) 32] ). ‘…. I … regard its primary function as to bring in something which would otherwise be excluded.? (Per Viscount Simonds in Barclays Bank v. IRC [1961 AC 509 : (1960) 3 WLR 280 : (1960) 2 All ER 817 (HL)] at AC p. 523.) ‘Deems? means ‘is of opinion? or ‘considers? or ‘decides? and there is no implication of steps to be taken before the opinion is formed or the decision is taken. [See R. v. Brixton Prison (Governor), ex p Soblen [(1963) 2 QB 243 : (1962) 3 WLR 1154 : (1962) 3 All ER 641 (CA)] at QB p. 315.]? [Ed.: As observed in Ali M.K. v. State of Kerala, (2003) 11 SCC 632 : 2004 SCC (L&S) 136, SCC at pp. 639- 40, paras 13-16.]? In the present case, it is clear that the deeming fiction that is used by the explanation is to put beyond doubt the fact that allottees are to be regarded as financial creditors within the enacting part contained in Section 5(8)(f) of the Code. 85. It was also argued that an explanation does not enlarge the scope of the original section and for this purpose S. Sundaram Pillai (supra) was relied upon. This very judgment recognises, in paragraph 46, that an explanation does not ordinarily enlarge the scope of the original Section. But if it does, effect must be given to the legislative intent notwithstanding the fact that the legislature has named a provision as an explanation. [See Hiralal Ratanlal Etc. v. State of U.P and Anr. Etc. (1973) 1 SCC 216 at 225, followed in paragraph 51 of Sundram Pillai (supra)]. In any case, it has been found by us that the explanation was added by the Amendment Act only to clarify doubts that had arisen as to whether home buyers/allottees were subsumed within Section 5(8)(f). The explanation added to Section 5(8)(f) of the Code by the Amendment Act does not in fact enlarge the scope of the original Section as home buyers/allottees would be subsumed within Section 5(8)(f) as it originally stood as has been held by us hereinabove. As a matter of statutory interpretation, that interpretation, which accords with the objects of the statute in question, particularly when we are dealing with a beneficial legislation, is always the better interpretation or the ?creative interpretation? which is the modern trend of authority, and which is reflected in the concurring judgment of Eera (through Dr. Manjula Krippendorf) v. State (NCT of Delhi) and Anr. (2017) 15 SCC 133 at paragraphs 122 and 127. This argument must, therefore, also be rejected. 86. We, therefore, hold that allottees/home buyers were included in the main provision, i.e. Section 5(8)(f) with effect from the inception of the Code, the explanation being added in 2018 merely to clarify doubts that had arisen. Conclusion i. The Amendment Act to the Code does not infringe Articles 14, 19(1)(g) read with Article 19(6), or 300-A of the Constitution of India. ii. The RERA is to be read harmoniously with the Code, as amended by the Amendment Act. It is only in the event of conflict that the Code will prevail over the RERA. Remedies that are given to allottees of flats/apartments are therefore concurrent remedies, such allottees of flats/apartments being in a position to avail of remedies under the Consumer Protection Act, 1986, RERA as well as the triggering of the Code. iii. Section 5(8)(f) as it originally appeared in the Code being a residuary provision, always subsumed within it allottees of flats/apartments. The explanation together with the deeming fiction added by the Amendment Act is only clarificatory of this position in law. Postscript
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fiction, however, is that a position which otherwise would not obtain is deemed to obtain under those circumstances.It was also argued, relying upon Delhi Cloth & General Mills Co. Ltd. and Anr. v. State of Rajasthan and Ors. (1996) 2 SCC 449 , that a deeming fiction can only be as to facts and cannot be the deeming of a legal position. It was further argued relying upon Daiichi Sankyo Company Limited v. Jayaram Chigurupati and Ors. (2010) 7 SCC 449 , that a deeming provision cannot be destructive of the main provision and cannot be construed as such.A closer look at Delhi Cloth & General Mills Co. Ltd. (supra) would show that the judgment in essence followed this Court?s judgment in Shri Prithvi Cotton Mills Ltd. & Anr. v. Broach Borough Municipality & Ors. 1969 (2) SCC 283 , in that the validating statute in question had not cured the defect that was pointed out. This becomes clear on a reading of paragraph 16 and 17 of the judgment which read asThe Validating Act provides that, notwithstanding anything contained in Sections 4 to 7 of the 1959 Act or in any judgment, decree, order or direction of any court, the villages of Raipura and Ummedganj should be deemed always to have continued to exist and they continue to exist within the limits of the Kota Municipality, to all intents and for all purposes. This provision requires the deeming of the legal position that the villages of Raipura and Ummedganj fall within the limits of the Kota Municipality, not the deeming of facts from which this legal consequence would flow. A legal consequence cannot be deemed nor, therefrom, can the events that should have preceded it. Facts may be deemed and, therefrom, the legal consequences that follow.Sections 4 to 7 remained on the statute book unamended when the Validating Act was passed. Their provisions were mandatory. They had admittedly not been followed. The defect of not following these mandatory provisions in the case of the villages of Raipura and Ummedganj was not cured by the Validating Act. The curing of the defect was an essential requirement for the passing of a valid validating statute, as held by the Constitution Bench in the case of Prithvi Cotton Mills Ltd. [(1969) 2 SCC 283 : (1970) 1 SCR 388 ] It must, therefore, be held that the Validating Act is bad in law and it must be struck down.It was in this context that it was stated that the fiction of a legal consequence cannot be deemed, whereas facts which preceded such consequence can so be deemed. In the present case, the deeming provision, as has been held by us, is only clarificatory of the true legal position as it already obtained. The present case does not concern itself with validating statutes at all. The ratio of this judgment, therefore, would have no application to this case.Although a deeming provision is to deem what is not there in reality, thereby requiring the subject matter to be treated as if it were real, yet several authorities and judgments show that a deeming fiction can also be used to put beyond doubt a particular construction that might otherwise bethe present case, it is clear that the deeming fiction that is used by the explanation is to put beyond doubt the fact that allottees are to be regarded as financial creditors within the enacting part contained in Section 5(8)(f) of the Code.It was also argued that an explanation does not enlarge the scope of the original section and for this purpose S. Sundaram Pillai (supra) was relied upon. This very judgment recognises, in paragraph 46, that an explanation does not ordinarily enlarge the scope of the original Section. But if it does, effect must be given to the legislative intent notwithstanding the fact that the legislature has named a provision as an explanation. [See Hiralal Ratanlal Etc. v. State of U.P and Anr. Etc. (1973) 1 SCC 216 at 225, followed in paragraph 51 of Sundram Pillai (supra)]. In any case, it has been found by us that the explanation was added by the Amendment Act only to clarify doubts that had arisen as to whether home buyers/allottees were subsumed within Section 5(8)(f). The explanation added to Section 5(8)(f) of the Code by the Amendment Act does not in fact enlarge the scope of the original Section as home buyers/allottees would be subsumed within Section 5(8)(f) as it originally stood as has been held by us hereinabove. As a matter of statutory interpretation, that interpretation, which accords with the objects of the statute in question, particularly when we are dealing with a beneficial legislation, is always the better interpretation or the ?creative interpretation? which is the modern trend of authority, and which is reflected in the concurring judgment of Eera (through Dr. Manjula Krippendorf) v. State (NCT of Delhi) and Anr. (2017) 15 SCC 133 at paragraphs 122 and 127. This argument must, therefore, also be rejected.We, therefore, hold that allottees/home buyers were included in the main provision, i.e. Section 5(8)(f) with effect from the inception of the Code, the explanation being added in 2018 merely to clarify doubts that had arisen.The Amendment Act to the Code does not infringe Articles 14, 19(1)(g) read with Article 19(6), or 300-A of the Constitution of India.The RERA is to be read harmoniously with the Code, as amended by the Amendment Act. It is only in the event of conflict that the Code will prevail over the RERA. Remedies that are given to allottees of flats/apartments are therefore concurrent remedies, such allottees of flats/apartments being in a position to avail of remedies under the Consumer Protection Act, 1986, RERA as well as the triggering of the Code.Section 5(8)(f) as it originally appeared in the Code being a residuary provision, always subsumed within it allottees of flats/apartments. The explanation together with the deeming fiction added by the Amendment Act is only clarificatory of this position in law.
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Maharashtra Land Development Corporation Vs. State Of Maharashtra | Act make it clear that certain matters would not be germane to the matter in question; the authority must disregard those irrelevant collateral matters." 43. However, the Wednesbury principle of reasonableness has given way to the doctrine of proportionality. Through his decision in the celebrated case of Council of Civil Services Unions v. Minister for the Civil Services reported at [1985] AC 374, Lord Diplock widened the grounds of judicial review. He mainly referred to three grounds upon which administrative action is subject to control by judicial review. The first ground being "illegality", the second "irrationality" and the third `procedural impropriety. He also mentioned that by further development on a case to case basis, in due course, there may be other grounds for challenge. He particularly emphasized the principles of proportionality. Thus, in a way, Lord Diplock replaced the language of `reasonableness with that of `proportionality when he said: "By `irrationality I mean what can by now be succinctly referred to as `Wednesbury unreasonableness...It applies to a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it...." 44. The principle of proportionality envisages that a public authority ought to maintain a sense of proportion between particular goals and the means employed to achieve those goals, so that administrative action impinges on the individual rights to the minimum extent to preserve public interest. Thus implying that administrative action ought to bear a reasonable relationship to the general purpose for which the power has been conferred. The principle of proportionality therefore implies that the Court has to necessarily go into the advantages and disadvantages of any administrative action called into question. Unless the impugned administrative action is advantageous and in public interest such an action cannot be upheld. At the core of this principle is the scrutiny of the administrative action to examine whether the power conferred is exercised in proportion to the purpose for which it has been conferred. Thus, any administrative authority while exercising a discretionary power will have to necessarily establish that its decision is balanced and in proportion to the object of the power conferred.45. This principle has found favour in recent times with this Court, and a number of decisions reflect the shift towards the doctrine of proportionality. 46. In Bhagat Ram v. State of Himachal Pradesh reported at (1983) 2 SCC 442 , this Court held that if the penalty imposed is disproportionate to the gravity of the misconduct, it would violate Article 14 of the Constitution. 47. In Ex-Naik Sardar Singh v. Union of India and Ors reported at (1991) 3 SCC 213 where instead of one bottle of brandy that was authorized, the delinquent was found carrying four bottles of brandy while going home on leave.He was sentenced to three months rigorous imprisonment and dismissal from service which was found by this Court to be disproportionate to the gravity of the offence proved against him. 48. In Coimbatore District Central Coop. Bank v. Employees Assn. reported at (2007) 4 SCC 669 this Court stated that the doctrine of proportionality has not only arrived in our legal system but is here to stay. With the increasing presence and visibility of administrative law and the need to control possible abuse of discretionary powers by various administrative authorities, certain principles have been evolved by reference to which the action of such authorities can be judged. If any action taken by an authority is contrary to law, improper, irrational or otherwise unreasonable, a court competent to do so can interfere with the same while exercising its power of judicial review. 49. In Charanjit Lamba vs. Commanding Officer, Southern Command and Ors, reported at AIR 2010 SC 2462 , it was held that "The constitutional requirement for judging the question of reasonableness and fairness on the part of the statutory authority must be considered having regard to the factual matrix obtaining in each case. It cannot be put in a straitjacket formula. It must be considered keeping in view the doctrine of flexibility. Before an action is struck down, the court must be satisfied that a case has been made out for exercise of power of judicial review. We are not unmindful of the development of the law that from the doctrine of Wednesbury unreasonableness, the court is leaning towards the doctrine of proportionality...." 50. The test of proportionality is therefore concerned with the way in which the decision-maker has ordered his priorities, i.e., the attribution of relative importance to the factors in the case. Thus, it is not so much the correctness of the decision that is called into question, but the method to reach the same. In this context, we are to see if the decision of the respondent-State in considering the disputed property to be automatically vested with the Government is commensurate with public interests, in a way that affects individual rights in a minimal way.51. The decision of the Government, as we have elucidated earlier, has been guided by the provisions in the Act, which seek to conserve and protect private forests in the State of Maharashtra that have been facing severe depletion and exploitation. Therefore, the Act, which provides for the vesting of private forests with the Government, does so in the general interests of the public in tune with principles of environmental protection and sustainable development, to which we have alluded at the outset. In our opinion, the respondent-State was only acting in accordance with the principles envisaged in the Act. This action cannot in any way said to be disproportionate or irrational solely because it divests the appellant-Corporation of the land within Survey 345-A. The circumstances of this case, especially in so far as it relates to the quarrying operations conducted by the appellant-Corporation in the said area, merit that the State protects the interests of the general public by acquiring the land as a private forest. | 0[ds]34. Despite these averments, we are unable to agree with the contention of theThe definition of a `forest as enunciated in Section 2(ii) of the Act specifically includes "land which is part of a forest or lies within it or was part of a forest or was lying within a forest on the 30th day of August, 1975". It is already established that subsequent to proceedings initiated under the Bombay Salsette Estate Abolition Act, 1951, the entire land bearing Survey No.was held to be a "forest" vide an order dated 24th December, 1964. A bare reading of the provision also indicates that the definition of `forest is an inclusive definition and therefore, it could have a wider connotation and it would not be appropriate to give it a restrictive meaning. Every word and phrase of the Act is to be understood in its context and must be given significance so that they are not rendered redundant. The appellant has steadfastly maintained that the interpretation of the provisions cannot mean land which was a forest in the past (i.e. before 30th August, 1975) to be a `forest according to the Act. This argument might have had some force had the time period in question related to many decades or even a century before. The aforementioned proceedings were concluded in proximity to the appointed day in question, and the character of land cannot be said to have changed over such a relatively short period of time. It is beyond doubt that the land which encompassed the said portion of 53 acres belonging to thewas a `forest on the appointed day. In our considered opinion, the facts on record seem to overwhelmingly support such a conclusion.35. The appellant has submitted that although the word `Forest was added in the Record of Right after such proceedings, it was later dropped when the matter went up in appeal to the Commissioner. Even if this were to be considered, it is to be noted that the preponderance of evidence seems to indicate the land in Survey No. 345 was considered as `forest. This is amply supported by documentary evidence, including the mortgage deed of 1900, and the revenue records of the past 50 years. Moreover, the conveyance deed dated 29.3.1975 which was executed by the Court Receiver to the appellant, clearly describes the land as "piece or parcel of forest land with structures". This is further buttressed by the mutation entries tillwhich described the land as a forest. Even the mutation entries fromhave only changed the recording to `huts, quarry and grass which does not in any way dispute the nature of the land. That apart in the enquiry conducted underof Section 37 of the Bombay Land Revenue Code, it was admitted by the Company through whom the appellant had derived title that the land was forest land. Therefore, there is overwhelming documentary evidence and also contemporaneous evidence on record to prove and establish that the land, in question, even in recent times was considered as forest land and also retained its character as such.36. Therefore, the issue of whether the land in question was a `forest on the appointed day, has to be seen in the context of whether the entire land that encompassed the disputed area was a `forest on the said date. In order to seek the reasons behind such an analysis, we need only look into the legislative scheme of the Act, which has been elaborated hereinabove.Therefore it is clear that the purpose of the statute and the intention of the legislature in enacting the same must be of paramount consideration while interpreting its provisions. In this instance, moreover, the provisions of the Act present no apparent conflict with the overarching objective of vesting `private forests with the State in the Governments efforts to protect them. Further, it is important to note that the said area was being used for quarrying operations by theThat the said portion in the area of Surveymeasuring 209 acres is claimed to be rocky and devoid of growth certainly does not change the character of the forest land. It cannot be disputed that within forest areas, there exists water bodies swamp land, grass land etc. The very existence of such land within the forest area would and could not change the nature and character of the forest land and the same would still continue to be treated as forest land. In many instances across the country, mining and quarrying operations, while regulated, do take place in forest land, and they can very well be considered as forest produce. However, the harmful effects of the ecological imbalance that may result as a consequence of quarrying operations in a forest zone is also to be considered.39. Thus, in light of the legislative scheme of the Act, and the provisions discussed herein, we are of the considered opinion that the said portion of the land, measuring 53 acres will vest with theas a `private forest. That the area fell within a part designated as `forest on the 30th of August, 1975 is beyond dispute and is supported by the evidence on record. Therefore, by virtue of Section 2(ii) of the Act, the portion in dispute will also be designated as a `private forest under Section 2(f) of the Act, and the authorities are directed to maintain it as such.40. It may also be cursorily mentioned here that both parties have made submissions with regard to the requirement of issuance of notice as per Section 35(3) of the Act. Neither the issuance and service of the notice, nor its publication in the Government Gazette could be challenged as both the exercises have been done in the present case. The High Court in its impugned order has extensively dealt with the same and has recorded a finding that notice was issued to the registered owner and served. These conclusions have not been specifically challenged by the appellant. It is proved and also recorded that the notice under Section 35(3) of Forest Act was issued to the owner on 8.8.1975 and was served on the recorded owner. Since the notice was issued and served on the recorded owner, the same was sufficient compliance. In order to fortify our conclusions we also rely on the judgment of this Court in Chintamani Gajaman Velkar Vs. State of Maharashtra & Ors. Reported in (2003) 3 SCC 143, wherein this Court held that irrespective of whether the notice was served on the land owner before the appointed date or not, issuance of notice before that day would itself be sufficient for vesting the land in the State.41. Thehas also alleged that the States decision to consider the disputed land as automatically vested with the Government was irrational and disproportionate. In this regard, it was the argument of the learned counsel for the appellant that while it may be possible for the Government to regulate and prohibit certain activities in `forest lands, the ownership would continue to vest with the private owners, and there cannot be any automatic vesting of the same. Thus it was argued that taking away the ownership of the land was wholly disproportionate in nature.42. Being called upon to review this administrative action, we have examined as to whether the same amounts to irrational or disproportionate. The common yardstick to determine whether the act on the part of the Government violates established principles of administrative law has been the Wednesbury principle of unreasonableness, employed both by English and Indian Courts. The Wednesbury principle was enunciated by Lord Greene MR inThe principle of proportionality envisages that a public authority ought to maintain a sense of proportion between particular goals and the means employed to achieve those goals, so that administrative action impinges on the individual rights to the minimum extent to preserve public interest. Thus implying that administrative action ought to bear a reasonable relationship to the general purpose for which the power has been conferred. The principle of proportionality therefore implies that the Court has to necessarily go into the advantages and disadvantages of any administrative action called into question. Unless the impugned administrative action is advantageous and in public interest such an action cannot be upheld. At the core of this principle is the scrutiny of the administrative action to examine whether the power conferred is exercised in proportion to the purpose for which it has been conferred. Thus, any administrative authority while exercising a discretionary power will have to necessarily establish that its decision is balanced and in proportion to the object of the power conferred.45. This principle has found favour in recent times with this Court, and a number of decisions reflect the shift towards the doctrine of proportionality.The test of proportionality is therefore concerned with the way in which thehas ordered his priorities, i.e., the attribution of relative importance to the factors in the case. Thus, it is not so much the correctness of the decision that is called into question, but the method to reach the same. In this context, we are to see if the decision of thein considering the disputed property to be automatically vested with the Government is commensurate with public interests, in a way that affects individual rights in a minimal way.51. The decision of the Government, as we have elucidated earlier, has been guided by the provisions in the Act, which seek to conserve and protect private forests in the State of Maharashtra that have been facing severe depletion and exploitation. Therefore, the Act, which provides for the vesting of private forests with the Government, does so in the general interests of the public in tune with principles of environmental protection and sustainable development, to which we have alluded at the outset. In our opinion, thewas only acting in accordance with the principles envisaged in the Act. This action cannot in any way said to be disproportionate or irrational solely because it divests theof the land within SurveyThe circumstances of this case, especially in so far as it relates to the quarrying operations conducted by thein the said area, merit that the State protects the interests of the general public by acquiring the land as a private forest. | 0 | 9,342 | 1,870 | ### Instruction:
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Act make it clear that certain matters would not be germane to the matter in question; the authority must disregard those irrelevant collateral matters." 43. However, the Wednesbury principle of reasonableness has given way to the doctrine of proportionality. Through his decision in the celebrated case of Council of Civil Services Unions v. Minister for the Civil Services reported at [1985] AC 374, Lord Diplock widened the grounds of judicial review. He mainly referred to three grounds upon which administrative action is subject to control by judicial review. The first ground being "illegality", the second "irrationality" and the third `procedural impropriety. He also mentioned that by further development on a case to case basis, in due course, there may be other grounds for challenge. He particularly emphasized the principles of proportionality. Thus, in a way, Lord Diplock replaced the language of `reasonableness with that of `proportionality when he said: "By `irrationality I mean what can by now be succinctly referred to as `Wednesbury unreasonableness...It applies to a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it...." 44. The principle of proportionality envisages that a public authority ought to maintain a sense of proportion between particular goals and the means employed to achieve those goals, so that administrative action impinges on the individual rights to the minimum extent to preserve public interest. Thus implying that administrative action ought to bear a reasonable relationship to the general purpose for which the power has been conferred. The principle of proportionality therefore implies that the Court has to necessarily go into the advantages and disadvantages of any administrative action called into question. Unless the impugned administrative action is advantageous and in public interest such an action cannot be upheld. At the core of this principle is the scrutiny of the administrative action to examine whether the power conferred is exercised in proportion to the purpose for which it has been conferred. Thus, any administrative authority while exercising a discretionary power will have to necessarily establish that its decision is balanced and in proportion to the object of the power conferred.45. This principle has found favour in recent times with this Court, and a number of decisions reflect the shift towards the doctrine of proportionality. 46. In Bhagat Ram v. State of Himachal Pradesh reported at (1983) 2 SCC 442 , this Court held that if the penalty imposed is disproportionate to the gravity of the misconduct, it would violate Article 14 of the Constitution. 47. In Ex-Naik Sardar Singh v. Union of India and Ors reported at (1991) 3 SCC 213 where instead of one bottle of brandy that was authorized, the delinquent was found carrying four bottles of brandy while going home on leave.He was sentenced to three months rigorous imprisonment and dismissal from service which was found by this Court to be disproportionate to the gravity of the offence proved against him. 48. In Coimbatore District Central Coop. Bank v. Employees Assn. reported at (2007) 4 SCC 669 this Court stated that the doctrine of proportionality has not only arrived in our legal system but is here to stay. With the increasing presence and visibility of administrative law and the need to control possible abuse of discretionary powers by various administrative authorities, certain principles have been evolved by reference to which the action of such authorities can be judged. If any action taken by an authority is contrary to law, improper, irrational or otherwise unreasonable, a court competent to do so can interfere with the same while exercising its power of judicial review. 49. In Charanjit Lamba vs. Commanding Officer, Southern Command and Ors, reported at AIR 2010 SC 2462 , it was held that "The constitutional requirement for judging the question of reasonableness and fairness on the part of the statutory authority must be considered having regard to the factual matrix obtaining in each case. It cannot be put in a straitjacket formula. It must be considered keeping in view the doctrine of flexibility. Before an action is struck down, the court must be satisfied that a case has been made out for exercise of power of judicial review. We are not unmindful of the development of the law that from the doctrine of Wednesbury unreasonableness, the court is leaning towards the doctrine of proportionality...." 50. The test of proportionality is therefore concerned with the way in which the decision-maker has ordered his priorities, i.e., the attribution of relative importance to the factors in the case. Thus, it is not so much the correctness of the decision that is called into question, but the method to reach the same. In this context, we are to see if the decision of the respondent-State in considering the disputed property to be automatically vested with the Government is commensurate with public interests, in a way that affects individual rights in a minimal way.51. The decision of the Government, as we have elucidated earlier, has been guided by the provisions in the Act, which seek to conserve and protect private forests in the State of Maharashtra that have been facing severe depletion and exploitation. Therefore, the Act, which provides for the vesting of private forests with the Government, does so in the general interests of the public in tune with principles of environmental protection and sustainable development, to which we have alluded at the outset. In our opinion, the respondent-State was only acting in accordance with the principles envisaged in the Act. This action cannot in any way said to be disproportionate or irrational solely because it divests the appellant-Corporation of the land within Survey 345-A. The circumstances of this case, especially in so far as it relates to the quarrying operations conducted by the appellant-Corporation in the said area, merit that the State protects the interests of the general public by acquiring the land as a private forest.
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land, grass land etc. The very existence of such land within the forest area would and could not change the nature and character of the forest land and the same would still continue to be treated as forest land. In many instances across the country, mining and quarrying operations, while regulated, do take place in forest land, and they can very well be considered as forest produce. However, the harmful effects of the ecological imbalance that may result as a consequence of quarrying operations in a forest zone is also to be considered.39. Thus, in light of the legislative scheme of the Act, and the provisions discussed herein, we are of the considered opinion that the said portion of the land, measuring 53 acres will vest with theas a `private forest. That the area fell within a part designated as `forest on the 30th of August, 1975 is beyond dispute and is supported by the evidence on record. Therefore, by virtue of Section 2(ii) of the Act, the portion in dispute will also be designated as a `private forest under Section 2(f) of the Act, and the authorities are directed to maintain it as such.40. It may also be cursorily mentioned here that both parties have made submissions with regard to the requirement of issuance of notice as per Section 35(3) of the Act. Neither the issuance and service of the notice, nor its publication in the Government Gazette could be challenged as both the exercises have been done in the present case. The High Court in its impugned order has extensively dealt with the same and has recorded a finding that notice was issued to the registered owner and served. These conclusions have not been specifically challenged by the appellant. It is proved and also recorded that the notice under Section 35(3) of Forest Act was issued to the owner on 8.8.1975 and was served on the recorded owner. Since the notice was issued and served on the recorded owner, the same was sufficient compliance. In order to fortify our conclusions we also rely on the judgment of this Court in Chintamani Gajaman Velkar Vs. State of Maharashtra & Ors. Reported in (2003) 3 SCC 143, wherein this Court held that irrespective of whether the notice was served on the land owner before the appointed date or not, issuance of notice before that day would itself be sufficient for vesting the land in the State.41. Thehas also alleged that the States decision to consider the disputed land as automatically vested with the Government was irrational and disproportionate. In this regard, it was the argument of the learned counsel for the appellant that while it may be possible for the Government to regulate and prohibit certain activities in `forest lands, the ownership would continue to vest with the private owners, and there cannot be any automatic vesting of the same. Thus it was argued that taking away the ownership of the land was wholly disproportionate in nature.42. Being called upon to review this administrative action, we have examined as to whether the same amounts to irrational or disproportionate. The common yardstick to determine whether the act on the part of the Government violates established principles of administrative law has been the Wednesbury principle of unreasonableness, employed both by English and Indian Courts. The Wednesbury principle was enunciated by Lord Greene MR inThe principle of proportionality envisages that a public authority ought to maintain a sense of proportion between particular goals and the means employed to achieve those goals, so that administrative action impinges on the individual rights to the minimum extent to preserve public interest. Thus implying that administrative action ought to bear a reasonable relationship to the general purpose for which the power has been conferred. The principle of proportionality therefore implies that the Court has to necessarily go into the advantages and disadvantages of any administrative action called into question. Unless the impugned administrative action is advantageous and in public interest such an action cannot be upheld. At the core of this principle is the scrutiny of the administrative action to examine whether the power conferred is exercised in proportion to the purpose for which it has been conferred. Thus, any administrative authority while exercising a discretionary power will have to necessarily establish that its decision is balanced and in proportion to the object of the power conferred.45. This principle has found favour in recent times with this Court, and a number of decisions reflect the shift towards the doctrine of proportionality.The test of proportionality is therefore concerned with the way in which thehas ordered his priorities, i.e., the attribution of relative importance to the factors in the case. Thus, it is not so much the correctness of the decision that is called into question, but the method to reach the same. In this context, we are to see if the decision of thein considering the disputed property to be automatically vested with the Government is commensurate with public interests, in a way that affects individual rights in a minimal way.51. The decision of the Government, as we have elucidated earlier, has been guided by the provisions in the Act, which seek to conserve and protect private forests in the State of Maharashtra that have been facing severe depletion and exploitation. Therefore, the Act, which provides for the vesting of private forests with the Government, does so in the general interests of the public in tune with principles of environmental protection and sustainable development, to which we have alluded at the outset. In our opinion, thewas only acting in accordance with the principles envisaged in the Act. This action cannot in any way said to be disproportionate or irrational solely because it divests theof the land within SurveyThe circumstances of this case, especially in so far as it relates to the quarrying operations conducted by thein the said area, merit that the State protects the interests of the general public by acquiring the land as a private forest.
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MOHANDAS & ORS. Vs. THE STATE OF MAHARASHTRA AND ORS. | the Act. Therefore, if the property of the appellants is to be acquired, the appellants would have to be given the value of the property as on the date on which any such declaration is made under Section 126(4) of the Act within ten years from 15.05.2012. 33. In Hasmukhrai V. Mehta (supra), the case was decided under the Act. In the impugned order, the High Court had dismissed the Writ Petition of the appellant, inter alia, finding that such Plan was finalized in March, 2003 and the period of ten years had not elapsed and no benefit could be given. The Court took note of the fact that in T. Vijayalakshmi and others v. Town Planning Member and another (2006) 8 SCC 502 , this Court had declared that the right of a person to construct residential houses in a residential area is a valuable right and also considered that the appellant had been granted permission and commencement certificate on 03.04.1990 under the Development Plan under which the property of the appellant was included under the residential zone and the Plan was also sanctioned. It is thereafter, on 14.01.1999, the appellants were informed about the fresh development scheme including the appellants land as reserved for agricultural produce market yard. In these circumstances, inter alia, the Court, taking note of the fact that since no steps appear to have been taken till date for the last more than 20 years, either for acquiring land or purchasing land under the Act, the lands were to stand released under Section 127 of the Act. 34. In the judgment in Chhabildas (supra), this Court referred to the aforesaid judgment and holds that the said judgment lays down that since more than 20 years have elapsed since the date of purchase notice under Section 49 of the Act, on the facts of that case, the lands will have to be released from acquisition. Thereafter, this Court proceeds to notice that in the said case [Hasmukhrai V. Mehta (supra)], no purchase notice under Section 127 of the Act was issued after ten years had elapsed. Thereafter, this Court proceeded to hold that this being the case the judgment was understood as one which was passed under Article 142 of the Constitution of India in view of the inordinate delay of over twenty years. Thereafter, Court took note of the facts of the case before it and found that fifteen years had passed since the publication of the Development Plan and over ten years passed since date of purchase notice under Section 49 of the Act. The Court proceeded to invoke Article 142 of the Constitution of India and found that the reservation and the acquisition proposals stood lapsed. However, it was made clear that in future cases that may arise under Section 49 of the Act, the procedure under Section 127 of the Act must be followed which means that after ten years had lapsed, a second purchase notice had to be served under Section 127 of the Act in order that lapsing could take place under the said Section. 35. Now, it is time to consider the impact of the letters dated 6/7.04.2005 issued by the Municipal Council. Therein, it is stated by the Chief Executive Officer that in the Resolution dated 15.02.2005, the land reserved no. 137 for shopping complex in Khasra Nos. 406, 407, 410 and 411, total land measuring 4928 square meters in village Gondia shall not be purchased. Resolution dated 15.02.2005 also appears to suggest that the reservation under Section 127 of the Act is released. The appellants would appear to contend that this should by itself cannot decide the matter. As to whether there is a lapsing of reservation under Section 127 of the Act, would be a matter to be decided in terms of the said Statute. Also, after the Resolution in the revised Plan, the reservation is reiterated. 36. The only question is whether it is to be ignored in deciding whether we should invoke Article 142 of the Constitution of India. On 24.08.1984, the final Development Plan is published. On 03.09.1992, the declaration under Section 126(4) of the Act was published. After expiry of ten years from 24.08.1984, notice was given by the previous owners on 09.06.2004. Thereafter, draft revised draft Plan publication was made on 29.11.2007. Still, thereafter, on 15.05.2012, a final revised Development Plan was published. Although, under the original final Development Plan dated 24.08.1984, the property of the appellants was reserved for shopping complex, and under the revised final Development Plan dated 15.05.2012, the appellants lands have been subjected to the reservation that it is meant for use as shopping complex and vegetable market, apart from issuing the declaration, under Section 126(4) of the Act in the year 1992, there is no declaration issued under the revised Plan dated 15.05.2015. While, it is true that the original final Development Plan came into force on 24.08.1984 and the revised Development Plan came into force in the year 2012, one crucial fact cannot be overlooked. Admittedly, the appellants purchased lands from the erstwhile owners only on 02.01.2006. Therefore, on the facts, particularly, having regard to the fact that they have purchased the property apparently knowing that the property was subjected to reservation, and as also we have found that their case, based on the notice of previous owners, would not hold good in law and as the subsequent revision of the Plan has come into force with effect from 15.05.2012, we do not find that this is a case where we should exercise our powers under Article 142 of the Constitution. Appellants cannot be compared with the appellant in Hasmukhrai V. Mehta (supra) as the appellant therein was a person who was favoured with a permission to develop his land on the basis that the land was meant for residential purpose and it was he who went to court and the lapse of twenty years was in the context found to have a deep impact. | 0[ds]25. The right would accrue to the owner under Section 127 of the Act to serve notice thereunder only if a declaration is not published within ten years of the Development Plan under Section 126(4) of the Act, inter alia. The High Court has, undoubtedly, noticed that the final Development Plan came into force on 24.08.1984. It further noticed that there is a declaration or Notification under Section 126(4) of the Act on 03.09.1992. This means, within ten years from 24.08.1984, there is action, as contemplated under Section 126(4) of the Act. Under Section 127 of the Act, therefore, any notice which was given may not hold good going by the letter of the law26. In this case, it is clear that the appellants are governed by the Act. There is no dispute that invoking Section 38 of the Act that a revised final Development Plan has come into effect from 15.05.2012. It is undoubtedly true that the reservation under the original Development Plan dated 24.08.1984 would cease to impact the appellants if the notice under Section 127 of the Act was issued on the passage of ten years from 24.08.1984 and, if action under Section 127 of the Act was not taken. It is true that notice dated 09.06.2004 was issued by the predecessor in title of the appellants. This is not a case where there was inaction on the part of the previous owners of the property upon the expiry of ten years from the date of the final Development Plan in 1984. The problem for appellants, however, is the action on the part of the respondent issuing declaration under Section 126(4) of the Act on 03.09.1992. Lapsing of reservation contemplated under Section 127 of the Act will occur only if the conditions mentioned therein are fulfilled. The indispensable conditions is that after the reservation of the land, inter alia, under any Plan, for a period of ten years, the land is not acquired by agreement within that period or proceedings for acquisition under the Act, i.e., declaration under Section 126(4) of the Act, inter alia, is not published within the said period. If either of the two conditions exist, a notice is to be issued setting in motion the process for lapsing reservation. If, before issuance of notice, action is already taken by issuance of notification/declaration by the respondent within ten years of the final Development Plan, it will render the notice ineffective in law. The result is that the High Court was right in finding that the appellant was not entitled to the relief based on lapsing of reservation under Section 127 of the Act. This is a case, therefore, where the Development Plan also stood revised under Section 38 of the Act, bringing in consequences, as noticed by this Court in Prafulla C. Dave (supra)29. Proceeding on the basis of the contention of the appellant that since the revised Development Plan was issued more than 20 years from the issuance of the initial final Development Plan on 24.08.1984, and therefore, revised Plan issued on 24.09.2007, is not to have effect even then the original Development Plan issued on 24.08.1984 would continue to hold good. There is no dispute that reservation under both the Plans in respect of the appellants properties are the same. In such circumstances, there can be no merit in the contention30. The contention is not seen taken before the Court31. What is contemplated under the said provision is that the Planning Authority may at least once in 20 years from the date on which a Development Plan has come into operation, inter alia, (the period of 20 years been calculated from the date on which, it came into operation) revise the Development Plan. The provisions of Sections 22, 23, 24, 25, 26, 27, 28, 30 and 31 were to apply in this regard. The final Development Plan in this case came into force on 24.08.1984. The draft Revised Plan was issued on 24.09.2007 and the final revised Development Plan was issued with effect from 15.05.2012. The further provision in Section 38 of the Act is that if the Government directs the revision of the Plan, the Planning Authority shall revise the Plan. It may be at any time. In other words, the scheme would appear to be that even before the completion of 20 years, it is open to the Government to direct the Planning Authority to undertake the revision of an existing Development Plan. In such a case, the word used is shall and there is no discretion and the Planning Authority is to revise the Plan. State Government can issue the direction at any time without waiting for the period of 20 years. AS far as the Planning Authority undertaking revision on its own, it is discretionary. As regards the time limit being breached, in the facts of this case, we are unable to agree. It is not stipulated in Section 38 of the Act that the revision must be undertaken and finalized immediately before the expiry of 20 years from the date of the original final Development Plan. A period of 20 years is to run out from original Development Plan in a case where the Planning Authority wishes to exercise power of revision of the Plan. That is not the same thing as saying that the revised Plan is to be brought into force before the expiry of 20 years. In this case, it is also not clear whether the Planning Authority undertook the revision following the direction of the GovernmentThe sheet anchor of the appellants case appears to be the decision of this Court in Chhabildas (supra), which we have already referred to above. In this case, the declaration has been issued under Section 126(4) of the Act on 03.09.1992. The effect of the declaration under Section 126(4) is that the value of the land was to be determined with reference to the date of the declaration. If declaration is made under Section 126(2) of the Act, the valuation is pushed back to the date of the draft Development Plan. What is actually contemplated would appear to be that after the declaration under Section 126(4), the matter must be followed up with reasonable dispatch. In other words, under the law relating to land acquisition, further steps will be taken culminating in an Award. In this case, on the other hand it is not in dispute that no steps were taken for acquiring the land for more than two decades. It is in the meantime that the revised Development Plan has come into being on 15.05.2012. Since no declaration has been made under Section 126(2) of the Act under the revised Plan and the period has run out as contemplated in the proviso to Section 126(2), the only way out for the respondent would be to bring out a declaration under Section 126(4) of the Act. In such an eventuality, the value of the properties would have to be determined with reference to the date of such declaration under Section 126(4) of the Act. Therefore, if the property of the appellants is to be acquired, the appellants would have to be given the value of the property as on the date on which any such declaration is made under Section 126(4) of the Act within ten years from 15.05.201233. In Hasmukhrai V. Mehta (supra), the case was decided under the Act. In the impugned order, the High Court had dismissed the Writ Petition of the appellant, inter alia, finding that such Plan was finalized in March, 2003 and the period of ten years had not elapsed and no benefit could be given. The Court took note of the fact that in T. Vijayalakshmi and others v. Town Planning Member and another (2006) 8 SCC 502 , this Court had declared that the right of a person to construct residential houses in a residential area is a valuable right and also considered that the appellant had been granted permission and commencement certificate on 03.04.1990 under the Development Plan under which the property of the appellant was included under the residential zone and the Plan was also sanctioned. It is thereafter, on 14.01.1999, the appellants were informed about the fresh development scheme including the appellants land as reserved for agricultural produce market yard. In these circumstances, inter alia, the Court, taking note of the fact that since no steps appear to have been taken till date for the last more than 20 years, either for acquiring land or purchasing land under the Act, the lands were to stand released under Section 127 of the Act34. In the judgment in Chhabildas (supra), this Court referred to the aforesaid judgment and holds that the said judgment lays down that since more than 20 years have elapsed since the date of purchase notice under Section 49 of the Act, on the facts of that case, the lands will have to be released from acquisition. Thereafter, this Court proceeds to notice that in the said case [Hasmukhrai V. Mehta (supra)], no purchase notice under Section 127 of the Act was issued after ten years had elapsed. Thereafter, this Court proceeded to hold that this being the case the judgment was understood as one which was passed under Article 142 of the Constitution of India in view of the inordinate delay of over twenty years. Thereafter, Court took note of the facts of the case before it and found that fifteen years had passed since the publication of the Development Plan and over ten years passed since date of purchase notice under Section 49 of the Act. The Court proceeded to invoke Article 142 of the Constitution of India and found that the reservation and the acquisition proposals stood lapsed. However, it was made clear that in future cases that may arise under Section 49 of the Act, the procedure under Section 127 of the Act must be followed which means that after ten years had lapsed, a second purchase notice had to be served under Section 127 of the Act in order that lapsing could take place under the said Section35. Now, it is time to consider the impact of the letters dated 6/7.04.2005 issued by the Municipal Council. Therein, it is stated by the Chief Executive Officer that in the Resolution dated 15.02.2005, the land reserved no. 137 for shopping complex in Khasra Nos. 406, 407, 410 and 411, total land measuring 4928 square meters in village Gondia shall not be purchased. Resolution dated 15.02.2005 also appears to suggest that the reservation under Section 127 of the Act is released. The appellants would appear to contend that this should by itself cannot decide the matter. As to whether there is a lapsing of reservation under Section 127 of the Act, would be a matter to be decided in terms of the said Statute. Also, after the Resolution in the revised Plan, the reservation is reiterated. On 24.08.1984, the final Development Plan is published. On 03.09.1992, the declaration under Section 126(4) of the Act was published. After expiry of ten years from 24.08.1984, notice was given by the previous owners on 09.06.2004. Thereafter, draft revised draft Plan publication was made on 29.11.2007. Still, thereafter, on 15.05.2012, a final revised Development Plan was published. Although, under the original final Development Plan dated 24.08.1984, the property of the appellants was reserved for shopping complex, and under the revised final Development Plan dated 15.05.2012, the appellants lands have been subjected to the reservation that it is meant for use as shopping complex and vegetable market, apart from issuing the declaration, under Section 126(4) of the Act in the year 1992, there is no declaration issued under the revised Plan dated 15.05.2015. While, it is true that the original final Development Plan came into force on 24.08.1984 and the revised Development Plan came into force in the year 2012, one crucial fact cannot be overlooked. Admittedly, the appellants purchased lands from the erstwhile owners only on 02.01.2006. Therefore, on the facts, particularly, having regard to the fact that they have purchased the property apparently knowing that the property was subjected to reservation, and as also we have found that their case, based on the notice of previous owners, would not hold good in law and as the subsequent revision of the Plan has come into force with effect from 15.05.2012, we do not find that this is a case where we should exercise our powers under Article 142 of the Constitution. Appellants cannot be compared with the appellant in Hasmukhrai V. Mehta (supra) as the appellant therein was a person who was favoured with a permission to develop his land on the basis that the land was meant for residential purpose and it was he who went to court and the lapse of twenty years was in the context found to have a deep impact. | 0 | 8,902 | 2,413 | ### Instruction:
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the Act. Therefore, if the property of the appellants is to be acquired, the appellants would have to be given the value of the property as on the date on which any such declaration is made under Section 126(4) of the Act within ten years from 15.05.2012. 33. In Hasmukhrai V. Mehta (supra), the case was decided under the Act. In the impugned order, the High Court had dismissed the Writ Petition of the appellant, inter alia, finding that such Plan was finalized in March, 2003 and the period of ten years had not elapsed and no benefit could be given. The Court took note of the fact that in T. Vijayalakshmi and others v. Town Planning Member and another (2006) 8 SCC 502 , this Court had declared that the right of a person to construct residential houses in a residential area is a valuable right and also considered that the appellant had been granted permission and commencement certificate on 03.04.1990 under the Development Plan under which the property of the appellant was included under the residential zone and the Plan was also sanctioned. It is thereafter, on 14.01.1999, the appellants were informed about the fresh development scheme including the appellants land as reserved for agricultural produce market yard. In these circumstances, inter alia, the Court, taking note of the fact that since no steps appear to have been taken till date for the last more than 20 years, either for acquiring land or purchasing land under the Act, the lands were to stand released under Section 127 of the Act. 34. In the judgment in Chhabildas (supra), this Court referred to the aforesaid judgment and holds that the said judgment lays down that since more than 20 years have elapsed since the date of purchase notice under Section 49 of the Act, on the facts of that case, the lands will have to be released from acquisition. Thereafter, this Court proceeds to notice that in the said case [Hasmukhrai V. Mehta (supra)], no purchase notice under Section 127 of the Act was issued after ten years had elapsed. Thereafter, this Court proceeded to hold that this being the case the judgment was understood as one which was passed under Article 142 of the Constitution of India in view of the inordinate delay of over twenty years. Thereafter, Court took note of the facts of the case before it and found that fifteen years had passed since the publication of the Development Plan and over ten years passed since date of purchase notice under Section 49 of the Act. The Court proceeded to invoke Article 142 of the Constitution of India and found that the reservation and the acquisition proposals stood lapsed. However, it was made clear that in future cases that may arise under Section 49 of the Act, the procedure under Section 127 of the Act must be followed which means that after ten years had lapsed, a second purchase notice had to be served under Section 127 of the Act in order that lapsing could take place under the said Section. 35. Now, it is time to consider the impact of the letters dated 6/7.04.2005 issued by the Municipal Council. Therein, it is stated by the Chief Executive Officer that in the Resolution dated 15.02.2005, the land reserved no. 137 for shopping complex in Khasra Nos. 406, 407, 410 and 411, total land measuring 4928 square meters in village Gondia shall not be purchased. Resolution dated 15.02.2005 also appears to suggest that the reservation under Section 127 of the Act is released. The appellants would appear to contend that this should by itself cannot decide the matter. As to whether there is a lapsing of reservation under Section 127 of the Act, would be a matter to be decided in terms of the said Statute. Also, after the Resolution in the revised Plan, the reservation is reiterated. 36. The only question is whether it is to be ignored in deciding whether we should invoke Article 142 of the Constitution of India. On 24.08.1984, the final Development Plan is published. On 03.09.1992, the declaration under Section 126(4) of the Act was published. After expiry of ten years from 24.08.1984, notice was given by the previous owners on 09.06.2004. Thereafter, draft revised draft Plan publication was made on 29.11.2007. Still, thereafter, on 15.05.2012, a final revised Development Plan was published. Although, under the original final Development Plan dated 24.08.1984, the property of the appellants was reserved for shopping complex, and under the revised final Development Plan dated 15.05.2012, the appellants lands have been subjected to the reservation that it is meant for use as shopping complex and vegetable market, apart from issuing the declaration, under Section 126(4) of the Act in the year 1992, there is no declaration issued under the revised Plan dated 15.05.2015. While, it is true that the original final Development Plan came into force on 24.08.1984 and the revised Development Plan came into force in the year 2012, one crucial fact cannot be overlooked. Admittedly, the appellants purchased lands from the erstwhile owners only on 02.01.2006. Therefore, on the facts, particularly, having regard to the fact that they have purchased the property apparently knowing that the property was subjected to reservation, and as also we have found that their case, based on the notice of previous owners, would not hold good in law and as the subsequent revision of the Plan has come into force with effect from 15.05.2012, we do not find that this is a case where we should exercise our powers under Article 142 of the Constitution. Appellants cannot be compared with the appellant in Hasmukhrai V. Mehta (supra) as the appellant therein was a person who was favoured with a permission to develop his land on the basis that the land was meant for residential purpose and it was he who went to court and the lapse of twenty years was in the context found to have a deep impact.
### Response:
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### Explanation:
In such an eventuality, the value of the properties would have to be determined with reference to the date of such declaration under Section 126(4) of the Act. Therefore, if the property of the appellants is to be acquired, the appellants would have to be given the value of the property as on the date on which any such declaration is made under Section 126(4) of the Act within ten years from 15.05.201233. In Hasmukhrai V. Mehta (supra), the case was decided under the Act. In the impugned order, the High Court had dismissed the Writ Petition of the appellant, inter alia, finding that such Plan was finalized in March, 2003 and the period of ten years had not elapsed and no benefit could be given. The Court took note of the fact that in T. Vijayalakshmi and others v. Town Planning Member and another (2006) 8 SCC 502 , this Court had declared that the right of a person to construct residential houses in a residential area is a valuable right and also considered that the appellant had been granted permission and commencement certificate on 03.04.1990 under the Development Plan under which the property of the appellant was included under the residential zone and the Plan was also sanctioned. It is thereafter, on 14.01.1999, the appellants were informed about the fresh development scheme including the appellants land as reserved for agricultural produce market yard. In these circumstances, inter alia, the Court, taking note of the fact that since no steps appear to have been taken till date for the last more than 20 years, either for acquiring land or purchasing land under the Act, the lands were to stand released under Section 127 of the Act34. In the judgment in Chhabildas (supra), this Court referred to the aforesaid judgment and holds that the said judgment lays down that since more than 20 years have elapsed since the date of purchase notice under Section 49 of the Act, on the facts of that case, the lands will have to be released from acquisition. Thereafter, this Court proceeds to notice that in the said case [Hasmukhrai V. Mehta (supra)], no purchase notice under Section 127 of the Act was issued after ten years had elapsed. Thereafter, this Court proceeded to hold that this being the case the judgment was understood as one which was passed under Article 142 of the Constitution of India in view of the inordinate delay of over twenty years. Thereafter, Court took note of the facts of the case before it and found that fifteen years had passed since the publication of the Development Plan and over ten years passed since date of purchase notice under Section 49 of the Act. The Court proceeded to invoke Article 142 of the Constitution of India and found that the reservation and the acquisition proposals stood lapsed. However, it was made clear that in future cases that may arise under Section 49 of the Act, the procedure under Section 127 of the Act must be followed which means that after ten years had lapsed, a second purchase notice had to be served under Section 127 of the Act in order that lapsing could take place under the said Section35. Now, it is time to consider the impact of the letters dated 6/7.04.2005 issued by the Municipal Council. Therein, it is stated by the Chief Executive Officer that in the Resolution dated 15.02.2005, the land reserved no. 137 for shopping complex in Khasra Nos. 406, 407, 410 and 411, total land measuring 4928 square meters in village Gondia shall not be purchased. Resolution dated 15.02.2005 also appears to suggest that the reservation under Section 127 of the Act is released. The appellants would appear to contend that this should by itself cannot decide the matter. As to whether there is a lapsing of reservation under Section 127 of the Act, would be a matter to be decided in terms of the said Statute. Also, after the Resolution in the revised Plan, the reservation is reiterated. On 24.08.1984, the final Development Plan is published. On 03.09.1992, the declaration under Section 126(4) of the Act was published. After expiry of ten years from 24.08.1984, notice was given by the previous owners on 09.06.2004. Thereafter, draft revised draft Plan publication was made on 29.11.2007. Still, thereafter, on 15.05.2012, a final revised Development Plan was published. Although, under the original final Development Plan dated 24.08.1984, the property of the appellants was reserved for shopping complex, and under the revised final Development Plan dated 15.05.2012, the appellants lands have been subjected to the reservation that it is meant for use as shopping complex and vegetable market, apart from issuing the declaration, under Section 126(4) of the Act in the year 1992, there is no declaration issued under the revised Plan dated 15.05.2015. While, it is true that the original final Development Plan came into force on 24.08.1984 and the revised Development Plan came into force in the year 2012, one crucial fact cannot be overlooked. Admittedly, the appellants purchased lands from the erstwhile owners only on 02.01.2006. Therefore, on the facts, particularly, having regard to the fact that they have purchased the property apparently knowing that the property was subjected to reservation, and as also we have found that their case, based on the notice of previous owners, would not hold good in law and as the subsequent revision of the Plan has come into force with effect from 15.05.2012, we do not find that this is a case where we should exercise our powers under Article 142 of the Constitution. Appellants cannot be compared with the appellant in Hasmukhrai V. Mehta (supra) as the appellant therein was a person who was favoured with a permission to develop his land on the basis that the land was meant for residential purpose and it was he who went to court and the lapse of twenty years was in the context found to have a deep impact.
|
Ashok Ambo Sangade & Others Vs. The State of Maharashtra | of the body of Madan, with corresponding internal injuries, proving successfully the case, as laid by the Prosecution.55. The last, but not the least, submission made by the learned Counsel for the Appellants is that no specific overt act is attributed to some of the Accused. Secondly, it is submitted that Accused No.7 Padu is acquitted, however, Accused No.9 Narayan, against whom the case stands on the same evidence, is held guilty and, therefore, he also deserves the same benefit of doubt.56. As regards the first contention that specific overt act is not attributed to each of the Accused, it is not necessary also. The law is very well crystallized on this aspect in the case of MasaltiVs. State of Uttar Pradesh, AIR 1965 SC 262, which has distinguished the observations made in BaladinVs. State of Uttar Pradesh, AIR 1956 SC 181 , and held that it would not be correct to say that before a person is held to be a member of an unlawful assembly, it must be shown that he had committed some illegal overt act or had been guilty of some illegal omission in pursuance of the common object of the assembly. In fact, Section 149 makes it clear that if an offence is committed by any member of an unlawful assembly in prosecution of the common object and that assembly, or such as the members of that assembly knew to be likely to be committed in prosecution of that object, every person who at the relevant time of committing of that offence, is a member of the same assembly is guilty of that offence, and that emphatically brings out the principle that the punishment prescribed by Section 149 is in a sense vicarious and does not always proceed on the basis that the offence has been actually committed by every member of the unlawful assembly.57. Hence, what is necessary to be proved for fastening vicarious liability on the member of the unlawful assembly is his presence at the time of incident and sharing of common object. The evidence relating to sharing of common object of an unlawful assembly can be gathered from the nature of the assembly, the weapons used by the members and the behaviour of the assembly at or before the scene of occurrence. It is an accepted principle that number and nature of injuries is a relevant fact to deduce that the common object developed at the time of incident.58. In the instant case, the presence of the present Accused is sufficiently proved on record by evidence of two eye witnesses and the common object of the assembly can be easily made out from the conduct of the Accused before, after and at the time of incident. The evidence on record proves that all of them belong to one party, they had appeared together at the spot, armed with weapons, they together chased the witnesses and deceased and the moment they succeeded in catching hold of Madan, they had started assaulting him with weapons in their hands. The fact that they had come there armed with weapons is sufficient to spell out the common object on their part. In such situation, it was not necessary for the Prosecution Witnesses to ascribe specific role to each of the Accused. The number and nature of injuries sustained by the deceased in the present case is also sufficient to deduce the common object with which the Accused had come there.59. Moreover, when 15 to 18 persons are simultaneously assaulting one person while the eye witnesses were engaged in the attempt to conceal and save themselves, it may not be possible for the eye witnesses to ascribe specific role to each of the Accused. Even then, in the present case, we find convincing evidence on record on that score. There is consistent evidence of PW-1 Namdeo and PW-4 Eknath to the effect that Accused No.4 Shivram, Accused No.12 Ram and Accused No.17 Gurunath were assaulting Madan with swords in their hands; Accused No.11 Rohidas and Accused No.18 Vasudeo were assaulting him with guptis, whereas Accused No.16 Ashok and Accused No.14 Janardan were assaulting with knives. Therefore, it is not the case where general and specious allegations of assault are made against the Accused. Witnesses have remained truthful to whatever they have actually seen and accordingly deposed, without making any attempt of ascribing the overt act to each of the Accused. The Trial Court has, in detailed, considered this evidence and after satisfying itself, held the guilt of those Accused only to be proved, whose presence and overt act is proved through the evidence of at-least two witnesses, whereas given benefit of doubt to the remaining Accused.60. As regards submission that Accused No.7 Padu is acquitted, whereas, on the same evidence, Accused No.9 Narayan is convicted, though there was no recovery of weapon from any of these two Accused, needless to say, that recovery of weapons is not an essential criteria to prove the guilt, once the evidence of the eye witnesses is believed. The presence of PW-9 Narayan is spoken of not only by PW-1 Namdeo and PW-4 Eknath, like that of Accused No.7 Padu, but even by PW-3 Bhau, whose knowledge of the incident is derived from PW-4 Eknath. Secondly, once the presence of Accused No.9 Narayan is proved through the evidence of two eye witnesses, merely because on the same evidence, Accused No.7 Padu is acquitted, which acquittal may be unmerited also, the benefit of the same cannot be given to the Accused No.9 Narayan.61. To sum up, therefore, the Prosecution case stands on a very solid and strong footing, leaving no manner of doubt either about the happening of the incident or about the complicity of Appellants therein. The Trial Court has, therefore, rightly held the guilt of the Appellants to be proved beyond reasonable doubt for the offence punishable under Section 302 r/w. Sections 149 and 147 of the IPC.62. Consequently, no interference is warranted in the Judgment of the Trial Court. | 0[ds]16. In our considered opinion, before adverting to the rival submissions made by them, it would be useful to refer to the evidence on record and first of all to the evidence ofDr. Kendre, who has conducted the post mortem on the dead body of Madan. He has found as many as 13 incised wounds on the vital parts of the body of Madan, like head, neck, chest, back, hands, caused by sharp edged weapons. He has described in detail those injuries in Column No.17 of the Post Mortem Reportby drawing the diagram of the injuries. He has noticed corresponding internal injuries, which he has described in Column No.19 of the Post Mortem Report. According to him, all these injuries werein nature and sufficient in ordinary course of nature to cause death. He has opined that the cause of the death was shock secondary to rupture of brain due to sharp edged weapon. There is noof this witness either about the cause of death, the time of death or on any other aspect. Neither in the Trial Court nor in Appeal, the factum of the death of Madan having succumbed to homicidal injuries found on his person, caused by sharp edged weapon, is notare unable to accept this submission simply for the reason that there is no set rule of natural reaction. Everyone reacts in his own special way. Hence, to discard the evidence of an eye witness on the ground that he did not react in any particular manner, is to appreciate evidence in a wholly unrealistic and unimaginablein our considered opinion,by these witnesses in the course of occurrence, particularly when there were about 18 Accused armed with deadly weapon, cannot be a circumstance against their credibility, self survival being the most predominant human tendency.Therefore, the only ground, on which the evidence of these two eye witnesses challenged, that they are the chance witnesses or set up witnesses, has to be rejected out rightly. F.I.R. lodged immediately after the incident speaks loudly and gives full proof guarantee of their presence at the time of incident. Therefore, the defence that Madan was attacked by the members of rival Trade Union and Accused are falsely implicated due to enemity, also cannot be sustained. There was absolutely no scope or time or occasion for any of these two eye witnesses or the independent Police persons to make up such false case of implicating the Accused. Moreover, if there was such rivalry of Madan with the members of Trade Union and they had assaulted Madan, then there was no reason for these witnesses to exculpate the real culprits and to implicate the Accusedour considered opinion, even after the careful scrutiny andof their evidence, we do not find any reason to disbelieve them. Their entire conduct is quite natural. Their evidence is having a ring of truthfulness, their presence is mentioned in the FIR itself and they have withstood successfully the test ofHence, their evidence needs to be accepted and relied upon, as is rightly done by the Trial Court, which has the advantage of watching their conduct and demeanor while recording their evidence.Moreover, the Prosecution is not expected to examine multiple witnesses just for duplication or repetition. If the evidence of the witnesses examined by the Prosecution is found to be reliable, then the Prosecution case cannot be disbelieved merely because some more witnesses on the same points are not examined. As per theprinciple, evidence has to be weighed and not counted. It is the quality of the evidence and not the quantity of the witnesses, which is the deciding factor. Hence, at times, even the testimony of solitary witness is held to be sufficient to basehe is sufficiently discredited in hisby the learned A.P.P. and it is apparent that he is won over by the Accused. Therefore, his evidence cannot be relied upon to hold that there was no light of the sign board of the canteen.In our considered opinion, merely because the Panchas have not supported the Prosecution case, there is no reason to disbelieve the evidence of Investigating Officer, on the aspect of recovery of weapons of assault at the instance of these Accused. But, for the sake of arguments, as there is no evidence to show that these weapons were sealed with wax and were in the same condition, when they were examined by the C.A., even if the evidence relating to recovery of weapons at the instance of the Accused, is kept aside or ignored, even then it does not make any difference to the Prosecution case. Once the evidence of the eye witnesses is believed upon, as in the present case, the evidence relating to recovery of weapons of assault being merely of a corroborating nature, even if it is excluded from consideration, it does not affect the Prosecution case.54. The very edifice of Prosecution case is the testimony of eye witnesses, which is found in the present case to be full proof. Therefore, there is no need of any corroborating evidence. Even if it is required, it is coming from other sources like FIR, Spot Panchanama, the medical evidence proving the indiscriminate assault by sharp edged weapons made on the Madan, resulting into as many as 13 incised wounds on the vital parts of the body of Madan, with corresponding internal injuries, proving successfully the case, as laid by the Prosecution.55. The last, but not the least, submission made by the learned Counsel for the Appellants is that no specific overt act is attributed to some of the Accused. Secondly, it is submitted that Accused No.7 Padu is acquitted, however, Accused No.9 Narayan, against whom the case stands on the same evidence, is held guilty and, therefore, he also deserves the same benefit of doubt.In the instant case, the presence of the present Accused is sufficiently proved on record by evidence of two eye witnesses and the common object of the assembly can be easily made out from the conduct of the Accused before, after and at the time of incident. The evidence on record proves that all of them belong to one party, they had appeared together at the spot, armed with weapons, they together chased the witnesses and deceased and the moment they succeeded in catching hold of Madan, they had started assaulting him with weapons in their hands. The fact that they had come there armed with weapons is sufficient to spell out the common object on their part. In such situation, it was not necessary for the Prosecution Witnesses to ascribe specific role to each of the Accused. The number and nature of injuries sustained by the deceased in the present case is also sufficient to deduce the common object with which the Accused had come there.59. Moreover, when 15 to 18 persons are simultaneously assaulting one person while the eye witnesses were engaged in the attempt to conceal and save themselves, it may not be possible for the eye witnesses to ascribe specific role to each of the Accused. Even then, in the present case, we find convincing evidence on record on that score. There is consistent evidence ofEknath to the effect that Accused No.4 Shivram, Accused No.12 Ram and Accused No.17 Gurunath were assaulting Madan with swords in their hands; Accused No.11 Rohidas and Accused No.18 Vasudeo were assaulting him with guptis, whereas Accused No.16 Ashok and Accused No.14 Janardan were assaulting with knives. Therefore, it is not the case where general and specious allegations of assault are made against the Accused. Witnesses have remained truthful to whatever they have actually seen and accordingly deposed, without making any attempt of ascribing the overt act to each of the Accused. The Trial Court has, in detailed, considered this evidence and after satisfying itself, held the guilt of those Accused only to be proved, whose presence and overt act is proved through the evidence oftwo witnesses, whereas given benefit of doubt to the remaining Accused.60. As regards submission that Accused No.7 Padu is acquitted, whereas, on the same evidence, Accused No.9 Narayan is convicted, though there was no recovery of weapon from any of these two Accused, needless to say, that recovery of weapons is not an essential criteria to prove the guilt, once the evidence of the eye witnesses is believed. The presence ofNarayan is spoken of not only byEknath, like that of Accused No.7 Padu, but even byBhau, whose knowledge of the incident is derived fromEknath. Secondly, once the presence of Accused No.9 Narayan is proved through the evidence of two eye witnesses, merely because on the same evidence, Accused No.7 Padu is acquitted, which acquittal may be unmerited also, the benefit of the same cannot be given to the Accused No.9 Narayan.61. To sum up, therefore, the Prosecution case stands on a very solid and strong footing, leaving no manner of doubt either about the happening of the incident or about the complicity of Appellants therein. The Trial Court has, therefore, rightly held the guilt of the Appellants to be proved beyond reasonable doubt for the offence punishable under Section 302 r/w. Sections 149 and 147 of the IPC.62. Consequently, no interference is warranted in the Judgment of the Trial Court. | 0 | 9,144 | 1,706 | ### Instruction:
Judge the probable resolution of the case (approval (1) or disapproval (0)), and elaborate on this forecast by extracting and interpreting significant sentences from the proceeding.
### Input:
of the body of Madan, with corresponding internal injuries, proving successfully the case, as laid by the Prosecution.55. The last, but not the least, submission made by the learned Counsel for the Appellants is that no specific overt act is attributed to some of the Accused. Secondly, it is submitted that Accused No.7 Padu is acquitted, however, Accused No.9 Narayan, against whom the case stands on the same evidence, is held guilty and, therefore, he also deserves the same benefit of doubt.56. As regards the first contention that specific overt act is not attributed to each of the Accused, it is not necessary also. The law is very well crystallized on this aspect in the case of MasaltiVs. State of Uttar Pradesh, AIR 1965 SC 262, which has distinguished the observations made in BaladinVs. State of Uttar Pradesh, AIR 1956 SC 181 , and held that it would not be correct to say that before a person is held to be a member of an unlawful assembly, it must be shown that he had committed some illegal overt act or had been guilty of some illegal omission in pursuance of the common object of the assembly. In fact, Section 149 makes it clear that if an offence is committed by any member of an unlawful assembly in prosecution of the common object and that assembly, or such as the members of that assembly knew to be likely to be committed in prosecution of that object, every person who at the relevant time of committing of that offence, is a member of the same assembly is guilty of that offence, and that emphatically brings out the principle that the punishment prescribed by Section 149 is in a sense vicarious and does not always proceed on the basis that the offence has been actually committed by every member of the unlawful assembly.57. Hence, what is necessary to be proved for fastening vicarious liability on the member of the unlawful assembly is his presence at the time of incident and sharing of common object. The evidence relating to sharing of common object of an unlawful assembly can be gathered from the nature of the assembly, the weapons used by the members and the behaviour of the assembly at or before the scene of occurrence. It is an accepted principle that number and nature of injuries is a relevant fact to deduce that the common object developed at the time of incident.58. In the instant case, the presence of the present Accused is sufficiently proved on record by evidence of two eye witnesses and the common object of the assembly can be easily made out from the conduct of the Accused before, after and at the time of incident. The evidence on record proves that all of them belong to one party, they had appeared together at the spot, armed with weapons, they together chased the witnesses and deceased and the moment they succeeded in catching hold of Madan, they had started assaulting him with weapons in their hands. The fact that they had come there armed with weapons is sufficient to spell out the common object on their part. In such situation, it was not necessary for the Prosecution Witnesses to ascribe specific role to each of the Accused. The number and nature of injuries sustained by the deceased in the present case is also sufficient to deduce the common object with which the Accused had come there.59. Moreover, when 15 to 18 persons are simultaneously assaulting one person while the eye witnesses were engaged in the attempt to conceal and save themselves, it may not be possible for the eye witnesses to ascribe specific role to each of the Accused. Even then, in the present case, we find convincing evidence on record on that score. There is consistent evidence of PW-1 Namdeo and PW-4 Eknath to the effect that Accused No.4 Shivram, Accused No.12 Ram and Accused No.17 Gurunath were assaulting Madan with swords in their hands; Accused No.11 Rohidas and Accused No.18 Vasudeo were assaulting him with guptis, whereas Accused No.16 Ashok and Accused No.14 Janardan were assaulting with knives. Therefore, it is not the case where general and specious allegations of assault are made against the Accused. Witnesses have remained truthful to whatever they have actually seen and accordingly deposed, without making any attempt of ascribing the overt act to each of the Accused. The Trial Court has, in detailed, considered this evidence and after satisfying itself, held the guilt of those Accused only to be proved, whose presence and overt act is proved through the evidence of at-least two witnesses, whereas given benefit of doubt to the remaining Accused.60. As regards submission that Accused No.7 Padu is acquitted, whereas, on the same evidence, Accused No.9 Narayan is convicted, though there was no recovery of weapon from any of these two Accused, needless to say, that recovery of weapons is not an essential criteria to prove the guilt, once the evidence of the eye witnesses is believed. The presence of PW-9 Narayan is spoken of not only by PW-1 Namdeo and PW-4 Eknath, like that of Accused No.7 Padu, but even by PW-3 Bhau, whose knowledge of the incident is derived from PW-4 Eknath. Secondly, once the presence of Accused No.9 Narayan is proved through the evidence of two eye witnesses, merely because on the same evidence, Accused No.7 Padu is acquitted, which acquittal may be unmerited also, the benefit of the same cannot be given to the Accused No.9 Narayan.61. To sum up, therefore, the Prosecution case stands on a very solid and strong footing, leaving no manner of doubt either about the happening of the incident or about the complicity of Appellants therein. The Trial Court has, therefore, rightly held the guilt of the Appellants to be proved beyond reasonable doubt for the offence punishable under Section 302 r/w. Sections 149 and 147 of the IPC.62. Consequently, no interference is warranted in the Judgment of the Trial Court.
### Response:
0
### Explanation:
or repetition. If the evidence of the witnesses examined by the Prosecution is found to be reliable, then the Prosecution case cannot be disbelieved merely because some more witnesses on the same points are not examined. As per theprinciple, evidence has to be weighed and not counted. It is the quality of the evidence and not the quantity of the witnesses, which is the deciding factor. Hence, at times, even the testimony of solitary witness is held to be sufficient to basehe is sufficiently discredited in hisby the learned A.P.P. and it is apparent that he is won over by the Accused. Therefore, his evidence cannot be relied upon to hold that there was no light of the sign board of the canteen.In our considered opinion, merely because the Panchas have not supported the Prosecution case, there is no reason to disbelieve the evidence of Investigating Officer, on the aspect of recovery of weapons of assault at the instance of these Accused. But, for the sake of arguments, as there is no evidence to show that these weapons were sealed with wax and were in the same condition, when they were examined by the C.A., even if the evidence relating to recovery of weapons at the instance of the Accused, is kept aside or ignored, even then it does not make any difference to the Prosecution case. Once the evidence of the eye witnesses is believed upon, as in the present case, the evidence relating to recovery of weapons of assault being merely of a corroborating nature, even if it is excluded from consideration, it does not affect the Prosecution case.54. The very edifice of Prosecution case is the testimony of eye witnesses, which is found in the present case to be full proof. Therefore, there is no need of any corroborating evidence. Even if it is required, it is coming from other sources like FIR, Spot Panchanama, the medical evidence proving the indiscriminate assault by sharp edged weapons made on the Madan, resulting into as many as 13 incised wounds on the vital parts of the body of Madan, with corresponding internal injuries, proving successfully the case, as laid by the Prosecution.55. The last, but not the least, submission made by the learned Counsel for the Appellants is that no specific overt act is attributed to some of the Accused. Secondly, it is submitted that Accused No.7 Padu is acquitted, however, Accused No.9 Narayan, against whom the case stands on the same evidence, is held guilty and, therefore, he also deserves the same benefit of doubt.In the instant case, the presence of the present Accused is sufficiently proved on record by evidence of two eye witnesses and the common object of the assembly can be easily made out from the conduct of the Accused before, after and at the time of incident. The evidence on record proves that all of them belong to one party, they had appeared together at the spot, armed with weapons, they together chased the witnesses and deceased and the moment they succeeded in catching hold of Madan, they had started assaulting him with weapons in their hands. The fact that they had come there armed with weapons is sufficient to spell out the common object on their part. In such situation, it was not necessary for the Prosecution Witnesses to ascribe specific role to each of the Accused. The number and nature of injuries sustained by the deceased in the present case is also sufficient to deduce the common object with which the Accused had come there.59. Moreover, when 15 to 18 persons are simultaneously assaulting one person while the eye witnesses were engaged in the attempt to conceal and save themselves, it may not be possible for the eye witnesses to ascribe specific role to each of the Accused. Even then, in the present case, we find convincing evidence on record on that score. There is consistent evidence ofEknath to the effect that Accused No.4 Shivram, Accused No.12 Ram and Accused No.17 Gurunath were assaulting Madan with swords in their hands; Accused No.11 Rohidas and Accused No.18 Vasudeo were assaulting him with guptis, whereas Accused No.16 Ashok and Accused No.14 Janardan were assaulting with knives. Therefore, it is not the case where general and specious allegations of assault are made against the Accused. Witnesses have remained truthful to whatever they have actually seen and accordingly deposed, without making any attempt of ascribing the overt act to each of the Accused. The Trial Court has, in detailed, considered this evidence and after satisfying itself, held the guilt of those Accused only to be proved, whose presence and overt act is proved through the evidence oftwo witnesses, whereas given benefit of doubt to the remaining Accused.60. As regards submission that Accused No.7 Padu is acquitted, whereas, on the same evidence, Accused No.9 Narayan is convicted, though there was no recovery of weapon from any of these two Accused, needless to say, that recovery of weapons is not an essential criteria to prove the guilt, once the evidence of the eye witnesses is believed. The presence ofNarayan is spoken of not only byEknath, like that of Accused No.7 Padu, but even byBhau, whose knowledge of the incident is derived fromEknath. Secondly, once the presence of Accused No.9 Narayan is proved through the evidence of two eye witnesses, merely because on the same evidence, Accused No.7 Padu is acquitted, which acquittal may be unmerited also, the benefit of the same cannot be given to the Accused No.9 Narayan.61. To sum up, therefore, the Prosecution case stands on a very solid and strong footing, leaving no manner of doubt either about the happening of the incident or about the complicity of Appellants therein. The Trial Court has, therefore, rightly held the guilt of the Appellants to be proved beyond reasonable doubt for the offence punishable under Section 302 r/w. Sections 149 and 147 of the IPC.62. Consequently, no interference is warranted in the Judgment of the Trial Court.
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N.R. Srinivasa Iyer Vs. New India Assurance Co., Ltd | the plaintiffs to the same extent as the bailee. The Privy Council, affirming the decision in Morriss case [1965] 2 All ER 725 (CA), held that the bailment to the shipowners continued till the goods were delivered to the plaintiff, but in the meantime there was a sub-bailment from the shipowners to the defendants. The defendants as sub-bailee were given and took possession of the goods for the purpose of looking after them and delivering them to the holders of the bill of lading who were the plaintiffs, thereby the defendants took on this obligation from the plaintiff to exercise due care for the safety of the goods, although there was no contractual relations between the plaintiffs and the defendants. For this proposition Morriss case [1965] 2 All ER 725 (CA) was held to be the principal authority and it was virtually followed.It is not necessary to multiply the decisions further.13. Turning to the facts of this case, as pointed out earlier, the contract of insurance as evidenced by the insurance policy clearly spelt-out a duty and an obligation to remove the damaged car covered by the policy to the nearest repairer as soon as the accident occurred. This was an obligation cast on the insured to be carried out on behalf of the insurer, and this was to be done for the benefit of the insurer because the insurer had the option to repair or to replace the car. In the background of these facts, the handing over of the car by son of the plaintiff to the repairer would constitute a delivery on behalf of the insurer who would be the bailee and the repairer would be the sub-bailee. This inference is further strengthened by the correspondence that ensued between the insurer and the repairer. The obligation to get the car repaired was of the insurer. It had a right to take the car into its custody. It did formally take the car into the custody when it accepted the repairer to whom the custody was given as the one acceptable to them and entered into negotiations about the repair charges and finally agreed to pay the repair charges to the repairer. Unquestionably, the insurer would be the bailee and the repairer would be the sub-bailee.14. The second point which this court directed the High Court to decide was whether the respondent-company failed to take as much care of the motor car as a person of ordinary prudence would in similar circumstances take of his own motor car of the same quality and value ? When the car was in the custody of the sub-bailee, it was destroyed by fire that occurred in the repairers workshop. The sub-bailee was bound to take the same care as a man of ordinary prudence would take in regard to his own goods of the same quality and value as was expected of the bailee. Now, no evidence has been led by the defendants to explain what amount of care the bailee or the sub-bailee took in respect of the car. When the custody is of the bailee or the sub-bailee, the burden is on them to show how they handled the car. This is well established and needs no authority. In Morriss case [1965] 2 All ER 725 (CA), the question of burden of proof was examined by the Court of Appeal and the law was stated as under :" Once a man has taken charge of goods as a bailee for reward, it is his duty to take reasonable care to keep them safe : and he cannot escape that duty by delegating it to his servant. If the goods are lost or damaged, whilst they are in his possession, he is liable unless he can show--and the burden is on him to show--that the loss or damage occurred without any neglect or default or misconduct of himself or of any of the servants to whom he delegated his duty. "15. In the present case, the trial court held that the repairer, the sub-bailee, failed to take that much care as a prudent man would take of his own thing in respect of the car. The High Court has not touched this aspect while reversing the decision of the trial court. There is no evidence on behalf of the insurer on the question as to what amount of care has been taken by the repairer, the sub-bailee. One R. Rajaram, D.W. 1, was examined on behalf of the insurer, and there is not one word in his examination-in-chief as to what degree of care was taken to keep the car in safe custody by the sub-bailee. No one was examined on behalf of the sub-bailee. The burden was on them to establish to the satisfaction of the court as to what degree of care was taken in respect of the damaged car. Plaintiff has led some evidence in this behalf as to the careless manner in which the car was kept in the workshop where inflammable material was kept. Without doubt the burden being on the bailee and the sub-bailee and the same having not been discharged, the learned trial judge was perfectly justified in accepting the evidence of the plaintiff and in recording the finding that the bailee and the sub-bailee had not taken such care of the car as was expected of a prudent man in respect of his own goods of the same quality and value. Therefore, the bailee is liable for the loss suffered by the plaintiff, the bailor.The last point which this court directed the High Court to determine was about the value of the destroyed car. The plaintiff has given the value of the motor car at the time of its loss at Rs. 7, 000, and that is the measure of the loss suffered by the plaintiff on account of the loss of the car. The trial court had decreed plaintiffs suit to the extent of Rs. 7, 000. The finding is confirmed.Fo | 1[ds]The High Court did not make any reference to the terms of the contract of insurance between the parties before rejecting the plaintiffs case that the insurer was the bailee and the repairer was the sub-bailee who had custody of the car on the entrustment of the custody for the avowed object of repair by the bailee to the sub-bailee. For us, it is a bit surprising that the High Court should have rejected the plaintiffs case out of hand without the slightest reference to the contract of insurance evidenced by the policy, Ex. P-1. A bare persual of some of its conditions would unmistakably lead to the conclusion that the insurer was a bailee of the motor car inthe present case, the trial court held that the repairer, the sub-bailee, failed to take that much care as a prudent man would take of his own thing in respect of the car. The High Court has not touched this aspect while reversing the decision of the trial court. There is no evidence on behalf of the insurer on the question as to what amount of care has been taken by the repairer, the sub-bailee. One R. Rajaram, D.W. 1, was examined on behalf of the insurer, and there is not one word in his examination-in-chief as to what degree of care was taken to keep the car in safe custody by the sub-bailee. No one was examined on behalf of the sub-bailee. The burden was on them to establish to the satisfaction of the court as to what degree of care was taken in respect of the damaged car. Plaintiff has led some evidence in this behalf as to the careless manner in which the car was kept in the workshop where inflammable material was kept. Without doubt the burden being on the bailee and the sub-bailee and the same having not been discharged, the learned trial judge was perfectly justified in accepting the evidence of the plaintiff and in recording the finding that the bailee and the sub-bailee had not taken such care of the car as was expected of a prudent man in respect of his own goods of the same quality and value. Therefore, the bailee is liable for the loss suffered by the plaintiff, the bailor.The last point which this court directed the High Court to determine was about the value of the destroyed car. The plaintiff has given the value of the motor car at the time of its loss at Rs. 7, 000, and that is the measure of the loss suffered by the plaintiff on account of the loss of the car. The trial court had decreed plaintiffs suit to the extent of Rs. 7, 000. The finding is confirmed. | 1 | 5,058 | 493 | ### Instruction:
Predict whether the case will result in an affirmative (1) or negative (0) decision for the appeal, and then provide a thorough explanation using key sentences to support your prediction.
### Input:
the plaintiffs to the same extent as the bailee. The Privy Council, affirming the decision in Morriss case [1965] 2 All ER 725 (CA), held that the bailment to the shipowners continued till the goods were delivered to the plaintiff, but in the meantime there was a sub-bailment from the shipowners to the defendants. The defendants as sub-bailee were given and took possession of the goods for the purpose of looking after them and delivering them to the holders of the bill of lading who were the plaintiffs, thereby the defendants took on this obligation from the plaintiff to exercise due care for the safety of the goods, although there was no contractual relations between the plaintiffs and the defendants. For this proposition Morriss case [1965] 2 All ER 725 (CA) was held to be the principal authority and it was virtually followed.It is not necessary to multiply the decisions further.13. Turning to the facts of this case, as pointed out earlier, the contract of insurance as evidenced by the insurance policy clearly spelt-out a duty and an obligation to remove the damaged car covered by the policy to the nearest repairer as soon as the accident occurred. This was an obligation cast on the insured to be carried out on behalf of the insurer, and this was to be done for the benefit of the insurer because the insurer had the option to repair or to replace the car. In the background of these facts, the handing over of the car by son of the plaintiff to the repairer would constitute a delivery on behalf of the insurer who would be the bailee and the repairer would be the sub-bailee. This inference is further strengthened by the correspondence that ensued between the insurer and the repairer. The obligation to get the car repaired was of the insurer. It had a right to take the car into its custody. It did formally take the car into the custody when it accepted the repairer to whom the custody was given as the one acceptable to them and entered into negotiations about the repair charges and finally agreed to pay the repair charges to the repairer. Unquestionably, the insurer would be the bailee and the repairer would be the sub-bailee.14. The second point which this court directed the High Court to decide was whether the respondent-company failed to take as much care of the motor car as a person of ordinary prudence would in similar circumstances take of his own motor car of the same quality and value ? When the car was in the custody of the sub-bailee, it was destroyed by fire that occurred in the repairers workshop. The sub-bailee was bound to take the same care as a man of ordinary prudence would take in regard to his own goods of the same quality and value as was expected of the bailee. Now, no evidence has been led by the defendants to explain what amount of care the bailee or the sub-bailee took in respect of the car. When the custody is of the bailee or the sub-bailee, the burden is on them to show how they handled the car. This is well established and needs no authority. In Morriss case [1965] 2 All ER 725 (CA), the question of burden of proof was examined by the Court of Appeal and the law was stated as under :" Once a man has taken charge of goods as a bailee for reward, it is his duty to take reasonable care to keep them safe : and he cannot escape that duty by delegating it to his servant. If the goods are lost or damaged, whilst they are in his possession, he is liable unless he can show--and the burden is on him to show--that the loss or damage occurred without any neglect or default or misconduct of himself or of any of the servants to whom he delegated his duty. "15. In the present case, the trial court held that the repairer, the sub-bailee, failed to take that much care as a prudent man would take of his own thing in respect of the car. The High Court has not touched this aspect while reversing the decision of the trial court. There is no evidence on behalf of the insurer on the question as to what amount of care has been taken by the repairer, the sub-bailee. One R. Rajaram, D.W. 1, was examined on behalf of the insurer, and there is not one word in his examination-in-chief as to what degree of care was taken to keep the car in safe custody by the sub-bailee. No one was examined on behalf of the sub-bailee. The burden was on them to establish to the satisfaction of the court as to what degree of care was taken in respect of the damaged car. Plaintiff has led some evidence in this behalf as to the careless manner in which the car was kept in the workshop where inflammable material was kept. Without doubt the burden being on the bailee and the sub-bailee and the same having not been discharged, the learned trial judge was perfectly justified in accepting the evidence of the plaintiff and in recording the finding that the bailee and the sub-bailee had not taken such care of the car as was expected of a prudent man in respect of his own goods of the same quality and value. Therefore, the bailee is liable for the loss suffered by the plaintiff, the bailor.The last point which this court directed the High Court to determine was about the value of the destroyed car. The plaintiff has given the value of the motor car at the time of its loss at Rs. 7, 000, and that is the measure of the loss suffered by the plaintiff on account of the loss of the car. The trial court had decreed plaintiffs suit to the extent of Rs. 7, 000. The finding is confirmed.Fo
### Response:
1
### Explanation:
The High Court did not make any reference to the terms of the contract of insurance between the parties before rejecting the plaintiffs case that the insurer was the bailee and the repairer was the sub-bailee who had custody of the car on the entrustment of the custody for the avowed object of repair by the bailee to the sub-bailee. For us, it is a bit surprising that the High Court should have rejected the plaintiffs case out of hand without the slightest reference to the contract of insurance evidenced by the policy, Ex. P-1. A bare persual of some of its conditions would unmistakably lead to the conclusion that the insurer was a bailee of the motor car inthe present case, the trial court held that the repairer, the sub-bailee, failed to take that much care as a prudent man would take of his own thing in respect of the car. The High Court has not touched this aspect while reversing the decision of the trial court. There is no evidence on behalf of the insurer on the question as to what amount of care has been taken by the repairer, the sub-bailee. One R. Rajaram, D.W. 1, was examined on behalf of the insurer, and there is not one word in his examination-in-chief as to what degree of care was taken to keep the car in safe custody by the sub-bailee. No one was examined on behalf of the sub-bailee. The burden was on them to establish to the satisfaction of the court as to what degree of care was taken in respect of the damaged car. Plaintiff has led some evidence in this behalf as to the careless manner in which the car was kept in the workshop where inflammable material was kept. Without doubt the burden being on the bailee and the sub-bailee and the same having not been discharged, the learned trial judge was perfectly justified in accepting the evidence of the plaintiff and in recording the finding that the bailee and the sub-bailee had not taken such care of the car as was expected of a prudent man in respect of his own goods of the same quality and value. Therefore, the bailee is liable for the loss suffered by the plaintiff, the bailor.The last point which this court directed the High Court to determine was about the value of the destroyed car. The plaintiff has given the value of the motor car at the time of its loss at Rs. 7, 000, and that is the measure of the loss suffered by the plaintiff on account of the loss of the car. The trial court had decreed plaintiffs suit to the extent of Rs. 7, 000. The finding is confirmed.
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State Of Assam Vs. M/S. Abhinandan Trading (P) Ltd. | to his client. On the other hand, the refusal to grant the contract to his client was sought to be justified by the authorities by taking resort to the theory of viable price range, although the lower extreme of the purported price range was arbitrarily fixed at Rs.17.11 per LPL which was the price quoted by M/s. Rangpur Trading Co. (P) Ltd. Mr. Rao submitted that this very same question had been considered by this Court in the case of Dutta Associates (supra) and it had been observed that all those making offers were hard-headed businessmen who were quite alive to the economic viability of the offers made by them. Mr. Rao submitted that if his client was ready and willing to supply potable spirit at the rate of Rs.15.10 per LPL, which was lower than the rate offered by M/s.Rangpur Trading Company (P) Ltd., there could be no proper or logical explanation on the part of the Government of Assam to refuse to award the contract to his client.15. All the learned counsel appearing in this matter had occasion to refer to and rely upon the decision of this Court in Dutta Associates (supra). In the said case, the tender notice did not specify the "viability range" nor did it indicate that only the tenders coming within the viability range" would be considered. Such omission led this Court to observe that fairness demanded that the authority should have notified in the tender notice itself the procedure which they proposed to adopt while accepting the tender.16. The doubts expressed by this Court in the aforesaid decision were taken note of by the Government of Assam and it led to the inclusion of Clause 28 in the Notice Inviting Tender where the aforesaid omission was sought to be remedied. Clause 28 of the NIT which has been extracted hereinbefore, specifies that the contract would be given to the tenderer found suitable from the "viable range" which was to be determined on the basis of analysis of the cost price, export duty, transport cost etc. by the Commissioner of Excise, Assam. What had been left unspecified in the Notice Inviting Tender was, therefore, introduced subsequent to the decision in the case of Dutta Associates and the applicants for grant of the contract can have no further grievance on such score.17. However, apart from expressing doubts over the decision of the Government of Assam of taking recourse to the concept of "viability range", the discussion thereupon was not taken any further and the decision was rendered on a different set of facts, namely, that for granting the contract negotiations were entered into with one of the applicants only.18. It is no doubt true that there is scope of the concept of "viability range" being misused to favour a particular applicant, but there is no such allegation in the instant case, nor has any mala fides been attributed to the action taken by the authorities in awarding the contract to M/s. Rangpur Trading Company (P) Ltd. whose offer was much lower than the fixed rate. One of the arguments advanced was that the offer made by M/s. Abhinandan Trading (P) Ltd. was, in fact, closer to the fixed rate than that of M/s. Rangpur Trading Company (P) Ltd.19. Considering the submissions made and the ground realities regarding supply of potable spirit to Assam, we are inclined to accept Dr. Singhvis submission and to reject those made by Mr. Altaf Ahmed and Mr. M.N. Rao. Although, doubts were expressed by this Court in Dutta Associates (supra) regarding the concept of "viability range", its necessity or its real purpose, the decision of the Government of Assam to resort to such a procedure has to be left to the Government of Assam itself. Unless, it can be shown that the said procedure had been misused to favour any particular individual, which is not so in the instant case, it would not be proper for us to express any opinion as to the procedure the government should adopt except to say that whatever procedure is adopted should be open, fair and transparent.20. In the instant case, the methodology adopted for fixing the viable price range, as explained by Dr. Singhvi, indicates that even if the said method may not be the ideal method for granting of contracts, an average of different rates quoted against different heads by all the applicants are taken together and the ratio thereof is arrived at for fixing the viable range. It may be more prudent for the Government of Assam to adopt a different procedure in future, but as far as the present case is concerned, although the Commissioner of Excise had fixed the "viable rate" at Rs.18.23 per LPL, a "viable range" was computed between Rs. 17.11 per LPL and Rs. 18.95 per LPL. Considering the fact that the offer made by M/s. Abhinandan Trading (P) Ltd. (Rs.18.95 per LPL) was higher than the rate fixed by the Excise Commissioner, the Government in its wisdom thought it best to award the contract to M/s. Rangpur Trading Company (P) Ltd. whose offer of Rs.17.11 per LPL was lower than the fixed price.21. More than one and a half years have elapsed in respect of the period for which the contract had been awarded in favour of M/s. Rangpur Trading Company (P) Ltd. and as we have been informed, despite the orders passed by the learned single Judge and the Division Bench of the Gauhati High Court, they have still been supplying potable spirit to the Government of Assam on the basis of such agreement. In our view, it will not be in the interest either of the Government of Assam or the people of Assam to prevent M/s. Rangpur Trading Company (P) Ltd. from continuing such supply, especially when the correctness of the learned Single Judges order is capable of being disputed. The Division Bench merely gave a stamp of approval to the learned Single Judges judgment without examining the legal proposition involved. | 1[ds]15. All the learned counsel appearing in this matter had occasion to refer to and rely upon the decision of this Court in Dutta Associates (supra). In the said case, the tender notice did not specify the "viability range" nor did it indicate that only the tenders coming within the viability range" would be considered. Such omission led this Court to observe that fairness demanded that the authority should have notified in the tender notice itself the procedure which they proposed to adopt while accepting the tender.16. The doubts expressed by this Court in the aforesaid decision were taken note of by the Government of Assam and it led to the inclusion of Clause 28 in the Notice Inviting Tender where the aforesaid omission was sought to be remedied. Clause 28 of the NIT which has been extracted hereinbefore, specifies that the contract would be given to the tenderer found suitable from the "viable range" which was to be determined on the basis of analysis of the cost price, export duty, transport cost etc. by the Commissioner of Excise, Assam. What had been left unspecified in the Notice Inviting Tender was, therefore, introduced subsequent to the decision in the case of Dutta Associates and the applicants for grant of the contract can have no further grievance on such score.17. However, apart from expressing doubts over the decision of the Government of Assam of taking recourse to the concept of "viability range", the discussion thereupon was not taken any further and the decision was rendered on a different set of facts, namely, that for granting the contract negotiations were entered into with one of the applicants only.18. It is no doubt true that there is scope of the concept of "viability range" being misused to favour a particular applicant, but there is no such allegation in the instant case, nor has any mala fides been attributed to the action taken by the authorities in awarding the contract to M/s. Rangpur Trading Company (P) Ltd. whose offer was much lower than the fixed rate. One of the arguments advanced was that the offer made by M/s. Abhinandan Trading (P) Ltd. was, in fact, closer to the fixed rate than that of M/s. Rangpur Trading Company (P) Ltd.19. Considering the submissions made and the ground realities regarding supply of potable spirit to Assam, we are inclined to accept Dr. Singhvis submission and to reject those made by Mr. Altaf Ahmed and Mr. M.N. Rao. Although, doubts were expressed by this Court in Dutta Associates (supra) regarding the concept of "viability range", its necessity or its real purpose, the decision of the Government of Assam to resort to such a procedure has to be left to the Government of Assam itself. Unless, it can be shown that the said procedure had been misused to favour any particular individual, which is not so in the instant case, it would not be proper for us to express any opinion as to the procedure the government should adopt except to say that whatever procedure is adopted should be open, fair and transparent.20. In the instant case, the methodology adopted for fixing the viable price range, as explained by Dr. Singhvi, indicates that even if the said method may not be the ideal method for granting of contracts, an average of different rates quoted against different heads by all the applicants are taken together and the ratio thereof is arrived at for fixing the viable range. It may be more prudent for the Government of Assam to adopt a different procedure in future, but as far as the present case is concerned, although the Commissioner of Excise had fixed the "viable rate" at Rs.18.23 per LPL, a "viable range" was computed between Rs. 17.11 per LPL and Rs. 18.95 per LPL. Considering the fact that the offer made by M/s. Abhinandan Trading (P) Ltd. (Rs.18.95 per LPL) was higher than the rate fixed by the Excise Commissioner, the Government in its wisdom thought it best to award the contract to M/s. Rangpur Trading Company (P) Ltd. whose offer of Rs.17.11 per LPL was lower than the fixed price.21. More than one and a half years have elapsed in respect of the period for which the contract had been awarded in favour of M/s. Rangpur Trading Company (P) Ltd. and as we have been informed, despite the orders passed by the learned single Judge and the Division Bench of the Gauhati High Court, they have still been supplying potable spirit to the Government of Assam on the basis of such agreement. In our view, it will not be in the interest either of the Government of Assam or the people of Assam to prevent M/s. Rangpur Trading Company (P) Ltd. from continuing such supply, especially when the correctness of the learned Single Judges order is capable of being disputed. The Division Bench merely gave a stamp of approval to the learned Single Judges judgment without examining the legal proposition involved. | 1 | 4,105 | 935 | ### 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:
to his client. On the other hand, the refusal to grant the contract to his client was sought to be justified by the authorities by taking resort to the theory of viable price range, although the lower extreme of the purported price range was arbitrarily fixed at Rs.17.11 per LPL which was the price quoted by M/s. Rangpur Trading Co. (P) Ltd. Mr. Rao submitted that this very same question had been considered by this Court in the case of Dutta Associates (supra) and it had been observed that all those making offers were hard-headed businessmen who were quite alive to the economic viability of the offers made by them. Mr. Rao submitted that if his client was ready and willing to supply potable spirit at the rate of Rs.15.10 per LPL, which was lower than the rate offered by M/s.Rangpur Trading Company (P) Ltd., there could be no proper or logical explanation on the part of the Government of Assam to refuse to award the contract to his client.15. All the learned counsel appearing in this matter had occasion to refer to and rely upon the decision of this Court in Dutta Associates (supra). In the said case, the tender notice did not specify the "viability range" nor did it indicate that only the tenders coming within the viability range" would be considered. Such omission led this Court to observe that fairness demanded that the authority should have notified in the tender notice itself the procedure which they proposed to adopt while accepting the tender.16. The doubts expressed by this Court in the aforesaid decision were taken note of by the Government of Assam and it led to the inclusion of Clause 28 in the Notice Inviting Tender where the aforesaid omission was sought to be remedied. Clause 28 of the NIT which has been extracted hereinbefore, specifies that the contract would be given to the tenderer found suitable from the "viable range" which was to be determined on the basis of analysis of the cost price, export duty, transport cost etc. by the Commissioner of Excise, Assam. What had been left unspecified in the Notice Inviting Tender was, therefore, introduced subsequent to the decision in the case of Dutta Associates and the applicants for grant of the contract can have no further grievance on such score.17. However, apart from expressing doubts over the decision of the Government of Assam of taking recourse to the concept of "viability range", the discussion thereupon was not taken any further and the decision was rendered on a different set of facts, namely, that for granting the contract negotiations were entered into with one of the applicants only.18. It is no doubt true that there is scope of the concept of "viability range" being misused to favour a particular applicant, but there is no such allegation in the instant case, nor has any mala fides been attributed to the action taken by the authorities in awarding the contract to M/s. Rangpur Trading Company (P) Ltd. whose offer was much lower than the fixed rate. One of the arguments advanced was that the offer made by M/s. Abhinandan Trading (P) Ltd. was, in fact, closer to the fixed rate than that of M/s. Rangpur Trading Company (P) Ltd.19. Considering the submissions made and the ground realities regarding supply of potable spirit to Assam, we are inclined to accept Dr. Singhvis submission and to reject those made by Mr. Altaf Ahmed and Mr. M.N. Rao. Although, doubts were expressed by this Court in Dutta Associates (supra) regarding the concept of "viability range", its necessity or its real purpose, the decision of the Government of Assam to resort to such a procedure has to be left to the Government of Assam itself. Unless, it can be shown that the said procedure had been misused to favour any particular individual, which is not so in the instant case, it would not be proper for us to express any opinion as to the procedure the government should adopt except to say that whatever procedure is adopted should be open, fair and transparent.20. In the instant case, the methodology adopted for fixing the viable price range, as explained by Dr. Singhvi, indicates that even if the said method may not be the ideal method for granting of contracts, an average of different rates quoted against different heads by all the applicants are taken together and the ratio thereof is arrived at for fixing the viable range. It may be more prudent for the Government of Assam to adopt a different procedure in future, but as far as the present case is concerned, although the Commissioner of Excise had fixed the "viable rate" at Rs.18.23 per LPL, a "viable range" was computed between Rs. 17.11 per LPL and Rs. 18.95 per LPL. Considering the fact that the offer made by M/s. Abhinandan Trading (P) Ltd. (Rs.18.95 per LPL) was higher than the rate fixed by the Excise Commissioner, the Government in its wisdom thought it best to award the contract to M/s. Rangpur Trading Company (P) Ltd. whose offer of Rs.17.11 per LPL was lower than the fixed price.21. More than one and a half years have elapsed in respect of the period for which the contract had been awarded in favour of M/s. Rangpur Trading Company (P) Ltd. and as we have been informed, despite the orders passed by the learned single Judge and the Division Bench of the Gauhati High Court, they have still been supplying potable spirit to the Government of Assam on the basis of such agreement. In our view, it will not be in the interest either of the Government of Assam or the people of Assam to prevent M/s. Rangpur Trading Company (P) Ltd. from continuing such supply, especially when the correctness of the learned Single Judges order is capable of being disputed. The Division Bench merely gave a stamp of approval to the learned Single Judges judgment without examining the legal proposition involved.
### Response:
1
### Explanation:
15. All the learned counsel appearing in this matter had occasion to refer to and rely upon the decision of this Court in Dutta Associates (supra). In the said case, the tender notice did not specify the "viability range" nor did it indicate that only the tenders coming within the viability range" would be considered. Such omission led this Court to observe that fairness demanded that the authority should have notified in the tender notice itself the procedure which they proposed to adopt while accepting the tender.16. The doubts expressed by this Court in the aforesaid decision were taken note of by the Government of Assam and it led to the inclusion of Clause 28 in the Notice Inviting Tender where the aforesaid omission was sought to be remedied. Clause 28 of the NIT which has been extracted hereinbefore, specifies that the contract would be given to the tenderer found suitable from the "viable range" which was to be determined on the basis of analysis of the cost price, export duty, transport cost etc. by the Commissioner of Excise, Assam. What had been left unspecified in the Notice Inviting Tender was, therefore, introduced subsequent to the decision in the case of Dutta Associates and the applicants for grant of the contract can have no further grievance on such score.17. However, apart from expressing doubts over the decision of the Government of Assam of taking recourse to the concept of "viability range", the discussion thereupon was not taken any further and the decision was rendered on a different set of facts, namely, that for granting the contract negotiations were entered into with one of the applicants only.18. It is no doubt true that there is scope of the concept of "viability range" being misused to favour a particular applicant, but there is no such allegation in the instant case, nor has any mala fides been attributed to the action taken by the authorities in awarding the contract to M/s. Rangpur Trading Company (P) Ltd. whose offer was much lower than the fixed rate. One of the arguments advanced was that the offer made by M/s. Abhinandan Trading (P) Ltd. was, in fact, closer to the fixed rate than that of M/s. Rangpur Trading Company (P) Ltd.19. Considering the submissions made and the ground realities regarding supply of potable spirit to Assam, we are inclined to accept Dr. Singhvis submission and to reject those made by Mr. Altaf Ahmed and Mr. M.N. Rao. Although, doubts were expressed by this Court in Dutta Associates (supra) regarding the concept of "viability range", its necessity or its real purpose, the decision of the Government of Assam to resort to such a procedure has to be left to the Government of Assam itself. Unless, it can be shown that the said procedure had been misused to favour any particular individual, which is not so in the instant case, it would not be proper for us to express any opinion as to the procedure the government should adopt except to say that whatever procedure is adopted should be open, fair and transparent.20. In the instant case, the methodology adopted for fixing the viable price range, as explained by Dr. Singhvi, indicates that even if the said method may not be the ideal method for granting of contracts, an average of different rates quoted against different heads by all the applicants are taken together and the ratio thereof is arrived at for fixing the viable range. It may be more prudent for the Government of Assam to adopt a different procedure in future, but as far as the present case is concerned, although the Commissioner of Excise had fixed the "viable rate" at Rs.18.23 per LPL, a "viable range" was computed between Rs. 17.11 per LPL and Rs. 18.95 per LPL. Considering the fact that the offer made by M/s. Abhinandan Trading (P) Ltd. (Rs.18.95 per LPL) was higher than the rate fixed by the Excise Commissioner, the Government in its wisdom thought it best to award the contract to M/s. Rangpur Trading Company (P) Ltd. whose offer of Rs.17.11 per LPL was lower than the fixed price.21. More than one and a half years have elapsed in respect of the period for which the contract had been awarded in favour of M/s. Rangpur Trading Company (P) Ltd. and as we have been informed, despite the orders passed by the learned single Judge and the Division Bench of the Gauhati High Court, they have still been supplying potable spirit to the Government of Assam on the basis of such agreement. In our view, it will not be in the interest either of the Government of Assam or the people of Assam to prevent M/s. Rangpur Trading Company (P) Ltd. from continuing such supply, especially when the correctness of the learned Single Judges order is capable of being disputed. The Division Bench merely gave a stamp of approval to the learned Single Judges judgment without examining the legal proposition involved.
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Rajkumar S. Singh Vs. Assistant Commissioner of Income Tax Central Circle – 4(1) and others | November, 2016, there was a search action on Petitioner under Section 153A of the Act, in response to which Petitioner once again filed his return of income for the year under consideration, i.e., A.Y. 2013-2014 on 15th July, 2016. Following this, an assessment order dated 8th December, 2016 came to be passed, accepting Petitioners income as per the return of income filed. In the assessment order, it is also mentioned that there was a search action under Section 132, notices were issued under Sections 142(1) and 143(2) and Petitioner had also submitted all documents including copies of audit report, balance-sheet and profit and loss account. 2. Over four years later, Petitioner received a notice dated 28th March, 2021 under Section 148 of thealleging that there were reasons to believe that Petitioners income chargeable to tax for A.Y. 2013-14 has escaped assessment within the meaning of Section 147 of the Act. At Petitioners request, reasons recorded for re-opening was also provided vide communication dated 1st July, 2021. As per the reasons recorded, based on information received from DDIT (Inv), Mumbai, Petitioner had done transactions in the share of Finalysis which is a penny stock company traded in the Bombay Stock Exchange. The share price of Finalysis moved from a low of Rs.7/- per share in March 2012 to Rs.180/- in March 2013 and dipped to Rs.5/- in October 2013. Since the financials of Finalysis for that period did not support such a huge share price move, investigations have been carried out by SEBI on Finalysis. The reasons also mentioned that statements of directors of Finalysis have been recorded and they have admitted that the Company was a paper company. Investigation revealed that Petitioner had sold shares of Finalysis worth Rs.29,43,148/- during the relevant assessment year and therefore, assessment of the said transactions has escaped assessment. As per the reasons, admittedly Petitioner has disclosed during the assessment proceedings and it is seen that Petitioner has claimed long term capital gain at 10% of Rs.29,43,148/-. Thus, information received by the DDIT (Inv) has live link with the financials of Petitioner. We have to emphasize that in the reasons itself Respondents admit that Petitioner has disclosed during the assessment proceedings that Petitioner had traded in Finalysis. 3. This is a case where the proposed re-opening is after expiry of four years from the end of the relevant assessment year. Admittedly, assessment under Section 143(3) has been completed and an assessment order dated 8th December, 2016 has also been passed. In fact, the assessment order is under Section 153C r/w. 143(3) of . Therefore, the proviso to Section 147 of thewould apply which provides that re-opening of assessment after four years from the expiry of the end of the relevant assessment year is barred unless escapement of income has happened due to failure on the part of assessee to truly and fully disclose material fact for the relevant assessment year. The onus is on Respondents to show that there was such a failure on the part of Petitioner to truly and fully disclose. 4. It is also trite that if during the assessment proceedings a query is raised and the assessee has replied to it, it follows that the query raised was a subject of consideration of the Assessing Officer while completing the assessment and it is not necessary that the Assessment Order should contain reference and/or discussion to disclose its satisfaction in respect of the query raised. (Aroni Commercials Ltd. v. Deputy Commissioner of Income Tax 2(1) [2014] 44 taxmann.com 304 (Bombay))). 5. It is not clear when the investigation was commenced, though Mr. Thakkar states that investigation commenced on Finalysis much before the assessment order in Petitioners case was passed and the search action under Section 132(1) of theon Petitioner was also in furtherance to the investigation being carried out on Finalysis. The entire basis of Respondents case is that in 2020 Respondent No.1 got information that Finalysis was a paper company or a penny stock company based on certain investigations. Mr. Suresh Kumar submitted that it came to light during the investigation that Petitioner also had traded in the scrip of Finalysis during A.Y. 2013-2014 and therefore, Respondent was entitled to re-open. Mr. Suresh Kumar submitted that revenue has to go to the root of the matter and take action against those involved in this price rigging and assess people claiming non genuine transactions in its books. We have to note that there is no allegation at all in the reasons recorded for re-opening or in the Affidavit in Reply that investigations have revealed that Petitioner was the master mind or actively involved in rigging of share price of Finalysis in the stock market. Whether trading in Finalysis shares would result in escapement of income is a separate question which we are not dealing with in this matter because, that is not the subject of consideration. Even in the statement of Mr. Bipin Divecha on which reliance has been placed, it does not show anywhere Petitioner was involved. 6. Therefore, what we have to see in this case, since re-opening is proposed after the expiry of four years from the end of the relevant assessment year, whether there has been any failure on the part of Petitioner to disclose truly and fully material facts. As noted earlier the reasons recorded admit that Petitioner had disclosed that it had traded in the shares of Finalysis. To a query raised under Section 142(1), Petitioner has also admitted that it has traded in Finalysis and even provided documents thereto. The issue of capital gains from shares which included the shares of Finalysis was under active consideration before the Assessing Officer. That would also show there was no failure to disclose. Therefore, it cannot be stated that Respondents have crossed the threshold or the fetter provided for in the proviso to Section 147 of thethat re-opening after the expiry of four years is permissible only when there is failure to truly and fully disclosed material facts. | 1[ds]We have to emphasize that in the reasons itself Respondents admit that Petitioner has disclosed during the assessment proceedings that Petitioner had traded in Finalysis.3. This is a case where the proposed re-opening is after expiry of four years from the end of the relevant assessment year. Admittedly, assessment under Section 143(3) has been completed and an assessment order dated 8th December, 2016 has also been passed. In fact, the assessment order is under Section 153C r/w. 143(3) of . Therefore, the proviso to Section 147 ofthewould apply which provides that re-opening of assessment after four years from the expiry of the end of the relevant assessment year is barred unless escapement of income has happened due to failure on the part of assessee to truly and fully disclose material fact for the relevant assessment year. The onus is on Respondents to show that there was such a failure on the part of Petitioner to truly and fully disclose.4. It is also trite that if during the assessment proceedings a query is raised and the assessee has replied to it, it follows that the query raised was a subject of consideration of the Assessing Officer while completing the assessment and it is not necessary that the Assessment Order should contain reference and/or discussion to disclose its satisfaction in respect of the query raised. (Aroni Commercials Ltd. v. Deputy Commissioner of Income Tax 2(1) [2014] 44 taxmann.com 304 (Bombay))).5. It is not clear when the investigation was commenced, though Mr. Thakkar states that investigation commenced on Finalysis much before the assessment order in Petitioners case was passed and the search action under Section 132(1) oftheon Petitioner was also in furtherance to the investigation being carried out on Finalysis.We have to note that there is no allegation at all in the reasons recorded for re-opening or in the Affidavit in Reply that investigations have revealed that Petitioner was the master mind or actively involved in rigging of share price of Finalysis in the stock market. Whether trading in Finalysis shares would result in escapement of income is a separate question which we are not dealing with in this matter because, that is not the subject of consideration. Even in the statement of Mr. Bipin Divecha on which reliance has been placed, it does not show anywhere Petitioner was involved.6. Therefore, what we have to see in this case, since re-opening is proposed after the expiry of four years from the end of the relevant assessment year, whether there has been any failure on the part of Petitioner to disclose truly and fully material facts. As noted earlier the reasons recorded admit that Petitioner had disclosed that it had traded in the shares of Finalysis. To a query raised under Section 142(1), Petitioner has also admitted that it has traded in Finalysis and even provided documents thereto. The issue of capital gains from shares which included the shares of Finalysis was under active consideration before the Assessing Officer. That would also show there was no failure to disclose. Therefore, it cannot be stated that Respondents have crossed the threshold or the fetter provided for in the proviso to Section 147 ofthethat re-opening after the expiry of four years is permissible only when there is failure to truly and fully disclosed material facts. | 1 | 1,294 | 607 | ### 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:
November, 2016, there was a search action on Petitioner under Section 153A of the Act, in response to which Petitioner once again filed his return of income for the year under consideration, i.e., A.Y. 2013-2014 on 15th July, 2016. Following this, an assessment order dated 8th December, 2016 came to be passed, accepting Petitioners income as per the return of income filed. In the assessment order, it is also mentioned that there was a search action under Section 132, notices were issued under Sections 142(1) and 143(2) and Petitioner had also submitted all documents including copies of audit report, balance-sheet and profit and loss account. 2. Over four years later, Petitioner received a notice dated 28th March, 2021 under Section 148 of thealleging that there were reasons to believe that Petitioners income chargeable to tax for A.Y. 2013-14 has escaped assessment within the meaning of Section 147 of the Act. At Petitioners request, reasons recorded for re-opening was also provided vide communication dated 1st July, 2021. As per the reasons recorded, based on information received from DDIT (Inv), Mumbai, Petitioner had done transactions in the share of Finalysis which is a penny stock company traded in the Bombay Stock Exchange. The share price of Finalysis moved from a low of Rs.7/- per share in March 2012 to Rs.180/- in March 2013 and dipped to Rs.5/- in October 2013. Since the financials of Finalysis for that period did not support such a huge share price move, investigations have been carried out by SEBI on Finalysis. The reasons also mentioned that statements of directors of Finalysis have been recorded and they have admitted that the Company was a paper company. Investigation revealed that Petitioner had sold shares of Finalysis worth Rs.29,43,148/- during the relevant assessment year and therefore, assessment of the said transactions has escaped assessment. As per the reasons, admittedly Petitioner has disclosed during the assessment proceedings and it is seen that Petitioner has claimed long term capital gain at 10% of Rs.29,43,148/-. Thus, information received by the DDIT (Inv) has live link with the financials of Petitioner. We have to emphasize that in the reasons itself Respondents admit that Petitioner has disclosed during the assessment proceedings that Petitioner had traded in Finalysis. 3. This is a case where the proposed re-opening is after expiry of four years from the end of the relevant assessment year. Admittedly, assessment under Section 143(3) has been completed and an assessment order dated 8th December, 2016 has also been passed. In fact, the assessment order is under Section 153C r/w. 143(3) of . Therefore, the proviso to Section 147 of thewould apply which provides that re-opening of assessment after four years from the expiry of the end of the relevant assessment year is barred unless escapement of income has happened due to failure on the part of assessee to truly and fully disclose material fact for the relevant assessment year. The onus is on Respondents to show that there was such a failure on the part of Petitioner to truly and fully disclose. 4. It is also trite that if during the assessment proceedings a query is raised and the assessee has replied to it, it follows that the query raised was a subject of consideration of the Assessing Officer while completing the assessment and it is not necessary that the Assessment Order should contain reference and/or discussion to disclose its satisfaction in respect of the query raised. (Aroni Commercials Ltd. v. Deputy Commissioner of Income Tax 2(1) [2014] 44 taxmann.com 304 (Bombay))). 5. It is not clear when the investigation was commenced, though Mr. Thakkar states that investigation commenced on Finalysis much before the assessment order in Petitioners case was passed and the search action under Section 132(1) of theon Petitioner was also in furtherance to the investigation being carried out on Finalysis. The entire basis of Respondents case is that in 2020 Respondent No.1 got information that Finalysis was a paper company or a penny stock company based on certain investigations. Mr. Suresh Kumar submitted that it came to light during the investigation that Petitioner also had traded in the scrip of Finalysis during A.Y. 2013-2014 and therefore, Respondent was entitled to re-open. Mr. Suresh Kumar submitted that revenue has to go to the root of the matter and take action against those involved in this price rigging and assess people claiming non genuine transactions in its books. We have to note that there is no allegation at all in the reasons recorded for re-opening or in the Affidavit in Reply that investigations have revealed that Petitioner was the master mind or actively involved in rigging of share price of Finalysis in the stock market. Whether trading in Finalysis shares would result in escapement of income is a separate question which we are not dealing with in this matter because, that is not the subject of consideration. Even in the statement of Mr. Bipin Divecha on which reliance has been placed, it does not show anywhere Petitioner was involved. 6. Therefore, what we have to see in this case, since re-opening is proposed after the expiry of four years from the end of the relevant assessment year, whether there has been any failure on the part of Petitioner to disclose truly and fully material facts. As noted earlier the reasons recorded admit that Petitioner had disclosed that it had traded in the shares of Finalysis. To a query raised under Section 142(1), Petitioner has also admitted that it has traded in Finalysis and even provided documents thereto. The issue of capital gains from shares which included the shares of Finalysis was under active consideration before the Assessing Officer. That would also show there was no failure to disclose. Therefore, it cannot be stated that Respondents have crossed the threshold or the fetter provided for in the proviso to Section 147 of thethat re-opening after the expiry of four years is permissible only when there is failure to truly and fully disclosed material facts.
### Response:
1
### Explanation:
We have to emphasize that in the reasons itself Respondents admit that Petitioner has disclosed during the assessment proceedings that Petitioner had traded in Finalysis.3. This is a case where the proposed re-opening is after expiry of four years from the end of the relevant assessment year. Admittedly, assessment under Section 143(3) has been completed and an assessment order dated 8th December, 2016 has also been passed. In fact, the assessment order is under Section 153C r/w. 143(3) of . Therefore, the proviso to Section 147 ofthewould apply which provides that re-opening of assessment after four years from the expiry of the end of the relevant assessment year is barred unless escapement of income has happened due to failure on the part of assessee to truly and fully disclose material fact for the relevant assessment year. The onus is on Respondents to show that there was such a failure on the part of Petitioner to truly and fully disclose.4. It is also trite that if during the assessment proceedings a query is raised and the assessee has replied to it, it follows that the query raised was a subject of consideration of the Assessing Officer while completing the assessment and it is not necessary that the Assessment Order should contain reference and/or discussion to disclose its satisfaction in respect of the query raised. (Aroni Commercials Ltd. v. Deputy Commissioner of Income Tax 2(1) [2014] 44 taxmann.com 304 (Bombay))).5. It is not clear when the investigation was commenced, though Mr. Thakkar states that investigation commenced on Finalysis much before the assessment order in Petitioners case was passed and the search action under Section 132(1) oftheon Petitioner was also in furtherance to the investigation being carried out on Finalysis.We have to note that there is no allegation at all in the reasons recorded for re-opening or in the Affidavit in Reply that investigations have revealed that Petitioner was the master mind or actively involved in rigging of share price of Finalysis in the stock market. Whether trading in Finalysis shares would result in escapement of income is a separate question which we are not dealing with in this matter because, that is not the subject of consideration. Even in the statement of Mr. Bipin Divecha on which reliance has been placed, it does not show anywhere Petitioner was involved.6. Therefore, what we have to see in this case, since re-opening is proposed after the expiry of four years from the end of the relevant assessment year, whether there has been any failure on the part of Petitioner to disclose truly and fully material facts. As noted earlier the reasons recorded admit that Petitioner had disclosed that it had traded in the shares of Finalysis. To a query raised under Section 142(1), Petitioner has also admitted that it has traded in Finalysis and even provided documents thereto. The issue of capital gains from shares which included the shares of Finalysis was under active consideration before the Assessing Officer. That would also show there was no failure to disclose. Therefore, it cannot be stated that Respondents have crossed the threshold or the fetter provided for in the proviso to Section 147 ofthethat re-opening after the expiry of four years is permissible only when there is failure to truly and fully disclosed material facts.
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Bholaram Vs. Ameerchand | the first floor which existed even before the other two rooms were added in the year 1963 by reconstructing the upper portion of the house. In reply to this notice, the plaintiff sent a notice on his behalf where he for the first time averred that the old room and the balcony adjoining it, were not rebuilt in 1963 and were not let out to the diffident. In paragraph 7, however, the following averments were made;10. It is also denied that water started pouring in kitchen and store-room. All these allegations are absolutely false.11. Thus, the landlord did not deny that the kitchen and the store-room were in possession of the defendant and what was contested was that the landlord had not damaged anything so as to let the water pour into the kitchen and the store-room. It may be noticed that in this notice there was no clear averment that the kitchen or the store-room did not form part of the tenancy of the defendant.12. Similarly, in another notice sent to the appellant by the respondent sometime in the year 1965, as no exact date is given in the notice, the landlord complained of some nuisance created by the appellant. Even in this notice, which was two years after the premises were let out to the appellant, no complaint was made that the appellant had made by encroachment in the old room which existed on the first floor. The only complaint made in Paragraph 4 of the notice may be extracted thus :13. That on the first floor a water tap has been provided for use and Nistar. recently you and the members of your family have started using the tap in the courtyard in occupation of may client. This has resulted in the deprivation of privacy of the females of my clients family.....14. The complaint related merely to the using of the tap in the courtyard which was in the occupation of the landlord. In Clause 5 of the notice the defendant was informed that his tenancy stood terminated from September 10, 1965 and he was called upon to give vacant possession immediately. This shows that this notice was given prior to September 10, 1965.15. On a conspectus of the circumstances discussed above, it is therefore clear that the case of the plaintiff that the old room on the first floor was not let out to the appellant was made for the first time in the notice dated July 28, 196 (Ex. p-5) given to the appellant. The defendant in his evidence as DW 1 has clearly stated that the room marked I J K L in the map, and the balcony on its front was old and does not form part of the reconstructed portion. He has further stated that only one room on the ground floor an two rooms on the first floor were newly constructed. The plaintiff in his evidence as PW 1 himself has clearly admitted in para 8 of his statement that all terms and conditions of tenancy have been mentioned in Ex. P-1, the rent note, and also that there is mention of the portion which is let out. In view of this clear admission if we do not find in the rent note any mention of the old room an the balcony as not having been let out to the defendant, if follows as a logical corollary from the admission of the plaintiffs himself that the entire upper floor including the newly constructed rooms, the balcony and the old room formed apart of the tenancy of the appellant.16. Thus, having regard to the oral and documentary evidence referred to above, the conclusion is inescapable that by virtue of the rent, Ex. P-1, the portion rented out to the defendant-appellant was room on the ground floor and the balcony and the two rooms newly constructed. This is exactly what the Civil Judgment ad the District Judge had held on an appreciation of the evidence in the case. The High Court was, therefore, clearly wrong in holding that the old room and the balcony did not from part of the tenanted premises of the defendant. The High Court seems to have overlooked the various facts to which we have adverted and proceeded mainly on the contents of the notice (Ex. P-5) by the plaintiff to the defendant. The High Court failed to consider that the new case made out by the plaintiff could not be accepted on his own evidence which shows that all the terms and conditions of the tenancy had been mentioned in the rent note and if the old room was expressly excluded from the tenancy, the same should have found mention in the rent note itself. The High Court seems to have relied mainly in the flowing words used in the rent note in vernacular (Hindi) :To Makan Moujudanagar Nigam Nambari 1205 Ca-Ke Ganjipura Ward Lord Ganj Shahar Jabalpur Ko As Sare 1963 Men Do Manzila Banwaya us Makan Ko Main Dinak June 10, 1963 Se Angrezi Calendar Ke Mutabik MU. 205 Rupaya Ankan Do Sau Panch Rupaya Mahana Ki Dar Se Maoul Kiraya Per Le Raha Hun.17. These words do not at all lead to the irresistible conclusion that only two rooms on the first floor, which were reconstructed, had been let out to the defendant and not the old room which was already in existence. A correct interpretation of the words extracted by the High Court in its judgment from the rent note shows that what was really let out to the defendant was a room on the ground floor and the entire upper floor including the constructed portion. This is apparent from the words"Do Manzila Banwaya Us Maken Ko" which really means that the house was reconstructed and made double storeyed. There is no averment in the rent not that out of the reconstructed house only two rooms on the upper portion of the first floor minus the old construction was rented out to the appellant-defendant. | 1[ds]2. Even so, after going through the documents and evidence produced by the parties we are unable to agree with the conclusion arrived at by the High Court.3. The plaintiffs case was that by virtue of a rent note dated June 3, 1963 (Ex.he had rented out the premises in question, being house No. 1205, Ganjipura Ward, Lord Ganj, Jabalpur, to the defendant at a rental of Rs. 205 per month. The plaintiff averred that originally the premises let out were only a room on the ground floor and the newly constructed portion on the first floor which consisted of two rooms as shown in the map as E. F. G. H. The plaintiffs case was not the subject matter of the tenancy, but appears to have been encroached upon by thesubsequently sometimes in July 1966. This encroachment was, therefore, one of the ground on which ejectment was sought.4. Another ground for ejecting was that the defendant had defaulted in the payment of rent as a result of which arrears of Rs.had fallen due up to the date of the suit. We might state here that so far as the ground of arrears or default of rent is concerned, that was negatived by the Civil Judge and the District Judge and this finding of fact has been fully affirmed by the High Court. We are, therefore, left only with the solitary ground for ejectment relating to the encroachment on the room, shown by letters I] J. K. L. made by the tenant after the lease by which he committed a breach of the terms of tenancy and made himself liable to ejectment under the provision of the Madhya Pradesh Accommodation control Act, 1961.It would be pertinent to note that in the first preamble of the rent note which describes the property leased, there is absolutely no mention that only two rooms on the first floor were let out to the defendant, The admitted position seems to be that the first floor was reconstructed by the plaintiff by which two rooms were added and one old room remained as it was. The plaintiffs case is that only two rooms which had been newly reconstructed were given to the defendant and not the old room. This fact is conspicuously absent from the preamble of the rent note, extracted above, which merely refers to the tenancy as consisting of the double storey house constructed in 1963. There is not averment that there was an old room also on the first floor which had not been let out to the defendant. Furthermore, other portion extracted clearly shows that the defendant had stipulated that he would open a shop in the block of the ground floor of the house and would aside in the upper portion of the house. He also the defendant does not say that he would reside only in the two rooms newly constructed and that the old room which also was situated on the first floor would not be part of the tenancy. Thus, the rent note, which is the main document on which rests the case of the parties, does not at all shows that the old room on the first floor was excluded from the tenancy of the defendant. Right from the year 1963, when the premises were let out to the defendant, up to July 1966 there is no evidence that theever raised any remaining on the first floor. The trouble seems to have started when some more repairs were made by theas a result of which the roof of the old room was damaged and a report was made to the police by theof July 21, 1966, Ex.wherein the defendant complained that the landlord had demolished the roof of the kitchen room and wanted to demolished the balcony also which so to its front side. Admittedly, both these premises were situated on the first floor. A day thereafter, i. e. on July 22, 196, the defendant gave a notice, which is Ex.to the plaintiff of the damage done to a part of the first floor occupiedmay be extracted thusA perusal of the contents of the notice manifestly shows that the defendant had made a compliant amongst other matters, also in regard to the damage done to the kitchen which rally formed the old rom on the first floor which existed even before the other two rooms were added in the year 1963 by reconstructing the upper portion of the house. In reply to this notice, the plaintiff sent a notice on his behalf where he for the first time averred that the old room and the balcony adjoining it, were not rebuilt in 1963 and were not let out to the diffident. In paragraph 7, however, the following averments were made;10. It is also denied that water started pouring in kitchen andAll these allegations are absolutely false.11. Thus, the landlord did not deny that the kitchen and thewere in possession of the defendant and what was contested was that the landlord had not damaged anything so as to let the water pour into the kitchen and theIt may be noticed that in this notice there was no clear averment that the kitchen or thedid not form part of the tenancy of the defendant.12. Similarly, in another notice sent to the appellant by the respondent sometime in the year 1965, as no exact date is given in the notice, the landlord complained of some nuisance created by the appellant. Even in this notice, which was two years after the premises were let out to the appellant, no complaint was made that the appellant had made by encroachment in the old room which existed on the first floor. The only complaint made in Paragraph 4 of the noticemay be extracted thusThat on the first floor a water tap has been provided for use and Nistar. recently you and the members of your family have started using the tap in the courtyard in occupation of may client. This has resulted in the deprivation of privacy of the females of my clients family.....14. The complaint related merely to the using of the tap in the courtyard which was in the occupation of the landlord. In Clause 5 of the notice the defendant was informed that his tenancy stood terminated from September 10, 1965 and he was called upon to give vacant possession immediately. This shows that this notice was given prior to September 10, 1965.15. On a conspectus of the circumstances discussed above, it is therefore clear that the case of the plaintiff that the old room on the first floor was not let out to the appellant was made for the first time in the notice dated July 28, 196 (Ex.given to the appellant. The defendant in his evidence as DW 1 has clearly stated that the room marked I J K L in the map, and the balcony on its front was old and does not form part of the reconstructed portion. He has further stated that only one room on the ground floor an two rooms on the first floor were newly constructed. The plaintiff in his evidence as PW 1 himself has clearly admitted in para 8 of his statement that all terms and conditions of tenancy have been mentioned in Ex.the rent note, and also that there is mention of the portion which is let out. In view of this clear admission if we do not find in the rent note any mention of the old room an the balcony as not having been let out to the defendant, if follows as a logical corollary from the admission of the plaintiffs himself that the entire upper floor including the newly constructed rooms, the balcony and the old room formed apart of the tenancy of the appellant.16. Thus, having regard to the oral and documentary evidence referred to above, the conclusion is inescapable that by virtue of the rent, Ex.the portion rented out to thewas room on the ground floor and the balcony and the two rooms newly constructed. This is exactly what the Civil Judgment ad the District Judge had held on an appreciation of the evidence in the case. The High Court was, therefore, clearly wrong in holding that the old room and the balcony did not from part of the tenanted premises of the defendant. The High Court seems to have overlooked the various facts to which we have adverted and proceeded mainly on the contents of the notice (Ex.by the plaintiff to the defendant. The High Court failed to consider that the new case made out by the plaintiff could not be accepted on his own evidence which shows that all the terms and conditions of the tenancy had been mentioned in the rent note and if the old room was expressly excluded from the tenancy, the same should have found mention in the rent note itself. The High Court seems to have relied mainly in the flowing words used in the rent note in vernacular (Hindi) :To Makan Moujudanagar Nigam Nambari 1205Ganjipura Ward Lord Ganj Shahar Jabalpur Ko As Sare 1963 Men Do Manzila Banwaya us Makan Ko Main Dinak June 10, 1963 Se Angrezi Calendar Ke Mutabik MU. 205 Rupaya Ankan Do Sau Panch Rupaya Mahana Ki Dar Se Maoul Kiraya Per Le Raha Hun.17. These words do not at all lead to the irresistible conclusion that only two rooms on the first floor, which were reconstructed, had been let out to the defendant and not the old room which was already in existence. A correct interpretation of the words extracted by the High Court in its judgment from the rent note shows that what was really let out to the defendant was a room on the ground floor and the entire upper floor including the constructed portion. This is apparent from the words"Do Manzila Banwaya Us Maken Ko" which really means that the house was reconstructed and made double storeyed. There is no averment in the rent not that out of the reconstructed house only two rooms on the upper portion of the first floor minus the old construction was rented out to the | 1 | 2,370 | 1,819 | ### 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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the first floor which existed even before the other two rooms were added in the year 1963 by reconstructing the upper portion of the house. In reply to this notice, the plaintiff sent a notice on his behalf where he for the first time averred that the old room and the balcony adjoining it, were not rebuilt in 1963 and were not let out to the diffident. In paragraph 7, however, the following averments were made;10. It is also denied that water started pouring in kitchen and store-room. All these allegations are absolutely false.11. Thus, the landlord did not deny that the kitchen and the store-room were in possession of the defendant and what was contested was that the landlord had not damaged anything so as to let the water pour into the kitchen and the store-room. It may be noticed that in this notice there was no clear averment that the kitchen or the store-room did not form part of the tenancy of the defendant.12. Similarly, in another notice sent to the appellant by the respondent sometime in the year 1965, as no exact date is given in the notice, the landlord complained of some nuisance created by the appellant. Even in this notice, which was two years after the premises were let out to the appellant, no complaint was made that the appellant had made by encroachment in the old room which existed on the first floor. The only complaint made in Paragraph 4 of the notice may be extracted thus :13. That on the first floor a water tap has been provided for use and Nistar. recently you and the members of your family have started using the tap in the courtyard in occupation of may client. This has resulted in the deprivation of privacy of the females of my clients family.....14. The complaint related merely to the using of the tap in the courtyard which was in the occupation of the landlord. In Clause 5 of the notice the defendant was informed that his tenancy stood terminated from September 10, 1965 and he was called upon to give vacant possession immediately. This shows that this notice was given prior to September 10, 1965.15. On a conspectus of the circumstances discussed above, it is therefore clear that the case of the plaintiff that the old room on the first floor was not let out to the appellant was made for the first time in the notice dated July 28, 196 (Ex. p-5) given to the appellant. The defendant in his evidence as DW 1 has clearly stated that the room marked I J K L in the map, and the balcony on its front was old and does not form part of the reconstructed portion. He has further stated that only one room on the ground floor an two rooms on the first floor were newly constructed. The plaintiff in his evidence as PW 1 himself has clearly admitted in para 8 of his statement that all terms and conditions of tenancy have been mentioned in Ex. P-1, the rent note, and also that there is mention of the portion which is let out. In view of this clear admission if we do not find in the rent note any mention of the old room an the balcony as not having been let out to the defendant, if follows as a logical corollary from the admission of the plaintiffs himself that the entire upper floor including the newly constructed rooms, the balcony and the old room formed apart of the tenancy of the appellant.16. Thus, having regard to the oral and documentary evidence referred to above, the conclusion is inescapable that by virtue of the rent, Ex. P-1, the portion rented out to the defendant-appellant was room on the ground floor and the balcony and the two rooms newly constructed. This is exactly what the Civil Judgment ad the District Judge had held on an appreciation of the evidence in the case. The High Court was, therefore, clearly wrong in holding that the old room and the balcony did not from part of the tenanted premises of the defendant. The High Court seems to have overlooked the various facts to which we have adverted and proceeded mainly on the contents of the notice (Ex. P-5) by the plaintiff to the defendant. The High Court failed to consider that the new case made out by the plaintiff could not be accepted on his own evidence which shows that all the terms and conditions of the tenancy had been mentioned in the rent note and if the old room was expressly excluded from the tenancy, the same should have found mention in the rent note itself. The High Court seems to have relied mainly in the flowing words used in the rent note in vernacular (Hindi) :To Makan Moujudanagar Nigam Nambari 1205 Ca-Ke Ganjipura Ward Lord Ganj Shahar Jabalpur Ko As Sare 1963 Men Do Manzila Banwaya us Makan Ko Main Dinak June 10, 1963 Se Angrezi Calendar Ke Mutabik MU. 205 Rupaya Ankan Do Sau Panch Rupaya Mahana Ki Dar Se Maoul Kiraya Per Le Raha Hun.17. These words do not at all lead to the irresistible conclusion that only two rooms on the first floor, which were reconstructed, had been let out to the defendant and not the old room which was already in existence. A correct interpretation of the words extracted by the High Court in its judgment from the rent note shows that what was really let out to the defendant was a room on the ground floor and the entire upper floor including the constructed portion. This is apparent from the words"Do Manzila Banwaya Us Maken Ko" which really means that the house was reconstructed and made double storeyed. There is no averment in the rent not that out of the reconstructed house only two rooms on the upper portion of the first floor minus the old construction was rented out to the appellant-defendant.
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had made a compliant amongst other matters, also in regard to the damage done to the kitchen which rally formed the old rom on the first floor which existed even before the other two rooms were added in the year 1963 by reconstructing the upper portion of the house. In reply to this notice, the plaintiff sent a notice on his behalf where he for the first time averred that the old room and the balcony adjoining it, were not rebuilt in 1963 and were not let out to the diffident. In paragraph 7, however, the following averments were made;10. It is also denied that water started pouring in kitchen andAll these allegations are absolutely false.11. Thus, the landlord did not deny that the kitchen and thewere in possession of the defendant and what was contested was that the landlord had not damaged anything so as to let the water pour into the kitchen and theIt may be noticed that in this notice there was no clear averment that the kitchen or thedid not form part of the tenancy of the defendant.12. Similarly, in another notice sent to the appellant by the respondent sometime in the year 1965, as no exact date is given in the notice, the landlord complained of some nuisance created by the appellant. Even in this notice, which was two years after the premises were let out to the appellant, no complaint was made that the appellant had made by encroachment in the old room which existed on the first floor. The only complaint made in Paragraph 4 of the noticemay be extracted thusThat on the first floor a water tap has been provided for use and Nistar. recently you and the members of your family have started using the tap in the courtyard in occupation of may client. This has resulted in the deprivation of privacy of the females of my clients family.....14. The complaint related merely to the using of the tap in the courtyard which was in the occupation of the landlord. In Clause 5 of the notice the defendant was informed that his tenancy stood terminated from September 10, 1965 and he was called upon to give vacant possession immediately. This shows that this notice was given prior to September 10, 1965.15. On a conspectus of the circumstances discussed above, it is therefore clear that the case of the plaintiff that the old room on the first floor was not let out to the appellant was made for the first time in the notice dated July 28, 196 (Ex.given to the appellant. The defendant in his evidence as DW 1 has clearly stated that the room marked I J K L in the map, and the balcony on its front was old and does not form part of the reconstructed portion. He has further stated that only one room on the ground floor an two rooms on the first floor were newly constructed. The plaintiff in his evidence as PW 1 himself has clearly admitted in para 8 of his statement that all terms and conditions of tenancy have been mentioned in Ex.the rent note, and also that there is mention of the portion which is let out. In view of this clear admission if we do not find in the rent note any mention of the old room an the balcony as not having been let out to the defendant, if follows as a logical corollary from the admission of the plaintiffs himself that the entire upper floor including the newly constructed rooms, the balcony and the old room formed apart of the tenancy of the appellant.16. Thus, having regard to the oral and documentary evidence referred to above, the conclusion is inescapable that by virtue of the rent, Ex.the portion rented out to thewas room on the ground floor and the balcony and the two rooms newly constructed. This is exactly what the Civil Judgment ad the District Judge had held on an appreciation of the evidence in the case. The High Court was, therefore, clearly wrong in holding that the old room and the balcony did not from part of the tenanted premises of the defendant. The High Court seems to have overlooked the various facts to which we have adverted and proceeded mainly on the contents of the notice (Ex.by the plaintiff to the defendant. The High Court failed to consider that the new case made out by the plaintiff could not be accepted on his own evidence which shows that all the terms and conditions of the tenancy had been mentioned in the rent note and if the old room was expressly excluded from the tenancy, the same should have found mention in the rent note itself. The High Court seems to have relied mainly in the flowing words used in the rent note in vernacular (Hindi) :To Makan Moujudanagar Nigam Nambari 1205Ganjipura Ward Lord Ganj Shahar Jabalpur Ko As Sare 1963 Men Do Manzila Banwaya us Makan Ko Main Dinak June 10, 1963 Se Angrezi Calendar Ke Mutabik MU. 205 Rupaya Ankan Do Sau Panch Rupaya Mahana Ki Dar Se Maoul Kiraya Per Le Raha Hun.17. These words do not at all lead to the irresistible conclusion that only two rooms on the first floor, which were reconstructed, had been let out to the defendant and not the old room which was already in existence. A correct interpretation of the words extracted by the High Court in its judgment from the rent note shows that what was really let out to the defendant was a room on the ground floor and the entire upper floor including the constructed portion. This is apparent from the words"Do Manzila Banwaya Us Maken Ko" which really means that the house was reconstructed and made double storeyed. There is no averment in the rent not that out of the reconstructed house only two rooms on the upper portion of the first floor minus the old construction was rented out to the
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Union Of India & Ors Vs. M/S. Indo-Afghan Agencies Ltd | of S. 115 of the Evidence Act, it is still open to a party who has acted on a representation made by the Government to claim that the Government shall be bound to carry out the promise made by it, even though the promise is not recorded in the form of a formal contract as required by the Constitution.21. In Ahmad Yar Khan v. Secretary of State, (1901) 28 Ind App 211 (PC), the plaintiffs claimed title to a canal supplied with water from the Sutlej having been constructed at great expense by their predecessors for purposes of irrigation with the sanction and encouragement of the Government, partly on Government lands and partly on the lands of private owners under arrangements with them. It was held that the plaintiffs became proprietors of the canal and entitled to have the waters of the Sutlej admitted into it so long as it was used for the purpose for which it was originally designed. Similarly in Ganges Manufacturing Co. v. Sourujmull, (1880) LR 5 Cal 669 Garth G. J., observed that a man may be estopped not only from giving particular evidence, but from doing any act or relying upon any particular argument or contention, which the rules of equity and good conscience prevent him from using as against his opponent.22. Counsel for the Union invited our attention to the observations made by Patanjali Sastri, J., in Collector of Bombay v. Municipal Corporation of the City of Bombay, 1952 SCR 43 = (AIR 1931 SC 469). The learned Judge observed that equity cannot be enforced so as to violate an express statutory provision and he was therefore unable to share the view expressed by Jenkins, C. J., in (1904) ILR 29 Bom 580 In 1952 SCR 43 = (AIR 1951 SC 469 ) the facts were these: Acting upon a representation made by the Government of Bombay, the Municipal Commissioner of Bombay had given up certain old markets and had constructed new markets on a site made available to the Municipality by the Government at considerable expense. The Resolution under which the Government had granted the land stated expressly that no rent should be charged to the Municipality as the markets will be like other buildings for the benefit of the whole community. When the Collector of Bombay sought to enhance the land revenue, the Corporation sued for a declaration that the order of assessment was ultra vires and that it was entitled to hold the land for ever without payment of any assessment. The High Court of Bombay held that the Government had lost its right to assess the land in question because of the equity arising on the facts of the case in favour of the Municipality and a limitation on the right of the Government to assess under S. 8 of the Bombay City Land Revenue Act arose. A majority of the Judges of this Court held that the Government was not, under the circumstances of the case, entitled to assess land revenue on the land in question, because the Corporation had taken possession of the land in terms of the Government resolution and had continued in such possession openly, uninterruptedly and as of right for over 70 years, and had thereby acquired the limited title it had been prescribing for during the period, the right to hold the land in perpetuity free of rent. Chandrasekhara Aiyar, J., observed that even if it be assumed that there was no representation in fact that the land was rent-free at the time when it was given to the Municipality, if there was a holding out of promise that no rent will be charged in the future, the Government must be deemed in the circumstances of the case to have bound themselves to fulfil it, and a Court of Equity must prevent the perpetration of a legal fraud. Chandrasekhara Aiyar J., observed at p. 63 :" Whether it is the equity recognised in Ramsdens case, or it is some other form of equity, is not of much importance, Courts must do justice by the promotion of honesty and good faith, as far as it lies in their power."Patanjali Sastri, J., expressed a contrary view holding that the express provisions of the statute could not be overridden by considerations of equity.23. Under our jurisprudence the Government is not exempt from liability to carry out the representation made by it as to its future conduct and it cannot on some undefined and undisclosed ground of necessity or expediency fail to carry out the promise solemnly made by it, nor claim to be the judge of its own obligation to the citizen on an ex parte appraisement of the circumstances in which the obligation has arisen. We agree with the High Court that the impugned order passed by the Textile Commissioner and confirmed by the Central Government imposing cut in the import entitlement by the respondents should be set aside and quashed and that the Textile Commissioner and the Joint Chief Controller of Imports and Exports be directed to issue to the respondents import certificates for the total amount equal to 100 per cent of the f. o. b value of the goods exported by them unless there is some decision which falls within Clause 10 of the Scheme in question.24. The facts which give rise to the ether appeals are substantially the same as the facts in Civil Appeal No. 885 of 1967 except that in four out of those appeals the exporters had appeared before the Committee appointed by the Textile Commissioner and had explained the circumstances in which the exports were made by them. But it is common ground that the report of the Committee was not made available to them and the Textile Commissioner, before he passed the orders, did not call for their explanations. It must therefore be held that enquiry in a manner consonant with the rules of justice was not made in the case of those four exporters also. | 0[ds]are unable to accede to the contention that the executive necessity releases the Government from honouring its solemn promises relying on which citizens have acted to their detriment. Under our constitutionalno person may be deprived of his right or liberty except in due course of and by authority of law: if a member of the executive seeks to deprive a citizen of his right or liberty otherwise than in exercise of power derived from the lawcommon or statutethe Courts will be competent to, and indeed would be bound to, protect the rights of the aggrieved citizen.11. The orders which the Central Government may issue in exercise of the power conferred by Section 3 of the Imports and Exports Control Act may be executive or legislative. In exercise of that power, the Order was issued on December 7, 1955, that was clearly legislative in character. It appears that prior to the issuance of this notification several orders had been issued under the Defence of India Rules and under the Imports and Exports Act dealing with the grant of licences to import certain classes of goods. Those orders which are set out in the IVth Schedule to the Order were repealed by Clause 12 of the Order of 1955, and machinery for granting licences was set up by the Order dated December 7, 1955.It cannot he assumed merely because the Imports Trade Policy is general in terms and deals with the grant of licences for import of goods and related matters, it is statutory in character. The Imports and Exports (Control) Act, 1947, authorises the Central Government to make provisions prohibiting, restricting or otherwise controlling impost, export, carriage etc. of the goods and by the Imports (Control) Order, 1955, dated December 7, 1955, and by the provisions which were sought to be repealed restrictions already imposed. The order was clearly legislative in character. The Import Trade Policy was evolved to facilitate the mechanism of the Act and the orders issued thereunder. Even granting that the Import Trade Policy notifications were issued in exercise of the power under Section 3 of the imports and Exports (Control) Act, l947, the order as already observed authorised the making of executive or administrative instructions as well as legislative directions. It is not the form of the order, the method of its publication or the source of its authority, but its substance, which determines its true character.A large majority of the paragraphs of the Import and Export Schemes are in the form of instructions to departmental officers and advice to persons engaged in the export and import business with their foreign Counterparts. It may be possible to pick out paragraphs from the Scheme which appear in isolation to be addressed generally and have direct impact upon the rights and liberties of the citizens. But a large number of paragraphs of the Scheme refer to matters of procedure of departmental officers and heterogeneous material: it sets out forms of applications, the designations of licensing authorities, amounts of application and licensing fees, last dates for applications, intermixed with definitions of Established Importers, Actual users, New comers and others and details of different schemes such as Quota Registration Schemes, Export Promotion Schemes etc. There is no pattern of order or logical sequence in the policy statement: it is a jumble of executive instructions and matters which impose several restrictions upon the rights of citizens. Some of the provisions which impose restrictions upon citizens in the exercise of their right to carry on trade without statutory limits may be open to serious objections, but we do not find it necessary to embark upon an enquiry whether the provisions which authorises the issue of import entitlement certificate for the full f. o. b. value of the goods exported is legislative in character. Granting that it is executive in character, this Court has held that the Courts have the power in appropriate cases to compel performance of the obligations imposed by the Schemes upon the departmental authorities.In these cases it was clearly ruled that where a person has acted upon representations made in an Export Promotion Scheme that import licences upto the value of the goods exported will be issued, and had exported goods, his claim for import licence for the maximum value permissible by the Scheme could not be arbitrarily rejected. Reduction in the amount of import certificate may be justified on the ground of misconduct of the exporter in relation to the goods exported, or on special considerations such as difficult foreign exchange position or other matters which have a bearing on the general interests of the State. In the present case, the Scheme provides for grant of import entitlement of the value, and not upto the value, of the goods exported. The Textile Commissioner was, therefore, in the ordinary course required to grant import certificate for the full value of the goods exported he could only reduce that amount after enquiry contemplated by Clause 10 of the Scheme.In each of the three cases, the Court observed that the Court was competent to grant relief in appropriate cases, if, contrary to the Scheme, the authority declined to grant a licence or import certificate or the authority acted, arbitrarily. Therefore even assuming that the provisions relating to the issue of Trade Notices offering inducement to the prospective exporters are in character executive,the Union Government and its officers are, on the authorities of this Court not entitled at their mere whim to ignore the promises made by the Government. We cannot therefore accept the plea that the Textile Commissioner is the sole judge of the quantum of import licence to be granted to an exporter, and that the Courts are powerless to grant relief, if the promised import licence is not given to an exporter who has acted to his prejudice relying upon the representation. To concede to the Departmental authorities that power would be to strike at the very root of the rule of law.17. By the Export Promotion Scheme for woollen textiles as extended to exports to Afghanistan, the exporters were invited to get themselves registered with the Textile Commissioner for exporting woollen goods, and it was represented that the exporters will be entitles to import raw materials of the total amount equal to 100 per cent of the f. o. b. value of the exports. Machinery for scrutiny of the applications and the issue of import entitlement was provided by Section 9 of the Scheme, and the Textile Commissioner was invested with the authority to determine whether in any given case the declared value of the goods exported was higher than the real value of the goods and to assess the correct value of the goods exported and to issue import certificates on the basis of such assessed value Undoubtedly the Textile Commissioner had authority, if it was found that a fraudulent attempt was made to secure an import certificate in excess of the true value of the goods exported to reduce the import certificate. But the authority vested in the Textile Commissioner by the rules even though executive in character was from its nature an authority to deal with the matter in manner consonant with the basic concept of justice and fairplay, if he made an order which was not consonant with the basic concepts of justice and fairplay his proceeding was open to scrutiny and rectification by the Courts. The Textile Commissioner acted upon a report of the Committee appointed by him and before that Committee the respondents had no opportunity to present their case. He collected evidence ex parte and did not disclose it to the respondents and without giving an opportunity to them to represent their case reduced the import certificate. In dealing with a representation made by the respondent, the Government of India also declined either to make available the evidence on which the Textile Commissioner had acted or to give a hearing to the respondents. The Textile Commissioner and the Union of India did not purport to act in exercise of the power under Clause 10 of the Scheme: they have sought to support the order on the plea that the subjective satisfaction, of the Textile Commissioner is determinative of the extent of the import certificate which may be granted to thethe respondents are not seeking to enforce any contractual right they are seeking to enforce compliance with the obligation which is laid upon the Textile Commissioner by the terms of the Scheme and we are of the view that even if the Scheme is executive in character,the respondents who were aggrieved because of the failure to carry out the terms of the Scheme were entitled to seek resort to the Court and claim that the obligation imposed upon the Textile Commissioner by the Scheme be ordered to be carried out.19. We hold that the claim of the respondents is appropriately founded upon the equity which arises in their favour as a result of the representation made on behalf of the Union of India in the Export Promotion Scheme, and the action taken by the respondents acting upon that representation under the belief that the Government would Carry out the representation made by it. On the facts proved in this case, no ground has been suggested before the Court for exempting the Government from the equity arising out of the acts done by the exporters to their prejudice relying upon the representation. This principle has been recognised by the Courts in India and by the Judicial Committee of the Privy Council in several cases. In Municipal Corporation of the City of Bombay v. Secretary of State. (1904) ILR 29 Bom 580 it was held by the Bombay High Court that even though there is no formal contract as required by the statute, the Government may be bound by a representation made by it. In that case in answer to a requisition by the Government of Bombay addressed to the Municipal Commissioner to remove certain fish and vegetable markets to facilitate the construction of an arterial road, the Municipal Commissioner offered to remove the structures if the Government would agree to rent to the Municipality other land mentioned in his letter at a nominal rent. The Government accepted the suggestion and sanctioned the application of the Municipal Commissioner for a site for stabling and establishing the new markets. The Municipal Commissioner then took possession of the land so made available and constructed stables, workshops and chawls thereon.years thereafter the Government of Bombay served notices on the Municipal Commissioner determining the tenancy and requesting the Commissioner to deliver possession of the land occupied by the markets, and to pay in the meantime rent at the rate of Rs. 12,000 per annum. The Municipality declined to pay the rent and the Secretary of State for India filed a suit against the Municipal Commissioner for a declaration that the tenancy of the Municipality created by Government Resolution of December 9, 1865, stood determined and for an order to pay rent at the rate of Rs 12,000 per annum. It was urged before the High Court of Bombay that the events which had transpired had created an equity in favour of the Municipality which afforded an answer to the claim of the Government to eject the Municipality Jenkins. C. J., delivering the judgment of the Courtdoctrine involved in this phase of the case is often treated as one of estoppel, but I doubt whether this is a correct, though it may be a convenient name to apply.It differs essentially from the doctrine embodied in Sec. 115 of the Evidence Act, which is not a rule of equity but is a rule of evidence that was formulated and applied in Courts of law; while the doctrine with which I am now dealing, takes its origin from the jurisdiction assumed by Courts of Equity to intervene in the case of, or to preventreferring to Ramsdenv. Dyson, (1866) LR 1 HL 129 (170)the learned Chief Justice observed that the Crown comes within the range of equity and proceeded to examine whether the facts of the case invited the application of that principle.20. This case, is in our judgment, a clear authority that even though the case does not fall within the terms of S. 115 of the Evidence Act, it is still open to a party who has acted on a representation made by the Government to claim that the Government shall be bound to carry out the promise made by it, even though the promise is not recorded in the form of a formal contract as required by the Constitution.Under our jurisprudence the Government is not exempt from liability to carry out the representation made by it as to its future conduct and it cannot on some undefined and undisclosed ground of necessity or expediency fail to carry out the promise solemnly made by it, nor claim to be the judge of its own obligation to the citizen on an ex parte appraisement of the circumstances in which the obligation has arisen. We agree with the High Court that the impugned order passed by the Textile Commissioner and confirmed by the Central Government imposing cut in the import entitlement by the respondents should be set aside and quashed and that the Textile Commissioner and the Joint Chief Controller of Imports and Exports be directed to issue to the respondents import certificates for the total amount equal to 100 per cent of the f. o. b value of the goods exported by them unless there is some decision which falls within Clause 10 of the Scheme in question.24. The facts which give rise to the ether appeals are substantially the same as the facts in Civil Appeal No. 885 of 1967 except that in four out of those appeals the exporters had appeared before the Committee appointed by the Textile Commissioner and had explained the circumstances in which the exports were made by them. But it is common ground that the report of the Committee was not made available to them and the Textile Commissioner, before he passed the orders, did not call for their explanations. It must therefore be held that enquiry in a manner consonant with the rules of justice was not made in the case of those four exporters also. | 0 | 8,322 | 2,536 | ### Instruction:
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of S. 115 of the Evidence Act, it is still open to a party who has acted on a representation made by the Government to claim that the Government shall be bound to carry out the promise made by it, even though the promise is not recorded in the form of a formal contract as required by the Constitution.21. In Ahmad Yar Khan v. Secretary of State, (1901) 28 Ind App 211 (PC), the plaintiffs claimed title to a canal supplied with water from the Sutlej having been constructed at great expense by their predecessors for purposes of irrigation with the sanction and encouragement of the Government, partly on Government lands and partly on the lands of private owners under arrangements with them. It was held that the plaintiffs became proprietors of the canal and entitled to have the waters of the Sutlej admitted into it so long as it was used for the purpose for which it was originally designed. Similarly in Ganges Manufacturing Co. v. Sourujmull, (1880) LR 5 Cal 669 Garth G. J., observed that a man may be estopped not only from giving particular evidence, but from doing any act or relying upon any particular argument or contention, which the rules of equity and good conscience prevent him from using as against his opponent.22. Counsel for the Union invited our attention to the observations made by Patanjali Sastri, J., in Collector of Bombay v. Municipal Corporation of the City of Bombay, 1952 SCR 43 = (AIR 1931 SC 469). The learned Judge observed that equity cannot be enforced so as to violate an express statutory provision and he was therefore unable to share the view expressed by Jenkins, C. J., in (1904) ILR 29 Bom 580 In 1952 SCR 43 = (AIR 1951 SC 469 ) the facts were these: Acting upon a representation made by the Government of Bombay, the Municipal Commissioner of Bombay had given up certain old markets and had constructed new markets on a site made available to the Municipality by the Government at considerable expense. The Resolution under which the Government had granted the land stated expressly that no rent should be charged to the Municipality as the markets will be like other buildings for the benefit of the whole community. When the Collector of Bombay sought to enhance the land revenue, the Corporation sued for a declaration that the order of assessment was ultra vires and that it was entitled to hold the land for ever without payment of any assessment. The High Court of Bombay held that the Government had lost its right to assess the land in question because of the equity arising on the facts of the case in favour of the Municipality and a limitation on the right of the Government to assess under S. 8 of the Bombay City Land Revenue Act arose. A majority of the Judges of this Court held that the Government was not, under the circumstances of the case, entitled to assess land revenue on the land in question, because the Corporation had taken possession of the land in terms of the Government resolution and had continued in such possession openly, uninterruptedly and as of right for over 70 years, and had thereby acquired the limited title it had been prescribing for during the period, the right to hold the land in perpetuity free of rent. Chandrasekhara Aiyar, J., observed that even if it be assumed that there was no representation in fact that the land was rent-free at the time when it was given to the Municipality, if there was a holding out of promise that no rent will be charged in the future, the Government must be deemed in the circumstances of the case to have bound themselves to fulfil it, and a Court of Equity must prevent the perpetration of a legal fraud. Chandrasekhara Aiyar J., observed at p. 63 :" Whether it is the equity recognised in Ramsdens case, or it is some other form of equity, is not of much importance, Courts must do justice by the promotion of honesty and good faith, as far as it lies in their power."Patanjali Sastri, J., expressed a contrary view holding that the express provisions of the statute could not be overridden by considerations of equity.23. Under our jurisprudence the Government is not exempt from liability to carry out the representation made by it as to its future conduct and it cannot on some undefined and undisclosed ground of necessity or expediency fail to carry out the promise solemnly made by it, nor claim to be the judge of its own obligation to the citizen on an ex parte appraisement of the circumstances in which the obligation has arisen. We agree with the High Court that the impugned order passed by the Textile Commissioner and confirmed by the Central Government imposing cut in the import entitlement by the respondents should be set aside and quashed and that the Textile Commissioner and the Joint Chief Controller of Imports and Exports be directed to issue to the respondents import certificates for the total amount equal to 100 per cent of the f. o. b value of the goods exported by them unless there is some decision which falls within Clause 10 of the Scheme in question.24. The facts which give rise to the ether appeals are substantially the same as the facts in Civil Appeal No. 885 of 1967 except that in four out of those appeals the exporters had appeared before the Committee appointed by the Textile Commissioner and had explained the circumstances in which the exports were made by them. But it is common ground that the report of the Committee was not made available to them and the Textile Commissioner, before he passed the orders, did not call for their explanations. It must therefore be held that enquiry in a manner consonant with the rules of justice was not made in the case of those four exporters also.
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seeking to enforce any contractual right they are seeking to enforce compliance with the obligation which is laid upon the Textile Commissioner by the terms of the Scheme and we are of the view that even if the Scheme is executive in character,the respondents who were aggrieved because of the failure to carry out the terms of the Scheme were entitled to seek resort to the Court and claim that the obligation imposed upon the Textile Commissioner by the Scheme be ordered to be carried out.19. We hold that the claim of the respondents is appropriately founded upon the equity which arises in their favour as a result of the representation made on behalf of the Union of India in the Export Promotion Scheme, and the action taken by the respondents acting upon that representation under the belief that the Government would Carry out the representation made by it. On the facts proved in this case, no ground has been suggested before the Court for exempting the Government from the equity arising out of the acts done by the exporters to their prejudice relying upon the representation. This principle has been recognised by the Courts in India and by the Judicial Committee of the Privy Council in several cases. In Municipal Corporation of the City of Bombay v. Secretary of State. (1904) ILR 29 Bom 580 it was held by the Bombay High Court that even though there is no formal contract as required by the statute, the Government may be bound by a representation made by it. In that case in answer to a requisition by the Government of Bombay addressed to the Municipal Commissioner to remove certain fish and vegetable markets to facilitate the construction of an arterial road, the Municipal Commissioner offered to remove the structures if the Government would agree to rent to the Municipality other land mentioned in his letter at a nominal rent. The Government accepted the suggestion and sanctioned the application of the Municipal Commissioner for a site for stabling and establishing the new markets. The Municipal Commissioner then took possession of the land so made available and constructed stables, workshops and chawls thereon.years thereafter the Government of Bombay served notices on the Municipal Commissioner determining the tenancy and requesting the Commissioner to deliver possession of the land occupied by the markets, and to pay in the meantime rent at the rate of Rs. 12,000 per annum. The Municipality declined to pay the rent and the Secretary of State for India filed a suit against the Municipal Commissioner for a declaration that the tenancy of the Municipality created by Government Resolution of December 9, 1865, stood determined and for an order to pay rent at the rate of Rs 12,000 per annum. It was urged before the High Court of Bombay that the events which had transpired had created an equity in favour of the Municipality which afforded an answer to the claim of the Government to eject the Municipality Jenkins. C. J., delivering the judgment of the Courtdoctrine involved in this phase of the case is often treated as one of estoppel, but I doubt whether this is a correct, though it may be a convenient name to apply.It differs essentially from the doctrine embodied in Sec. 115 of the Evidence Act, which is not a rule of equity but is a rule of evidence that was formulated and applied in Courts of law; while the doctrine with which I am now dealing, takes its origin from the jurisdiction assumed by Courts of Equity to intervene in the case of, or to preventreferring to Ramsdenv. Dyson, (1866) LR 1 HL 129 (170)the learned Chief Justice observed that the Crown comes within the range of equity and proceeded to examine whether the facts of the case invited the application of that principle.20. This case, is in our judgment, a clear authority that even though the case does not fall within the terms of S. 115 of the Evidence Act, it is still open to a party who has acted on a representation made by the Government to claim that the Government shall be bound to carry out the promise made by it, even though the promise is not recorded in the form of a formal contract as required by the Constitution.Under our jurisprudence the Government is not exempt from liability to carry out the representation made by it as to its future conduct and it cannot on some undefined and undisclosed ground of necessity or expediency fail to carry out the promise solemnly made by it, nor claim to be the judge of its own obligation to the citizen on an ex parte appraisement of the circumstances in which the obligation has arisen. We agree with the High Court that the impugned order passed by the Textile Commissioner and confirmed by the Central Government imposing cut in the import entitlement by the respondents should be set aside and quashed and that the Textile Commissioner and the Joint Chief Controller of Imports and Exports be directed to issue to the respondents import certificates for the total amount equal to 100 per cent of the f. o. b value of the goods exported by them unless there is some decision which falls within Clause 10 of the Scheme in question.24. The facts which give rise to the ether appeals are substantially the same as the facts in Civil Appeal No. 885 of 1967 except that in four out of those appeals the exporters had appeared before the Committee appointed by the Textile Commissioner and had explained the circumstances in which the exports were made by them. But it is common ground that the report of the Committee was not made available to them and the Textile Commissioner, before he passed the orders, did not call for their explanations. It must therefore be held that enquiry in a manner consonant with the rules of justice was not made in the case of those four exporters also.
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Arvind and Abasaheb Ganesh Kulkarni and Others Vs. Anna and Dhanpal Parisa Chougule and Others | the benefit of the family and hence not binding on the two plaintiffs. A decree was granted in favour of the two plaintiffs for joint possession of two-third share of the lands subject to their paying a sum of Rs. 1, 733 5 as 4 ps., to the second defendant. On appeal by the second defendant the Assistant Judge, Kolhapur affirmed the finding of the trial Court that there was legal necessity to the extent of Rs. 2, 600/- only, that the value of the land was Rs. 4, 000/- and that there was no. pressure on the estate justifying the sale. The Assistant Judge found that there was no. evidence to show that the defendant made any bona fide enquiry to satisfy himself that there was sufficient pressure on the family justifying the sale. He however, held that the suit of the first plaintiff was liable to be dismissed as it was barred by limitation. He, therefore, modified the decree of the trial Court by granting a decree in favour of the second plaintiff only for possession of a one-third share in the lands subject to payment of a sum of Rs. 866.66 ps. to the second defendant. The first plaintiff as well as the second defendant preferred second appeals to the High Court. The High Court allowed the appeal filed by the first plaintiff and dismissed the appeal filed by the second defendant. The legal representatives of the second defendant have preferred these appeals after obtaining special leave from this Court under Art. 136 of the Constitution.2. It is clear that these appeals have to be allowed. The facts narrated above show that out of the consideration of Rs. 3, 050/- for the sale there was undoubted legal necessity to the extent of Rs. 2, 600/-, the total amount due under the two deeds of mortgage executed by the father of the plaintiffs. Out of the 10 items of land which were mortgaged, only four were sold and the remaining six items were released from the burden of the mortgagee. The family was also relieved from the burden of paying rent to the mortgagee under the lease back. Surely all this was for the benefit of the family. The value of the land sold under the deed of sale was found by the Courts below to be Rs. 4, 000/-. Even if that be so, it cannot possibly be said that the price of Rs. 3, 000/- was grossly inadequate. It has further to be remembered that there would have been continuous dealings between the family of the plaintiffs and the family of the second defendant, over a long course of years. In those circumstances it is impossible to agree with the conclusion of the Courts below that the sale was not binding on the plaintiffs. The Courts below appeared to think that notwithstanding the circumstance that there was legal necessity to a large extent it was incumbent on the second defendant to establish that he made enquiry to satisfy himself that there was sufficient pressure on the estate which justified the sale. We are unable to see any substance in the view taken by the Courts below. When the mortgagee is himself the purchaser and when the greater portion of the consideration went in discharge of the mortgages we do not see how any question of enquiry regarding pressure on the estate would arise at all. Where ancestral property is sold for the purpose of discharging debts incurred by the father and the bulk of the proceeds of the sale is so accounted, the fact that a small part of the consideration is not accounted for will not invalidate the sale. In Gauri Shankar v. Jiwan Singh AIR 1927 PC 246 , it was found that Rs. 500/- out of the price of Rupees 4, 000/- was not fully accounted for and that there was legal necessity for the balance of Rs. 3, 500/-. The Privy Council held that if the purchaser had acted honestly, if the existence of a family necessity for a sale was made out and the price was not unreasonably low, the purchaser was not bound to account for the application of the whole of the price. The sale was up held. In Nimat Rai v. Din Dayal, AIR 1927 PC 121 , the Manager of a joint family sold family property for Rs. 43, 500/- to satisfy pre-existing debts of the extent of Rs. 38, 000/-. It was held that it was sufficient to sustain the sale without showing how the balance had been applied.3. In Ram Sunder Lal v. Lachhmi Narain, AIR 1929 PC 143 , the vendee the sale in whose favour was questioned 14 years after the sale, was able to prove legal necessity to the extent of Rs. 7, 744/- out of a total price of Rs. 10, 767/-. The Privy Council after quoting a passage from the well-known case of Hunoomanpershad Pandey v. Mt. Babooee Munraj Koonweri, (1855) 6 Moo Ind App 393 upheld the sale.4. The principle of these decisions has been approved by this Court in Radhakrishnadas v. Kaluram, AIR 1961 SC 574.5. The learned counsel for the respondents relied upon the decision of this Court in Balmukund v. Kamala Wati, AIR 1964 SC 1385 . That was a suit for specific performance of an agreement of sale executed by the Manager of the family without even consulting the other adult members of the family. The object of the sale was not to discharge any antecedent debts of the family nor was it for the purpose of securing any benefit to the family. The only reason for the sale of the land was that the plaintiff wanted to consolidate his own holding. The Court naturally found that there was neither legal necessity nor benefit to the estate by the proposed sale and the agreement therefore, could not be enforced. We do not see what relevance this case has to the facts of the present case.6. | 1[ds]It has further to be remembered that there would have been continuous dealings between the family of the plaintiffs and the family of the second defendant, over a long course of years. In those circumstances it is impossible to agree with the conclusion of the Courts below that the sale was not binding on the plaintiffs. The Courts below appeared to think that notwithstanding the circumstance that there was legal necessity to a large extent it was incumbent on the second defendant to establish that he made enquiry to satisfy himself that there was sufficient pressure on the estate which justified the sale. We are unable to see any substance in the view taken by the Courts below. When the mortgagee is himself the purchaser and when the greater portion of the consideration went in discharge of the mortgages we do not see how any question of enquiry regarding pressure on the estate would arise at all. Where ancestral property is sold for the purpose of discharging debts incurred by the father and the bulk of the proceeds of the sale is so accounted, the fact that a small part of the consideration is not accounted for will not invalidate the sale.sale.4. The principle of these decisions has been approved by this Court in Radhakrishnadas v. Kaluram, AIR 1961 SCdo not see what relevance this case has to the facts of the presentwas a suit for specific performance of an agreement of sale executed by the Manager of the family without even consulting the other adult members of the family. The object of the sale was not to discharge any antecedent debts of the family nor was it for the purpose of securing any benefit to the family. The only reason for the sale of the land was that the plaintiff wanted to consolidate his own holding. The Court naturally found that there was neither legal necessity nor benefit to the estate by the proposed sale and the agreement therefore, could not be enforced. | 1 | 1,583 | 352 | ### Instruction:
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the benefit of the family and hence not binding on the two plaintiffs. A decree was granted in favour of the two plaintiffs for joint possession of two-third share of the lands subject to their paying a sum of Rs. 1, 733 5 as 4 ps., to the second defendant. On appeal by the second defendant the Assistant Judge, Kolhapur affirmed the finding of the trial Court that there was legal necessity to the extent of Rs. 2, 600/- only, that the value of the land was Rs. 4, 000/- and that there was no. pressure on the estate justifying the sale. The Assistant Judge found that there was no. evidence to show that the defendant made any bona fide enquiry to satisfy himself that there was sufficient pressure on the family justifying the sale. He however, held that the suit of the first plaintiff was liable to be dismissed as it was barred by limitation. He, therefore, modified the decree of the trial Court by granting a decree in favour of the second plaintiff only for possession of a one-third share in the lands subject to payment of a sum of Rs. 866.66 ps. to the second defendant. The first plaintiff as well as the second defendant preferred second appeals to the High Court. The High Court allowed the appeal filed by the first plaintiff and dismissed the appeal filed by the second defendant. The legal representatives of the second defendant have preferred these appeals after obtaining special leave from this Court under Art. 136 of the Constitution.2. It is clear that these appeals have to be allowed. The facts narrated above show that out of the consideration of Rs. 3, 050/- for the sale there was undoubted legal necessity to the extent of Rs. 2, 600/-, the total amount due under the two deeds of mortgage executed by the father of the plaintiffs. Out of the 10 items of land which were mortgaged, only four were sold and the remaining six items were released from the burden of the mortgagee. The family was also relieved from the burden of paying rent to the mortgagee under the lease back. Surely all this was for the benefit of the family. The value of the land sold under the deed of sale was found by the Courts below to be Rs. 4, 000/-. Even if that be so, it cannot possibly be said that the price of Rs. 3, 000/- was grossly inadequate. It has further to be remembered that there would have been continuous dealings between the family of the plaintiffs and the family of the second defendant, over a long course of years. In those circumstances it is impossible to agree with the conclusion of the Courts below that the sale was not binding on the plaintiffs. The Courts below appeared to think that notwithstanding the circumstance that there was legal necessity to a large extent it was incumbent on the second defendant to establish that he made enquiry to satisfy himself that there was sufficient pressure on the estate which justified the sale. We are unable to see any substance in the view taken by the Courts below. When the mortgagee is himself the purchaser and when the greater portion of the consideration went in discharge of the mortgages we do not see how any question of enquiry regarding pressure on the estate would arise at all. Where ancestral property is sold for the purpose of discharging debts incurred by the father and the bulk of the proceeds of the sale is so accounted, the fact that a small part of the consideration is not accounted for will not invalidate the sale. In Gauri Shankar v. Jiwan Singh AIR 1927 PC 246 , it was found that Rs. 500/- out of the price of Rupees 4, 000/- was not fully accounted for and that there was legal necessity for the balance of Rs. 3, 500/-. The Privy Council held that if the purchaser had acted honestly, if the existence of a family necessity for a sale was made out and the price was not unreasonably low, the purchaser was not bound to account for the application of the whole of the price. The sale was up held. In Nimat Rai v. Din Dayal, AIR 1927 PC 121 , the Manager of a joint family sold family property for Rs. 43, 500/- to satisfy pre-existing debts of the extent of Rs. 38, 000/-. It was held that it was sufficient to sustain the sale without showing how the balance had been applied.3. In Ram Sunder Lal v. Lachhmi Narain, AIR 1929 PC 143 , the vendee the sale in whose favour was questioned 14 years after the sale, was able to prove legal necessity to the extent of Rs. 7, 744/- out of a total price of Rs. 10, 767/-. The Privy Council after quoting a passage from the well-known case of Hunoomanpershad Pandey v. Mt. Babooee Munraj Koonweri, (1855) 6 Moo Ind App 393 upheld the sale.4. The principle of these decisions has been approved by this Court in Radhakrishnadas v. Kaluram, AIR 1961 SC 574.5. The learned counsel for the respondents relied upon the decision of this Court in Balmukund v. Kamala Wati, AIR 1964 SC 1385 . That was a suit for specific performance of an agreement of sale executed by the Manager of the family without even consulting the other adult members of the family. The object of the sale was not to discharge any antecedent debts of the family nor was it for the purpose of securing any benefit to the family. The only reason for the sale of the land was that the plaintiff wanted to consolidate his own holding. The Court naturally found that there was neither legal necessity nor benefit to the estate by the proposed sale and the agreement therefore, could not be enforced. We do not see what relevance this case has to the facts of the present case.6.
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It has further to be remembered that there would have been continuous dealings between the family of the plaintiffs and the family of the second defendant, over a long course of years. In those circumstances it is impossible to agree with the conclusion of the Courts below that the sale was not binding on the plaintiffs. The Courts below appeared to think that notwithstanding the circumstance that there was legal necessity to a large extent it was incumbent on the second defendant to establish that he made enquiry to satisfy himself that there was sufficient pressure on the estate which justified the sale. We are unable to see any substance in the view taken by the Courts below. When the mortgagee is himself the purchaser and when the greater portion of the consideration went in discharge of the mortgages we do not see how any question of enquiry regarding pressure on the estate would arise at all. Where ancestral property is sold for the purpose of discharging debts incurred by the father and the bulk of the proceeds of the sale is so accounted, the fact that a small part of the consideration is not accounted for will not invalidate the sale.sale.4. The principle of these decisions has been approved by this Court in Radhakrishnadas v. Kaluram, AIR 1961 SCdo not see what relevance this case has to the facts of the presentwas a suit for specific performance of an agreement of sale executed by the Manager of the family without even consulting the other adult members of the family. The object of the sale was not to discharge any antecedent debts of the family nor was it for the purpose of securing any benefit to the family. The only reason for the sale of the land was that the plaintiff wanted to consolidate his own holding. The Court naturally found that there was neither legal necessity nor benefit to the estate by the proposed sale and the agreement therefore, could not be enforced.
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Indian Bank, Limited Vs. Ramanathan S. M | to the secretary until he filed the present application. There was no dispute about the facts in respect of which the action was taken against him. There also could be no dispute that those facts amounted to gross misconduct for which under the said award one of the penalties would be stoppage of increments. That being the position, both the contentions were afterthoughts and it is somewhat surprising that they were considered as acceptable.Regarding the second order, Ex. M. 8, dated June 19, 1957, the contention urged before the labour court was that the office note, Ex. M. 7, on the report of the enquiry officer stated that recommendation should be made to the board that in view of the gross misconduct found by the enquiry officer against the respondent, he should be transferred and two increments should be withheld, that on June 19, 1957 the secretary himself made an endorsement on the said office-note, namely, "transfer him immediately and recommend punishment." The argument was that though the board was to be recommended to order punishment and that it was the board that was to pass the order, the secretary himself passed the order on that day. The order, Ex. M. 8, thus passed by the secretary was as follows : "With reference to the enquiry conducted by Sri G. S. Ardhanari, inspector of branches, in regard to the complaints made against you by the agent, Mayuram branch, and by Sri N. N. Vairavan, Shroff, Mayuram branch, we have to inform you that it has been decided to stop your increments for two years for the following reasons : (1) You did not behave properly at the counter. (2) You were insubordinate to the higher authorities. (3) You used vulgar language in office against the staff officer and against the other Shroff on 8 April 1957. You will not, therefore, draw your increments for the years 1958 and 1959." 5. The labour court held that the fact that the order, Ex. M. 8, was passed by the secretary meant that the office suggestion in Ex. M. 7 was not followed and instead of the board passing a suitable order, it was the secretary who passed the order. The labour court observed that the said order was no doubt placed before the board, but that was not for confirmation by the board but only for its information. This conclusion is not borne out by the record. It appears that after the order, Ex. M. 8, was communicated to the respondent he made a representation, Ex. M. 10, dated July 1, 1957, to the secretary. In that representation he admitted that he had an altercation with the other employee in which he had used what he called "harsh words" but denied that he had said anything against any staff officer. He requested that in view of his long service in the bank "his misbehaviour" should be condoned. The endorsement made beneath his representation by the secretary shows that the order of transfer and stoppage of two increments passed against the respondent was placed before the board at its meeting on July 5, 1957 for confirmation. At that meeting, a note, Ex. M. 18, dated July 5, 1957, was also placed before the board informing the board of the facts on which disciplinary action was taken and the order passed against him by the secretary. It is thus clear that what was put upbefore the board for its information was this note. On the same day, presumably, after the directors meeting concluded the secretary noted that the action taken against the respondent could not be revised and directed that this decision should be communicated to the respondent. 6. As already stated, the bank had delegated the powers of disciplinary action to the secretary as the head of the executive, and therefore, whether action taken by him was placed for confirmation or for information of the board would make no difference as power to take disciplinary action vested in him. Even if the said action was placed before the board for information and not for confirmation, if the board did not approve of it, it could have rescinded it or modified it. The fact that no such thing was done shows that the board approved of it. It is thus difficult to appreciate how it can be said that the secretarys order was in any way incompetent. 7. Lastly, the construction placed by the Court on the order, Ex. M. 8, is not correct. The order in express words was "to stop your increments for two years." It seems that the learned Judge misunderstood the words "for two years" as meaning postponing the enjoyment of the benefit of the two increments for two years and restoring them at the end of two years. That is not so, because the order clearly was to stop two increments. This is clear from the last sentence in the order which expressly states that the respondent was not to draw increments for the years 1958 and 1959. If it was intended otherwise and the increments were only postponed and were to be restored at the end of that period, the order would have said so. That not having been done, the construction placed on the said order by the Court cannot be supported. The respondent also understood the order as having stopped and not as having postponed or delayed the two increments. That is manifest from the fact that after the expiry of the two years, i.e. 1958 and 1959, he did not ask for restoration of the two increments in his salary for 1960. It was only for the first time when he filed the present application in July 1962 that he challenged its validity. The construction placed on the order by the labour court was thus not correct. In this view it is not necessary to consider the question raised by Sri Sastri as to the non-applicability of S. 33C(2) to the facts of the case. | 1[ds]4. The labour court accepted both these contentions and held the order, Ex. M. 5, a nullity. In our view, the labour court was in error, because the order which was communicated to the respondent and actually implemented was the order, Ex. M. 5. As aforesaid, the secretary is the executive head of the bank and to whom the bank had delegated disciplinary powers. What the secretary did by passing order. Ex. M. 5, was to translate the action proposed by the board. There can be no doubt that the board had resolved to stop two increments. Though the word "reduced" was used in the resolution, it was used in the context of depriving the respondent of two increments. The stoppage of two increments would, in fact, reduce the salary which he would have drawn if the increments had not been stopped. The secretary by his order put into effect that which the board intended by its resolution7. Lastly, the construction placed by the Court on the order, Ex. M. 8, is not correct. The order in express words was "to stop your increments for two years." It seems that the learned Judge misunderstood the words "for two years" as meaning postponing the enjoyment of the benefit of the two increments for two years and restoring them at the end of two years. That is not so, because the order clearly was to stop two increments. This is clear from the last sentence in the order which expressly states that the respondent was not to draw increments for the years 1958 and 1959. If it was intended otherwise and the increments were only postponed and were to be restored at the end of that period, the order would have said so. That not having been done, the construction placed on the said order by the Court cannot be supported. The respondent also understood the order as having stopped and not as having postponed or delayed the two increments. That is manifest from the fact that after the expiry of the two years, i.e. 1958 and 1959, he did not ask for restoration of the two increments in his salary for 1960. It was only for the first time when he filed the present application in July 1962 that he challenged its validity. The construction placed on the order by the labour court was thus not correct. In this view it is not necessary to consider the question raised by Sri Sastri as to they of S. 33C(2) to the facts of the cas | 1 | 1,774 | 481 | ### Instruction:
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to the secretary until he filed the present application. There was no dispute about the facts in respect of which the action was taken against him. There also could be no dispute that those facts amounted to gross misconduct for which under the said award one of the penalties would be stoppage of increments. That being the position, both the contentions were afterthoughts and it is somewhat surprising that they were considered as acceptable.Regarding the second order, Ex. M. 8, dated June 19, 1957, the contention urged before the labour court was that the office note, Ex. M. 7, on the report of the enquiry officer stated that recommendation should be made to the board that in view of the gross misconduct found by the enquiry officer against the respondent, he should be transferred and two increments should be withheld, that on June 19, 1957 the secretary himself made an endorsement on the said office-note, namely, "transfer him immediately and recommend punishment." The argument was that though the board was to be recommended to order punishment and that it was the board that was to pass the order, the secretary himself passed the order on that day. The order, Ex. M. 8, thus passed by the secretary was as follows : "With reference to the enquiry conducted by Sri G. S. Ardhanari, inspector of branches, in regard to the complaints made against you by the agent, Mayuram branch, and by Sri N. N. Vairavan, Shroff, Mayuram branch, we have to inform you that it has been decided to stop your increments for two years for the following reasons : (1) You did not behave properly at the counter. (2) You were insubordinate to the higher authorities. (3) You used vulgar language in office against the staff officer and against the other Shroff on 8 April 1957. You will not, therefore, draw your increments for the years 1958 and 1959." 5. The labour court held that the fact that the order, Ex. M. 8, was passed by the secretary meant that the office suggestion in Ex. M. 7 was not followed and instead of the board passing a suitable order, it was the secretary who passed the order. The labour court observed that the said order was no doubt placed before the board, but that was not for confirmation by the board but only for its information. This conclusion is not borne out by the record. It appears that after the order, Ex. M. 8, was communicated to the respondent he made a representation, Ex. M. 10, dated July 1, 1957, to the secretary. In that representation he admitted that he had an altercation with the other employee in which he had used what he called "harsh words" but denied that he had said anything against any staff officer. He requested that in view of his long service in the bank "his misbehaviour" should be condoned. The endorsement made beneath his representation by the secretary shows that the order of transfer and stoppage of two increments passed against the respondent was placed before the board at its meeting on July 5, 1957 for confirmation. At that meeting, a note, Ex. M. 18, dated July 5, 1957, was also placed before the board informing the board of the facts on which disciplinary action was taken and the order passed against him by the secretary. It is thus clear that what was put upbefore the board for its information was this note. On the same day, presumably, after the directors meeting concluded the secretary noted that the action taken against the respondent could not be revised and directed that this decision should be communicated to the respondent. 6. As already stated, the bank had delegated the powers of disciplinary action to the secretary as the head of the executive, and therefore, whether action taken by him was placed for confirmation or for information of the board would make no difference as power to take disciplinary action vested in him. Even if the said action was placed before the board for information and not for confirmation, if the board did not approve of it, it could have rescinded it or modified it. The fact that no such thing was done shows that the board approved of it. It is thus difficult to appreciate how it can be said that the secretarys order was in any way incompetent. 7. Lastly, the construction placed by the Court on the order, Ex. M. 8, is not correct. The order in express words was "to stop your increments for two years." It seems that the learned Judge misunderstood the words "for two years" as meaning postponing the enjoyment of the benefit of the two increments for two years and restoring them at the end of two years. That is not so, because the order clearly was to stop two increments. This is clear from the last sentence in the order which expressly states that the respondent was not to draw increments for the years 1958 and 1959. If it was intended otherwise and the increments were only postponed and were to be restored at the end of that period, the order would have said so. That not having been done, the construction placed on the said order by the Court cannot be supported. The respondent also understood the order as having stopped and not as having postponed or delayed the two increments. That is manifest from the fact that after the expiry of the two years, i.e. 1958 and 1959, he did not ask for restoration of the two increments in his salary for 1960. It was only for the first time when he filed the present application in July 1962 that he challenged its validity. The construction placed on the order by the labour court was thus not correct. In this view it is not necessary to consider the question raised by Sri Sastri as to the non-applicability of S. 33C(2) to the facts of the case.
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4. The labour court accepted both these contentions and held the order, Ex. M. 5, a nullity. In our view, the labour court was in error, because the order which was communicated to the respondent and actually implemented was the order, Ex. M. 5. As aforesaid, the secretary is the executive head of the bank and to whom the bank had delegated disciplinary powers. What the secretary did by passing order. Ex. M. 5, was to translate the action proposed by the board. There can be no doubt that the board had resolved to stop two increments. Though the word "reduced" was used in the resolution, it was used in the context of depriving the respondent of two increments. The stoppage of two increments would, in fact, reduce the salary which he would have drawn if the increments had not been stopped. The secretary by his order put into effect that which the board intended by its resolution7. Lastly, the construction placed by the Court on the order, Ex. M. 8, is not correct. The order in express words was "to stop your increments for two years." It seems that the learned Judge misunderstood the words "for two years" as meaning postponing the enjoyment of the benefit of the two increments for two years and restoring them at the end of two years. That is not so, because the order clearly was to stop two increments. This is clear from the last sentence in the order which expressly states that the respondent was not to draw increments for the years 1958 and 1959. If it was intended otherwise and the increments were only postponed and were to be restored at the end of that period, the order would have said so. That not having been done, the construction placed on the said order by the Court cannot be supported. The respondent also understood the order as having stopped and not as having postponed or delayed the two increments. That is manifest from the fact that after the expiry of the two years, i.e. 1958 and 1959, he did not ask for restoration of the two increments in his salary for 1960. It was only for the first time when he filed the present application in July 1962 that he challenged its validity. The construction placed on the order by the labour court was thus not correct. In this view it is not necessary to consider the question raised by Sri Sastri as to they of S. 33C(2) to the facts of the cas
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SIRI CHAND (DECEASED) THR. LRS Vs. SURINDER SINGH | was payable per mensem, condition of payment of annual rent was also mentioned there. The High Court noted the condition of the lease and has also applied the provisions of Section 17(1)(d) of the Registration Act, 1908 and held that the said lease was not registrable. In paragraph 1 of the judgment, the contents of the lease have been quoted, which are to the following effect: - ……………………The main provisions of the lease in question may be translated as follows: We, Nand Lal and Murli, sweepers of Hazro, have taken on rent a house from Mengh Baj of Hazro on condition of payment of an annual rent of Rs. 40-8-0 for a period of one year certain. We agree that we will live as tenants in this house and will pay rent at the rate of Rs. 3-6-0 per mensem, month by month on a receipt being granted to us by the landlord. In default of payment of rent the landlord can eject us and recover arrears of rent in any manner he likes. After the expiry of the term it will be the option of the landlord to give the house to us on rent or eject us and give it to other tenants. We will have no objection to this. The term of the lease is from the 1st Har, Sambat 1984 to the end of Jeth, Sambat 1985. We have been tenants under the landlord for a long time and have been paying rent. 18. After considering the conditions of the lease and referring to Section 17(1)(d), the High Court laid down following in paragraph 3: - 3. On a construction of the above deed it is obvious that it is not a lease from year to year, nor for a term exceeding one year, and the sole question is whether or not by it a yearly rent has been reserved which brings it within the letter of the Section. In Mt. Aishan v. Municipal Committee Lahore 92 Ind.Cas. 526 Campbell J. held that a mere recital of an annual rate of rent did not constitute the lease, a lease reserving a yearly rent within the meaning of Section 17, Registration Act. The lease in that case was determinable at any time at the will of the landlord. In the present case after the expiry of one year for which the lease was granted, this lease too was determinable at the end of Jeth, Sambat 1985. In this aspect the present lease constituted no more than a tenancy-at-will after the expiry of the first year and so appears to be covered by the decision of Campbell, J. referred to above. There is considerable body of authority for the proposition that where there is a tenancy-at-will created even though the rent is fixed and is payable annually, the document is not subject to compulsory registration. Reference in this connexion may be made to Muhammad Masam Khan v. Mt. Bakhtawar (1895) 70 P.R. 1895 where a Division Bench held on a construction of the document before them that only those leases must be registered which are in terms for a period exceeding one year, a lease reserving a yearly rent, and containing no other provision establishing a tenancy-at-will, being presumably a lease from year to year. 19. We may notice that in the above case although the annual rent was mentioned but, however, payment of monthly rent was mentioned in the lease deed. The rent note, which we are considering contains only monthly rent and payment month by month. As per law laid down by this Court in Ram Kumar Das(supra) there shall be a presumption that the tenancy in the present case is monthly tenancy. When the clauses of rent note are cumulatively read, the intention of the tenant is more than clear that tenancy was only monthly tenancy, which could have been terminated on default of payment of rent by 5 th day of any month or by notice of one month. The rent deed did not confer any right to tenant to continue in the tenancy for a period of more than one year nor it can be said that tenancy was created for a period of more than one year. Clause (9), which noticed the promise of the tenant of payment of rent by increasing 10% each year was a promise contingent on tenancy being continued beyond one year but cannot make the tenancy year to year or tenancy for a period of more than one year. Present was a case of tenancy for which no period was specified and looking to all the clauses cumulatively, we find that the rent note was not such kind of rent note, which requires compulsory registration under Section 17(1)(d). 20. We may further notice that Rent Controller had returned a finding regarding rate of rent @ Rs.2,000/- per month and further the tenant was liable to pay the house tax, which was not paid from 1999 to 2005 and the decree of eviction was passed accordingly. The Appellate Court although accepted the finding of the Rent Controller that rate of rent was @ Rs.2,000/- and not Rs.1,000/- but merely on the finding that landlord cannot claim 10% increase of rent every year since the document was not registered had allowed the appeal and set side the judgment. There is no specific finding by the Appellate Court regarding the liability of the tenant to pay the house tax. The Appellate Court after holding that document-rent deed was compulsorily registrable and having not registered allowed the appeal. No finding was returned by the Appellate Court that tenant was not in default and tenant has deposited the necessary amount to save himself from eviction. We, thus, are of the view that the judgment of the Appellate Court is unsustainable on the above ground also. We, thus, are of the view that the judgment and decree of the Rent Controller directing eviction ought not to have been interfered by the Appellate Court. | 1[ds]9. We may notice that in the present case, the rent note is not claimed to be signed by the landlord- appellant rather it is signed only by the respondent- tenant. The trial court after considering materials on record has returned the findings that appellant has proved the rent note. The case of the respondent that appellant has got his signatures on a blank paper has not been accepted. RW1- Surinder Singh, respondent in his cross-examination has admitted his signatures on the rent note. The trial court also held that by virtue of clause (9) of the rent note, the respondent is liable to pay increased rate @10% every year and further he was liable to pay house tax. Landlord having paid the house tax, he was entitled to recover the house tax from the respondent.13. Clause (1) of the rent deed specifically makes it clear that monthly tenancy was created on payment of rent of Rs.2,000/- per month. The payment was to be made before 5 th of each month to the owner. The rent deed does not provide for any specific period for which the rent deed was executed.When a rent deed/lease deed does not provide for a period and when it provides for payment of rent monthly, whether tenancy can be treated from year to year or for any term exceeding one year or reserving a yearly rent?The rent deed does not reserve yearly rent, hence the third condition as noted above is not applicable. The rent deed is not also a lease of immovable property from year to year. There is no mention in the rent deed that it is a lease from year to year, hence the said condition is also not applicable.The present is a case where rent deed does not prescribe any period for which it is executed. When the lease deed does not mention the period of tenancy, other conditions of the lease/rent deed and intention of the parties has to be gathered to find out the true nature of the lease deed/rent deed. The two conditions written in the rent note are also relevant to notice. First, if payment of rent in any month is not made up to 5 th of month, owner shall have right to get the shop evicted and second if the owner is in need of shop, he by serving notice of one month can get the shop vacated. This Court had occasion to consider the provision of Section 106 of the Transfer of Property Act, 1882 and noted the rule of construction, which is to be applied when there is no period agreed upon between the parties in a lease deed. In Ram Kumar Das Vs. Jagdish Chandra Deo, Dhabal Deb and Another, AIR 1952 SC 23 after quoting Section 106 of the Transfer of Property Act, 1882, this Court held that when there is no period agreed upon between the parties, duration has to be determined by referring to the purpose and object with which the tenancy is created. Following observations were made: -13. The section lays down a rule of construction which is to be applied when there is no period agreed upon between the parties. In such cases the duration has to be determined by reference to the object or purpose for which the tenancy is created. The rule of construction embodied in this section applies not only to express leases of uncertain duration but also to leases implied by law which may be inferred from possession and acceptance of rent and other circumstances. It is conceded that in the case before us the tenancy was not for manufacturing or agricultural purposes. The object was to enable the lessee to build structures upon the land. In these circumstances, it could be regarded as a tenancy from month to month, unless there was a contract to the. This Court further held that it has no doubt been recognised in several cases that the mode in which a rent is expressed to be payable affords a presumption that the tenancy is of a character corresponding thereto. Consequently, when the rent reserved is an annual rent, the presumption would arise that the tenancy was an annual tenancy unless there is something to rebut the presumption.16. Clauses of the rent note makes it clear that there was a categorical promise that tenancy is a monthly tenancy and rent is paid every month by 5 th of every month. It is true that although in clause (9), it was mentioned that the tenant will be bound for making the rent money by increasing 10% each year, that was promise by the tenant to increase the rent by 10% each year for the period of tenancy, though the period of tenancy was unspecified. Clause (9) may or may not operate in view of specific clauses reserving right of landlord to evict the tenant on committing default of non-payment of rent by 5 th of every month or when landlord requires shop by giving one months notice. Clause (9) was a contingent clause which binds the tenant to increase the rent by 10% each year, which was contingent on tenancy to continue for more than a year, but that clause cannot be read to mean that the tenancy was for a period of more than one year.19. We may notice that in the above case although the annual rent was mentioned but, however, payment of monthly rent was mentioned in the lease deed. The rent note, which we are considering contains only monthly rent and payment month by month. As per law laid down by this Court in Ram Kumar Das(supra) there shall be a presumption that the tenancy in the present case is monthly tenancy. When the clauses of rent note are cumulatively read, the intention of the tenant is more than clear that tenancy was only monthly tenancy, which could have been terminated on default of payment of rent by 5 th day of any month or by notice of one month. The rent deed did not confer any right to tenant to continue in the tenancy for a period of more than one year nor it can be said that tenancy was created for a period of more than one year. Clause (9), which noticed the promise of the tenant of payment of rent by increasing 10% each year was a promise contingent on tenancy being continued beyond one year but cannot make the tenancy year to year or tenancy for a period of more than one year. Present was a case of tenancy for which no period was specified and looking to all the clauses cumulatively, we find that the rent note was not such kind of rent note, which requires compulsory registration under Section 17(1)(d)20. We may further notice that Rent Controller had returned a finding regarding rate of rent @ Rs.2,000/- per month and further the tenant was liable to pay the house tax, which was not paid from 1999 to 2005 and the decree of eviction was passed accordingly. The Appellate Court although accepted the finding of the Rent Controller that rate of rent was @ Rs.2,000/- and not Rs.1,000/- but merely on the finding that landlord cannot claim 10% increase of rent every year since the document was not registered had allowed the appeal and set side the judgment. There is no specific finding by the Appellate Court regarding the liability of the tenant to pay the house tax. The Appellate Court after holding that document-rent deed was compulsorily registrable and having not registered allowed the appeal. No finding was returned by the Appellate Court that tenant was not in default and tenant has deposited the necessary amount to save himself from eviction. We, thus, are of the view that the judgment of the Appellate Court is unsustainable on the above ground also. We, thus, are of the view that the judgment and decree of the Rent Controller directing eviction ought not to have been interfered by the Appellate Court. | 1 | 4,224 | 1,462 | ### Instruction:
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was payable per mensem, condition of payment of annual rent was also mentioned there. The High Court noted the condition of the lease and has also applied the provisions of Section 17(1)(d) of the Registration Act, 1908 and held that the said lease was not registrable. In paragraph 1 of the judgment, the contents of the lease have been quoted, which are to the following effect: - ……………………The main provisions of the lease in question may be translated as follows: We, Nand Lal and Murli, sweepers of Hazro, have taken on rent a house from Mengh Baj of Hazro on condition of payment of an annual rent of Rs. 40-8-0 for a period of one year certain. We agree that we will live as tenants in this house and will pay rent at the rate of Rs. 3-6-0 per mensem, month by month on a receipt being granted to us by the landlord. In default of payment of rent the landlord can eject us and recover arrears of rent in any manner he likes. After the expiry of the term it will be the option of the landlord to give the house to us on rent or eject us and give it to other tenants. We will have no objection to this. The term of the lease is from the 1st Har, Sambat 1984 to the end of Jeth, Sambat 1985. We have been tenants under the landlord for a long time and have been paying rent. 18. After considering the conditions of the lease and referring to Section 17(1)(d), the High Court laid down following in paragraph 3: - 3. On a construction of the above deed it is obvious that it is not a lease from year to year, nor for a term exceeding one year, and the sole question is whether or not by it a yearly rent has been reserved which brings it within the letter of the Section. In Mt. Aishan v. Municipal Committee Lahore 92 Ind.Cas. 526 Campbell J. held that a mere recital of an annual rate of rent did not constitute the lease, a lease reserving a yearly rent within the meaning of Section 17, Registration Act. The lease in that case was determinable at any time at the will of the landlord. In the present case after the expiry of one year for which the lease was granted, this lease too was determinable at the end of Jeth, Sambat 1985. In this aspect the present lease constituted no more than a tenancy-at-will after the expiry of the first year and so appears to be covered by the decision of Campbell, J. referred to above. There is considerable body of authority for the proposition that where there is a tenancy-at-will created even though the rent is fixed and is payable annually, the document is not subject to compulsory registration. Reference in this connexion may be made to Muhammad Masam Khan v. Mt. Bakhtawar (1895) 70 P.R. 1895 where a Division Bench held on a construction of the document before them that only those leases must be registered which are in terms for a period exceeding one year, a lease reserving a yearly rent, and containing no other provision establishing a tenancy-at-will, being presumably a lease from year to year. 19. We may notice that in the above case although the annual rent was mentioned but, however, payment of monthly rent was mentioned in the lease deed. The rent note, which we are considering contains only monthly rent and payment month by month. As per law laid down by this Court in Ram Kumar Das(supra) there shall be a presumption that the tenancy in the present case is monthly tenancy. When the clauses of rent note are cumulatively read, the intention of the tenant is more than clear that tenancy was only monthly tenancy, which could have been terminated on default of payment of rent by 5 th day of any month or by notice of one month. The rent deed did not confer any right to tenant to continue in the tenancy for a period of more than one year nor it can be said that tenancy was created for a period of more than one year. Clause (9), which noticed the promise of the tenant of payment of rent by increasing 10% each year was a promise contingent on tenancy being continued beyond one year but cannot make the tenancy year to year or tenancy for a period of more than one year. Present was a case of tenancy for which no period was specified and looking to all the clauses cumulatively, we find that the rent note was not such kind of rent note, which requires compulsory registration under Section 17(1)(d). 20. We may further notice that Rent Controller had returned a finding regarding rate of rent @ Rs.2,000/- per month and further the tenant was liable to pay the house tax, which was not paid from 1999 to 2005 and the decree of eviction was passed accordingly. The Appellate Court although accepted the finding of the Rent Controller that rate of rent was @ Rs.2,000/- and not Rs.1,000/- but merely on the finding that landlord cannot claim 10% increase of rent every year since the document was not registered had allowed the appeal and set side the judgment. There is no specific finding by the Appellate Court regarding the liability of the tenant to pay the house tax. The Appellate Court after holding that document-rent deed was compulsorily registrable and having not registered allowed the appeal. No finding was returned by the Appellate Court that tenant was not in default and tenant has deposited the necessary amount to save himself from eviction. We, thus, are of the view that the judgment of the Appellate Court is unsustainable on the above ground also. We, thus, are of the view that the judgment and decree of the Rent Controller directing eviction ought not to have been interfered by the Appellate Court.
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deed/rent deed. The two conditions written in the rent note are also relevant to notice. First, if payment of rent in any month is not made up to 5 th of month, owner shall have right to get the shop evicted and second if the owner is in need of shop, he by serving notice of one month can get the shop vacated. This Court had occasion to consider the provision of Section 106 of the Transfer of Property Act, 1882 and noted the rule of construction, which is to be applied when there is no period agreed upon between the parties in a lease deed. In Ram Kumar Das Vs. Jagdish Chandra Deo, Dhabal Deb and Another, AIR 1952 SC 23 after quoting Section 106 of the Transfer of Property Act, 1882, this Court held that when there is no period agreed upon between the parties, duration has to be determined by referring to the purpose and object with which the tenancy is created. Following observations were made: -13. The section lays down a rule of construction which is to be applied when there is no period agreed upon between the parties. In such cases the duration has to be determined by reference to the object or purpose for which the tenancy is created. The rule of construction embodied in this section applies not only to express leases of uncertain duration but also to leases implied by law which may be inferred from possession and acceptance of rent and other circumstances. It is conceded that in the case before us the tenancy was not for manufacturing or agricultural purposes. The object was to enable the lessee to build structures upon the land. In these circumstances, it could be regarded as a tenancy from month to month, unless there was a contract to the. This Court further held that it has no doubt been recognised in several cases that the mode in which a rent is expressed to be payable affords a presumption that the tenancy is of a character corresponding thereto. Consequently, when the rent reserved is an annual rent, the presumption would arise that the tenancy was an annual tenancy unless there is something to rebut the presumption.16. Clauses of the rent note makes it clear that there was a categorical promise that tenancy is a monthly tenancy and rent is paid every month by 5 th of every month. It is true that although in clause (9), it was mentioned that the tenant will be bound for making the rent money by increasing 10% each year, that was promise by the tenant to increase the rent by 10% each year for the period of tenancy, though the period of tenancy was unspecified. Clause (9) may or may not operate in view of specific clauses reserving right of landlord to evict the tenant on committing default of non-payment of rent by 5 th of every month or when landlord requires shop by giving one months notice. Clause (9) was a contingent clause which binds the tenant to increase the rent by 10% each year, which was contingent on tenancy to continue for more than a year, but that clause cannot be read to mean that the tenancy was for a period of more than one year.19. We may notice that in the above case although the annual rent was mentioned but, however, payment of monthly rent was mentioned in the lease deed. The rent note, which we are considering contains only monthly rent and payment month by month. As per law laid down by this Court in Ram Kumar Das(supra) there shall be a presumption that the tenancy in the present case is monthly tenancy. When the clauses of rent note are cumulatively read, the intention of the tenant is more than clear that tenancy was only monthly tenancy, which could have been terminated on default of payment of rent by 5 th day of any month or by notice of one month. The rent deed did not confer any right to tenant to continue in the tenancy for a period of more than one year nor it can be said that tenancy was created for a period of more than one year. Clause (9), which noticed the promise of the tenant of payment of rent by increasing 10% each year was a promise contingent on tenancy being continued beyond one year but cannot make the tenancy year to year or tenancy for a period of more than one year. Present was a case of tenancy for which no period was specified and looking to all the clauses cumulatively, we find that the rent note was not such kind of rent note, which requires compulsory registration under Section 17(1)(d)20. We may further notice that Rent Controller had returned a finding regarding rate of rent @ Rs.2,000/- per month and further the tenant was liable to pay the house tax, which was not paid from 1999 to 2005 and the decree of eviction was passed accordingly. The Appellate Court although accepted the finding of the Rent Controller that rate of rent was @ Rs.2,000/- and not Rs.1,000/- but merely on the finding that landlord cannot claim 10% increase of rent every year since the document was not registered had allowed the appeal and set side the judgment. There is no specific finding by the Appellate Court regarding the liability of the tenant to pay the house tax. The Appellate Court after holding that document-rent deed was compulsorily registrable and having not registered allowed the appeal. No finding was returned by the Appellate Court that tenant was not in default and tenant has deposited the necessary amount to save himself from eviction. We, thus, are of the view that the judgment of the Appellate Court is unsustainable on the above ground also. We, thus, are of the view that the judgment and decree of the Rent Controller directing eviction ought not to have been interfered by the Appellate Court.
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B. Shama Rao Vs. The Union Territory Of Pondicherry | made to the case of State of South Australia and another, etc. v. Commonwealth, 65, CLR 373. The principle laid down in these cases is not applicable to the case before us. In those cases, the law that came up for consideration was void because it had been made by the Legislature in excess of its legislative powers. In the present case the Principal Act was clearly within the competence of the Pondicherry Legislature and is being attacked as void only on the ground that it was defective inasmuch as it contained excessive delegation of its legislative powers by the Pondicherry Legislature to the Madras Legislature. There is nothing in the Constitution which prohibits the substitution of a defective law by a law which is not subject to any infirmity. 22. The second ground is that, in any case, it cannot be held that the whole of the Principal Act was void even when it was published on 30th June 1965 and was purported to be brought into force by the notification of the Pondicherry Government, dated 1st March 1966. Under the Principal Act, there was, no doubt, the general provision that the Madras Act was to be extended to Pondicherry as it stood immediately before the commencement of the Principal Act, but there were at least some provisions of the Madras Act which were to come into force in Pondicherry in the form laid down by the Pondicherry Legislature in the Principal Act itself, and any amendments made in those provisions by the Madras Legislature in the interregnum would have been totally ineffective. By S. 2 (1) (ix) of the Principal Act, for S. 30 of the Madras Act, an entirely new S. 30 was substituted. Similarly, a new First Schedule was substituted for the First Schedule contained in the Madras Act by S. 2 (l) (x) of the Principal Act. The result was that, even if the Madras Legislature had made any amendments in S. 30 and the First Schedule of the Madras Act, those amendments would not have been effective in Pondicherry, because, on the commencement of the Principal Act in Pondicherry, under the notification issued by the Pondicherry Government, S. 30 and the First Schedule of the Madras Act, as extended to Pondicherry, were to stand in the form laid down in the Principal Act itself and not either in the form in which they were originally contained in the Madras Act, or in the form in which they might have stood as a result of a subsequent amendment made by the Madras Legislature before the commencement of the Principal Act. Consequently, it must be held that at least the provisions contained in S. 2 (1) (ix) and S. 2 (l) (x) of the Principal Act did not contain any element of delegation of legislative power and must therefore, be held to have been valid from the very beginning. If at least these provisions of the Principal Act were valid, the whole of the Principal Act could not be treated as still-born and void ab initio. Some parts of that Act were validly in force when the Amending Act was passed in November 1966. If the Principal Act was, to some extent validly enforced, there could be no bar to the Pondicherry Legislature amending it retrospectively so as to validate those parts of the Principal Act which might have been invalid on the ground of excessive delegation of legislative power. The Amending Act, thus, effectively cured the defect in the Principal Act on the basis of which its validity was challenged on behalf of the petitioner before us. 23. Lastly, Mr. Desai challenged the validity of sub-s. (2) of S. 2 of the Principal Act as it now stands after the enforcement of the Amending Act on the ground that, even under this provision, there is delegation of legislative power to the Madras -Government which is totally unjustified. His submission was that under the amended sub-s. (2) of S. 2 of the Principal Act, the power to frame fresh Rules under the Madras Act as extended to Pondicherry is still vested in the Madras Government. This submission is based on the fact that the amended sub-s. (2) of S. 2 lays down that the Madras General Sales Tax Rules, 1959, were to remain in force until such time as Rules are framed under S. 53 of the "said Act". Reliance is placed on the expression "of the said Act", because the expression "said Act" under sub-s. (1) of S. 2 of the Principal Act is indicated as referring to the Madras General Sales Tax Act, 1959. We do not, however, think that this interpretation, sought to be placed by Mr. Desai is correct. When the amended sub-s. (2) of S. 2 of the Principal Act refers to the Madras Act by using the expression "said Act" at the end of that provision, it is clear that the reference is to the Madras General Sales Act, 1959 as extended to the territory of Pondicherry, and, under S. 2 (1) (ii), the reference in the Madras Act as extended to Pondicherry to "Government" has to be construed as a reference to the Administrator appointed by the President under Art. 239 of the Constitution of India for Pondicherry. The result is that under the amended provisions of the Principal Act, the Rules are to be framed by the Administrator of the Territory of Pondicherry and not by the Madras Government. No such defect, as urged by learned counsel, thus remains after the enforcement of the Amending Act. 24. The result is that we must hold, that the Principal Act as amended by the Amending Act now in force in the State of Pondicherry is validly in force and the proceedings that were taken against the petitioner, which were challenged by this petition, have been validated by S. 5 of the Amending Act and are no longer open to challenge. The petition fails and is dismissed with costs. ORDER 25. | 1[ds]It is manifest that the Assembly refused to perform its legislative function entrusted under the Act constituting it. It may be that a mere refusal may not amount to abdication if the legislature instead of going through the full formality of legislation applies its mind to an existing statute enacted by another legislature for another jurisdiction, adopts such an Act and enacts to extend it to the territory under its jurisdiction. In doing so, it may perhaps be said that it has laid down a policy to extend such an Act and directs the executive to apply and implement such an Act. But when it not only adopts such an Act but also provides that the Act applicable to its territory shall be the Act amended in future by the other legislature, there is nothing for it to predicate what the amended Act would be. Such a case would be clearly one of non-application of mind and one of refusal to discharge the function entrusted to it by the Instrument constituting it. It is difficult to see how such a case is not one of abdication or effacement in favour of another legislature at least in regard to that particular matter10. In the present case it is clear that the Pondicherry legislature not only adopted the Madras Act as it stood at the date when it passed the Principal Act but also enacted that if the Madras legislature were to amend its Act prior to the date when the Pondicherry Government would issue its notification it would be the amended Act which would apply. The legislature at that stage could not anticipate that the Madras Act would not be amended nor could it predicate what amendment or amendments would be carried out or whether they would be of a sweeping character or whether they would be suitable in Pondicherry. In point of fact the Madras Act was amended and by reason of S. 2 (1) read with S. 1 (2) of the Principal Act it was the amended Act which was brought into operation in Pondicherry. The result was that the Pondicherry legislature accepted the amended Act though it was not and could not be aware what the provision of the amended Act would be. There was in these circumstances a total surrender in the matter of sales tax legislation by the Pondicherry Assembly in favour of the Madras legislature and for that reason we must agree with Mr. Desai that the Act was void or as is often said still-bornBut the core of a taxing statute is in the charging section and the provisions levying such a tax and defining persons who are liable to pay such tax. If that core disappears the remaining provisions have no efficacy. In our view, Act X of 1965 was for, reasons aforesaid void and still-bornIf that was what the legislature intended to do it would have either repealed the Principal Act or even without repealing it on the footing that it was void enacted the Amendment Act as an independent legislation extending the Madras Act retrospectively as from April 1, 1966. The Amendment Act, as is clear from its long title was passed to amend the Principal Act. That can only be on the footing that it was a valid Act and still on the statute book. Under S. 2 what the legislature purports to do is to amend S. 1 (2) of the Principal Act by substituting the words "It shall come into force on the 1st day of April 1966" in place of the words "It shall come into force on such date as the Government may by notification in the Official Gazette appoint". The only result is that instead of the Principal Act having been brought into force under the said notification, it is deemed to have come into force on April 1, 1966. This is done by a deeming provision as if the new clause was there from the beginning when the Act was passed. That being so, it is as if the Pondicherry legislature had extended the Madras Act together with such amendments which might be made into that Act upto April 1, 1966. Since the Amendment Act was thus passed on the footing that there was in existence a valid Act, viz., the said Principal Act, it is impossible to conceive that it was or intended to be an independent legislation extending thereunder the Madras Act. The Amendment Act was and was intended to be an amendment of the Principal Act and it would be stretching the language of the Amendment Act to a breaking point to construe it as an independent legislation whereby the Madras Act was retrospectively brought into operation as from April 1, 1966. That being so, and on the view that the Principal Act was still-born, the attempt to revive that which was void ab initio was frustrated and such an Act could have no efficacyIn our opinion it is not at all necessary for us to enter into this controversy in the present case, because of our view that, even if it he held that the Principal Act was bad for excessive delegation of powers when it was enacted and published, the subsequent Amending Act passed by the Pondicherry Legislature had the effect of bringing into force in Pondicherry a valid Act, under which proceedings sought to be taken against the petitioner were fully justified. We proceed to give our reasons for this viewWhen the amended sub-s. (2) of S. 2 of the Principal Act refers to the Madras Act by using the expression "said Act" at the end of that provision, it is clear that the reference is to the Madras General Sales Act, 1959 as extended to the territory of Pondicherry, and, under S. 2 (1) (ii), the reference in the Madras Act as extended to Pondicherry to "Government" has to be construed as a reference to the Administrator appointed by the President under Art. 239 of the Constitution of India for Pondicherry. The result is that under the amended provisions of the Principal Act, the Rules are to be framed by the Administrator of the Territory of Pondicherry and not by the Madras Government. No such defect, as urged by learned counsel, thus remains after the enforcement of the Amending Act. | 1 | 11,288 | 1,132 | ### Instruction:
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made to the case of State of South Australia and another, etc. v. Commonwealth, 65, CLR 373. The principle laid down in these cases is not applicable to the case before us. In those cases, the law that came up for consideration was void because it had been made by the Legislature in excess of its legislative powers. In the present case the Principal Act was clearly within the competence of the Pondicherry Legislature and is being attacked as void only on the ground that it was defective inasmuch as it contained excessive delegation of its legislative powers by the Pondicherry Legislature to the Madras Legislature. There is nothing in the Constitution which prohibits the substitution of a defective law by a law which is not subject to any infirmity. 22. The second ground is that, in any case, it cannot be held that the whole of the Principal Act was void even when it was published on 30th June 1965 and was purported to be brought into force by the notification of the Pondicherry Government, dated 1st March 1966. Under the Principal Act, there was, no doubt, the general provision that the Madras Act was to be extended to Pondicherry as it stood immediately before the commencement of the Principal Act, but there were at least some provisions of the Madras Act which were to come into force in Pondicherry in the form laid down by the Pondicherry Legislature in the Principal Act itself, and any amendments made in those provisions by the Madras Legislature in the interregnum would have been totally ineffective. By S. 2 (1) (ix) of the Principal Act, for S. 30 of the Madras Act, an entirely new S. 30 was substituted. Similarly, a new First Schedule was substituted for the First Schedule contained in the Madras Act by S. 2 (l) (x) of the Principal Act. The result was that, even if the Madras Legislature had made any amendments in S. 30 and the First Schedule of the Madras Act, those amendments would not have been effective in Pondicherry, because, on the commencement of the Principal Act in Pondicherry, under the notification issued by the Pondicherry Government, S. 30 and the First Schedule of the Madras Act, as extended to Pondicherry, were to stand in the form laid down in the Principal Act itself and not either in the form in which they were originally contained in the Madras Act, or in the form in which they might have stood as a result of a subsequent amendment made by the Madras Legislature before the commencement of the Principal Act. Consequently, it must be held that at least the provisions contained in S. 2 (1) (ix) and S. 2 (l) (x) of the Principal Act did not contain any element of delegation of legislative power and must therefore, be held to have been valid from the very beginning. If at least these provisions of the Principal Act were valid, the whole of the Principal Act could not be treated as still-born and void ab initio. Some parts of that Act were validly in force when the Amending Act was passed in November 1966. If the Principal Act was, to some extent validly enforced, there could be no bar to the Pondicherry Legislature amending it retrospectively so as to validate those parts of the Principal Act which might have been invalid on the ground of excessive delegation of legislative power. The Amending Act, thus, effectively cured the defect in the Principal Act on the basis of which its validity was challenged on behalf of the petitioner before us. 23. Lastly, Mr. Desai challenged the validity of sub-s. (2) of S. 2 of the Principal Act as it now stands after the enforcement of the Amending Act on the ground that, even under this provision, there is delegation of legislative power to the Madras -Government which is totally unjustified. His submission was that under the amended sub-s. (2) of S. 2 of the Principal Act, the power to frame fresh Rules under the Madras Act as extended to Pondicherry is still vested in the Madras Government. This submission is based on the fact that the amended sub-s. (2) of S. 2 lays down that the Madras General Sales Tax Rules, 1959, were to remain in force until such time as Rules are framed under S. 53 of the "said Act". Reliance is placed on the expression "of the said Act", because the expression "said Act" under sub-s. (1) of S. 2 of the Principal Act is indicated as referring to the Madras General Sales Tax Act, 1959. We do not, however, think that this interpretation, sought to be placed by Mr. Desai is correct. When the amended sub-s. (2) of S. 2 of the Principal Act refers to the Madras Act by using the expression "said Act" at the end of that provision, it is clear that the reference is to the Madras General Sales Act, 1959 as extended to the territory of Pondicherry, and, under S. 2 (1) (ii), the reference in the Madras Act as extended to Pondicherry to "Government" has to be construed as a reference to the Administrator appointed by the President under Art. 239 of the Constitution of India for Pondicherry. The result is that under the amended provisions of the Principal Act, the Rules are to be framed by the Administrator of the Territory of Pondicherry and not by the Madras Government. No such defect, as urged by learned counsel, thus remains after the enforcement of the Amending Act. 24. The result is that we must hold, that the Principal Act as amended by the Amending Act now in force in the State of Pondicherry is validly in force and the proceedings that were taken against the petitioner, which were challenged by this petition, have been validated by S. 5 of the Amending Act and are no longer open to challenge. The petition fails and is dismissed with costs. ORDER 25.
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for another jurisdiction, adopts such an Act and enacts to extend it to the territory under its jurisdiction. In doing so, it may perhaps be said that it has laid down a policy to extend such an Act and directs the executive to apply and implement such an Act. But when it not only adopts such an Act but also provides that the Act applicable to its territory shall be the Act amended in future by the other legislature, there is nothing for it to predicate what the amended Act would be. Such a case would be clearly one of non-application of mind and one of refusal to discharge the function entrusted to it by the Instrument constituting it. It is difficult to see how such a case is not one of abdication or effacement in favour of another legislature at least in regard to that particular matter10. In the present case it is clear that the Pondicherry legislature not only adopted the Madras Act as it stood at the date when it passed the Principal Act but also enacted that if the Madras legislature were to amend its Act prior to the date when the Pondicherry Government would issue its notification it would be the amended Act which would apply. The legislature at that stage could not anticipate that the Madras Act would not be amended nor could it predicate what amendment or amendments would be carried out or whether they would be of a sweeping character or whether they would be suitable in Pondicherry. In point of fact the Madras Act was amended and by reason of S. 2 (1) read with S. 1 (2) of the Principal Act it was the amended Act which was brought into operation in Pondicherry. The result was that the Pondicherry legislature accepted the amended Act though it was not and could not be aware what the provision of the amended Act would be. There was in these circumstances a total surrender in the matter of sales tax legislation by the Pondicherry Assembly in favour of the Madras legislature and for that reason we must agree with Mr. Desai that the Act was void or as is often said still-bornBut the core of a taxing statute is in the charging section and the provisions levying such a tax and defining persons who are liable to pay such tax. If that core disappears the remaining provisions have no efficacy. In our view, Act X of 1965 was for, reasons aforesaid void and still-bornIf that was what the legislature intended to do it would have either repealed the Principal Act or even without repealing it on the footing that it was void enacted the Amendment Act as an independent legislation extending the Madras Act retrospectively as from April 1, 1966. The Amendment Act, as is clear from its long title was passed to amend the Principal Act. That can only be on the footing that it was a valid Act and still on the statute book. Under S. 2 what the legislature purports to do is to amend S. 1 (2) of the Principal Act by substituting the words "It shall come into force on the 1st day of April 1966" in place of the words "It shall come into force on such date as the Government may by notification in the Official Gazette appoint". The only result is that instead of the Principal Act having been brought into force under the said notification, it is deemed to have come into force on April 1, 1966. This is done by a deeming provision as if the new clause was there from the beginning when the Act was passed. That being so, it is as if the Pondicherry legislature had extended the Madras Act together with such amendments which might be made into that Act upto April 1, 1966. Since the Amendment Act was thus passed on the footing that there was in existence a valid Act, viz., the said Principal Act, it is impossible to conceive that it was or intended to be an independent legislation extending thereunder the Madras Act. The Amendment Act was and was intended to be an amendment of the Principal Act and it would be stretching the language of the Amendment Act to a breaking point to construe it as an independent legislation whereby the Madras Act was retrospectively brought into operation as from April 1, 1966. That being so, and on the view that the Principal Act was still-born, the attempt to revive that which was void ab initio was frustrated and such an Act could have no efficacyIn our opinion it is not at all necessary for us to enter into this controversy in the present case, because of our view that, even if it he held that the Principal Act was bad for excessive delegation of powers when it was enacted and published, the subsequent Amending Act passed by the Pondicherry Legislature had the effect of bringing into force in Pondicherry a valid Act, under which proceedings sought to be taken against the petitioner were fully justified. We proceed to give our reasons for this viewWhen the amended sub-s. (2) of S. 2 of the Principal Act refers to the Madras Act by using the expression "said Act" at the end of that provision, it is clear that the reference is to the Madras General Sales Act, 1959 as extended to the territory of Pondicherry, and, under S. 2 (1) (ii), the reference in the Madras Act as extended to Pondicherry to "Government" has to be construed as a reference to the Administrator appointed by the President under Art. 239 of the Constitution of India for Pondicherry. The result is that under the amended provisions of the Principal Act, the Rules are to be framed by the Administrator of the Territory of Pondicherry and not by the Madras Government. No such defect, as urged by learned counsel, thus remains after the enforcement of the Amending Act.
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ASSISTANT COLLECTOR OF CENTRAL EXCISE Vs. HARWOOD GARMENTS | 1. A complaint was filed against the respondent-Company and two others who were Director and Assistant Manager of the said Company as officers-in-charge of the affairs of the said Company u/s 9(l)(i) of the Central Excises and Salt Act, 1944. During the pendency of the said trial, A-2 and A-3, viz., the said Director and Assistant Manager made an application for discharge on the ground that they were not liable for the offence punishable. During the pendency, on 28th October, 1989, the Trial Court discharged A-2 and A-3 for want of service of notice on them. The Company, in question, on 29-11-1989 filed an application before the High Court u/s 482 of the Criminal Procedure Code seeking for quashing of the proceedings against it on the ground that since Section 9(l)(i) of the Central Excise Act provides a mandatory punishment of imprisonment and there being no individual person before the Court representing the company, the proceedings against the said company cannot be maintained. The High Court accepted the said contention of the petitioner and quashed the proceedings against the said company. Being aggrieved of the said order of the High Court the complainant is in appeal before us. 2. It is contended that in view of Section 9(l)(i) of the Central Excises and Salt Act there is vicarious liability on the officers in-charge of the company who, if the company is found to be guilty, shall also deem to be guilty of the offences charged against the company, therefore, the High Court was not justified in quashing the proceedings. But on the facts of this case, that argument cannot be entertained because though these Director and Assistant Manager of the company were arrayed as accused persons in these very same proceedings along with the company the said two Director and Assistant Manager by virtue of the inaction of the complainant were discharged, therefore, they cannot now tried once again with the aid of Section 9(l)(i) of the Act. Learned Counsel appearing for the respondent also contended that the offences in question was prior to coming into force Section 9(l)(i) of the Act which was on 27th December, 1988, therefore, even otherwise the complainant could not have relied on the said Section. It is not necessary for us to go into this question since the Director and Assistant Manager were once discharged and that discharge having become final they cannot be tried once again for the very same offence and in their absence company alone cannot be tried for an offence u/s 9(l)(i) of the Act. | 0[ds]But on the facts of this case, that argument cannot be entertained because though these Director and Assistant Manager of the company were arrayed as accused persons in these very same proceedings along with the company the said two Director and Assistant Manager by virtue of the inaction of the complainant were discharged, therefore, they cannot now tried once again with the aid of Section 9(l)(i) of the Act. Learned Counsel appearing for the respondent also contended that the offences in question was prior to coming into force Section 9(l)(i) of the Act which was on 27th December, 1988, therefore, even otherwise the complainant could not have relied on the said Section. It is not necessary for us to go into this question since the Director and Assistant Manager were once discharged and that discharge having become final they cannot be tried once again for the very same offence and in their absence company alone cannot be tried for an offence u/s 9(l)(i) of the Act. | 0 | 498 | 201 | ### Instruction:
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1. A complaint was filed against the respondent-Company and two others who were Director and Assistant Manager of the said Company as officers-in-charge of the affairs of the said Company u/s 9(l)(i) of the Central Excises and Salt Act, 1944. During the pendency of the said trial, A-2 and A-3, viz., the said Director and Assistant Manager made an application for discharge on the ground that they were not liable for the offence punishable. During the pendency, on 28th October, 1989, the Trial Court discharged A-2 and A-3 for want of service of notice on them. The Company, in question, on 29-11-1989 filed an application before the High Court u/s 482 of the Criminal Procedure Code seeking for quashing of the proceedings against it on the ground that since Section 9(l)(i) of the Central Excise Act provides a mandatory punishment of imprisonment and there being no individual person before the Court representing the company, the proceedings against the said company cannot be maintained. The High Court accepted the said contention of the petitioner and quashed the proceedings against the said company. Being aggrieved of the said order of the High Court the complainant is in appeal before us. 2. It is contended that in view of Section 9(l)(i) of the Central Excises and Salt Act there is vicarious liability on the officers in-charge of the company who, if the company is found to be guilty, shall also deem to be guilty of the offences charged against the company, therefore, the High Court was not justified in quashing the proceedings. But on the facts of this case, that argument cannot be entertained because though these Director and Assistant Manager of the company were arrayed as accused persons in these very same proceedings along with the company the said two Director and Assistant Manager by virtue of the inaction of the complainant were discharged, therefore, they cannot now tried once again with the aid of Section 9(l)(i) of the Act. Learned Counsel appearing for the respondent also contended that the offences in question was prior to coming into force Section 9(l)(i) of the Act which was on 27th December, 1988, therefore, even otherwise the complainant could not have relied on the said Section. It is not necessary for us to go into this question since the Director and Assistant Manager were once discharged and that discharge having become final they cannot be tried once again for the very same offence and in their absence company alone cannot be tried for an offence u/s 9(l)(i) of the Act.
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But on the facts of this case, that argument cannot be entertained because though these Director and Assistant Manager of the company were arrayed as accused persons in these very same proceedings along with the company the said two Director and Assistant Manager by virtue of the inaction of the complainant were discharged, therefore, they cannot now tried once again with the aid of Section 9(l)(i) of the Act. Learned Counsel appearing for the respondent also contended that the offences in question was prior to coming into force Section 9(l)(i) of the Act which was on 27th December, 1988, therefore, even otherwise the complainant could not have relied on the said Section. It is not necessary for us to go into this question since the Director and Assistant Manager were once discharged and that discharge having become final they cannot be tried once again for the very same offence and in their absence company alone cannot be tried for an offence u/s 9(l)(i) of the Act.
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Shambu Nath Goyal Vs. Bank of Baroda and Others | the legality of the order terminating service must be availed of by the employer by making a proper request at the time when it files its statement of claim or written statement or makes an application seeking either permission to take certain action or seeking approval of the action taken by it. If such a request is made in the statement of claim, application or written statement, t he Labour Court or the Industrial Tribunal must give such an opportunity. If the request is made before the proceedings are concluded the Labour Court or the Industrial Tribunal should ordinarily grant the opportunity to adduce evidence. But if no such request is made at any stage of the proceedings, there is no duty in law cast on the Labour Court or the Industrial Tribunal to give such an opportunity and if there is no such obligatory duty in law failure to give any such opportunity cannot and would not vitiate the proceedings". We think that the application of the management to seek the permission of the Labour Court or Industrial Tribunal for availing the right to adduce further evidence to substantiate the charge or charges framed against the workman referred to in the above passage in the application which may be filed by the management during the pendency of its application made before the Labour Court or Industrial Tribunal seeking its permission under s. 33 of the Industrial Disputes Act, 1947 to take a certain action or grant approval of the action taken by it. The management is made aware of the workmans contention regarding the defeat in the domestic enquiry by the written statement of defence filed by him in the application filed by the management under s. 33 of the Act. Then, if the management chooses to exercise its right it must make up its mind at the earliest stage a nd file the application for that purpose without any unreasonable delay. But when the question arises in a reference under s. 10 of the Act after the workman had been punished pursuant to a finding of guilt recorded against him in the domestic enquiry there is no question of the management filing any application for permission to lead further evidence in support of the charge or charges framed against the workman, for the defeat in the domestic enquiry is pointed out by the workman in his written claim statement filed in the Labour Court or Industrial Tribunal after the reference had been received and the management has the opportunity to look into that statement before it files its written statement of defence in the enquiry before the Labour Court or Industrial Tribunal and could make the request for the opportunity in the written statement itself. If it does not choose to do so at that stage it cannot be allowed to do it at any later stage of the proceedings by filing any application for the purpose which may result in delay which may lead to wrecking the morale of the workman and compel him to surrender which he may not otherwise do.It is true that in the present case an application way made by the management on 8.2.1979 when the matter was before the Tribunal for the second time after it had been remanded by this Court on 2.2.1978 after rejecting the managements contention that the dispute is not an industrial dispute. That was done by the management nearly 14 years after the workman had been suspended on 20.7.1965 and nearly 13 years after the workman had been found guilty in the domestic enquiry and dismissed from service on 28.12.1965. The management took the preliminary objection which found favour with the Tribunal in the first instance on 25.10.1970 that the dispute is not an industrial dispute. That objection, which was upheld by the Tribunal, forced the workman to seek his remedy in this Court which rejected the objection on 2.2.1978. It is only thereafter that the management filed the application dated 8.2.1979 for the first time seeking further opportunity to lead evidence before the Tribunal for substantiating the charges framed in 1965. The management is thus seen to have been taking steps periodically to see that the dispute is not disposed of at an early date one way or the other. The blame for not framing an issue on the question whether or not the workman was gainfully employed in the intervening period cannot be laid on the Tribunal alone. It was equally the duty of the management to have got that issue framed by the Tribunal and adduce the necessary evidence unless the object was to make up that question at some later stage to the disadvantage of the workman as in fact it has been done. The management appears to have come forward with the grievance for the first time only in the High Court. There is no material on record to show that the workman w as gainfully employed anywhere. The management has not furnished any particulars in this regard even before this Court after such a long lapse of time. The workman could have been asked to furnish the necessary information at the earliest stage. The management has not resorted to that course. The workman was not expected to prove the negative. In these circumstances, we do not think that it would be in the interest of justice to prolong any further the agony of the workman whose power to endure the suffering of being out of employment for such a long time and to oppose the management Bank, a nationalised undertaking with all the money power at its disposal in this prolonged litigation is very limited by allowing the Bank to have the advantage belatedly sought in the application dated 8.2.1979 in an industrial dispute which arose to early as in 1965. 12. For the reasons stated above we are of the opinion that the order of the High Court could not be sustained under the facts and circumstances of the case. | 1[ds]It is true that in the present case an application way made by the management on 8.2.1979 when the matter was before the Tribunal for the second time after it had been remanded by this Court on 2.2.1978 after rejecting the managements contention that the dispute is not an industrial dispute. That was done by the management nearly 14 years after the workman had been suspended on 20.7.1965 and nearly 13 years after the workman had been found guilty in the domestic enquiry and dismissed from service on 28.12.1965. The management took the preliminary objection which found favour with the Tribunal in the first instance on 25.10.1970 that the dispute is not an industrial dispute. That objection, which was upheld by the Tribunal, forced the workman to seek his remedy in this Court which rejected the objection on 2.2.1978. It is only thereafter that the management filed the application dated 8.2.1979 for the first time seeking further opportunity to lead evidence before the Tribunal for substantiating the charges framed in 1965. The management is thus seen to have been taking steps periodically to see that the dispute is not disposed of at an early date one way or the other. The blame for not framing an issue on the question whether or not the workman was gainfully employed in the intervening period cannot be laid on the Tribunal alone. It was equally the duty of the management to have got that issue framed by the Tribunal and adduce the necessary evidence unless the object was to make up that question at some later stage to the disadvantage of the workman as in fact it has been done. The management appears to have come forward with the grievance for the first time only in the High Court. There is no material on record to show that the workman w as gainfully employed anywhere. The management has not furnished any particulars in this regard even before this Court after such a long lapse of time. The workman could have been asked to furnish the necessary information at the earliest stage. The management has not resorted to that course. The workman was not expected to prove the negative. In these circumstances, we do not think that it would be in the interest of justice to prolong any further the agony of the workman whose power to endure the suffering of being out of employment for such a long time and to oppose the management Bank, a nationalised undertaking with all the money power at its disposal in this prolonged litigation is very limited by allowing the Bank to have the advantage belatedly sought in the application dated 8.2.1979 in an industrial dispute which arose to early as in 1965.For the reasons stated above we are of the opinion that the order of the High Court could not be sustained under the facts and circumstances of the case. The appeal is accordingly allowed with costs of the workman quantified at Rs. 5, 000. The High Courts judgment is set aside and the Tribunals award directing reinstatement of the workman with full back wages and other benefits from the date of his suspension, is restored. The amounts paid to the workman under this Courts orders dated 20.2.1980, 8.4.1980 and 27.10.1980 shall be taken into account in computing the workmans claim for full back wages and other benefits from the date of suspension to the date of his reinstatement. | 1 | 6,550 | 604 | ### Instruction:
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the legality of the order terminating service must be availed of by the employer by making a proper request at the time when it files its statement of claim or written statement or makes an application seeking either permission to take certain action or seeking approval of the action taken by it. If such a request is made in the statement of claim, application or written statement, t he Labour Court or the Industrial Tribunal must give such an opportunity. If the request is made before the proceedings are concluded the Labour Court or the Industrial Tribunal should ordinarily grant the opportunity to adduce evidence. But if no such request is made at any stage of the proceedings, there is no duty in law cast on the Labour Court or the Industrial Tribunal to give such an opportunity and if there is no such obligatory duty in law failure to give any such opportunity cannot and would not vitiate the proceedings". We think that the application of the management to seek the permission of the Labour Court or Industrial Tribunal for availing the right to adduce further evidence to substantiate the charge or charges framed against the workman referred to in the above passage in the application which may be filed by the management during the pendency of its application made before the Labour Court or Industrial Tribunal seeking its permission under s. 33 of the Industrial Disputes Act, 1947 to take a certain action or grant approval of the action taken by it. The management is made aware of the workmans contention regarding the defeat in the domestic enquiry by the written statement of defence filed by him in the application filed by the management under s. 33 of the Act. Then, if the management chooses to exercise its right it must make up its mind at the earliest stage a nd file the application for that purpose without any unreasonable delay. But when the question arises in a reference under s. 10 of the Act after the workman had been punished pursuant to a finding of guilt recorded against him in the domestic enquiry there is no question of the management filing any application for permission to lead further evidence in support of the charge or charges framed against the workman, for the defeat in the domestic enquiry is pointed out by the workman in his written claim statement filed in the Labour Court or Industrial Tribunal after the reference had been received and the management has the opportunity to look into that statement before it files its written statement of defence in the enquiry before the Labour Court or Industrial Tribunal and could make the request for the opportunity in the written statement itself. If it does not choose to do so at that stage it cannot be allowed to do it at any later stage of the proceedings by filing any application for the purpose which may result in delay which may lead to wrecking the morale of the workman and compel him to surrender which he may not otherwise do.It is true that in the present case an application way made by the management on 8.2.1979 when the matter was before the Tribunal for the second time after it had been remanded by this Court on 2.2.1978 after rejecting the managements contention that the dispute is not an industrial dispute. That was done by the management nearly 14 years after the workman had been suspended on 20.7.1965 and nearly 13 years after the workman had been found guilty in the domestic enquiry and dismissed from service on 28.12.1965. The management took the preliminary objection which found favour with the Tribunal in the first instance on 25.10.1970 that the dispute is not an industrial dispute. That objection, which was upheld by the Tribunal, forced the workman to seek his remedy in this Court which rejected the objection on 2.2.1978. It is only thereafter that the management filed the application dated 8.2.1979 for the first time seeking further opportunity to lead evidence before the Tribunal for substantiating the charges framed in 1965. The management is thus seen to have been taking steps periodically to see that the dispute is not disposed of at an early date one way or the other. The blame for not framing an issue on the question whether or not the workman was gainfully employed in the intervening period cannot be laid on the Tribunal alone. It was equally the duty of the management to have got that issue framed by the Tribunal and adduce the necessary evidence unless the object was to make up that question at some later stage to the disadvantage of the workman as in fact it has been done. The management appears to have come forward with the grievance for the first time only in the High Court. There is no material on record to show that the workman w as gainfully employed anywhere. The management has not furnished any particulars in this regard even before this Court after such a long lapse of time. The workman could have been asked to furnish the necessary information at the earliest stage. The management has not resorted to that course. The workman was not expected to prove the negative. In these circumstances, we do not think that it would be in the interest of justice to prolong any further the agony of the workman whose power to endure the suffering of being out of employment for such a long time and to oppose the management Bank, a nationalised undertaking with all the money power at its disposal in this prolonged litigation is very limited by allowing the Bank to have the advantage belatedly sought in the application dated 8.2.1979 in an industrial dispute which arose to early as in 1965. 12. For the reasons stated above we are of the opinion that the order of the High Court could not be sustained under the facts and circumstances of the case.
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1
### Explanation:
It is true that in the present case an application way made by the management on 8.2.1979 when the matter was before the Tribunal for the second time after it had been remanded by this Court on 2.2.1978 after rejecting the managements contention that the dispute is not an industrial dispute. That was done by the management nearly 14 years after the workman had been suspended on 20.7.1965 and nearly 13 years after the workman had been found guilty in the domestic enquiry and dismissed from service on 28.12.1965. The management took the preliminary objection which found favour with the Tribunal in the first instance on 25.10.1970 that the dispute is not an industrial dispute. That objection, which was upheld by the Tribunal, forced the workman to seek his remedy in this Court which rejected the objection on 2.2.1978. It is only thereafter that the management filed the application dated 8.2.1979 for the first time seeking further opportunity to lead evidence before the Tribunal for substantiating the charges framed in 1965. The management is thus seen to have been taking steps periodically to see that the dispute is not disposed of at an early date one way or the other. The blame for not framing an issue on the question whether or not the workman was gainfully employed in the intervening period cannot be laid on the Tribunal alone. It was equally the duty of the management to have got that issue framed by the Tribunal and adduce the necessary evidence unless the object was to make up that question at some later stage to the disadvantage of the workman as in fact it has been done. The management appears to have come forward with the grievance for the first time only in the High Court. There is no material on record to show that the workman w as gainfully employed anywhere. The management has not furnished any particulars in this regard even before this Court after such a long lapse of time. The workman could have been asked to furnish the necessary information at the earliest stage. The management has not resorted to that course. The workman was not expected to prove the negative. In these circumstances, we do not think that it would be in the interest of justice to prolong any further the agony of the workman whose power to endure the suffering of being out of employment for such a long time and to oppose the management Bank, a nationalised undertaking with all the money power at its disposal in this prolonged litigation is very limited by allowing the Bank to have the advantage belatedly sought in the application dated 8.2.1979 in an industrial dispute which arose to early as in 1965.For the reasons stated above we are of the opinion that the order of the High Court could not be sustained under the facts and circumstances of the case. The appeal is accordingly allowed with costs of the workman quantified at Rs. 5, 000. The High Courts judgment is set aside and the Tribunals award directing reinstatement of the workman with full back wages and other benefits from the date of his suspension, is restored. The amounts paid to the workman under this Courts orders dated 20.2.1980, 8.4.1980 and 27.10.1980 shall be taken into account in computing the workmans claim for full back wages and other benefits from the date of suspension to the date of his reinstatement.
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MEG RAJ (DEAD) THROUGH LRS Vs. MANPHOOL (DEAD) THR. LRS | Abhay Manohar Sapre, J.1. Leave granted in S.L.P.(c) No.9723/2009.2. These appeals are directed against the final judgment and order dated 28.01.2008 passed by the High Court of Punjab & Haryana at Chandigarh in R.S.A. Nos.40/1984 & 2712/1987 whereby the High Court dismissed R.S.A. No.40 of 1984 and allowed R.S.A. No.2712 of 1987.3. A few facts need mention for the disposal of these appeals, which involve a short point. The facts are taken from R.S.A. No.40/1984 which arose out of C.S. No.24-C/1979.4. The appellants are the legal representatives of the original plaintiffs and the respondents are the legal representatives of original defendants in the Civil suit No.24-C/1979 & Civil Suit No.62-C/1979 out of which these appeals arise.5. The dispute relates to 4/5 th share in the land measuring 643 Bighas and 4 Biswas situated in village Umedpura, District Sirsa, State of Haryana (hereinafter referred to as “the suit land”). The suit land was subjected to ceiling proceedings under the Haryana Ceiling on Land Holdings Act, 1972 (for short, "the Act") wherein the Prescribed Authority had passed an order dated 17.10.1978 in relation to the suit land.6. This led to filing of two civil suits by two sets of persons claiming interest in the suit land. One civil suit was C.S. No. 24-C of 1979 and other was C.S. No. 62-C of 1979.7. So far as C.S. No. 24-C of 1979 is concerned, it was filed by the plaintiffs in the Court of Sub-Judge III Class, Sirsa, against the defendants. In this suit, the plaintiffs sought a declaration that the order dated 17.10.1978 passed by the Prescribed Authority under the Act is null and void. The Trial Court, by judgment/decree dated 06.11.1981, dismissed the suit as being barred.8. The plaintiffs felt aggrieved and filed first appeal (C.A.421-C/83) in the Court of Additional District Judge, Sirsa. By Judgment dated 17.09.1983, the First Appellate Court dismissed the appeal and upheld the judgment/decree of the Trial Court.9. The plaintiffs then carried the matter in appeal (R.S.A.No.40/1984) against the judgment/decree of the First Appellate Court in the High Court of Punjab &Haryana at Chandigarh.10. So far as C.S. No. 62-C of 1979 is concerned, it was filed by other set of plaintiffs. It was filed in the Court of Sub-Judge 1 st Class, Sirsa against other set of defendants, though it was also in relation to the same suit land, which was the subject of C.S. No.24-C of 1979. In this suit also, the plaintiffs sought a declaration that the order dated 17.10.1978 passed by the Prescribed Authority under the Act is null and void but the Trial Court, by judgment/decree dated 15.04.1985, decreed the suit.11. The defendants felt aggrieved and filed first appeal (C.A.77-C/85) in the Court of Additional District Judge, Sirsa. By judgment dated 23.07.1987, the First Appellate Court dismissed the appeal. The defendants felt aggrieved and carried the matter in appeal (R.S.A. No.2712/1987) in the High Court of Punjab & Haryana at Chandigarh.12. Both the second appeals were clubbed together for their disposal.13. By a common impugned order dated 28.01.2008, the High Court dismissed R.S.A. No. 40/1984 which arose out of C.S. No.24-C/79 and allowed RSA No. 2712/1987 which arose out of C.S. No. 62-C/1979 giving rise to filing of these appeals by special leave by the plaintiffs of both the civil suits mentioned above in this Court.14. So, the short question involved in the present appeals is whether the High Court was justified in dismissing R.S.A. No.40/1984 and allowing R.S.A. No. 2712/1987.15. Heard learned counsel for the parties.16. Having heard the learned counsel for the parties and on perusal of the record of the case, we find no merit in these appeals.17. In our considered opinion, the High Court was justified in holding that both the civil suits were barred and thus were not triable by the Civil Court in the light of express bar contained in Section 26 of the Act. Section 26 of the Act reads as under:“26. Bar of Jurisdiction –(1) No civil court shall have jurisdiction to-(a) entertain or proceed with a suit for specific performance of a contract for transfer of land which affects the right of the State Government to the surplus area under this Act; or(b) settle, decide or deal with any matter which is under this Act required to be settled, decided or dealt with by the Financial Commissioner, the Commissioner, the Collector or the Prescribed Authority.(2) No order of the Financial Commissioner, the Commissioner, the Collector or the prescribed authority made under or in pursuance of this Act shall be called in question in any court.”18. Mere perusal of the plaint in both the civil suits would go to show that the plaintiffs (appellants) had challenged therein the legality of the order dated 17.10.1978 passed by the Prescribed Authority under the Act and prayed that the order dated 17.10.2018 be declared null and void.19. Section 9 of the Civil Procedure Code, 1908 provides that the Courts shall have jurisdiction to try all suits of civil nature excepting suits of which their cognizance is either expressly or impliedly barred.20. Section 26 (b) of the Act clearly bars filing of civil suit to examine the legality of the order passed by the Prescribed Authority under the Act. In other words, the Civil Court’s jurisdiction is expressly taken away by Section 26(b) of the Act from examining the legality of orders passed under the Act. The remedy of the plaintiffs in such case lies in filing appeal/revision under Section 18 of the Act against the order of the Prescribed Authority. (See Dhulabhai vs. State of M.P., AIR 1969 SC 78 ) | 0[ds]16. Having heard the learned counsel for the parties and on perusal of the record of the case, we find no merit in these appeals.17. In our considered opinion, the High Court was justified in holding that both the civil suits were barred and thus were not triable by the Civil Court in the light of express bar contained in Section 26 of the Act.Mere perusal of the plaint in both the civil suits would go to show that the plaintiffs (appellants) had challenged therein the legality of the order dated 17.10.1978 passed by the Prescribed Authority under the Act and prayed that the order dated 17.10.2018 be declared null and void.19. Section 9 of the Civil Procedure Code, 1908 provides that the Courts shall have jurisdiction to try all suits of civil nature excepting suits of which their cognizance is either expressly or impliedly barred.20. Section 26 (b) of the Act clearly bars filing of civil suit to examine the legality of the order passed by the Prescribed Authority under the Act. In other words, the Civiljurisdiction is expressly taken away by Section 26(b) of the Act from examining the legality of orders passed under the Act. The remedy of the plaintiffs in such case lies in filing appeal/revision under Section 18 of the Act against the order of the Prescribed Authority. (See Dhulabhai vs. State of M.P., AIR 1969 SC 78 ) | 0 | 1,080 | 258 | ### 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:
Abhay Manohar Sapre, J.1. Leave granted in S.L.P.(c) No.9723/2009.2. These appeals are directed against the final judgment and order dated 28.01.2008 passed by the High Court of Punjab & Haryana at Chandigarh in R.S.A. Nos.40/1984 & 2712/1987 whereby the High Court dismissed R.S.A. No.40 of 1984 and allowed R.S.A. No.2712 of 1987.3. A few facts need mention for the disposal of these appeals, which involve a short point. The facts are taken from R.S.A. No.40/1984 which arose out of C.S. No.24-C/1979.4. The appellants are the legal representatives of the original plaintiffs and the respondents are the legal representatives of original defendants in the Civil suit No.24-C/1979 & Civil Suit No.62-C/1979 out of which these appeals arise.5. The dispute relates to 4/5 th share in the land measuring 643 Bighas and 4 Biswas situated in village Umedpura, District Sirsa, State of Haryana (hereinafter referred to as “the suit land”). The suit land was subjected to ceiling proceedings under the Haryana Ceiling on Land Holdings Act, 1972 (for short, "the Act") wherein the Prescribed Authority had passed an order dated 17.10.1978 in relation to the suit land.6. This led to filing of two civil suits by two sets of persons claiming interest in the suit land. One civil suit was C.S. No. 24-C of 1979 and other was C.S. No. 62-C of 1979.7. So far as C.S. No. 24-C of 1979 is concerned, it was filed by the plaintiffs in the Court of Sub-Judge III Class, Sirsa, against the defendants. In this suit, the plaintiffs sought a declaration that the order dated 17.10.1978 passed by the Prescribed Authority under the Act is null and void. The Trial Court, by judgment/decree dated 06.11.1981, dismissed the suit as being barred.8. The plaintiffs felt aggrieved and filed first appeal (C.A.421-C/83) in the Court of Additional District Judge, Sirsa. By Judgment dated 17.09.1983, the First Appellate Court dismissed the appeal and upheld the judgment/decree of the Trial Court.9. The plaintiffs then carried the matter in appeal (R.S.A.No.40/1984) against the judgment/decree of the First Appellate Court in the High Court of Punjab &Haryana at Chandigarh.10. So far as C.S. No. 62-C of 1979 is concerned, it was filed by other set of plaintiffs. It was filed in the Court of Sub-Judge 1 st Class, Sirsa against other set of defendants, though it was also in relation to the same suit land, which was the subject of C.S. No.24-C of 1979. In this suit also, the plaintiffs sought a declaration that the order dated 17.10.1978 passed by the Prescribed Authority under the Act is null and void but the Trial Court, by judgment/decree dated 15.04.1985, decreed the suit.11. The defendants felt aggrieved and filed first appeal (C.A.77-C/85) in the Court of Additional District Judge, Sirsa. By judgment dated 23.07.1987, the First Appellate Court dismissed the appeal. The defendants felt aggrieved and carried the matter in appeal (R.S.A. No.2712/1987) in the High Court of Punjab & Haryana at Chandigarh.12. Both the second appeals were clubbed together for their disposal.13. By a common impugned order dated 28.01.2008, the High Court dismissed R.S.A. No. 40/1984 which arose out of C.S. No.24-C/79 and allowed RSA No. 2712/1987 which arose out of C.S. No. 62-C/1979 giving rise to filing of these appeals by special leave by the plaintiffs of both the civil suits mentioned above in this Court.14. So, the short question involved in the present appeals is whether the High Court was justified in dismissing R.S.A. No.40/1984 and allowing R.S.A. No. 2712/1987.15. Heard learned counsel for the parties.16. Having heard the learned counsel for the parties and on perusal of the record of the case, we find no merit in these appeals.17. In our considered opinion, the High Court was justified in holding that both the civil suits were barred and thus were not triable by the Civil Court in the light of express bar contained in Section 26 of the Act. Section 26 of the Act reads as under:“26. Bar of Jurisdiction –(1) No civil court shall have jurisdiction to-(a) entertain or proceed with a suit for specific performance of a contract for transfer of land which affects the right of the State Government to the surplus area under this Act; or(b) settle, decide or deal with any matter which is under this Act required to be settled, decided or dealt with by the Financial Commissioner, the Commissioner, the Collector or the Prescribed Authority.(2) No order of the Financial Commissioner, the Commissioner, the Collector or the prescribed authority made under or in pursuance of this Act shall be called in question in any court.”18. Mere perusal of the plaint in both the civil suits would go to show that the plaintiffs (appellants) had challenged therein the legality of the order dated 17.10.1978 passed by the Prescribed Authority under the Act and prayed that the order dated 17.10.2018 be declared null and void.19. Section 9 of the Civil Procedure Code, 1908 provides that the Courts shall have jurisdiction to try all suits of civil nature excepting suits of which their cognizance is either expressly or impliedly barred.20. Section 26 (b) of the Act clearly bars filing of civil suit to examine the legality of the order passed by the Prescribed Authority under the Act. In other words, the Civil Court’s jurisdiction is expressly taken away by Section 26(b) of the Act from examining the legality of orders passed under the Act. The remedy of the plaintiffs in such case lies in filing appeal/revision under Section 18 of the Act against the order of the Prescribed Authority. (See Dhulabhai vs. State of M.P., AIR 1969 SC 78 )
### Response:
0
### Explanation:
16. Having heard the learned counsel for the parties and on perusal of the record of the case, we find no merit in these appeals.17. In our considered opinion, the High Court was justified in holding that both the civil suits were barred and thus were not triable by the Civil Court in the light of express bar contained in Section 26 of the Act.Mere perusal of the plaint in both the civil suits would go to show that the plaintiffs (appellants) had challenged therein the legality of the order dated 17.10.1978 passed by the Prescribed Authority under the Act and prayed that the order dated 17.10.2018 be declared null and void.19. Section 9 of the Civil Procedure Code, 1908 provides that the Courts shall have jurisdiction to try all suits of civil nature excepting suits of which their cognizance is either expressly or impliedly barred.20. Section 26 (b) of the Act clearly bars filing of civil suit to examine the legality of the order passed by the Prescribed Authority under the Act. In other words, the Civiljurisdiction is expressly taken away by Section 26(b) of the Act from examining the legality of orders passed under the Act. The remedy of the plaintiffs in such case lies in filing appeal/revision under Section 18 of the Act against the order of the Prescribed Authority. (See Dhulabhai vs. State of M.P., AIR 1969 SC 78 )
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State of West Bengal Vs. Shyamadas Banerjee & Another | 21. The schedule referred to in Section 4 of the Act provides for offences triable by Special Judges. Paragraphs 2 and 3 of the said Schedule provides as follows:- "2. An offence punishable under Section 409 of the Indian Penal Code (Act XLV of 1860), if committed by a public servant or by a person dealing with property belonging to Government as an agent of Government or by a person dealing with property belonging to a Government company as defined in Section 617 of the Companies Act, 1956 (1 of 1956), as an agent of such Government company in respect of property - with which he is entrusted, or over which he has dominion in his capacity of a public servant or in the way of his business as such agent.3. An offence punishable under Section 417 or Section 420 of the Indian Penal Code, if committed by a public servant or by a person dealing with property belonging to Government as an agent of Government or by a person dealing with property belonging to a Government company as defined in Section 617 of the Companies Act, 1956 as an agent of such Government company, while purporting to act as such public servant or agent." 22. Section 2 of the 1947 Act which defines public servants is also reproduced hereinbelow: "2. Interpretation - For the purpose of this Act. ‘public servant means a public servant as defined in Section 21 of the Indian Penal Code." 23. In other words, in order to fall within the scope of the 1947 Act an accused person will have to answer the definition of "public servant" as indicated in Section 21 IPC. The decision in P.V. Narasimha Raos case (supra) was dealing with a public servant as defined in Section 2(c)(viii) of the 1988 Act, which reads as follows: "2. Definitions - In this Act, unless the context otherwise requires –(a) xxx(b) xxx(c) "public servant" means,-(i) xxxxx(ii) xxxxx(iii) xxxxx(iv) xxxxx(v) xxxxx(vi) xxxxx(vii) xxxxx(viii)any person who holds an office by virtue of which he is authorized or required to perform any public duty." 24. Since in the instant case we are concerned with the prosecution under the Special Courts Act, 1949, we will have to confine ourselves to the definition of "public servant" within the scope of the 1947 Act which includes the definition of "public servant" within the meaning of Section 21 IPC. The said provision having been considered by the Constitution Bench in A.R. Antulays case, we are not expressing any opinion on that score. However, the other question which still remains to be answered is whether the provisions of the Special Courts Act, 1949, would continue to apply to the respondent No.2 when he ceased to be a public servant once he had completed his term as M.L.A., even if the decision in P.V.Narasimha Raos case that Members of Parliament or State Legislative Assembly are public servants for the purpose of the Prevention of Corruption Act, 1988, is applied to the facts of this case.25. The aforesaid question has also been answered by the Constitution Bench in A.R. Antulays case (supra) while considering the provisions of Section 6 of the 1947 Act which deals with grant of sanction for prosecution of public servants. Faced with a similar situation where prosecution had been launched against Shri A.R. Antulay when he was Chief Minister of Maharashtra, but had ceased to hold the said post though he continued to be a sitting M.L.A. of the State Legislative Assembly when cognizance was taken, the Constitution Bench, inter alia, held that the object of providing for previous sanction for prosecution of public servants was to save the public servant from harassment of frivolous or unsubstantiated allegations. It was observed that the policy under Section 6 is that there should not be unnecessary harassment of a public servant. It was also held that the accused must be a public servant when he is alleged to have committed the offence which could be committed by public servants. While holding further that a trial without a valid sanction, where one is necessary under Section 6, is a trial without jurisdiction, it was also held that a valid sanction is required when the Court is called upon to take cognizance of the offence. If, therefore, when the offence is alleged to have been committed, the accused was a public servant, but by the time the Court takes cognizance of the offence alleged to have been committed by him he had ceased to be a public servant, no sanction would be necessary for taking cognizance of the offence against him. As a necessary corollary, if the accused ceases to be a public servant when the Court takes cognizance of the offence, Section 6 is not attracted. In other words, the accused loses his protective cover under Section 6 of the 1947 Act or Section 197 Cr.P.C., and he is open to prosecution without sanction having to be obtained, which also necessarily means that the Special Judge under the Special Courts Act, 1949, would cease to have jurisdiction over the accused.26. The issue which was decided in P.V. Narasimha Raos case (supra) which has been relied upon on behalf of the appellant, deals with a situation contemplated under the Prevention of Corruption Act, 1988, while in the instant case we are concerned with a prosecution under the Special Courts Act, 1949, which specifically refers to the provisions of Section 21 IPC. That is the distinguishing feature of the two decisions and since we are considering a case involving the provisions of the 1947 Act, we are of the view that the decision in A.R.Antulays case is more apposite to the facts of the instant case.27. Since the respondent No.1 ceased to be a Member of the State Legislature at a point of time when cognizance was taken by the Special Judge 4th Court, Calcutta, such cognizance and the proceedings taken on the basis thereof must be held to have been vitiated.28. We, accordingly, | 0[ds]se, we areconcerned with the prosecution under the Special Courts Act, 1949, we will have to confine ourselves to the definition of "public servant" within the scope of the 1947 Act which includes the definition of "public servant" within the meaning of Section 21 IPC. The said provision having been considered by the Constitution Bench in A.R. Antulaysnot expressing any opinion on that score. However, the other question which still remains to be answered is whether the provisions of the Special Courts Act, 1949, would continue to apply to the respondent No.2 when he ceased to be a public servant once he had completed his term as M.L.A., even if the decision in P.V.Narasimha Raos case that Members of Parliament or State Legislative Assembly are public servants for the purpose of the Prevention of Corruption Act, 1988, is applied to the facts of this case.25. The aforesaid question has also been answered by the Constitution Bench in A.R. Antulays case (supra) while considering the provisions of Section 6 of the 1947 Act which deals with grant of sanction for prosecution of public servants. Faced with a similar situation where prosecution had been launched against Shri A.R. Antulay when he was Chief Minister of Maharashtra, but had ceased to hold the said post though he continued to be a sitting M.L.A. of the State Legislative Assembly when cognizance was taken, the Constitution Bench, inter alia, held that the object of providing for previous sanction for prosecution of public servants was to save the public servant from harassment of frivolous or unsubstantiated allegations. It was observed that the policy under Section 6 is that there should not be unnecessary harassment of a public servant. It was also held that the accused must be a public servant when he is alleged to have committed the offence which could be committed by public servants. While holding further that a trial without a valid sanction, where one is necessary under Section 6, is a trial without jurisdiction, it was also held that a valid sanction is required when the Court is called upon to take cognizance of the offence. If, therefore, when the offence is alleged to have been committed, the accused was a public servant, but by the time the Court takes cognizance of the offence alleged to have been committed by him he had ceased to be a public servant, no sanction would be necessary for taking cognizance of the offence against him. As a necessary corollary, if the accused ceases to be a public servant when the Court takes cognizance of the offence, Section 6 is not attracted. In other words, the accused loses his protective cover under Section 6 of the 1947 Act or Section 197 Cr.P.C., and he is open to prosecution without sanction having to be obtained, which also necessarily means that the Special Judge under the Special Courts Act, 1949, would cease to have jurisdiction over the accused.26. The issue which was decided in P.V. Narasimha Raos case (supra) which has been relied upon on behalf of the appellant, deals with a situation contemplated under the Prevention of Corruption Act, 1988, while in the instant case we are concerned with a prosecution under the Special Courts Act, 1949, which specifically refers to the provisions of Section 21 IPC. That is the distinguishing feature of the two decisions and since we are considering a case involving the provisions of the 1947 Act, we are of the view that the decision in A.R.Antulays case is more apposite to the facts of the instant case.27. Since the respondent No.1 ceased to be a Member of the State Legislature at a point of time when cognizance was taken by the Special Judge 4th Court, Calcutta, such cognizance and the proceedings taken on the basis thereof must be held to have been vitiated. | 0 | 3,610 | 707 | ### 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:
21. The schedule referred to in Section 4 of the Act provides for offences triable by Special Judges. Paragraphs 2 and 3 of the said Schedule provides as follows:- "2. An offence punishable under Section 409 of the Indian Penal Code (Act XLV of 1860), if committed by a public servant or by a person dealing with property belonging to Government as an agent of Government or by a person dealing with property belonging to a Government company as defined in Section 617 of the Companies Act, 1956 (1 of 1956), as an agent of such Government company in respect of property - with which he is entrusted, or over which he has dominion in his capacity of a public servant or in the way of his business as such agent.3. An offence punishable under Section 417 or Section 420 of the Indian Penal Code, if committed by a public servant or by a person dealing with property belonging to Government as an agent of Government or by a person dealing with property belonging to a Government company as defined in Section 617 of the Companies Act, 1956 as an agent of such Government company, while purporting to act as such public servant or agent." 22. Section 2 of the 1947 Act which defines public servants is also reproduced hereinbelow: "2. Interpretation - For the purpose of this Act. ‘public servant means a public servant as defined in Section 21 of the Indian Penal Code." 23. In other words, in order to fall within the scope of the 1947 Act an accused person will have to answer the definition of "public servant" as indicated in Section 21 IPC. The decision in P.V. Narasimha Raos case (supra) was dealing with a public servant as defined in Section 2(c)(viii) of the 1988 Act, which reads as follows: "2. Definitions - In this Act, unless the context otherwise requires –(a) xxx(b) xxx(c) "public servant" means,-(i) xxxxx(ii) xxxxx(iii) xxxxx(iv) xxxxx(v) xxxxx(vi) xxxxx(vii) xxxxx(viii)any person who holds an office by virtue of which he is authorized or required to perform any public duty." 24. Since in the instant case we are concerned with the prosecution under the Special Courts Act, 1949, we will have to confine ourselves to the definition of "public servant" within the scope of the 1947 Act which includes the definition of "public servant" within the meaning of Section 21 IPC. The said provision having been considered by the Constitution Bench in A.R. Antulays case, we are not expressing any opinion on that score. However, the other question which still remains to be answered is whether the provisions of the Special Courts Act, 1949, would continue to apply to the respondent No.2 when he ceased to be a public servant once he had completed his term as M.L.A., even if the decision in P.V.Narasimha Raos case that Members of Parliament or State Legislative Assembly are public servants for the purpose of the Prevention of Corruption Act, 1988, is applied to the facts of this case.25. The aforesaid question has also been answered by the Constitution Bench in A.R. Antulays case (supra) while considering the provisions of Section 6 of the 1947 Act which deals with grant of sanction for prosecution of public servants. Faced with a similar situation where prosecution had been launched against Shri A.R. Antulay when he was Chief Minister of Maharashtra, but had ceased to hold the said post though he continued to be a sitting M.L.A. of the State Legislative Assembly when cognizance was taken, the Constitution Bench, inter alia, held that the object of providing for previous sanction for prosecution of public servants was to save the public servant from harassment of frivolous or unsubstantiated allegations. It was observed that the policy under Section 6 is that there should not be unnecessary harassment of a public servant. It was also held that the accused must be a public servant when he is alleged to have committed the offence which could be committed by public servants. While holding further that a trial without a valid sanction, where one is necessary under Section 6, is a trial without jurisdiction, it was also held that a valid sanction is required when the Court is called upon to take cognizance of the offence. If, therefore, when the offence is alleged to have been committed, the accused was a public servant, but by the time the Court takes cognizance of the offence alleged to have been committed by him he had ceased to be a public servant, no sanction would be necessary for taking cognizance of the offence against him. As a necessary corollary, if the accused ceases to be a public servant when the Court takes cognizance of the offence, Section 6 is not attracted. In other words, the accused loses his protective cover under Section 6 of the 1947 Act or Section 197 Cr.P.C., and he is open to prosecution without sanction having to be obtained, which also necessarily means that the Special Judge under the Special Courts Act, 1949, would cease to have jurisdiction over the accused.26. The issue which was decided in P.V. Narasimha Raos case (supra) which has been relied upon on behalf of the appellant, deals with a situation contemplated under the Prevention of Corruption Act, 1988, while in the instant case we are concerned with a prosecution under the Special Courts Act, 1949, which specifically refers to the provisions of Section 21 IPC. That is the distinguishing feature of the two decisions and since we are considering a case involving the provisions of the 1947 Act, we are of the view that the decision in A.R.Antulays case is more apposite to the facts of the instant case.27. Since the respondent No.1 ceased to be a Member of the State Legislature at a point of time when cognizance was taken by the Special Judge 4th Court, Calcutta, such cognizance and the proceedings taken on the basis thereof must be held to have been vitiated.28. We, accordingly,
### Response:
0
### Explanation:
se, we areconcerned with the prosecution under the Special Courts Act, 1949, we will have to confine ourselves to the definition of "public servant" within the scope of the 1947 Act which includes the definition of "public servant" within the meaning of Section 21 IPC. The said provision having been considered by the Constitution Bench in A.R. Antulaysnot expressing any opinion on that score. However, the other question which still remains to be answered is whether the provisions of the Special Courts Act, 1949, would continue to apply to the respondent No.2 when he ceased to be a public servant once he had completed his term as M.L.A., even if the decision in P.V.Narasimha Raos case that Members of Parliament or State Legislative Assembly are public servants for the purpose of the Prevention of Corruption Act, 1988, is applied to the facts of this case.25. The aforesaid question has also been answered by the Constitution Bench in A.R. Antulays case (supra) while considering the provisions of Section 6 of the 1947 Act which deals with grant of sanction for prosecution of public servants. Faced with a similar situation where prosecution had been launched against Shri A.R. Antulay when he was Chief Minister of Maharashtra, but had ceased to hold the said post though he continued to be a sitting M.L.A. of the State Legislative Assembly when cognizance was taken, the Constitution Bench, inter alia, held that the object of providing for previous sanction for prosecution of public servants was to save the public servant from harassment of frivolous or unsubstantiated allegations. It was observed that the policy under Section 6 is that there should not be unnecessary harassment of a public servant. It was also held that the accused must be a public servant when he is alleged to have committed the offence which could be committed by public servants. While holding further that a trial without a valid sanction, where one is necessary under Section 6, is a trial without jurisdiction, it was also held that a valid sanction is required when the Court is called upon to take cognizance of the offence. If, therefore, when the offence is alleged to have been committed, the accused was a public servant, but by the time the Court takes cognizance of the offence alleged to have been committed by him he had ceased to be a public servant, no sanction would be necessary for taking cognizance of the offence against him. As a necessary corollary, if the accused ceases to be a public servant when the Court takes cognizance of the offence, Section 6 is not attracted. In other words, the accused loses his protective cover under Section 6 of the 1947 Act or Section 197 Cr.P.C., and he is open to prosecution without sanction having to be obtained, which also necessarily means that the Special Judge under the Special Courts Act, 1949, would cease to have jurisdiction over the accused.26. The issue which was decided in P.V. Narasimha Raos case (supra) which has been relied upon on behalf of the appellant, deals with a situation contemplated under the Prevention of Corruption Act, 1988, while in the instant case we are concerned with a prosecution under the Special Courts Act, 1949, which specifically refers to the provisions of Section 21 IPC. That is the distinguishing feature of the two decisions and since we are considering a case involving the provisions of the 1947 Act, we are of the view that the decision in A.R.Antulays case is more apposite to the facts of the instant case.27. Since the respondent No.1 ceased to be a Member of the State Legislature at a point of time when cognizance was taken by the Special Judge 4th Court, Calcutta, such cognizance and the proceedings taken on the basis thereof must be held to have been vitiated.
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Lallan Prasad Vs. Rahmat Ali & Anr | is not sufficient in itself to pass special property in the chattel to the pawnee. Delivery of the chattel pawned is a necessary element in the making of a pawn. But delivery and advance need not be simultaneous and a pledge may be perfected by delivery after the advance is made. Satisfaction of the debt or engagement extinguishes the pawn and the pawnee on such satisfaction is bound to redeliver the property. The pawner has an absolute right to redeem the property pledged upon tender of the amount advanced but that right would be lost if the pawnee has in the meantime lawfully sold the property pledged. A contract of pawn thus carries with it an implication that the security is available to satisfy the debt and under this implication the pawnee has the power of sale on default in payment where time is fixed for payment and where there is no such stipulated time on demand for payment and on notice of his intention to sell after default. The pawner however has a right to redeem the property pledged until the sale. If the pawnee sells, he must appropriate the proceeds of the sale towards the pawners debt, for, the sale proceeds are the pawners monies to be so applied and the pawnee must pay to the pawner any surplus after satisfying the debt. The pawnees right of sale is derived from an implied authority from the pawner and such a sale is for the benefit of both the parties. He has a right of action for his debt notwithstanding possession by him of the goods pledged. But if the pawner tenders payment of the debt the pawnee has to return the property pledged. If by his default the pawnee is unable to return the security against payment of the debt, the pawner has a good defence to the action.*This being the position under the common law, it was observed in Trustees of the Property of Ellis and Co. v. Dixon-Johnson, 1925 AC 489, that if a creditor holding security sues for the debt, he is under an obligation on payment of the debt to hand over the security, and that if, having improperly made away with the security he is unable to return it to the debtor he cannot have judgment for the debt.*Halsburys Law of England, 3rd Ed., Vol. 29, p. 221.17. There is no difference between the common law of England and the law with regard to pledge as codified in Ss. 172 to 176 of the Contract Act. Under S. 172 a pledge is a bailment of the goods as security for payment of a debt or performance of a promise. Section 173 entitles a pawnee to retain the goods pleaded as security for payment of a debt and under Section 175 he is entitled to receive from the pawner any extraordinary expenses he incurs for the preservation of the goods pledged with him. Section 176 deals with the rights of a pawnee and provides that in case of default by the pawner the pawnee has (1) the right to sue upon the debt and to retain the goods as collateral security, and (2) to sell the goods after reasonable notice of the intended sale to the pawner. Once the pawnee by virtue of his right under S. 176 sells the goods the right of the pawner to redeem them is of course extinguished. But as aforesaid the pawnee is bound to apply the sale proceeds towards satisfaction of the debt and pay the surplus, if any, to the pawner. So long, howsoever, the sale does not take place the pawner is entitled to redeem the goods on payment of the debt. It follows, therefore that where a pawnee files a suit for recovery of debt, though he is entitled to retain the goods he is bound to return them on payment of the debt. The right to sue on the debt assumes that he is in a position to redeliver the goods on payment of the debt and, therefore, if he has put himself in a position where he is not able to redeliver the goods he cannot obtain a decree. If it were otherwise, the result would be that he would recover the debt and also retain, the goods pledged and the pawner in such a case would be placed in a position where he incurs a greater liability than he bargained for under the contrast of pledge. The pawnee, therefore, can sue on the debt retaining the pledged goods as collateral security. If the debt is paid he has to return the goods with or without the assistance of the Court and appropriate the sale proceed towards the debt. But if he sues on the debt denting the pledge, and it is found that he was given possession of the goods pledged and had retained the same, the pawner has the right to redeem the goods so pledged by payment of the debt. If the pawnee is not in a position to, redeliver the goods he cannot have both the payment the debt and also the goods. Where the value of the pledged property is less the debt and in a suit for recovery of debt by the pledgee, the pledgee denies, the pledge or is otherwise not in a position return the pledged goods he has to give credit for the value of the goods and would be entitled then to recover only the balance. That being the position the appellant would not be entitled to a decree against the said promissory note and also retain the said goods found to have been delivered to him and, therefore in his custody. For, if it were otherwise the first respondent as the pawner would be compelled not only to the amount due under the promissory note but lose the pledged goods as well. That certainly is not the effect of S. 176. The contentions urged by Mr. Rana, therefore must be rejected. | 0[ds]12. The evidence shows that on or about August 18, 1946 the first respondent removed part of the said goods but he did so after paying to the appellant Rs. 1,000 towards the principal and Rs. 200 towards interest. The removal of these goods and the said payment were simultaneously made. That fact would indicate that the first respondent had removed the said goods with the appellants consent which again envisages that the goods were at that time in the appellants charge. In November 1947, 100 maunds of the said aeroscrapes were sold to one Amrit Lal for Rs. 1,400. It is significant that Amrit Lal paid Rs. 200 by cheque out of the said Rs. 1,400 directly to the appellant. The receipt Ex. D in respect of this amount indicates that the appellant was concerned with the sale. If the goods were not in his possession and they were sold by the first respondent without the appellant being concerned with the sale, Amrit Lal would not have directly given the cheque to the appellant. That the appellant was concerned with the said sale becomes also apparent from the fact that in the notice Ex. P. given by him to the first respondent he had intimated that he intended to sell 100 maunds out of the goods.13. Two notices given by the appellant to the first respondent, dated August 4, 1947 and September 11, 1947 furnish clear indications that the appellant was in possession of the said goods. In the first notice he reminded the first respondent that "the aeroscrapes purchased from the Bamrauli Depot were pawned in lieu of the amount due", that the first respondent had continued to remove part of the said goods and disposed them of contrary to the said agreement, that "accordingly my client engaged servants there for safety of the goods and you are liable for payment of their salaries also in accordance with the terms of the agreement." By this notice the appellant intimated to the first respondent that unless the latter made up the account and paid the remaining balance including interest and the salaries of the said watchmen within a week from the date of the service of the notice he would dispose of "the entire goods pawned and realise his entire dues on account of principal, and interest", etc. The second notice was in the same vein again informing the first respondent that the appellant would settle with some customer and dispose of the said aeroscrapes, that he had arranged a customer for 100 maunds, that the said 100 maunds would be sold on the 12th of September 1947 and that the first respondent could remain present at the time of the sale if he so desired. These two notices were followed by a telegram Ex. C which also gave a similar intimation to the first respondent. It cannot be disputed that through these notices the appellant that he intended to exercise his right to sell the said goods pledged with him. These notices are clearly inconsistent with the position adopted by him that the goods were never delivered to him or that they were not pledged with him or that the transaction of power had not materialised. His explanation that these notices were sent at the instance of the first respondent to compel the second respondent to pay up the said debt is without any foundation and was rightly rejected by the High Court.14. Apart from this documentary evidence which satisfactorily established that the said goods were in his possession, there was also oral evidence, which if accepted, would prove that the said goods were handed over to the appellant and remained in his control. The most important part of the oral evidence was that of Manmohan Banerjee, the Commissioner appointed by the Court in a suit filed by the Calcutta National Bank against the respondents. In that suit the Court had passed an order of attachment before judgment of the goods belonging to the first respondents. The evidence of Banerjee was that when he want to attach the aeroscrapes belonging to the first respondent he was informed that part of the said goods were in possession of the appellant and that thereupon he refrained from attaching those goods. This evidence shows that at that time it was a well-known fact that the aeroscrapes in question were in possession of the appellant.15. There were two items of evidence, however, on which the appellant relied to establish that the goods were never in his possession. The first was the evidence of Kedar Nath, the owner of the plot where the said goods were stored. His evidence was that the first respondent had taken the said plot on rent from him in October 1946 and that he was paying the rent therefor. The evidence of Kedar Nath was, however, rejected by the High Court on the ground that he was not in a position to give the exact date on which the said plot was leased to the first respondent and also on the ground that his evidence was not satisfactory to show that the said goods were not stored before October 1946. The second fact relied on by the appellant was that the suit filed by the Calcutta National Bank ultimately failed, that the goods attached by the Bank were thereafter released and some of the goods were thereafter removed by the respondents and the rest by some other persons. It was, therefore, alleged that the respondents could not have removed those goods if in fact they had been pledged with the appellant. But there was no satisfactory evidence to show that the goods attached by the said Bank were the very goods which had been pledged with the appellant. The evidence of Banerjee on the other hand shows the contrary. The fact, therefore, that the goods attached by the Bank were subsequently released and removed by the respondents would not assist the appellant. In view of these facts we are of the view that the High Court was right in its findings that the said goods were delivered to the appellant, that he was a pledged thereof and that the said agreement did not rest at the stage of a mere agreement to pledge.There is no difference between the common law of England and the law with regard to pledge as codified in Ss. 172 to 176 of the Contract Act. Under S. 172 a pledge is a bailment of the goods as security for payment of a debt or performance of a promise. Section 173 entitles a pawnee to retain the goods pleaded as security for payment of a debt and under Section 175 he is entitled to receive from the pawner any extraordinary expenses he incurs for the preservation of the goods pledged with him. Section 176 deals with the rights of a pawnee and provides that in case of default by the pawner the pawnee has (1) the right to sue upon the debt and to retain the goods as collateral security, and (2) to sell the goods after reasonable notice of the intended sale to the pawner. Once the pawnee by virtue of his right under S. 176 sells the goods the right of the pawner to redeem them is of course extinguished. But as aforesaid the pawnee is bound to apply the sale proceeds towards satisfaction of the debt and pay the surplus, if any, to the pawner. So long, howsoever, the sale does not take place the pawner is entitled to redeem the goods on payment of the debt. It follows, therefore that where a pawnee files a suit for recovery of debt, though he is entitled to retain the goods he is bound to return them on payment of the debt. The right to sue on the debt assumes that he is in a position to redeliver the goods on payment of the debt and, therefore, if he has put himself in a position where he is not able to redeliver the goods he cannot obtain a decree. If it were otherwise, the result would be that he would recover the debt and also retain, the goods pledged and the pawner in such a case would be placed in a position where he incurs a greater liability than he bargained for under the contrast of pledge. The pawnee, therefore, can sue on the debt retaining the pledged goods as collateral security. If the debt is paid he has to return the goods with or without the assistance of the Court and appropriate the sale proceed towards the debt. But if he sues on the debt denting the pledge, and it is found that he was given possession of the goods pledged and had retained the same, the pawner has the right to redeem the goods so pledged by payment of the debt. If the pawnee is not in a position to, redeliver the goods he cannot have both the payment the debt and also the goods. Where the value of the pledged property is less the debt and in a suit for recovery of debt by the pledgee, the pledgee denies, the pledge or is otherwise not in a position return the pledged goods he has to give credit for the value of the goods and would be entitled then to recover only the balance. That being the position the appellant would not be entitled to a decree against the said promissory note and also retain the said goods found to have been delivered to him and, therefore in his custody. For, if it were otherwise the first respondent as the pawner would be compelled not only to the amount due under the promissory note but lose the pledged goods as well. That certainly is not the effect of S. 176. The contentions urged by Mr. Rana, therefore must be rejected.The first broad fact that inevitably strikes one is that though the first respondent had agreed to hand over the said goods to the appellant and though he failed to do so, the appellant did not at any time protest or call upon him to deliver the goods. Since he had advanced a fairly large amount it would be somewhat unusual, if the said goods were not placed in his possession, not to call upon the first respondent to forthwith deliver the goods. Since a large amount was advanced by him the appellant also would not ordinarily be content merely with a promissory note from the first respondent. The appellants case, however, was that since he had obtained a guarantee from the second respondent, the father of the first respondent he did not worry even if the said transaction remained at the stage of an agreement to pledge. But the letter under which the 2nd respondent agreed to be the surety was obtained under different circumstances. Under the said agreement the appellant was to permit the first respondent to remove and sell part of the said goods provided he paid to the appellant 3/4th of the sale proceeds. This by itself would presuppose that the goods were under the control and custody of the appellant, for otherwise no question of any permission from the first respondent would arise. The letter of surety from the second respondent itself states that the goods were pledged with the appellant, that the appellant was not allowing the first respondent to remove them for sale and that with a view to assure the appellant that his monies were not in danger the second respondent agreed to make himself responsible for payment of the said loan. This again presupposes that the goods were under the control of the appellant.11. Since as a pledgee the appellant was entitled to recover from the first respondent such expenses as might be incurred by him for the preservation and safety of the said goods he had appointed certain watchmen whose salaries he claimed in the suit. According to the appellant, he had employed these watchmen in the hope that the goods would be placed in his custody and would require to be watched for their safety. His case further was that as the first respondent did not deliver them and stored them near the Aerodrome, he placed, on a request by the respondents the services of the watchmen at their disposal. But he could not explain as to why he continued to pay the salaries of the watchmen, though their services were no longer required by him. The explanation given by him in this regard did not impress the High Court and in our view rightly. If the goods were not delivered to the appellant and were never in his custody there was no reason why he should continue to pay the watchmens salaries. Even assuming that he had engaged the watchmen in the first instance in the hope that the goods would be placed in his possession, he would have discharged them on the first respondent failing to hand over the goods to him. The only explanation that appears to be acceptable in these circumstances is that he continued to employ those watchmen as the goods were in his possession and required to be safely kept aspawner is one who being liable to an engagement gives to the person to whom he is liable a thing to be held as security for payment of his debt or the fulfilment of his liability. The two ingredients of a pawn or a pledge are : (1) that it is essential to the contract of pawn at the property pledged should be actually or constructively delivered to the pawnee, and (2) a pawnee has only a special property in the pledge but the general property therein remains in the pawner and wholly reverts to him on discharge of the debt. A pawn, therefore, is a security, where, by contract a deposit of goods is made as security for a debt. The right to property vests in the pledgee only so far as is necessary to secure the debt. In this sense a pawn or pledge is an intermediate between a simple lien and a mortgage which wholly passes the property in the thing conveyed. (See Hallidayv. Holygate, (1868) 3 Ex299). A contract to pawn a chattel even though money is advanced on the faith of it is not sufficient in itself to pass special property in the chattel to the pawnee. Delivery of the chattel pawned is a necessary element in the making of a pawn. But delivery and advance need not be simultaneous and a pledge may be perfected by delivery after the advance is made. Satisfaction of the debt or engagement extinguishes the pawn and the pawnee on such satisfaction is bound to redeliver the property. The pawner has an absolute right to redeem the property pledged upon tender of the amount advanced but that right would be lost if the pawnee has in the meantime lawfully sold the property pledged. A contract of pawn thus carries with it an implication that the security is available to satisfy the debt and under this implication the pawnee has the power of sale on default in payment where time is fixed for payment and where there is no such stipulated time on demand for payment and on notice of his intention to sell after default. The pawner however has a right to redeem the property pledged until the sale. If the pawnee sells, he must appropriate the proceeds of the sale towards the pawners debt, for, the sale proceeds are the pawners monies to be so applied and the pawnee must pay to the pawner any surplus after satisfying the debt. The pawnees right of sale is derived from an implied authority from the pawner and such a sale is for the benefit of both the parties. He has a right of action for his debt notwithstanding possession by him of the goods pledged. But if the pawner tenders payment of the debt the pawnee has to return the property pledged. If by his default the pawnee is unable to return the security against payment of the debt, the pawner has a good defence to the action.*This being the position under the common law, it was observed in Trusteesof the Property of Ellis and Co. v.89, that if a creditor holding security sues for the debt, he is under an obligation on payment of the debt to hand over the security, and that if, having improperly made away with the security he is unable to return it to the debtor he cannot have judgment for the debt.*Halsburys Law of England, 3rd Ed., Vol. 29, p. 221. | 0 | 3,913 | 2,987 | ### Instruction:
Predict whether the case will result in an affirmative (1) or negative (0) decision for the appeal, and then provide a thorough explanation using key sentences to support your prediction.
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is not sufficient in itself to pass special property in the chattel to the pawnee. Delivery of the chattel pawned is a necessary element in the making of a pawn. But delivery and advance need not be simultaneous and a pledge may be perfected by delivery after the advance is made. Satisfaction of the debt or engagement extinguishes the pawn and the pawnee on such satisfaction is bound to redeliver the property. The pawner has an absolute right to redeem the property pledged upon tender of the amount advanced but that right would be lost if the pawnee has in the meantime lawfully sold the property pledged. A contract of pawn thus carries with it an implication that the security is available to satisfy the debt and under this implication the pawnee has the power of sale on default in payment where time is fixed for payment and where there is no such stipulated time on demand for payment and on notice of his intention to sell after default. The pawner however has a right to redeem the property pledged until the sale. If the pawnee sells, he must appropriate the proceeds of the sale towards the pawners debt, for, the sale proceeds are the pawners monies to be so applied and the pawnee must pay to the pawner any surplus after satisfying the debt. The pawnees right of sale is derived from an implied authority from the pawner and such a sale is for the benefit of both the parties. He has a right of action for his debt notwithstanding possession by him of the goods pledged. But if the pawner tenders payment of the debt the pawnee has to return the property pledged. If by his default the pawnee is unable to return the security against payment of the debt, the pawner has a good defence to the action.*This being the position under the common law, it was observed in Trustees of the Property of Ellis and Co. v. Dixon-Johnson, 1925 AC 489, that if a creditor holding security sues for the debt, he is under an obligation on payment of the debt to hand over the security, and that if, having improperly made away with the security he is unable to return it to the debtor he cannot have judgment for the debt.*Halsburys Law of England, 3rd Ed., Vol. 29, p. 221.17. There is no difference between the common law of England and the law with regard to pledge as codified in Ss. 172 to 176 of the Contract Act. Under S. 172 a pledge is a bailment of the goods as security for payment of a debt or performance of a promise. Section 173 entitles a pawnee to retain the goods pleaded as security for payment of a debt and under Section 175 he is entitled to receive from the pawner any extraordinary expenses he incurs for the preservation of the goods pledged with him. Section 176 deals with the rights of a pawnee and provides that in case of default by the pawner the pawnee has (1) the right to sue upon the debt and to retain the goods as collateral security, and (2) to sell the goods after reasonable notice of the intended sale to the pawner. Once the pawnee by virtue of his right under S. 176 sells the goods the right of the pawner to redeem them is of course extinguished. But as aforesaid the pawnee is bound to apply the sale proceeds towards satisfaction of the debt and pay the surplus, if any, to the pawner. So long, howsoever, the sale does not take place the pawner is entitled to redeem the goods on payment of the debt. It follows, therefore that where a pawnee files a suit for recovery of debt, though he is entitled to retain the goods he is bound to return them on payment of the debt. The right to sue on the debt assumes that he is in a position to redeliver the goods on payment of the debt and, therefore, if he has put himself in a position where he is not able to redeliver the goods he cannot obtain a decree. If it were otherwise, the result would be that he would recover the debt and also retain, the goods pledged and the pawner in such a case would be placed in a position where he incurs a greater liability than he bargained for under the contrast of pledge. The pawnee, therefore, can sue on the debt retaining the pledged goods as collateral security. If the debt is paid he has to return the goods with or without the assistance of the Court and appropriate the sale proceed towards the debt. But if he sues on the debt denting the pledge, and it is found that he was given possession of the goods pledged and had retained the same, the pawner has the right to redeem the goods so pledged by payment of the debt. If the pawnee is not in a position to, redeliver the goods he cannot have both the payment the debt and also the goods. Where the value of the pledged property is less the debt and in a suit for recovery of debt by the pledgee, the pledgee denies, the pledge or is otherwise not in a position return the pledged goods he has to give credit for the value of the goods and would be entitled then to recover only the balance. That being the position the appellant would not be entitled to a decree against the said promissory note and also retain the said goods found to have been delivered to him and, therefore in his custody. For, if it were otherwise the first respondent as the pawner would be compelled not only to the amount due under the promissory note but lose the pledged goods as well. That certainly is not the effect of S. 176. The contentions urged by Mr. Rana, therefore must be rejected.
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even if the said transaction remained at the stage of an agreement to pledge. But the letter under which the 2nd respondent agreed to be the surety was obtained under different circumstances. Under the said agreement the appellant was to permit the first respondent to remove and sell part of the said goods provided he paid to the appellant 3/4th of the sale proceeds. This by itself would presuppose that the goods were under the control and custody of the appellant, for otherwise no question of any permission from the first respondent would arise. The letter of surety from the second respondent itself states that the goods were pledged with the appellant, that the appellant was not allowing the first respondent to remove them for sale and that with a view to assure the appellant that his monies were not in danger the second respondent agreed to make himself responsible for payment of the said loan. This again presupposes that the goods were under the control of the appellant.11. Since as a pledgee the appellant was entitled to recover from the first respondent such expenses as might be incurred by him for the preservation and safety of the said goods he had appointed certain watchmen whose salaries he claimed in the suit. According to the appellant, he had employed these watchmen in the hope that the goods would be placed in his custody and would require to be watched for their safety. His case further was that as the first respondent did not deliver them and stored them near the Aerodrome, he placed, on a request by the respondents the services of the watchmen at their disposal. But he could not explain as to why he continued to pay the salaries of the watchmen, though their services were no longer required by him. The explanation given by him in this regard did not impress the High Court and in our view rightly. If the goods were not delivered to the appellant and were never in his custody there was no reason why he should continue to pay the watchmens salaries. Even assuming that he had engaged the watchmen in the first instance in the hope that the goods would be placed in his possession, he would have discharged them on the first respondent failing to hand over the goods to him. The only explanation that appears to be acceptable in these circumstances is that he continued to employ those watchmen as the goods were in his possession and required to be safely kept aspawner is one who being liable to an engagement gives to the person to whom he is liable a thing to be held as security for payment of his debt or the fulfilment of his liability. The two ingredients of a pawn or a pledge are : (1) that it is essential to the contract of pawn at the property pledged should be actually or constructively delivered to the pawnee, and (2) a pawnee has only a special property in the pledge but the general property therein remains in the pawner and wholly reverts to him on discharge of the debt. A pawn, therefore, is a security, where, by contract a deposit of goods is made as security for a debt. The right to property vests in the pledgee only so far as is necessary to secure the debt. In this sense a pawn or pledge is an intermediate between a simple lien and a mortgage which wholly passes the property in the thing conveyed. (See Hallidayv. Holygate, (1868) 3 Ex299). A contract to pawn a chattel even though money is advanced on the faith of it is not sufficient in itself to pass special property in the chattel to the pawnee. Delivery of the chattel pawned is a necessary element in the making of a pawn. But delivery and advance need not be simultaneous and a pledge may be perfected by delivery after the advance is made. Satisfaction of the debt or engagement extinguishes the pawn and the pawnee on such satisfaction is bound to redeliver the property. The pawner has an absolute right to redeem the property pledged upon tender of the amount advanced but that right would be lost if the pawnee has in the meantime lawfully sold the property pledged. A contract of pawn thus carries with it an implication that the security is available to satisfy the debt and under this implication the pawnee has the power of sale on default in payment where time is fixed for payment and where there is no such stipulated time on demand for payment and on notice of his intention to sell after default. The pawner however has a right to redeem the property pledged until the sale. If the pawnee sells, he must appropriate the proceeds of the sale towards the pawners debt, for, the sale proceeds are the pawners monies to be so applied and the pawnee must pay to the pawner any surplus after satisfying the debt. The pawnees right of sale is derived from an implied authority from the pawner and such a sale is for the benefit of both the parties. He has a right of action for his debt notwithstanding possession by him of the goods pledged. But if the pawner tenders payment of the debt the pawnee has to return the property pledged. If by his default the pawnee is unable to return the security against payment of the debt, the pawner has a good defence to the action.*This being the position under the common law, it was observed in Trusteesof the Property of Ellis and Co. v.89, that if a creditor holding security sues for the debt, he is under an obligation on payment of the debt to hand over the security, and that if, having improperly made away with the security he is unable to return it to the debtor he cannot have judgment for the debt.*Halsburys Law of England, 3rd Ed., Vol. 29, p. 221.
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Associate Builders Vs. Delhi Development Authority | increase claimed or reduction available and shall allow inspection of the same by a duly authorised representative of Delhi Development Authority and further shall, at the request of the Engineer-in-Charge furnish, verified in such a manner as the Engineer-in-Charge may require. Any document, so kept and such other information as the Engineer-in-Charge may require.The contractor shall, within a reasonable time of his becoming aware of any alteration in the prices of any such materials and/ or wages of labour give notice thereof to the Engineer-in- Charge stating that the same is given in pursuance to the condition together with all information relating thereto which he may be in a position to supply." Clause 22 reads as follows: "All sums payable by way of compensations under any of these conditions shall be, considered as reasonable compensation to be applied to this use of Delhi Development Authority without reference to the actual loss or damage sustained, and whether or not any damage shall have been sustained.Specifications and Conditions:1. The contractor must get acquainted with the proposed site for the works and study specifications and conditions carefully before tendering. The work shall be executed as per programme approved by the Engineer-in-Charge. If part of site is not available for any reasons or there is some unavoidable delay in supply of materials stipulated by the Departments, the programme of construction shall be modified accordingly and the contractor shall have no claim for any extras or compensation on this account." 24. Clause 10C concerns itself with the price of material incorporated in the works or wage or labour increases. It has been seen that claims 9, 10 and 11 have nothing to do with either of the aforesaid subjects. In seeking to apply this clause to claim 15, the simple answer is that this clause will not apply when a claim for damages is made. Further, the Arbitrator considered this clause in detail and only awarded amounts under this clause in excess of 10 percent as required by the clause when it came to awarding amounts under claims 2, 3 and 4, which fell within the ambit of clause 10C. The DDA in the appeal before the Division Bench correctly gave up any challenge to these claims as has been recorded in paragraph 4 of the order under appeal. 25. The Arbitrator has dealt with this clause in detail and has construed and applied the same correctly while dealing with claims 2, 3 and 4 and has obviously not applied the said clause to claims 9, 10, 11 and 15 as no occasion for applying the same arose. The award cannot be faulted on this ground. 26. Also, so far as clause 22 is concerned, the DDA did not raise any argument based on this clause before the learned Arbitrator. However, it must in fairness be stated that it was argued before the learned Single Judge. In para 15 of his judgment, the learned Judge sets the clause out and then follows a judgment of the High Court of Delhi in Kochhar Construction Works v. DDA & Anr., (1998) 2 Arb. LR 209. Apart from the fact that a learned Single Judge of the same court is bound by a previous judgment of a Single Judge, the conclusion of the learned Single Judge that if the appellant is at fault and the contract is prolonged for an inordinate period of time, it cannot be said that the respondents cannot be compensated for the same is correct. Besides, this point was not urged before the Division Bench and must be taken to be given up. Mr. Sharan cited Harsha Constructions v. Union of India & Ors., (2014) 9 SCC 246 to say that in respect of excepted matters, no arbitration is possible, and that this being a jurisdictional point, he should be allowed to raise it before us. Unfortunately for Mr. Sharan, the clause does not operate automatically. It only operates if an objection is taken stating that part of the site is not available for any reason. Nowhere has the DDA stated which part of the site is not available for any reason. Further, the learned Single Judges reason for rejecting an argument based on this clause also commends itself to us as the object of this clause is that no claim for extras should be granted only if there is an unavoidable delay. We have seen that the delay was entirely avoidable and caused solely by the DDA itself. 27. One more point needs to be noted. An argument was made before the learned Single Judge that there has been a duplication of claims awarded. The learned Judge dealt with this argument as follows: "18. Learned counsel for the petitioner in respect of ground P, once again makes a reference to the issue that there is overlapping of the claim. I am unable to accept the submission made by the learned counsel. The consequence of delay may have more than one ramifications including the cost of material the supervision required at the site, the inability of the contractor to utilise the manpower at some other place, the inability of the contractor to make, profits from some other contract by utilisation of the same resources. All these aspects are liable to be considered. The Arbitrator has considered the claims separately and has dealt with, claims 9, 10, 11 & 15 together. Claims 12 & 13 have been thereafter dealt with on the same principles since it was found that it was not the respondent, who was responsible for the delay for a period of 25 months beyond the stipulated condition of 9 months.19. There is thus no question of overlapping in different heads and the grievance of the petitioner is rejected." 28. The Single Judge is clearly right. We have gone through all the 15 claims supplied to us and we find that none of these claims are in fact overlapping. They are all contained under separate heads. This argument, therefore, must also fail. 29. | 1[ds]Thus, the award pertaining to Claim Nos. 9, 10, 11 and 15 is liable to be sent aside and it is so set aside. We need not therefore take corrective action on the apparent error i.e. the learned Arbitrator has worked out the claim on the original contract value of Rs. 87,66,678/-, of course by reducing it by 15%, but ignoring that final work executed was only in sum offor the reasons given by the Arbitrator, that 20% hike in the balance work done after the contract stipulated period i.e. benefit to be granted under this head for work done in sum of Rs.37,02,066/- and accepting the sum of Rs.7,20,000/- being the resultant figure, subtracting Rs.1,62,862.50, the figure arrived at isagain, the Division Bench has interfered wrongly with the arbitral award on several counts. It had no business to enter into a pure question of fact to set aside the Arbitrator for having applied a formula of 20 months instead of 25 months. Though this would inure in favour of the appellant, it is clear that the appellant did not file any cross objection on this score. Also, it is extremely curious that the Division Bench found that an adjustment would have to be made with claims awarded under claims 2, 3 and 4 which are entirely separate and independent claims and have nothing to do with claims 12 and 13. The formula then applied by the Division Bench was that it would itself do "rough and ready justice". We are at a complete loss to understand how this can be done by any court under the jurisdiction exercised under Section 34 of the Arbitration Act. As has been held above, the expression "justice" when it comes to setting aside an award under the public policy ground can only mean that an award shocks the conscience of the court. It cannot possibly include what the court thinks is unjust on the facts of a case for which it then seeks to substitute its view for the Arbitrators view and does what it considers to be "justice". With great respect to the Division Bench, the whole approach to setting aside arbitral awards is incorrect. The Division Bench has lost sight of the fact that it is not a first appellate court and cannot interfere with errors ofArbitrator has dealt with this clause in detail and has construed and applied the same correctly while dealing with claims 2, 3 and 4 and has obviously not applied the said clause to claims 9, 10, 11 and 15 as no occasion for applying the same arose. The award cannot be faulted on thisso far as clause 22 is concerned, the DDA did not raise any argument based on this clause before the learned Arbitrator. However, it must in fairness be stated that it was argued before the learned Single Judge. In para 15 of his judgment, the learned Judge sets the clause out and then follows a judgment of the High Court of Delhi in Kochhar Construction Works v. DDA & Anr., (1998) 2 Arb. LR 209. Apart from the fact that a learned Single Judge of the same court is bound by a previous judgment of a Single Judge, the conclusion of the learned Single Judge that if the appellant is at fault and the contract is prolonged for an inordinate period of time, it cannot be said that the respondents cannot be compensated for the same is correct. Besides, this point was not urged before the Division Bench and must be taken to be given up. Mr. Sharan cited Harsha Constructions v. Union of India & Ors., (2014) 9 SCC 246 to say that in respect of excepted matters, no arbitration is possible, and that this being a jurisdictional point, he should be allowed to raise it before us. Unfortunately for Mr. Sharan, the clause does not operate automatically. It only operates if an objection is taken stating that part of the site is not available for any reason. Nowhere has the DDA stated which part of the site is not available for any reason. Further, the learned Single Judges reason for rejecting an argument based on this clause also commends itself to us as the object of this clause is that no claim for extras should be granted only if there is an unavoidable delay. We have seen that the delay was entirely avoidable and caused solely by the DDAis thus no question of overlapping in different heads and the grievance of the petitioner isSingle Judge is clearly right. We have gone through all the 15 claims supplied to us and we find that none of these claims are in fact overlapping. They are all contained under separate heads. This argument, therefore, must also fail. | 1 | 16,883 | 877 | ### 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:
increase claimed or reduction available and shall allow inspection of the same by a duly authorised representative of Delhi Development Authority and further shall, at the request of the Engineer-in-Charge furnish, verified in such a manner as the Engineer-in-Charge may require. Any document, so kept and such other information as the Engineer-in-Charge may require.The contractor shall, within a reasonable time of his becoming aware of any alteration in the prices of any such materials and/ or wages of labour give notice thereof to the Engineer-in- Charge stating that the same is given in pursuance to the condition together with all information relating thereto which he may be in a position to supply." Clause 22 reads as follows: "All sums payable by way of compensations under any of these conditions shall be, considered as reasonable compensation to be applied to this use of Delhi Development Authority without reference to the actual loss or damage sustained, and whether or not any damage shall have been sustained.Specifications and Conditions:1. The contractor must get acquainted with the proposed site for the works and study specifications and conditions carefully before tendering. The work shall be executed as per programme approved by the Engineer-in-Charge. If part of site is not available for any reasons or there is some unavoidable delay in supply of materials stipulated by the Departments, the programme of construction shall be modified accordingly and the contractor shall have no claim for any extras or compensation on this account." 24. Clause 10C concerns itself with the price of material incorporated in the works or wage or labour increases. It has been seen that claims 9, 10 and 11 have nothing to do with either of the aforesaid subjects. In seeking to apply this clause to claim 15, the simple answer is that this clause will not apply when a claim for damages is made. Further, the Arbitrator considered this clause in detail and only awarded amounts under this clause in excess of 10 percent as required by the clause when it came to awarding amounts under claims 2, 3 and 4, which fell within the ambit of clause 10C. The DDA in the appeal before the Division Bench correctly gave up any challenge to these claims as has been recorded in paragraph 4 of the order under appeal. 25. The Arbitrator has dealt with this clause in detail and has construed and applied the same correctly while dealing with claims 2, 3 and 4 and has obviously not applied the said clause to claims 9, 10, 11 and 15 as no occasion for applying the same arose. The award cannot be faulted on this ground. 26. Also, so far as clause 22 is concerned, the DDA did not raise any argument based on this clause before the learned Arbitrator. However, it must in fairness be stated that it was argued before the learned Single Judge. In para 15 of his judgment, the learned Judge sets the clause out and then follows a judgment of the High Court of Delhi in Kochhar Construction Works v. DDA & Anr., (1998) 2 Arb. LR 209. Apart from the fact that a learned Single Judge of the same court is bound by a previous judgment of a Single Judge, the conclusion of the learned Single Judge that if the appellant is at fault and the contract is prolonged for an inordinate period of time, it cannot be said that the respondents cannot be compensated for the same is correct. Besides, this point was not urged before the Division Bench and must be taken to be given up. Mr. Sharan cited Harsha Constructions v. Union of India & Ors., (2014) 9 SCC 246 to say that in respect of excepted matters, no arbitration is possible, and that this being a jurisdictional point, he should be allowed to raise it before us. Unfortunately for Mr. Sharan, the clause does not operate automatically. It only operates if an objection is taken stating that part of the site is not available for any reason. Nowhere has the DDA stated which part of the site is not available for any reason. Further, the learned Single Judges reason for rejecting an argument based on this clause also commends itself to us as the object of this clause is that no claim for extras should be granted only if there is an unavoidable delay. We have seen that the delay was entirely avoidable and caused solely by the DDA itself. 27. One more point needs to be noted. An argument was made before the learned Single Judge that there has been a duplication of claims awarded. The learned Judge dealt with this argument as follows: "18. Learned counsel for the petitioner in respect of ground P, once again makes a reference to the issue that there is overlapping of the claim. I am unable to accept the submission made by the learned counsel. The consequence of delay may have more than one ramifications including the cost of material the supervision required at the site, the inability of the contractor to utilise the manpower at some other place, the inability of the contractor to make, profits from some other contract by utilisation of the same resources. All these aspects are liable to be considered. The Arbitrator has considered the claims separately and has dealt with, claims 9, 10, 11 & 15 together. Claims 12 & 13 have been thereafter dealt with on the same principles since it was found that it was not the respondent, who was responsible for the delay for a period of 25 months beyond the stipulated condition of 9 months.19. There is thus no question of overlapping in different heads and the grievance of the petitioner is rejected." 28. The Single Judge is clearly right. We have gone through all the 15 claims supplied to us and we find that none of these claims are in fact overlapping. They are all contained under separate heads. This argument, therefore, must also fail. 29.
### Response:
1
### Explanation:
Thus, the award pertaining to Claim Nos. 9, 10, 11 and 15 is liable to be sent aside and it is so set aside. We need not therefore take corrective action on the apparent error i.e. the learned Arbitrator has worked out the claim on the original contract value of Rs. 87,66,678/-, of course by reducing it by 15%, but ignoring that final work executed was only in sum offor the reasons given by the Arbitrator, that 20% hike in the balance work done after the contract stipulated period i.e. benefit to be granted under this head for work done in sum of Rs.37,02,066/- and accepting the sum of Rs.7,20,000/- being the resultant figure, subtracting Rs.1,62,862.50, the figure arrived at isagain, the Division Bench has interfered wrongly with the arbitral award on several counts. It had no business to enter into a pure question of fact to set aside the Arbitrator for having applied a formula of 20 months instead of 25 months. Though this would inure in favour of the appellant, it is clear that the appellant did not file any cross objection on this score. Also, it is extremely curious that the Division Bench found that an adjustment would have to be made with claims awarded under claims 2, 3 and 4 which are entirely separate and independent claims and have nothing to do with claims 12 and 13. The formula then applied by the Division Bench was that it would itself do "rough and ready justice". We are at a complete loss to understand how this can be done by any court under the jurisdiction exercised under Section 34 of the Arbitration Act. As has been held above, the expression "justice" when it comes to setting aside an award under the public policy ground can only mean that an award shocks the conscience of the court. It cannot possibly include what the court thinks is unjust on the facts of a case for which it then seeks to substitute its view for the Arbitrators view and does what it considers to be "justice". With great respect to the Division Bench, the whole approach to setting aside arbitral awards is incorrect. The Division Bench has lost sight of the fact that it is not a first appellate court and cannot interfere with errors ofArbitrator has dealt with this clause in detail and has construed and applied the same correctly while dealing with claims 2, 3 and 4 and has obviously not applied the said clause to claims 9, 10, 11 and 15 as no occasion for applying the same arose. The award cannot be faulted on thisso far as clause 22 is concerned, the DDA did not raise any argument based on this clause before the learned Arbitrator. However, it must in fairness be stated that it was argued before the learned Single Judge. In para 15 of his judgment, the learned Judge sets the clause out and then follows a judgment of the High Court of Delhi in Kochhar Construction Works v. DDA & Anr., (1998) 2 Arb. LR 209. Apart from the fact that a learned Single Judge of the same court is bound by a previous judgment of a Single Judge, the conclusion of the learned Single Judge that if the appellant is at fault and the contract is prolonged for an inordinate period of time, it cannot be said that the respondents cannot be compensated for the same is correct. Besides, this point was not urged before the Division Bench and must be taken to be given up. Mr. Sharan cited Harsha Constructions v. Union of India & Ors., (2014) 9 SCC 246 to say that in respect of excepted matters, no arbitration is possible, and that this being a jurisdictional point, he should be allowed to raise it before us. Unfortunately for Mr. Sharan, the clause does not operate automatically. It only operates if an objection is taken stating that part of the site is not available for any reason. Nowhere has the DDA stated which part of the site is not available for any reason. Further, the learned Single Judges reason for rejecting an argument based on this clause also commends itself to us as the object of this clause is that no claim for extras should be granted only if there is an unavoidable delay. We have seen that the delay was entirely avoidable and caused solely by the DDAis thus no question of overlapping in different heads and the grievance of the petitioner isSingle Judge is clearly right. We have gone through all the 15 claims supplied to us and we find that none of these claims are in fact overlapping. They are all contained under separate heads. This argument, therefore, must also fail.
|
A.P.S.R.T.C Rep.By Its Chief Law Officer Vs. M.Pentaiah Chary | earnings at the date of the accident, the monthly loss would come to Rs.1500 i.e. Rs.18,000 per annum. If this monthly loss of earning is multiplied by 10 years purchase factor the compensation would work out to Rs.1,80,000. To that must be added the compensation allowed under certain other heads, namely, pain and suffering, loss of amenities, medical expenses, etc. The total amount comes to Rs.2,38,000." 7. Reliance has also been placed on U.P. State Road Transport Corpn. v. Krishna Bala and Others [(2006) 6 SCC 249] wherein it was held: "13. In Susamma Thomas case it was noted that the normal rate of interest was about 10% and accordingly the multiplier was worked out. As the interest rate is on the decline, the multiplier has to consequentially be raised. Therefore, instead of 16 the multiplier of 18 as was adopted in Trilok Chandra appears to be appropriate. In fact in Trilok Chandra case, after reference to Second Schedule to the Act, it was noticed that the same suffers from many defects. It was pointed out that the same is to serve as a guide, but cannot be said to be invariable ready reckoner. However, the appropriate highest multiplier was held to be 18. The highest multiplier has to be for the age group of 21 years to 25 years when an ordinary Indian citizen starts independently earning and the lowest would be in respect of a person in the age group of 60 to 70, which is the normal retirement age. (See: New India Assurance Co. Ltd. v. Charlie)"; 8. As against this, the learned counsel appearing on behalf of the respondent would submit that this is not a fit case where this Court should exercise its discretionary jurisdiction and in particular having regard to a recent decision of this Court in Deepal Girishbhai Soni and Ors. v. United India Insurance Co. Ltd., Baroda [(2004) 5 SCC 385 : AIR 2004 SC 2107 ] 9. We have noticed hereinbefore that the accident took place on 26.01.1995. A few months prior thereto, the Parliament inserted Section 163-A of the Act-by-Act 54 of 1994 with effect from 14.11.1994. The said provision contains a non-obstante clause in terms whereof inter alia the owner of the motor vehicle is made liable to pay, in the case of death or permanent disablement, compensation, as indicated in the Second Schedule appended to the Act.10. "Total Disablement" has been defined in Section 2(l) of the Workmens Compensation Act, 1923 to mean "such disablement," whether of a temporary or permanent nature, as incapacitates a workman for all work which he was capable of performing at the time of the accident resulting in such disablement".11. Section 166 of the Act evidently stands on a different footing. The extent of compensation payable thereunder may vary from case to case. Various other factors including contributory negligence, earning capacity, extent of negligence on the part of one vehicle or the other, are relevant factors for computation of damages. Loss of property can also be subject matter of the claim petition.12. In Deepal Girishbhai Soni (supra), this Court observed: "Section 163A was, thus, enacted for grant of immediate relief to a section of the people whose annual income is not more than Rs. 40,000/- having regard to the fact that in terms of Section 163A of the Act read with the Second Schedule appended thereto; compensation is to be paid on a structured formula not only having regard to the age of the victim and his income but also the other factors relevant therefore. An award made thereunder, therefore, shall be in full and final settlement of the claim as would appear from the different columns contained in the Second Schedule appended to the Act. The same is not interim in nature. The note appended to column 1 which deals with fatal accidents makes the position furthermore clear stating that from the total amount of compensation one-third thereof is to reduced in consideration of the expenses which the victim would have incurred towards maintaining himself had he been alive. This together with the other heads of compensation as contained in columns 2 to 6 thereof leaves no manner of doubt that the Parliament intended to lay a comprehensive scheme for the purpose of grant of adequate compensation to a section of victims who would require the amount of compensation without fighting any protracted litigation for proving that the accident occurred owing to negligence on the part of the driver of the motor vehicle or any other fault arising out of use of a motor vehicle." 13. We, therefore, fail to visualise that in a case of this nature a claimant can be deprived of a reasonable amount of compensation despite the fact that he has permanently lost his capacity to earn and remain dependant on other besides physical sufferance of such magnitude as to why the multiplier suggested by the Parliament should not be accepted.14. We do not, however, intend to lay down a general law. We wish to point out that minimum compensation payable in a case of this nature should be considered from the sufferings of disability undergone by the victim. We are not suggesting that in certain situations, the multiplier specified in the Second Schedule cannot and should not be altered but therefore there must exist strong circumstances. In the year 1995, the rate of interest was lower than the rate of interest taken into consideration in Susamma Thomas (supra). Application of multiplicative factor should also be considered from that angle.Susamma Thomas (supra) or the other decisions relied upon by the learned counsel, do not lay down any law in absolute terms.15. In Krishna Bala (supra), the Division Bench considered that the amount of compensation will have to be determined having regard to the fact as to what capital sum, if invested at a rate of interest appropriate to a stable economy, would yield the multiplicand by way of annual interest. Rate of interest, therefore, was a relevant factor. | 0[ds]9. We have noticed hereinbefore that the accident took place on 26.01.1995. A few months prior thereto, the Parliament inserted Section 163-A of the Act-by-Act 54 of 1994 with effect from 14.11.1994. The said provision contains a non-obstante clause in terms whereof inter alia the owner of the motor vehicle is made liable to pay, in the case of death or permanent disablement, compensation, as indicated in the Second Schedule appended to the Act.10. "Total Disablement" has been defined in Section 2(l) of the Workmens Compensation Act, 1923 to mean "such disablement," whether of a temporary or permanent nature, as incapacitates a workman for all work which he was capable of performing at the time of the accident resulting in such disablement".11. Section 166 of the Act evidently stands on a different footing. The extent of compensation payable thereunder may vary from case to case. Various other factors including contributory negligence, earning capacity, extent of negligence on the part of one vehicle or the other, are relevant factors for computation of damages. Loss of property can also be subject matter of the claim petition.12. In Deepal Girishbhai Soni (supra), this Court163A was, thus, enacted for grant of immediate relief to a section of the people whose annual income is not more than Rs. 40,000/- having regard to the fact that in terms of Section 163A of the Act read with the Second Schedule appended thereto; compensation is to be paid on a structured formula not only having regard to the age of the victim and his income but also the other factors relevant therefore. An award made thereunder, therefore, shall be in full and final settlement of the claim as would appear from the different columns contained in the Second Schedule appended to the Act. The same is not interim in nature. The note appended to column 1 which deals with fatal accidents makes the position furthermore clear stating that from the total amount of compensation one-third thereof is to reduced in consideration of the expenses which the victim would have incurred towards maintaining himself had he been alive. This together with the other heads of compensation as contained in columns 2 to 6 thereof leaves no manner of doubt that the Parliament intended to lay a comprehensive scheme for the purpose of grant of adequate compensation to a section of victims who would require the amount of compensation without fighting any protracted litigation for proving that the accident occurred owing to negligence on the part of the driver of the motor vehicle or any other fault arising out of use of a motor vehicle.We, therefore, fail to visualise that in a case of this nature a claimant can be deprived of a reasonable amount of compensation despite the fact that he has permanently lost his capacity to earn and remain dependant on other besides physical sufferance of such magnitude as to why the multiplier suggested by the Parliament should not be accepted.14. We do not, however, intend to lay down a general law. We wish to point out that minimum compensation payable in a case of this nature should be considered from the sufferings of disability undergone by the victim. We are not suggesting that in certain situations, the multiplier specified in the Second Schedule cannot and should not be altered but therefore there must exist strong circumstances. In the year 1995, the rate of interest was lower than the rate of interest taken into consideration in Susamma Thomas (supra). Application of multiplicative factor should also be considered from that angle.Susamma Thomas (supra) or the other decisions relied upon by the learned counsel, do not lay down any law in absolute terms.15. In Krishna Bala (supra), the Division Bench considered that the amount of compensation will have to be determined having regard to the fact as to what capital sum, if invested at a rate of interest appropriate to a stable economy, would yield the multiplicand by way of annual interest. Rate of interest, therefore, was a relevant factor. | 0 | 2,224 | 742 | ### 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:
earnings at the date of the accident, the monthly loss would come to Rs.1500 i.e. Rs.18,000 per annum. If this monthly loss of earning is multiplied by 10 years purchase factor the compensation would work out to Rs.1,80,000. To that must be added the compensation allowed under certain other heads, namely, pain and suffering, loss of amenities, medical expenses, etc. The total amount comes to Rs.2,38,000." 7. Reliance has also been placed on U.P. State Road Transport Corpn. v. Krishna Bala and Others [(2006) 6 SCC 249] wherein it was held: "13. In Susamma Thomas case it was noted that the normal rate of interest was about 10% and accordingly the multiplier was worked out. As the interest rate is on the decline, the multiplier has to consequentially be raised. Therefore, instead of 16 the multiplier of 18 as was adopted in Trilok Chandra appears to be appropriate. In fact in Trilok Chandra case, after reference to Second Schedule to the Act, it was noticed that the same suffers from many defects. It was pointed out that the same is to serve as a guide, but cannot be said to be invariable ready reckoner. However, the appropriate highest multiplier was held to be 18. The highest multiplier has to be for the age group of 21 years to 25 years when an ordinary Indian citizen starts independently earning and the lowest would be in respect of a person in the age group of 60 to 70, which is the normal retirement age. (See: New India Assurance Co. Ltd. v. Charlie)"; 8. As against this, the learned counsel appearing on behalf of the respondent would submit that this is not a fit case where this Court should exercise its discretionary jurisdiction and in particular having regard to a recent decision of this Court in Deepal Girishbhai Soni and Ors. v. United India Insurance Co. Ltd., Baroda [(2004) 5 SCC 385 : AIR 2004 SC 2107 ] 9. We have noticed hereinbefore that the accident took place on 26.01.1995. A few months prior thereto, the Parliament inserted Section 163-A of the Act-by-Act 54 of 1994 with effect from 14.11.1994. The said provision contains a non-obstante clause in terms whereof inter alia the owner of the motor vehicle is made liable to pay, in the case of death or permanent disablement, compensation, as indicated in the Second Schedule appended to the Act.10. "Total Disablement" has been defined in Section 2(l) of the Workmens Compensation Act, 1923 to mean "such disablement," whether of a temporary or permanent nature, as incapacitates a workman for all work which he was capable of performing at the time of the accident resulting in such disablement".11. Section 166 of the Act evidently stands on a different footing. The extent of compensation payable thereunder may vary from case to case. Various other factors including contributory negligence, earning capacity, extent of negligence on the part of one vehicle or the other, are relevant factors for computation of damages. Loss of property can also be subject matter of the claim petition.12. In Deepal Girishbhai Soni (supra), this Court observed: "Section 163A was, thus, enacted for grant of immediate relief to a section of the people whose annual income is not more than Rs. 40,000/- having regard to the fact that in terms of Section 163A of the Act read with the Second Schedule appended thereto; compensation is to be paid on a structured formula not only having regard to the age of the victim and his income but also the other factors relevant therefore. An award made thereunder, therefore, shall be in full and final settlement of the claim as would appear from the different columns contained in the Second Schedule appended to the Act. The same is not interim in nature. The note appended to column 1 which deals with fatal accidents makes the position furthermore clear stating that from the total amount of compensation one-third thereof is to reduced in consideration of the expenses which the victim would have incurred towards maintaining himself had he been alive. This together with the other heads of compensation as contained in columns 2 to 6 thereof leaves no manner of doubt that the Parliament intended to lay a comprehensive scheme for the purpose of grant of adequate compensation to a section of victims who would require the amount of compensation without fighting any protracted litigation for proving that the accident occurred owing to negligence on the part of the driver of the motor vehicle or any other fault arising out of use of a motor vehicle." 13. We, therefore, fail to visualise that in a case of this nature a claimant can be deprived of a reasonable amount of compensation despite the fact that he has permanently lost his capacity to earn and remain dependant on other besides physical sufferance of such magnitude as to why the multiplier suggested by the Parliament should not be accepted.14. We do not, however, intend to lay down a general law. We wish to point out that minimum compensation payable in a case of this nature should be considered from the sufferings of disability undergone by the victim. We are not suggesting that in certain situations, the multiplier specified in the Second Schedule cannot and should not be altered but therefore there must exist strong circumstances. In the year 1995, the rate of interest was lower than the rate of interest taken into consideration in Susamma Thomas (supra). Application of multiplicative factor should also be considered from that angle.Susamma Thomas (supra) or the other decisions relied upon by the learned counsel, do not lay down any law in absolute terms.15. In Krishna Bala (supra), the Division Bench considered that the amount of compensation will have to be determined having regard to the fact as to what capital sum, if invested at a rate of interest appropriate to a stable economy, would yield the multiplicand by way of annual interest. Rate of interest, therefore, was a relevant factor.
### Response:
0
### Explanation:
9. We have noticed hereinbefore that the accident took place on 26.01.1995. A few months prior thereto, the Parliament inserted Section 163-A of the Act-by-Act 54 of 1994 with effect from 14.11.1994. The said provision contains a non-obstante clause in terms whereof inter alia the owner of the motor vehicle is made liable to pay, in the case of death or permanent disablement, compensation, as indicated in the Second Schedule appended to the Act.10. "Total Disablement" has been defined in Section 2(l) of the Workmens Compensation Act, 1923 to mean "such disablement," whether of a temporary or permanent nature, as incapacitates a workman for all work which he was capable of performing at the time of the accident resulting in such disablement".11. Section 166 of the Act evidently stands on a different footing. The extent of compensation payable thereunder may vary from case to case. Various other factors including contributory negligence, earning capacity, extent of negligence on the part of one vehicle or the other, are relevant factors for computation of damages. Loss of property can also be subject matter of the claim petition.12. In Deepal Girishbhai Soni (supra), this Court163A was, thus, enacted for grant of immediate relief to a section of the people whose annual income is not more than Rs. 40,000/- having regard to the fact that in terms of Section 163A of the Act read with the Second Schedule appended thereto; compensation is to be paid on a structured formula not only having regard to the age of the victim and his income but also the other factors relevant therefore. An award made thereunder, therefore, shall be in full and final settlement of the claim as would appear from the different columns contained in the Second Schedule appended to the Act. The same is not interim in nature. The note appended to column 1 which deals with fatal accidents makes the position furthermore clear stating that from the total amount of compensation one-third thereof is to reduced in consideration of the expenses which the victim would have incurred towards maintaining himself had he been alive. This together with the other heads of compensation as contained in columns 2 to 6 thereof leaves no manner of doubt that the Parliament intended to lay a comprehensive scheme for the purpose of grant of adequate compensation to a section of victims who would require the amount of compensation without fighting any protracted litigation for proving that the accident occurred owing to negligence on the part of the driver of the motor vehicle or any other fault arising out of use of a motor vehicle.We, therefore, fail to visualise that in a case of this nature a claimant can be deprived of a reasonable amount of compensation despite the fact that he has permanently lost his capacity to earn and remain dependant on other besides physical sufferance of such magnitude as to why the multiplier suggested by the Parliament should not be accepted.14. We do not, however, intend to lay down a general law. We wish to point out that minimum compensation payable in a case of this nature should be considered from the sufferings of disability undergone by the victim. We are not suggesting that in certain situations, the multiplier specified in the Second Schedule cannot and should not be altered but therefore there must exist strong circumstances. In the year 1995, the rate of interest was lower than the rate of interest taken into consideration in Susamma Thomas (supra). Application of multiplicative factor should also be considered from that angle.Susamma Thomas (supra) or the other decisions relied upon by the learned counsel, do not lay down any law in absolute terms.15. In Krishna Bala (supra), the Division Bench considered that the amount of compensation will have to be determined having regard to the fact as to what capital sum, if invested at a rate of interest appropriate to a stable economy, would yield the multiplicand by way of annual interest. Rate of interest, therefore, was a relevant factor.
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Southern Agrifurane Industries Ltd Vs. Commercial Tax Officer | the period subsequent to such release, it should have cleared all outstanding tax liability immediately. 21. Section 17(A) of the Tamil Nadu General Sales Tax Act confers power on the State Government to notify deferred payment of tax for certain industries including sick units. The relevant extract of section reads thus: 17A. Power of Government to notify deferred payment of tax for new industries, etc.— (1) The Government may, in such circumstances and subject to such conditions as may be prescribed, by notification issued whether prospectively or retrospectively defer the payment by any new industrial unit or sick unit or sick textile mill of the whole or any part of the tax payable in respect of any period: Provided that such retrospective effect shall not be earlier than the 9th May, 1998. (1A) xxxxxxxxxxxxxxxxxxxxxxxxxxxxx (2) Notwithstanding anything contained in this Act, the deferred payment of tax under Sub-section (1) or Sub-section (1A) shall not attract interest under Sub-section (3) of Section 24 provided the conditions laid down for payment of the tax deferred are satisfied. 22. Therefore, under Sub-section (2) interest is not payable on the deferred payment of tax provided the conditions laid down in Sub-section (1) are satisfied. The purpose of the section is to grant the benefit to new industrial units to help them tide over the initial teething troubles and to sick industries to assist them to get over their sickness. To this end, the Government is empowered to defer the payment of the whole or any part of the tax payable in respect of any period. If on the other hand, the conditions are not satisfied, then too the State Government may allow the tax due to be repaid in instalments under Section 24(1) but in such a case the assessee would be liable to pay interest under Section 24(3) which provides: On any amount remaining unpaid after the date specified for its payment as referred to in Sub-section (1) or in the order permitting payment in instalments, the dealer or person shall pay, in addition to the amount due, interest at one and half per cent per month of such amount for the first three months of default and at two per cent per month of such amount for the subsequent period of default. 23. Both the Tribunal and the High Court have found as a fact that the scheme which was sanctioned by the BIFR initially on 28.7.1993 provided for a limit on the quantum of Sales Tax deferral namely Rs. 623 lacs. We see no reason to interfere with this concurrent finding fact. The sales tax deferral was part of the scheme and was granted as a measure of financial assistance to meet a projected need for the purposes of the appellant being rehabilitated. Both the figures were firm. It has been conceded by the learned Counsel for the appellant that a scheme for rehabilitation under the SICA must necessarily contain firm figures. Unless the figure had been fixed by the scheme when framed in 1993, it would in our opinion be illogical to ask for an enhanced limit of need to be sanctioned and for a consequent enhancement of the financial assistance on 18.8.1994. It is true that the first notification only mentioned the period of deferral and did not specify the amount, but the background in which the notification was issued clearly showed that the State Government had been required by BIFR to render assistance of Rs. 623 lakhs by way of sales tax deferral. The object and purpose of the notification was to fulfil that obligation cast on the State Government under Section 19(3) of SICA. It is improbable that the State Government, not being required to do so, would in an act of unprecedented generosity deprive its exchequer of funds to which it was otherwise entitled. 24. The States understanding was that the original limit of Rs. 623 lakhs needed revision upwards pursuant to the revision in the scheme. The increase in the outer limit could be justified as far as the State was concerned to double the original figure sanctioned, since the period of deferral was doubled from 6 months to a year. This was apparently how the appellant also understood the position. It did not protest initially against the amendment notification when it was published in February, 1995. Again its response to the demand in 1996 of the Sales Tax Authorities was not that the claim was in violation of the scheme or the notifications but was a plea for grant of instalments which plea was acceded to by the State Government on 31.12.1996 in exercise of its powers under Section 24(1). In compliance with the order dated 31.12.1996, the payment was in fact made by the appellant. As such the amended notification was indeed an amendment of the first notification dated 28.7.1993 consequent upon the revised sanction of the BIFR on 18.8.1994 enhancing the need and assistance limits and it was not seeking to retrospectively deny any benefit already conferred on the appellant. We, therefore, do not need to go into the further question whether the High Court was right in importing Section 15 of the Tamil Nadu General Clauses Act into Section 17A. 25. Finally, the appellant was entitled to the relief of sales tax deferral only to the extent it was necessary to take it out of sickness i.e. on rehabilitation. That is so provided under Section 17A(2). Anything in excess of such rehabilitation would not be covered by Section 17A but would fall under Section 24(3) of the Tamil Nadu General Sales Tax Act, 1959. The BIFR had fixed the quantum for rehabilitation at Rs. 2,114 lakhs. The Rs. 1,246 lakhs of deferral of sales tax admittedly met this need. Any further tax deferral, therefore, would only be a benefit conferred on a non-sick company and be permissible under Section 24(1) in which event the appellant would be liable to pay interest under Section 24(3) as held by the High Court. 26. | 0[ds]18. The High Court had rejected this submission of the appellant by holding that the first notification did not grant an unlimited tax deferral and that the amendment notification merely clarified that the deferral was not limited to Rs. 623 lakhs but was upto Rs. 1,246 lakhs. Therefore, there was no question of the amendment notification operating retrospectively. On the assumption that the amendment did operate retrospectively, the High Court held that by virtue of Section 15 of the Tamil Nadu General Sales Tax Act, the State Government had the power to deny the benefit of deferral granted retrospectivelySection 17(A) of the Tamil Nadu General Sales Tax Act23. Both the Tribunal and the High Court have found as a fact that the scheme which was sanctioned by the BIFR initially on 28.7.1993 provided for a limit on the quantum of Sales Tax deferral namely Rs. 623 lacs. We see no reason to interfere with this concurrent finding fact. The sales tax deferral was part of the scheme and was granted as a measure of financial assistance to meet a projected need for the purposes of the appellant being rehabilitated. Both the figures were firmUnless the figure had been fixed by the scheme when framed in 1993, it would in our opinion be illogical to ask for an enhanced limit of need to be sanctioned and for a consequent enhancement of the financial assistance on 18.8.1994. It is true that the first notification only mentioned the period of deferral and did not specify the amount, but the background in which the notification was issued clearly showed that the State Government had been required by BIFR to render assistance of Rs. 623 lakhs by way of sales tax deferral. The object and purpose of the notification was to fulfil that obligation cast on the State Government under Section 19(3) of SICA. It is improbable that the State Government, not being required to do so, would in an act of unprecedented generosity deprive its exchequer of funds to which it was otherwise entitled24. The States understanding was that the original limit of Rs. 623 lakhs needed revision upwards pursuant to the revision in the scheme. The increase in the outer limit could be justified as far as the State was concerned to double the original figure sanctioned, since the period of deferral was doubled from 6 months to a year. This was apparently how the appellant also understood the position. It did not protest initially against the amendment notification when it was published in February, 1995. Again its response to the demand in 1996 of the Sales Tax Authorities was not that the claim was in violation of the scheme or the notifications but was a plea for grant of instalments which plea was acceded to by the State Government on 31.12.1996 in exercise of its powers under Section 24(1). In compliance with the order dated 31.12.1996, the payment was in fact made by the appellant. As such the amended notification was indeed an amendment of the first notification dated 28.7.1993 consequent upon the revised sanction of the BIFR on 18.8.1994 enhancing the need and assistance limits and it was not seeking to retrospectively deny any benefit already conferred on the appellant. We, therefore, do not need to go into the further question whether the High Court was right in importing Section 15 of the Tamil Nadu General Clauses Act into Section 17A25. Finally, the appellant was entitled to the relief of sales tax deferral only to the extent it was necessary to take it out of sickness i.e. on rehabilitation. That is so provided under Section 17A(2). Anything in excess of such rehabilitation would not be covered by Section 17A but would fall under Section 24(3) of the Tamil Nadu General Sales Tax Act, 1959. The BIFR had fixed the quantum for rehabilitation at Rs. 2,114 lakhs. The Rs. 1,246 lakhs of deferral of sales tax admittedly met this need. Any further tax deferral, therefore, would only be a benefit conferred on a non-sick company and be permissible under Section 24(1) in which event the appellant would be liable to pay interest under Section 24(3) as held by the High Court. | 0 | 3,444 | 773 | ### Instruction:
Forecast the likely verdict of the case (granting (1) or denying (0) the appeal) and then rationalize your prediction by pinpointing and explaining pivotal sentences in the case document.
### Input:
the period subsequent to such release, it should have cleared all outstanding tax liability immediately. 21. Section 17(A) of the Tamil Nadu General Sales Tax Act confers power on the State Government to notify deferred payment of tax for certain industries including sick units. The relevant extract of section reads thus: 17A. Power of Government to notify deferred payment of tax for new industries, etc.— (1) The Government may, in such circumstances and subject to such conditions as may be prescribed, by notification issued whether prospectively or retrospectively defer the payment by any new industrial unit or sick unit or sick textile mill of the whole or any part of the tax payable in respect of any period: Provided that such retrospective effect shall not be earlier than the 9th May, 1998. (1A) xxxxxxxxxxxxxxxxxxxxxxxxxxxxx (2) Notwithstanding anything contained in this Act, the deferred payment of tax under Sub-section (1) or Sub-section (1A) shall not attract interest under Sub-section (3) of Section 24 provided the conditions laid down for payment of the tax deferred are satisfied. 22. Therefore, under Sub-section (2) interest is not payable on the deferred payment of tax provided the conditions laid down in Sub-section (1) are satisfied. The purpose of the section is to grant the benefit to new industrial units to help them tide over the initial teething troubles and to sick industries to assist them to get over their sickness. To this end, the Government is empowered to defer the payment of the whole or any part of the tax payable in respect of any period. If on the other hand, the conditions are not satisfied, then too the State Government may allow the tax due to be repaid in instalments under Section 24(1) but in such a case the assessee would be liable to pay interest under Section 24(3) which provides: On any amount remaining unpaid after the date specified for its payment as referred to in Sub-section (1) or in the order permitting payment in instalments, the dealer or person shall pay, in addition to the amount due, interest at one and half per cent per month of such amount for the first three months of default and at two per cent per month of such amount for the subsequent period of default. 23. Both the Tribunal and the High Court have found as a fact that the scheme which was sanctioned by the BIFR initially on 28.7.1993 provided for a limit on the quantum of Sales Tax deferral namely Rs. 623 lacs. We see no reason to interfere with this concurrent finding fact. The sales tax deferral was part of the scheme and was granted as a measure of financial assistance to meet a projected need for the purposes of the appellant being rehabilitated. Both the figures were firm. It has been conceded by the learned Counsel for the appellant that a scheme for rehabilitation under the SICA must necessarily contain firm figures. Unless the figure had been fixed by the scheme when framed in 1993, it would in our opinion be illogical to ask for an enhanced limit of need to be sanctioned and for a consequent enhancement of the financial assistance on 18.8.1994. It is true that the first notification only mentioned the period of deferral and did not specify the amount, but the background in which the notification was issued clearly showed that the State Government had been required by BIFR to render assistance of Rs. 623 lakhs by way of sales tax deferral. The object and purpose of the notification was to fulfil that obligation cast on the State Government under Section 19(3) of SICA. It is improbable that the State Government, not being required to do so, would in an act of unprecedented generosity deprive its exchequer of funds to which it was otherwise entitled. 24. The States understanding was that the original limit of Rs. 623 lakhs needed revision upwards pursuant to the revision in the scheme. The increase in the outer limit could be justified as far as the State was concerned to double the original figure sanctioned, since the period of deferral was doubled from 6 months to a year. This was apparently how the appellant also understood the position. It did not protest initially against the amendment notification when it was published in February, 1995. Again its response to the demand in 1996 of the Sales Tax Authorities was not that the claim was in violation of the scheme or the notifications but was a plea for grant of instalments which plea was acceded to by the State Government on 31.12.1996 in exercise of its powers under Section 24(1). In compliance with the order dated 31.12.1996, the payment was in fact made by the appellant. As such the amended notification was indeed an amendment of the first notification dated 28.7.1993 consequent upon the revised sanction of the BIFR on 18.8.1994 enhancing the need and assistance limits and it was not seeking to retrospectively deny any benefit already conferred on the appellant. We, therefore, do not need to go into the further question whether the High Court was right in importing Section 15 of the Tamil Nadu General Clauses Act into Section 17A. 25. Finally, the appellant was entitled to the relief of sales tax deferral only to the extent it was necessary to take it out of sickness i.e. on rehabilitation. That is so provided under Section 17A(2). Anything in excess of such rehabilitation would not be covered by Section 17A but would fall under Section 24(3) of the Tamil Nadu General Sales Tax Act, 1959. The BIFR had fixed the quantum for rehabilitation at Rs. 2,114 lakhs. The Rs. 1,246 lakhs of deferral of sales tax admittedly met this need. Any further tax deferral, therefore, would only be a benefit conferred on a non-sick company and be permissible under Section 24(1) in which event the appellant would be liable to pay interest under Section 24(3) as held by the High Court. 26.
### Response:
0
### Explanation:
18. The High Court had rejected this submission of the appellant by holding that the first notification did not grant an unlimited tax deferral and that the amendment notification merely clarified that the deferral was not limited to Rs. 623 lakhs but was upto Rs. 1,246 lakhs. Therefore, there was no question of the amendment notification operating retrospectively. On the assumption that the amendment did operate retrospectively, the High Court held that by virtue of Section 15 of the Tamil Nadu General Sales Tax Act, the State Government had the power to deny the benefit of deferral granted retrospectivelySection 17(A) of the Tamil Nadu General Sales Tax Act23. Both the Tribunal and the High Court have found as a fact that the scheme which was sanctioned by the BIFR initially on 28.7.1993 provided for a limit on the quantum of Sales Tax deferral namely Rs. 623 lacs. We see no reason to interfere with this concurrent finding fact. The sales tax deferral was part of the scheme and was granted as a measure of financial assistance to meet a projected need for the purposes of the appellant being rehabilitated. Both the figures were firmUnless the figure had been fixed by the scheme when framed in 1993, it would in our opinion be illogical to ask for an enhanced limit of need to be sanctioned and for a consequent enhancement of the financial assistance on 18.8.1994. It is true that the first notification only mentioned the period of deferral and did not specify the amount, but the background in which the notification was issued clearly showed that the State Government had been required by BIFR to render assistance of Rs. 623 lakhs by way of sales tax deferral. The object and purpose of the notification was to fulfil that obligation cast on the State Government under Section 19(3) of SICA. It is improbable that the State Government, not being required to do so, would in an act of unprecedented generosity deprive its exchequer of funds to which it was otherwise entitled24. The States understanding was that the original limit of Rs. 623 lakhs needed revision upwards pursuant to the revision in the scheme. The increase in the outer limit could be justified as far as the State was concerned to double the original figure sanctioned, since the period of deferral was doubled from 6 months to a year. This was apparently how the appellant also understood the position. It did not protest initially against the amendment notification when it was published in February, 1995. Again its response to the demand in 1996 of the Sales Tax Authorities was not that the claim was in violation of the scheme or the notifications but was a plea for grant of instalments which plea was acceded to by the State Government on 31.12.1996 in exercise of its powers under Section 24(1). In compliance with the order dated 31.12.1996, the payment was in fact made by the appellant. As such the amended notification was indeed an amendment of the first notification dated 28.7.1993 consequent upon the revised sanction of the BIFR on 18.8.1994 enhancing the need and assistance limits and it was not seeking to retrospectively deny any benefit already conferred on the appellant. We, therefore, do not need to go into the further question whether the High Court was right in importing Section 15 of the Tamil Nadu General Clauses Act into Section 17A25. Finally, the appellant was entitled to the relief of sales tax deferral only to the extent it was necessary to take it out of sickness i.e. on rehabilitation. That is so provided under Section 17A(2). Anything in excess of such rehabilitation would not be covered by Section 17A but would fall under Section 24(3) of the Tamil Nadu General Sales Tax Act, 1959. The BIFR had fixed the quantum for rehabilitation at Rs. 2,114 lakhs. The Rs. 1,246 lakhs of deferral of sales tax admittedly met this need. Any further tax deferral, therefore, would only be a benefit conferred on a non-sick company and be permissible under Section 24(1) in which event the appellant would be liable to pay interest under Section 24(3) as held by the High Court.
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Ayuub Vs. State Of U.P | The recorded confession must indicate that these safeguards have been fully complied with. In this case, the recorded confession statements do not show that the officer who recorded the statement had followed those guidelines. Therefore, it is inadmissible in evidence. 19. According to the prosecution, these two appellants hurled bombs at the police picket and they were identified by eyewitnesses, namely PW2 Desh Raj Singh, PW 3 Sarvesh Singh and PW1 Platoon Commander Ramvir Singh. PW1 Platoon Commander Ramvir Singh deposed that two boys came running and threw bombs one after another and that he could see them in the electric light. At the relevant time, he was standing outside the tent and the appellant were seen at a distance of ten to fifteen paces away. He also deposed that the noticed these appellants while may were coming towards them. Constable Desh Raj Singh, PW-2 also deposed that while he was standing outside the tent he saw the appellants coming and throwing bombs at them. The counsel for the appellants contended that there was no source of light available for these witnesses to see the appellants and as the incident happened at about 7.45 P.M., the assailants might not have been identified by the witnesses. The counsel also argued that no reference was made regarding the source of light in the First Information Report. But, it is important to note that in the site plan prepared later, an electric pole is shown very near to the place of incident and when as many as three of the witnesses deposed that they had identified the assailant in the electric light, we do not find any justified reason to reject their evidence. 20. The counsel for the appellants further contended that the test identification parade was conducted belatedly and no evidentiary value could be attached to it. It was submitted that in the case of appellant-Abdul Jabbar, the test identification parade was done 43 days after his arrest and in the case of appellant Ayyub the same was done 10 days after he surrendered in the court. 21. The test identification parade as such is not a substantive place of evidence, but it is done only for the satisfaction of the prosecution that the investigation was moving in the right direction. In the instant case, the test identification parade was held under the supervision of a Judicial Magistrate, but as he passed away subsequently, he could not be examined. PW-6, K.P. Agarwal and PW-34, B.B. Chaturvedi were examined to prove that the identification parade was conducted in a fair manner. Both these PWs deposed in detail regarding the various steps taken by them to see that the identification parade was done properly and their evidence shows that all necessary precautions were taken by them. We do not find any apparent defect in the test identification conducted by the prosecution. 22. There are various other pieces of circumstances evidence to prove the complicity of these appellants. Appellants Abdul Jabbar was arrested on 28.1.1993 pursuant to an information that he was undergoing treatment in the house of the Ameer Hamza. He was taken to custody immediately and subjected to medical examination by PW 20, Dr. R.P. Mishra. This appellant had 7 injuries on his body. Injury nos. 5 & 6 were scabbed burn injuries, and in all probability, these injuries must have been caused due to handling of some explosive substance. Appellant Abdul Jabbar was produced before PW-10, Shri R.C. Chaturvedi, the then Designated Judge, 29.1.1993 itself. The learned Judge recorded his observations and also the statement made by appellant Abdul Jabbar at that time. The statement was marked as Ex. Ka-11. In support of this document, PW-10 gave evidence in court. In Ex. Ka-11, the appellant made confession of his guilt and he also made statement to the effect that a fellow named, Saleem, forced him to indulge in the bomb-throwing on 26.1.1993 evening and he also stated about his accomplice. PW-10 deposed that when appellant, Abdul Jabbar was produced before him he had injuries on his body and that he had noted this in Ex. Ka-11. Appellant Abdul Jabbar when question under Section 313 Cr. P.C., could not give justifiable explanation for the injuries found on his body. This is a clear incriminating circumstances to prove the guilt of appellant Abudl Jabbar. 23. In this case, PW-4 conducted the post-mortem examination on the body of deceased N.K. Mahender Prasad Sharma and he found 13 ante-mortem injuries. Most of the injuries were lacerated injuries and PW-4, the doctor, deposed that the abrasions on the body of the deceased could have been caused by splinters as a result of bomb explosion. 24. Learned Special Judge considered all items of evidence and came to the conclusion that the two appellants have committed offences punishable under Section 302 read Section 34 IPC. It is proved beyond reasonable doubt that the appellants came to the police picket and hurled bombs at police personnel present there and thereby caused the death of N.K. Mahender Prasad Sharma and also caused injuries to others. The appellants have been rightly convicted under Section 302 read Section 34 IPC and Section 307 read with Section 34 IPC. Their conviction and sentences under Section 4 of the Prevention of Damage to Property Act, 1984 is also confirmed. The prayer of the respondent- State of U.P. to withdraw from prosecution as regards charges under Section 3(1)(2)(i) is granted and as directed earlier in this judgment the appellants are acquitted of the charges framed against them under the provisions of the TADA Act. As regards to conviction and sentences awarded to the appellant on various other counts under the Indian Penal Code and Prevention of Damage to Property Act, we see no reason to interfere therewith. The conviction and sentence of the appellants under Section 302 read with Section 34 and Section 307 read with Section 34 IPC as also under Section 4 of the Prevention of Damage to Property Act, 1984 are maintained. 25. | 1[ds]We do not find any merit in the reasons given by the Designated Judge. There are stringent provisions in the TADA Act and in the Government Order, it is stated that the Government after proper discussion on the facts of the case and the evidence/reports/letters available on the record decided to waive the TADA Sections in the recorded in the enclosed list. When the Order itself states that all records were perused and considered, we do not think that the learned Designated Judge was justified in rejecting the application. It cannot be said that the Senior Prosecuting Officer had filed the application without consideration of the relevant facts. It cannot also be said that application was filed with any mala fide intention to save some of the culprits from the clutches of law. The request was made by made only to withdraw from prosecution as against the offences punishable under the TADA Act. Charges in respect of other offences punishable under Indian Penal Code remained and the accused had to face trial for that. Government must have thought that the stringent and harsh provisions of TADA Act were not necessary to deal with such situationsWe are of the view that the learned Designed Judge should have accepted the application for withdrawal from prosecution as against the offences charged against the appellants under the TADA Act. Therefore, we allow that application and the appellants shall stand acquitted under Section 321 (b) of Cr. P.C. of all the charges framed against them under the TADA ActThe charge of murder and other allied offences against these appellants is held to have been proved by the prosecution from the evidence of the eyewitnesses, the circumstances evidence and the confession made the these appellants under Section 15 of the TADA ActLearned Special Judge considered all items of evidence and came to the conclusion that the two appellants have committed offences punishable under Section 302 read Section 34 IPC. It is proved beyond reasonable doubt that the appellants came to the police picket and hurled bombs at police personnel present there and thereby caused the death of N.K. Mahender Prasad Sharma and also caused injuries to others. The appellants have been rightly convicted under Section 302 read Section 34 IPC and Section 307 read with Section 34 IPC. Their conviction and sentences under Section 4 of the Prevention of Damage to Property Act, 1984 is also confirmed. The prayer of the respondent- State of U.P. to withdraw from prosecution as regards charges under Section 3(1)(2)(i) is granted and as directed earlier in this judgment the appellants are acquitted of the charges framed against them under the provisions of the TADA Act. As regards to conviction and sentences awarded to the appellant on various other counts under the Indian Penal Code and Prevention of Damage to Property Act, we see no reason to interfere therewith. The conviction and sentence of the appellants under Section 302 read with Section 34 and Section 307 read with Section 34 IPC as also under Section 4 of the Prevention of Damage to Property Act, 1984 are maintained. | 1 | 5,061 | 559 | ### 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:
The recorded confession must indicate that these safeguards have been fully complied with. In this case, the recorded confession statements do not show that the officer who recorded the statement had followed those guidelines. Therefore, it is inadmissible in evidence. 19. According to the prosecution, these two appellants hurled bombs at the police picket and they were identified by eyewitnesses, namely PW2 Desh Raj Singh, PW 3 Sarvesh Singh and PW1 Platoon Commander Ramvir Singh. PW1 Platoon Commander Ramvir Singh deposed that two boys came running and threw bombs one after another and that he could see them in the electric light. At the relevant time, he was standing outside the tent and the appellant were seen at a distance of ten to fifteen paces away. He also deposed that the noticed these appellants while may were coming towards them. Constable Desh Raj Singh, PW-2 also deposed that while he was standing outside the tent he saw the appellants coming and throwing bombs at them. The counsel for the appellants contended that there was no source of light available for these witnesses to see the appellants and as the incident happened at about 7.45 P.M., the assailants might not have been identified by the witnesses. The counsel also argued that no reference was made regarding the source of light in the First Information Report. But, it is important to note that in the site plan prepared later, an electric pole is shown very near to the place of incident and when as many as three of the witnesses deposed that they had identified the assailant in the electric light, we do not find any justified reason to reject their evidence. 20. The counsel for the appellants further contended that the test identification parade was conducted belatedly and no evidentiary value could be attached to it. It was submitted that in the case of appellant-Abdul Jabbar, the test identification parade was done 43 days after his arrest and in the case of appellant Ayyub the same was done 10 days after he surrendered in the court. 21. The test identification parade as such is not a substantive place of evidence, but it is done only for the satisfaction of the prosecution that the investigation was moving in the right direction. In the instant case, the test identification parade was held under the supervision of a Judicial Magistrate, but as he passed away subsequently, he could not be examined. PW-6, K.P. Agarwal and PW-34, B.B. Chaturvedi were examined to prove that the identification parade was conducted in a fair manner. Both these PWs deposed in detail regarding the various steps taken by them to see that the identification parade was done properly and their evidence shows that all necessary precautions were taken by them. We do not find any apparent defect in the test identification conducted by the prosecution. 22. There are various other pieces of circumstances evidence to prove the complicity of these appellants. Appellants Abdul Jabbar was arrested on 28.1.1993 pursuant to an information that he was undergoing treatment in the house of the Ameer Hamza. He was taken to custody immediately and subjected to medical examination by PW 20, Dr. R.P. Mishra. This appellant had 7 injuries on his body. Injury nos. 5 & 6 were scabbed burn injuries, and in all probability, these injuries must have been caused due to handling of some explosive substance. Appellant Abdul Jabbar was produced before PW-10, Shri R.C. Chaturvedi, the then Designated Judge, 29.1.1993 itself. The learned Judge recorded his observations and also the statement made by appellant Abdul Jabbar at that time. The statement was marked as Ex. Ka-11. In support of this document, PW-10 gave evidence in court. In Ex. Ka-11, the appellant made confession of his guilt and he also made statement to the effect that a fellow named, Saleem, forced him to indulge in the bomb-throwing on 26.1.1993 evening and he also stated about his accomplice. PW-10 deposed that when appellant, Abdul Jabbar was produced before him he had injuries on his body and that he had noted this in Ex. Ka-11. Appellant Abdul Jabbar when question under Section 313 Cr. P.C., could not give justifiable explanation for the injuries found on his body. This is a clear incriminating circumstances to prove the guilt of appellant Abudl Jabbar. 23. In this case, PW-4 conducted the post-mortem examination on the body of deceased N.K. Mahender Prasad Sharma and he found 13 ante-mortem injuries. Most of the injuries were lacerated injuries and PW-4, the doctor, deposed that the abrasions on the body of the deceased could have been caused by splinters as a result of bomb explosion. 24. Learned Special Judge considered all items of evidence and came to the conclusion that the two appellants have committed offences punishable under Section 302 read Section 34 IPC. It is proved beyond reasonable doubt that the appellants came to the police picket and hurled bombs at police personnel present there and thereby caused the death of N.K. Mahender Prasad Sharma and also caused injuries to others. The appellants have been rightly convicted under Section 302 read Section 34 IPC and Section 307 read with Section 34 IPC. Their conviction and sentences under Section 4 of the Prevention of Damage to Property Act, 1984 is also confirmed. The prayer of the respondent- State of U.P. to withdraw from prosecution as regards charges under Section 3(1)(2)(i) is granted and as directed earlier in this judgment the appellants are acquitted of the charges framed against them under the provisions of the TADA Act. As regards to conviction and sentences awarded to the appellant on various other counts under the Indian Penal Code and Prevention of Damage to Property Act, we see no reason to interfere therewith. The conviction and sentence of the appellants under Section 302 read with Section 34 and Section 307 read with Section 34 IPC as also under Section 4 of the Prevention of Damage to Property Act, 1984 are maintained. 25.
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We do not find any merit in the reasons given by the Designated Judge. There are stringent provisions in the TADA Act and in the Government Order, it is stated that the Government after proper discussion on the facts of the case and the evidence/reports/letters available on the record decided to waive the TADA Sections in the recorded in the enclosed list. When the Order itself states that all records were perused and considered, we do not think that the learned Designated Judge was justified in rejecting the application. It cannot be said that the Senior Prosecuting Officer had filed the application without consideration of the relevant facts. It cannot also be said that application was filed with any mala fide intention to save some of the culprits from the clutches of law. The request was made by made only to withdraw from prosecution as against the offences punishable under the TADA Act. Charges in respect of other offences punishable under Indian Penal Code remained and the accused had to face trial for that. Government must have thought that the stringent and harsh provisions of TADA Act were not necessary to deal with such situationsWe are of the view that the learned Designed Judge should have accepted the application for withdrawal from prosecution as against the offences charged against the appellants under the TADA Act. Therefore, we allow that application and the appellants shall stand acquitted under Section 321 (b) of Cr. P.C. of all the charges framed against them under the TADA ActThe charge of murder and other allied offences against these appellants is held to have been proved by the prosecution from the evidence of the eyewitnesses, the circumstances evidence and the confession made the these appellants under Section 15 of the TADA ActLearned Special Judge considered all items of evidence and came to the conclusion that the two appellants have committed offences punishable under Section 302 read Section 34 IPC. It is proved beyond reasonable doubt that the appellants came to the police picket and hurled bombs at police personnel present there and thereby caused the death of N.K. Mahender Prasad Sharma and also caused injuries to others. The appellants have been rightly convicted under Section 302 read Section 34 IPC and Section 307 read with Section 34 IPC. Their conviction and sentences under Section 4 of the Prevention of Damage to Property Act, 1984 is also confirmed. The prayer of the respondent- State of U.P. to withdraw from prosecution as regards charges under Section 3(1)(2)(i) is granted and as directed earlier in this judgment the appellants are acquitted of the charges framed against them under the provisions of the TADA Act. As regards to conviction and sentences awarded to the appellant on various other counts under the Indian Penal Code and Prevention of Damage to Property Act, we see no reason to interfere therewith. The conviction and sentence of the appellants under Section 302 read with Section 34 and Section 307 read with Section 34 IPC as also under Section 4 of the Prevention of Damage to Property Act, 1984 are maintained.
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Smt. Radha Bai Ananda Rao Vs. S. Suvarna Kumar and Another | of Gourayya resident of village Venkatapuram, was admitted the school on June 2, 1924. He was born in June 1919. The exact date of birth could not be read because it was not clear. In Column 10 of the register the religion of Venkataswamy was entered as doli koya. It is not in controversy before us that the entry relates to the appellants elder brother Venkataswamy. The High Court has not given any reason for doubting the evidentiary value of Ex. A4(c), or its correctness. Even so, it has observed in passing that the entries in Exs. A4(a), A4(b), A4(c) and A5(a) establish that Children Gowraiah and his children, namely, the first respondent and her elder brother are dolis. We are constrained to say that it was not permissible for the High Court to take the view that entry Ex. A4(c) could justify the finding that the appellant and her elder brother were dolis and were not koyas. As has been stated, the relevant entry read as doli koya and not as doli. So when it has not been found that the entry was over-written in any respect, or was otherwise suspicious, it goes to prove that, as far back, as June 2, 1924, the appellants elder brother was recorded as doli koya and not merely as doli. 7. In this connection the evidence of M. Bhima Rao, RW 2, who was the Tehsildar of the taluk concerned is relevant. He has categorically stated that there was no such caste as doli and that "amongst the koya people who professionally beat the drums on festive occasions are called Dolya". There is no reason for us to put a different interpretation on the entry Ex. A4(c) and it shows that as far back as June 2, 1924, the appellants brother was recorded as a person belonging to the koya scheduled tribe. 8. Then there is entry Ex. B8 in respect of the same brother (Venkataswamy) of the appellant in the register of admissions and withdrawals of the primary school. It shows that the appellants brother, who was born on June 1, 1919, was again admitted in the school on November 1, 1935, and his religion was recorded as koya. 9. It is therefore well established that right from June 2, 1924, to November 1, 1935 the family of the appellant was recorded as belonging to the koya scheduled tribe. 10. Our attention has been invited to entries Exs. A4(b), B4 and B6, of the school registers to show that the appellant was recorded as doli koya or koya in 1930, 1933 and in 1941, but the High Court has not thought it proper to place reliance on those entries and we have therefore left them out of consideration. 11. We shall proceed to consider the next two entries which relate to the younger sister and brother of the appellant. Entry Ex. B5 admittedly relates to the appellants younger sister Venkatapati and shows that she was admitted in the panchayat school on December 2, 1937 and her religion has been recorded as koya. There is no reason why reliance should not be placed on this entry. Then there is entry Ex. B7 in respect of the appellants brother Narayan which shows that he was admitted in the panchayat school on July 27, 1944 and left it on September 19, 1944, and his religion was also recorded as koya. There is no reason to disbelieve the correctness of this entry also. The High Court has rejected the entries made after 1930 relating to the appellant and her relatives, under the impression that they were made on the advice of her relative Appa Rao who was headmaster of the school for 5 or 6 years. The High Court did not however take notice of that part of the statement of the appellant, which remained unrebutted, where she had stated categorically that Appa Rao was the headmaster of the school during 1938-1942 and could not possibly have anything to do with the entries which were made before 1938 or after 1942. As it is, none of the entries on which we have thought it proper to place reliance for the purpose of examining the correctness of the High Court finding, relates to the period during which Appa Rao was the headmaster of the school and we have no doubt that there was no justification for the High Court to reject the evidentiary value of those documents merely because Appa Rao had once been the headmaster of the school. 12. It would thus appear that documents Ex. A 4(c), B 8, B 5 and B 7, which were recorded during the period June 2, 1924 to September 19, 1944 show that the elder brother of the appellant as well as her younger sister and brother were recorded as belonging to the koya scheduled tribe in the school registers. The appellant was a child when entries Exs. A4(c) and B 8 were made, and she was quite a young girl when entries Exs. B 5 and B 7 were made, and she could not possible have thought that there was any advantage in recording tribe of her brothers and sister as koya during that period, which was long before the issue of the Constitution (Scheduled Tribes) Order, 1950. 13. It may be mentioned that the appellant has placed reliance on the Tehsildars certificate Ex. B 1 that she belonged to the koya scheduled tribe, and entry Ex. B 10 in the National Citizenship Register which was prepared in 1962 showing that she belonged to the koya scheduled tribe. It is not however necessary to refer to them as nothing could possibly turn on them when the other evidence on the record is sufficient to decide the question in controversy. 14. On a consideration of the entire evidence on the record we have, therefore, no doubt that the appellant belonged to the koya scheduled tribe. The contrary finding of the High Court is incorrect and is set aside. | 1[ds]There is no reason to disbelieve the correctness of this entry also. The High Court has rejected the entries made after 1930 relating to the appellant and her relatives, under the impression that they were made on the advice of her relative Appa Rao who was headmaster of the school for 5 or 6 years. The High Court did not however take notice of that part of the statement of the appellant, which remained unrebutted, where she had stated categorically that Appa Rao was the headmaster of the school during2 and could not possibly have anything to do with the entries which were made before 1938 or after 1942. As it is, none of the entries on which we have thought it proper to place reliance for the purpose of examining the correctness of the High Court finding, relates to the period during which Appa Rao was the headmaster of the school and we have no doubt that there was no justification for the High Court to reject the evidentiary value of those documents merely because Appa Rao had once been the headmaster of the school12. It would thus appear that documents Ex. A 4(c), B 8, B 5 and B 7, which were recorded during the period June 2, 1924 to September 19, 1944 show that the elder brother of the appellant as well as her younger sister and brother were recorded as belonging to the koya scheduled tribe in the school registers. The appellant was a child when entries Exs. A4(c) and B 8 were made, and she was quite a young girl when entries Exs. B 5 and B 7 were made, and she could not possible have thought that there was any advantage in recording tribe of her brothers and sister as koya during that period, which was long before the issue of the Constitution (Scheduled Tribes) Order, 195013. It may be mentioned that the appellant has placed reliance on the Tehsildars certificate Ex. B 1 that she belonged to the koya scheduled tribe, and entry Ex. B 10 in the National Citizenship Register which was prepared in 1962 showing that she belonged to the koya scheduled tribe. It is not however necessary to refer to them as nothing could possibly turn on them when the other evidence on the record is sufficient to decide the question in controversy14. On a consideration of the entire evidence on the record we have, therefore, no doubt that the appellant belonged to the koya scheduled tribe. The contrary finding of the High Court is incorrect and is set aside. | 1 | 2,035 | 474 | ### Instruction:
Conjecture the end result of the case (acceptance (1) or non-acceptance (0) of the appeal), followed by a detailed explanation using crucial sentences from the case proceeding.
### Input:
of Gourayya resident of village Venkatapuram, was admitted the school on June 2, 1924. He was born in June 1919. The exact date of birth could not be read because it was not clear. In Column 10 of the register the religion of Venkataswamy was entered as doli koya. It is not in controversy before us that the entry relates to the appellants elder brother Venkataswamy. The High Court has not given any reason for doubting the evidentiary value of Ex. A4(c), or its correctness. Even so, it has observed in passing that the entries in Exs. A4(a), A4(b), A4(c) and A5(a) establish that Children Gowraiah and his children, namely, the first respondent and her elder brother are dolis. We are constrained to say that it was not permissible for the High Court to take the view that entry Ex. A4(c) could justify the finding that the appellant and her elder brother were dolis and were not koyas. As has been stated, the relevant entry read as doli koya and not as doli. So when it has not been found that the entry was over-written in any respect, or was otherwise suspicious, it goes to prove that, as far back, as June 2, 1924, the appellants elder brother was recorded as doli koya and not merely as doli. 7. In this connection the evidence of M. Bhima Rao, RW 2, who was the Tehsildar of the taluk concerned is relevant. He has categorically stated that there was no such caste as doli and that "amongst the koya people who professionally beat the drums on festive occasions are called Dolya". There is no reason for us to put a different interpretation on the entry Ex. A4(c) and it shows that as far back as June 2, 1924, the appellants brother was recorded as a person belonging to the koya scheduled tribe. 8. Then there is entry Ex. B8 in respect of the same brother (Venkataswamy) of the appellant in the register of admissions and withdrawals of the primary school. It shows that the appellants brother, who was born on June 1, 1919, was again admitted in the school on November 1, 1935, and his religion was recorded as koya. 9. It is therefore well established that right from June 2, 1924, to November 1, 1935 the family of the appellant was recorded as belonging to the koya scheduled tribe. 10. Our attention has been invited to entries Exs. A4(b), B4 and B6, of the school registers to show that the appellant was recorded as doli koya or koya in 1930, 1933 and in 1941, but the High Court has not thought it proper to place reliance on those entries and we have therefore left them out of consideration. 11. We shall proceed to consider the next two entries which relate to the younger sister and brother of the appellant. Entry Ex. B5 admittedly relates to the appellants younger sister Venkatapati and shows that she was admitted in the panchayat school on December 2, 1937 and her religion has been recorded as koya. There is no reason why reliance should not be placed on this entry. Then there is entry Ex. B7 in respect of the appellants brother Narayan which shows that he was admitted in the panchayat school on July 27, 1944 and left it on September 19, 1944, and his religion was also recorded as koya. There is no reason to disbelieve the correctness of this entry also. The High Court has rejected the entries made after 1930 relating to the appellant and her relatives, under the impression that they were made on the advice of her relative Appa Rao who was headmaster of the school for 5 or 6 years. The High Court did not however take notice of that part of the statement of the appellant, which remained unrebutted, where she had stated categorically that Appa Rao was the headmaster of the school during 1938-1942 and could not possibly have anything to do with the entries which were made before 1938 or after 1942. As it is, none of the entries on which we have thought it proper to place reliance for the purpose of examining the correctness of the High Court finding, relates to the period during which Appa Rao was the headmaster of the school and we have no doubt that there was no justification for the High Court to reject the evidentiary value of those documents merely because Appa Rao had once been the headmaster of the school. 12. It would thus appear that documents Ex. A 4(c), B 8, B 5 and B 7, which were recorded during the period June 2, 1924 to September 19, 1944 show that the elder brother of the appellant as well as her younger sister and brother were recorded as belonging to the koya scheduled tribe in the school registers. The appellant was a child when entries Exs. A4(c) and B 8 were made, and she was quite a young girl when entries Exs. B 5 and B 7 were made, and she could not possible have thought that there was any advantage in recording tribe of her brothers and sister as koya during that period, which was long before the issue of the Constitution (Scheduled Tribes) Order, 1950. 13. It may be mentioned that the appellant has placed reliance on the Tehsildars certificate Ex. B 1 that she belonged to the koya scheduled tribe, and entry Ex. B 10 in the National Citizenship Register which was prepared in 1962 showing that she belonged to the koya scheduled tribe. It is not however necessary to refer to them as nothing could possibly turn on them when the other evidence on the record is sufficient to decide the question in controversy. 14. On a consideration of the entire evidence on the record we have, therefore, no doubt that the appellant belonged to the koya scheduled tribe. The contrary finding of the High Court is incorrect and is set aside.
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### Explanation:
There is no reason to disbelieve the correctness of this entry also. The High Court has rejected the entries made after 1930 relating to the appellant and her relatives, under the impression that they were made on the advice of her relative Appa Rao who was headmaster of the school for 5 or 6 years. The High Court did not however take notice of that part of the statement of the appellant, which remained unrebutted, where she had stated categorically that Appa Rao was the headmaster of the school during2 and could not possibly have anything to do with the entries which were made before 1938 or after 1942. As it is, none of the entries on which we have thought it proper to place reliance for the purpose of examining the correctness of the High Court finding, relates to the period during which Appa Rao was the headmaster of the school and we have no doubt that there was no justification for the High Court to reject the evidentiary value of those documents merely because Appa Rao had once been the headmaster of the school12. It would thus appear that documents Ex. A 4(c), B 8, B 5 and B 7, which were recorded during the period June 2, 1924 to September 19, 1944 show that the elder brother of the appellant as well as her younger sister and brother were recorded as belonging to the koya scheduled tribe in the school registers. The appellant was a child when entries Exs. A4(c) and B 8 were made, and she was quite a young girl when entries Exs. B 5 and B 7 were made, and she could not possible have thought that there was any advantage in recording tribe of her brothers and sister as koya during that period, which was long before the issue of the Constitution (Scheduled Tribes) Order, 195013. It may be mentioned that the appellant has placed reliance on the Tehsildars certificate Ex. B 1 that she belonged to the koya scheduled tribe, and entry Ex. B 10 in the National Citizenship Register which was prepared in 1962 showing that she belonged to the koya scheduled tribe. It is not however necessary to refer to them as nothing could possibly turn on them when the other evidence on the record is sufficient to decide the question in controversy14. On a consideration of the entire evidence on the record we have, therefore, no doubt that the appellant belonged to the koya scheduled tribe. The contrary finding of the High Court is incorrect and is set aside.
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M/S Savita Chemicals (Pvt) Ltd Vs. Dyes & Chemical Workers Union & Anr | concerned during the arriving of such settlement and if a strike is resorted to by the union of workmen on that ground, it could not be said that the said strike would be hit by the provisions of Section 24(1)(i) of the Act. As a result of the aforesaid conclusion, it must be held that the impugned strike notice was not violative of Section 24(1)(i) of the Act so far as the grievance regarding computation of privilege leave was concerned. The Labour Court had patently erred in mis-reading the relevant provisions of the Act and the express terms of the settlement while reaching the conclusion that the impugned notice refers to the grievance regarding non-implementation of the settlement terms in connection with privilege leave and had, therefore, violated the aforesaid provisions of the Act. This patent error was rightly set aside by the High Court in exercise of its jurisdiction under Article 227. 17. It was further contended by learned senior counsel for the appellant that, in any case, the impugned strike notice was also violative of the aforesaid provisions, in connection with the settlement regarding demand No. 26 providing for medical check-up. It, therefore, becomes necessary to look at the terms of the settlement on the said demand. It reads as under : "Demand No. 26 : Medical Check Up : The Company shall get at its expense all the confirmed workmen medically examined i.e. X-ray, blood and Urine examination and medical check up at the beginning of the year and the reports obtained. If during this check up any workman is found suffering from any ailments arising out of the chemicals of gas emanating from the process in the factory the management will bear the medical expenses for his immediate and initial treatment." So far as this contention is concerned, Shri Bhandare, learned senior counsel for the appellant is on a still weaker footing. The settlement regarding medical check up deals with the rights of the workmen to get medical re- imbursement and the procedure for the medical examination of the workmen suffering from any ailment or disease. This right would arise under the settlement in connection with those workmen who have already got afflicted by occupational ailments. This has nothing to do with the grievance found in the impugned strike notice regarding the health hazards suffered by the workmen and preventive measures required to be taken by the company in this connection. This grievance found in the notice is based on the dictum "prevention is better than cure". The settlement regarding demand No. 26 pertaining to medical check up deals with the procedure to be followed and the rights available to the workman after he has suffered from occupational diseases. The strike notice referred to an independent grievance in connection with the situation wherein a disease on proper preventive measures could be avoided. It also referred to various health hazards due to the working conditions of the workmen. These grievances are entirely foreign to the terms of the settlement regarding medical check up. We fail to appreciate as to how the Labour Court could persuade itself to hold that the terms of settlement regarding demand No. 26 were also sought to be contravened by the impugned demands in the notice. The said finding of the Labour Court, to say least, was totally contrary to the express terms of the settlement of demand No. 26. Such a patently erroneous finding had to be set aside by the High Court in writ proceedings and no fault can be found with the High Court in undertaking such an exercise. The valiant attempt of Shri Bhandare, learned senior counsel for the appellant, for getting the impugned strike declared as illegal on this ground is found to be wholly without any substance. It must, therefore, be held that the impugned strike notice was not violative of provisions of Section 24(1)(i) of the Act and had nothing to do with settlement on demand Nos. 14 and 26. The third point for determination is to be answered in negative against the appellant and in favour of Respondent No. 1. Point No. 4 : 18. So far as this point is concerned, placing reliance on various decisions of this court namely, Harish Vishnu Kamath v. Syed Ahmad Ishaque and others, 1955(1) SCR 1104, Nagendra Nath Bora and another v. The Commissioner of Hills Division & Appeals Assam and others, 1958 SCR 1240 and Sadhu Ram v. Delhi Transport Corporation, AIR 1984 SC 1467 , learned senior counsel for the appellant submitted that unless there was a patent error committed by the Labour Court, the High Court under Article 227 could not have interfered with the findings of the Labour Court as if it was hearing an appeal. There cannot be any dispute on the said settled legal position. Under Article 227 of the Constitution of India, the High Court could not have set aside any finding reached by the lower authorities where two views were possible and unless those findings were found to be patently bad and suffering from clear errors of law. As we have already discussed earlier while considering point Nos. 1 and 3, the finding reached by the Labour Court on the relevant terms were patently erroneous and de hors the factual and legal position on record. The said patently illegal findings, could not have been countenanced under Article 227 of the Constitution of India by the High Court and the High Court would have failed to exercise its jurisdiction if it had not set aside such patently illegal findings of the Labour Court. Consequently, on this point the appellant has no case. Point No. 4 is, therefore, answered in negative against the appellant and in favour of the respondent. Point No. 5 : 19. In view of our conclusions on the aforesaid points, the inevitable result is that this appeal fails and is dismissed. In the facts and circumstances of the case, there will be no orders as to costs. 20. | 0[ds]11. The factual matrix relevant for consideration of this point indicates, as noted earlier, that there was a settlement arrived at between the appellant company and Respondent No. 1 union on 8th March, 1982 which, amongst others, settled demand Nos. 14 and 26 regarding privilege leave and medical check-up. We will have occasion to deal with the terms of settlement regarding these demands a little later when we will deal with point No. 3. It is sufficient for the present to mention that the aforesaid settlement was for three years valid up to December, 1984. It is during the subsistence of the aforesaid settlement that Respondent No. 1 union sent a letter of demand to the Factory Manager of the appellant company on 14th March, 1984, as noted earlier. It will be relevant at this stage to refer to the exact wording of the saidis obvious that it was not the case of the appellant company before the Labour Court that the impugned strike was contrary to the provisions of Section 24(1)(b) of the Act. In fact, as seen earlier, it was not the case of the appellant company that Respondent No. 1 Union was a recognised union under the Act at the relevant time when it gave the impugned notice. Consequently, the appellants case before the Labour Court for getting the strike declared illegal was based only on the violation of Section 24(1)(a) and (i) of the Act. The Labour Court has also treated the proceedings accordingly and the ultimate decision rendered by the Labour Court is also the effect that the strike notice of 14th March, 1983 was no notice in law and violative of provisions of Section 24(1)(i). In substance, the Labour Court had no occasion to consider the question whether it was violative also of Section 24(1)(b) of thetherefore, becomes obvious that it is not open to learned senior counsel for the appellant Shri Bhandare to submit that the impugned strike notice was violative of the provision of Section 24(1)(b) of the Act. Consequently, this point does not arise for our consideration and must be held to be redundant and is not applicable to the facts of the present case. It must, therefore, be held while answering this point that the impugned strike notice cannot be said to be violative of the provision of Section 24(1)(b) of the Act for the aforesaid reasons.So far as this point is concerned, it requires a more closer scrutiny. As we have seen earlier, there was also a binding settlement between the parties in connection with demand Nos. 14 and 26. We shall first deal with settlement on demand No. 14 regarding Privilegemere look at the settlement on this Item shows that it was agreed between the parties that the then existing practice of granting 12 days privilege leave for each completed 240 days work per year and one day more for every additional 12 days of work beyond 240 days was to continue and in all other respects the provisions of Factory Act and existing rules were to apply. Now, the question is whether any part of this settlement on privilege leave was sought to be by-passed or challenged in the impugned notice so as to get voided on the touchstone of Section 24(1)(i) of the Act. The said provision lays down that "Illegal strike" means a strike which is commenced or continued during any period in which any settlement or award is in operation, in respect of any of the matters covered by the settlement or award. The question is whether the proposed strike, amongst others, was concerning the grievances in connection with any matter "covered" by the settlement. A conjoint reading of relevant clauses of settlement on demand No. 14 regarding Privilege Leave shows that it was settled between the parties that during the continuation of the settlement, a workman would be entitled to claim only 12 days for 240 days of work and 1 day for every additional 12 days of work beyond 240 days thereafter in a given year. It was not the case of Respondent No. 1 Union in the impugned notice of strike that they wanted any more days of privilege leave after 240 days of work in a year by way of grant of privilege leave vis-a-vis the number of days worked during the year. The impugned strike notice, as noted earlier, recited an entirely different grievance, namely, that there were illegal changes brought about in the matter of computing privilege leave. Actual and correct computation of privilege leave on the basis of actual days worked in a year for concerned workers was not covered by the terms of the settlement. This grievance pertained to non- implementation of the agreed settlement regarding privilege leave and had nothing to do with the claim for any extra privilege leave in addition to that which was agreed to between the parties. To take an analogy, the rights crystalised in the decree stand on an entirely different footing as compared to the grievance in execution proceedings regarding non-implementation of the settled rights under the decree. The grievance made in the impugned strike notice did not pertain to any modification of the crystalised rights regarding privilege leave granted to the workmen under the settlement but it pertained to an entirely different grievance based on a situation which was posterior to settlement of rights and obligations regarding privilege leave between the parties. Thus, as seen earlier, this grievance about non-implementation of the crystalised terms of settlement cannot be said to be a matter "covered" by the settlement for purposes of the definition of "illegal strike", referred to above. It can be said to be amounting to a grievance in connection with non- implementation of the settlement in its true and correct perspective. That, if course, would also amount to allegation of unfair labour practice on the part of the employer as reflected by a conjoint reading of Section 26 and Schedule IV Item 9 of the Act, as noted earlier. But the allegation of unfair labour practice on the part of the management has nothing to do with the question whether it also amounts to going behind the settlement. Thus, the strike notice referred to a claim which arose subsequent to the settlement in connection with non-implementation of the main terms of the settlement. The Labour Court was patently in error when it took the view that because of the alternative remedy available to the workmen of filing a complaint about alleged unfair labour practice on the part of the management, they could not have resorted to a more drastic remedy of strike under the provisions of the Maharashtra Act. Nothing in this Act could be relied upon to show that if any grievance of the workmen is covered by unfair labour practice alleged against the employer, they cannot resort to strike. However, learned senior counsel for the appellant Shri Bhandare, rightly submitted that such a more drastic remedy was of the last resort. He was also right when he submitted that when a less drastic remedy was available, the workmen should have resorted to the same for maintaining industrial peace and production. However, that would be in the realm of trade union policy. It may be more prudent for a union of workmen, with a view to having industrial peace and continued production as well as for not disrupting continuity of employment of workmen, to resort to negotiations, and that if needed, to go in the Labour Court with complaint under Section 28 on the ground of unfair labour practice by the employer for the alleged non-implementation of the settlement. It may also be an ideal solution of the problems. But what is ideal may not necessarily be filed by a more militant body of workmen. It may in the long run, prove to be a more drastic remedy for the workmen as they would suffer pangs of unemployment and starvation not only for themselves but also for the members of their families. But only because such better and more prudent remedy was available, it cannot be said that the extreme step of strike resorted to by the Union by not following such remedy was per se illegal unless it fell within the four- corners of Section 24(1)(i) of the Maharashtra Act. It is also easy to visualise that the same Mahrashtra legislature which enacted Section 24(1)(i) also enacted Schedule IV Item 9 be treating it to be an unfair labour practice on the part of the employer. The Maharashtra Act laid down two separate provisions in connection with illegal strike as well as unfair labour practice by the employer. What is unfair labour practice on the part of the employer cannot be pressed in service by the management to show that workers making grievances regarding the same could not have resorted to the strike in connection with the same unfair labour practice and if they did so the strike only on that score became an illegal strike, especially when it was not contrary to any of the provisions of Section 24(1). In any case, the grievance regarding non-implementation of the settlement is not treated by the legislature to be a matter "covered" by the settlement as both these topics are separately dealt with it by enacting Section 24(1)(i) on the one hand and Schedule IV Item 9 of the Act on the other.16. But leaving aside these aspects of the matter, it becomes clear that the intention of the legislature by enacting 24(1)(i) is that during any period in which any settlement is in operation if strike is resorted to by the union or the workmen in connection with any matter "covered" by the settlement the strike would be illegal. Therefore, it must be shown that the strike has been resorted to in connection with any matter covered by the settlement. It, therefore, necessarily means that the terms of the settlement, when read, must indicate that they encompassed any matter which is made the subject matter of the strike notice. We must see the express terms of settlement with a view to finding out as to which matters are covered by the settlement. This necessarily would connote that the settlement in express terms must refer to a matter which is subsequently made a subject matter of notice of strike. When we turn to the settlement of demand No. 14 regarding privilege leave, we find that how 12 days leave for the first 240 days of work in a year and 1 day for every additional 12 days worked beyond 240 days worked are computed in a given year, is not a mater which is at all indicated or mentioned in the settlement. All that the settlement has guaranteed is the right of the workmen to earn 12 days privilege leave for 240 days worked in a year and additional one day for every 12 days beyond 240 days worked in afar as this contention is concerned, Shri Bhandare, learned senior counsel for the appellant is on a still weaker footing. The settlement regarding medical check up deals with the rights of the workmen to get medical re- imbursement and the procedure for the medical examination of the workmen suffering from any ailment or disease. This right would arise under the settlement in connection with those workmen who have already got afflicted by occupational ailments. This has nothing to do with the grievance found in the impugned strike notice regarding the health hazards suffered by the workmen and preventive measures required to be taken by the company in this connection. This grievance found in the notice is based on the dictum "prevention is better than cure". The settlement regarding demand No. 26 pertaining to medical check up deals with the procedure to be followed and the rights available to the workman after he has suffered from occupational diseases. The strike notice referred to an independent grievance in connection with the situation wherein a disease on proper preventive measures could be avoided. It also referred to various health hazards due to the working conditions of the workmen. These grievances are entirely foreign to the terms of the settlement regarding medical check up. We fail to appreciate as to how the Labour Court could persuade itself to hold that the terms of settlement regarding demand No. 26 were also sought to be contravened by the impugned demands in the notice. The said finding of the Labour Court, to say least, was totally contrary to the express terms of the settlement of demand No. 26. Such a patently erroneous finding had to be set aside by the High Court in writ proceedings and no fault can be found with the High Court in undertaking such an exercise. The valiant attempt of Shri Bhandare, learned senior counsel for the appellant, for getting the impugned strike declared as illegal on this ground is found to be wholly without any substance. It must, therefore, be held that the impugned strike notice was not violative of provisions of Section 24(1)(i) of the Act and had nothing to do with settlement on demand Nos. 14 and 26. The third point for determination is to be answered in negative against the appellant and in favour of Respondent No. 1.So far as this point is concerned, placing reliance on various decisions of this court namely, Harish Vishnu Kamath v. Syed Ahmad Ishaque and others, 1955(1) SCR 1104, Nagendra Nath Bora and another v. The Commissioner of Hills Division & Appeals Assam and others, 1958 SCR 1240 and Sadhu Ram v. Delhi Transport Corporation, AIR 1984 SC 1467 , learned senior counsel for the appellant submitted that unless there was a patent error committed by the Labour Court, the High Court under Article 227 could not have interfered with the findings of the Labour Court as if it was hearing an appeal. There cannot be any dispute on the said settled legal position. Under Article 227 of the Constitution of India, the High Court could not have set aside any finding reached by the lower authorities where two views were possible and unless those findings were found to be patently bad and suffering from clear errors of law. As we have already discussed earlier while considering point Nos. 1 and 3, the finding reached by the Labour Court on the relevant terms were patently erroneous and de hors the factual and legal position on record. The said patently illegal findings, could not have been countenanced under Article 227 of the Constitution of India by the High Court and the High Court would have failed to exercise its jurisdiction if it had not set aside such patently illegal findings of the Labour Court. Consequently, on this point the appellant has no case. Point No. 4 is, therefore, answered in negative against the appellant and in favour of theview of our conclusions on the aforesaid points, the inevitable result is that this appeal fails and is dismissed. In the facts and circumstances of the case, there will be no orders as to costs. | 0 | 11,361 | 2,786 | ### Instruction:
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concerned during the arriving of such settlement and if a strike is resorted to by the union of workmen on that ground, it could not be said that the said strike would be hit by the provisions of Section 24(1)(i) of the Act. As a result of the aforesaid conclusion, it must be held that the impugned strike notice was not violative of Section 24(1)(i) of the Act so far as the grievance regarding computation of privilege leave was concerned. The Labour Court had patently erred in mis-reading the relevant provisions of the Act and the express terms of the settlement while reaching the conclusion that the impugned notice refers to the grievance regarding non-implementation of the settlement terms in connection with privilege leave and had, therefore, violated the aforesaid provisions of the Act. This patent error was rightly set aside by the High Court in exercise of its jurisdiction under Article 227. 17. It was further contended by learned senior counsel for the appellant that, in any case, the impugned strike notice was also violative of the aforesaid provisions, in connection with the settlement regarding demand No. 26 providing for medical check-up. It, therefore, becomes necessary to look at the terms of the settlement on the said demand. It reads as under : "Demand No. 26 : Medical Check Up : The Company shall get at its expense all the confirmed workmen medically examined i.e. X-ray, blood and Urine examination and medical check up at the beginning of the year and the reports obtained. If during this check up any workman is found suffering from any ailments arising out of the chemicals of gas emanating from the process in the factory the management will bear the medical expenses for his immediate and initial treatment." So far as this contention is concerned, Shri Bhandare, learned senior counsel for the appellant is on a still weaker footing. The settlement regarding medical check up deals with the rights of the workmen to get medical re- imbursement and the procedure for the medical examination of the workmen suffering from any ailment or disease. This right would arise under the settlement in connection with those workmen who have already got afflicted by occupational ailments. This has nothing to do with the grievance found in the impugned strike notice regarding the health hazards suffered by the workmen and preventive measures required to be taken by the company in this connection. This grievance found in the notice is based on the dictum "prevention is better than cure". The settlement regarding demand No. 26 pertaining to medical check up deals with the procedure to be followed and the rights available to the workman after he has suffered from occupational diseases. The strike notice referred to an independent grievance in connection with the situation wherein a disease on proper preventive measures could be avoided. It also referred to various health hazards due to the working conditions of the workmen. These grievances are entirely foreign to the terms of the settlement regarding medical check up. We fail to appreciate as to how the Labour Court could persuade itself to hold that the terms of settlement regarding demand No. 26 were also sought to be contravened by the impugned demands in the notice. The said finding of the Labour Court, to say least, was totally contrary to the express terms of the settlement of demand No. 26. Such a patently erroneous finding had to be set aside by the High Court in writ proceedings and no fault can be found with the High Court in undertaking such an exercise. The valiant attempt of Shri Bhandare, learned senior counsel for the appellant, for getting the impugned strike declared as illegal on this ground is found to be wholly without any substance. It must, therefore, be held that the impugned strike notice was not violative of provisions of Section 24(1)(i) of the Act and had nothing to do with settlement on demand Nos. 14 and 26. The third point for determination is to be answered in negative against the appellant and in favour of Respondent No. 1. Point No. 4 : 18. So far as this point is concerned, placing reliance on various decisions of this court namely, Harish Vishnu Kamath v. Syed Ahmad Ishaque and others, 1955(1) SCR 1104, Nagendra Nath Bora and another v. The Commissioner of Hills Division & Appeals Assam and others, 1958 SCR 1240 and Sadhu Ram v. Delhi Transport Corporation, AIR 1984 SC 1467 , learned senior counsel for the appellant submitted that unless there was a patent error committed by the Labour Court, the High Court under Article 227 could not have interfered with the findings of the Labour Court as if it was hearing an appeal. There cannot be any dispute on the said settled legal position. Under Article 227 of the Constitution of India, the High Court could not have set aside any finding reached by the lower authorities where two views were possible and unless those findings were found to be patently bad and suffering from clear errors of law. As we have already discussed earlier while considering point Nos. 1 and 3, the finding reached by the Labour Court on the relevant terms were patently erroneous and de hors the factual and legal position on record. The said patently illegal findings, could not have been countenanced under Article 227 of the Constitution of India by the High Court and the High Court would have failed to exercise its jurisdiction if it had not set aside such patently illegal findings of the Labour Court. Consequently, on this point the appellant has no case. Point No. 4 is, therefore, answered in negative against the appellant and in favour of the respondent. Point No. 5 : 19. In view of our conclusions on the aforesaid points, the inevitable result is that this appeal fails and is dismissed. In the facts and circumstances of the case, there will be no orders as to costs. 20.
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24(1). In any case, the grievance regarding non-implementation of the settlement is not treated by the legislature to be a matter "covered" by the settlement as both these topics are separately dealt with it by enacting Section 24(1)(i) on the one hand and Schedule IV Item 9 of the Act on the other.16. But leaving aside these aspects of the matter, it becomes clear that the intention of the legislature by enacting 24(1)(i) is that during any period in which any settlement is in operation if strike is resorted to by the union or the workmen in connection with any matter "covered" by the settlement the strike would be illegal. Therefore, it must be shown that the strike has been resorted to in connection with any matter covered by the settlement. It, therefore, necessarily means that the terms of the settlement, when read, must indicate that they encompassed any matter which is made the subject matter of the strike notice. We must see the express terms of settlement with a view to finding out as to which matters are covered by the settlement. This necessarily would connote that the settlement in express terms must refer to a matter which is subsequently made a subject matter of notice of strike. When we turn to the settlement of demand No. 14 regarding privilege leave, we find that how 12 days leave for the first 240 days of work in a year and 1 day for every additional 12 days worked beyond 240 days worked are computed in a given year, is not a mater which is at all indicated or mentioned in the settlement. All that the settlement has guaranteed is the right of the workmen to earn 12 days privilege leave for 240 days worked in a year and additional one day for every 12 days beyond 240 days worked in afar as this contention is concerned, Shri Bhandare, learned senior counsel for the appellant is on a still weaker footing. The settlement regarding medical check up deals with the rights of the workmen to get medical re- imbursement and the procedure for the medical examination of the workmen suffering from any ailment or disease. This right would arise under the settlement in connection with those workmen who have already got afflicted by occupational ailments. This has nothing to do with the grievance found in the impugned strike notice regarding the health hazards suffered by the workmen and preventive measures required to be taken by the company in this connection. This grievance found in the notice is based on the dictum "prevention is better than cure". The settlement regarding demand No. 26 pertaining to medical check up deals with the procedure to be followed and the rights available to the workman after he has suffered from occupational diseases. The strike notice referred to an independent grievance in connection with the situation wherein a disease on proper preventive measures could be avoided. It also referred to various health hazards due to the working conditions of the workmen. These grievances are entirely foreign to the terms of the settlement regarding medical check up. We fail to appreciate as to how the Labour Court could persuade itself to hold that the terms of settlement regarding demand No. 26 were also sought to be contravened by the impugned demands in the notice. The said finding of the Labour Court, to say least, was totally contrary to the express terms of the settlement of demand No. 26. Such a patently erroneous finding had to be set aside by the High Court in writ proceedings and no fault can be found with the High Court in undertaking such an exercise. The valiant attempt of Shri Bhandare, learned senior counsel for the appellant, for getting the impugned strike declared as illegal on this ground is found to be wholly without any substance. It must, therefore, be held that the impugned strike notice was not violative of provisions of Section 24(1)(i) of the Act and had nothing to do with settlement on demand Nos. 14 and 26. The third point for determination is to be answered in negative against the appellant and in favour of Respondent No. 1.So far as this point is concerned, placing reliance on various decisions of this court namely, Harish Vishnu Kamath v. Syed Ahmad Ishaque and others, 1955(1) SCR 1104, Nagendra Nath Bora and another v. The Commissioner of Hills Division & Appeals Assam and others, 1958 SCR 1240 and Sadhu Ram v. Delhi Transport Corporation, AIR 1984 SC 1467 , learned senior counsel for the appellant submitted that unless there was a patent error committed by the Labour Court, the High Court under Article 227 could not have interfered with the findings of the Labour Court as if it was hearing an appeal. There cannot be any dispute on the said settled legal position. Under Article 227 of the Constitution of India, the High Court could not have set aside any finding reached by the lower authorities where two views were possible and unless those findings were found to be patently bad and suffering from clear errors of law. As we have already discussed earlier while considering point Nos. 1 and 3, the finding reached by the Labour Court on the relevant terms were patently erroneous and de hors the factual and legal position on record. The said patently illegal findings, could not have been countenanced under Article 227 of the Constitution of India by the High Court and the High Court would have failed to exercise its jurisdiction if it had not set aside such patently illegal findings of the Labour Court. Consequently, on this point the appellant has no case. Point No. 4 is, therefore, answered in negative against the appellant and in favour of theview of our conclusions on the aforesaid points, the inevitable result is that this appeal fails and is dismissed. In the facts and circumstances of the case, there will be no orders as to costs.
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M/S BENAULIM CABLE TV NETWORK Vs. M/S BLITS GLOBAL TECHNOLOGIES PVT. LTD | 1. Having heard the learned counsel for the petitioner at some length, it is necessary to set out that both parties were before the TDSAT which passed an order dated 27.08.2013 after hearing them. However, the dispute between the parties was then referred to arbitration under the Micro, Small and Medium Enterprises Development Act, 2006 (for short ‘MSMED Act?). An Award was passed by the Goa Micro, Small Enterprises Facilitation Council set up under the Act dated 15.12.2014 by which the petitioner was ordered to pay a sum of Rs. 8.65 lakhs plus interest to the respondent. A review petition was then filed on 03.03.2015 which was dismissed on 08.10.2015. This was discovered by an RTI reply of 06.11.2017 as a result of which a Section 34 petition under the Arbitration Act was then filed by the petitioner only on 21.02.2018. Since no review petition could have been filed under the MSMED Act read with the Arbitration Act, the petitioner claimed that Section 14 of the Limitation Act should be applied in his case as a result of which the petition filed under Section 34 to the District Court, South Goa at Margao would then be within the 120 days which was prescribed under the Arbitration Act. The District Court, by order dated 26.07.2018, dismissed the petition on the ground of limitation, stating that Section 14 of the Limitation Act would not apply. This was agreed to by the impugned judgment dated 29.10.2018, which dismissed the Section 37 appeal from this order.2. Learned counsel appearing on behalf of the petitioner has argued that TDSAT has exclusive jurisdiction in these matters and since it has exclusive jurisdiction in these matters the non obstante clause of the TRAI Act would prevail over the non obstante clause of MSMED Act. This being the case, this is something which the High Court ought to have been gone into and then declared that as the Facilitation Council under the MSMED Act is bereft of jurisdiction, the award should have been set aside. This was argued based upon the judgment in Life Insurance Corporation of India vs. D.J. Bahadur and Others, (1981) 1 SCC 315 and KSL and Industries Limited vs. Arihant Threads Limited and Others, (2015) 1 SCC 166. 3. First and foremost the judgment of the High Court is not right in stating that Section 14 will not apply to a proceeding under Section 34. This has, in fact, been settled by a judgment of this Court in Consolidated Engineering Enterprises vs. Principal Secretary, Irrigation Department and Others, (2008) 7 SCC 169. However, on facts even if Section 14 is to be applied, there is no doubt that the petition is beyond limitation by 3 days which limitation cannot be relaxed beyond a period of 120 days as Section 5 of the Limitation Act will not apply to proceedings under Section 34 of the Arbitration Act.4. It is settled law that an order passed without jurisdiction can be challenged even collaterally – Kiran Singh and Others vs. Chaman Paswan and Others,[1955] (1) SCR 117 at 121. However, in the present case, the petitioner did not avail of the doctrine laid down in Kiran Singh and Others (supra) by filing a petition for judicial review of the arbitration award, but instead elected to choose a remedy under the Arbitration Act itself. That remedy having been chosen, the drill of Section 34(3) is then necessarily to be followed. | 0[ds]3. First and foremost the judgment of the High Court is not right in stating that Section 14 will not apply to a proceeding under Section 34. This has, in fact, been settled by a judgment of this Court in Consolidated Engineering Enterprises vs. Principal Secretary, Irrigation Department and Others, (2008) 7 SCC 169. However, on facts even if Section 14 is to be applied, there is no doubt that the petition is beyond limitation by 3 days which limitation cannot be relaxed beyond a period of 120 days as Section 5 of the Limitation Act will not apply to proceedings under Section 34 of the Arbitration Act.It is settled law that an order passed without jurisdiction can be challenged even collaterally – Kiran Singh and Others vs. Chaman Paswan and Others,[1955] (1) SCR 117 at 121. However, in the present case, the petitioner did not avail of the doctrine laid down in Kiran Singh and Others (supra) by filing a petition for judicial review of the arbitration award, but instead elected to choose a remedy under the Arbitration Act itself. That remedy having been chosen, the drill of Section 34(3) is then necessarily to be followed. | 0 | 641 | 232 | ### Instruction:
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1. Having heard the learned counsel for the petitioner at some length, it is necessary to set out that both parties were before the TDSAT which passed an order dated 27.08.2013 after hearing them. However, the dispute between the parties was then referred to arbitration under the Micro, Small and Medium Enterprises Development Act, 2006 (for short ‘MSMED Act?). An Award was passed by the Goa Micro, Small Enterprises Facilitation Council set up under the Act dated 15.12.2014 by which the petitioner was ordered to pay a sum of Rs. 8.65 lakhs plus interest to the respondent. A review petition was then filed on 03.03.2015 which was dismissed on 08.10.2015. This was discovered by an RTI reply of 06.11.2017 as a result of which a Section 34 petition under the Arbitration Act was then filed by the petitioner only on 21.02.2018. Since no review petition could have been filed under the MSMED Act read with the Arbitration Act, the petitioner claimed that Section 14 of the Limitation Act should be applied in his case as a result of which the petition filed under Section 34 to the District Court, South Goa at Margao would then be within the 120 days which was prescribed under the Arbitration Act. The District Court, by order dated 26.07.2018, dismissed the petition on the ground of limitation, stating that Section 14 of the Limitation Act would not apply. This was agreed to by the impugned judgment dated 29.10.2018, which dismissed the Section 37 appeal from this order.2. Learned counsel appearing on behalf of the petitioner has argued that TDSAT has exclusive jurisdiction in these matters and since it has exclusive jurisdiction in these matters the non obstante clause of the TRAI Act would prevail over the non obstante clause of MSMED Act. This being the case, this is something which the High Court ought to have been gone into and then declared that as the Facilitation Council under the MSMED Act is bereft of jurisdiction, the award should have been set aside. This was argued based upon the judgment in Life Insurance Corporation of India vs. D.J. Bahadur and Others, (1981) 1 SCC 315 and KSL and Industries Limited vs. Arihant Threads Limited and Others, (2015) 1 SCC 166. 3. First and foremost the judgment of the High Court is not right in stating that Section 14 will not apply to a proceeding under Section 34. This has, in fact, been settled by a judgment of this Court in Consolidated Engineering Enterprises vs. Principal Secretary, Irrigation Department and Others, (2008) 7 SCC 169. However, on facts even if Section 14 is to be applied, there is no doubt that the petition is beyond limitation by 3 days which limitation cannot be relaxed beyond a period of 120 days as Section 5 of the Limitation Act will not apply to proceedings under Section 34 of the Arbitration Act.4. It is settled law that an order passed without jurisdiction can be challenged even collaterally – Kiran Singh and Others vs. Chaman Paswan and Others,[1955] (1) SCR 117 at 121. However, in the present case, the petitioner did not avail of the doctrine laid down in Kiran Singh and Others (supra) by filing a petition for judicial review of the arbitration award, but instead elected to choose a remedy under the Arbitration Act itself. That remedy having been chosen, the drill of Section 34(3) is then necessarily to be followed.
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3. First and foremost the judgment of the High Court is not right in stating that Section 14 will not apply to a proceeding under Section 34. This has, in fact, been settled by a judgment of this Court in Consolidated Engineering Enterprises vs. Principal Secretary, Irrigation Department and Others, (2008) 7 SCC 169. However, on facts even if Section 14 is to be applied, there is no doubt that the petition is beyond limitation by 3 days which limitation cannot be relaxed beyond a period of 120 days as Section 5 of the Limitation Act will not apply to proceedings under Section 34 of the Arbitration Act.It is settled law that an order passed without jurisdiction can be challenged even collaterally – Kiran Singh and Others vs. Chaman Paswan and Others,[1955] (1) SCR 117 at 121. However, in the present case, the petitioner did not avail of the doctrine laid down in Kiran Singh and Others (supra) by filing a petition for judicial review of the arbitration award, but instead elected to choose a remedy under the Arbitration Act itself. That remedy having been chosen, the drill of Section 34(3) is then necessarily to be followed.
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Bhanumati Etc. Etc Vs. State Of U.P.Tr.Prinl.Sec | reference to Strouds Judicial Dictionary. 100. Relying on Stroud, this Court held the expression that is to say is resorted to for clarifying and fixing the meaning of what is defined. There is no difficulty about applying those principles to the facts of this case. In Payarelal (supra), this Court was construing the relevant entry in the context of single point Sales Tax subject to special conditions when imposed on separate categories of specified goods. Therefore, there is vast situational difference between the case in Payarelal (supra) and the present one. 101. The last decision cited on this point was rendered in the case of Commissioner of Sales Tax M.P. vs. Popular Trading Company, Ujjain [2000 (5) SCC 511 ]. This was also a case relating to Sales Tax and the expression that is to say has been used. This Court in explaining the purport of that is to say referred to the ratio in Payarelal (supra). Even if we accept the said ratio in construing the ambit of Entry 5 of List II in the 7th Schedule, this Court finds that the impugned provision of no-confidence against the Chairperson of the Panchayat is very much encompassed within Entry 5 if we read the entry liberally and in accordance with well settled principles of reading legislative entries in several lists of the 7th Schedule. The decision on Popular Trading (supra) does not at all advance the case of the appellant. 102. Learned counsel for the State of U.P. cited some decisions to point out how the Court should consider the challenge to the constitutional validity of a Statute. Some of the decisions cited by the learned counsel are quite helpful and are considered by this Court. 103. In the case of State of Bihar & Ors. vs. Bihar Distillery Ltd. - JT 1996 (10) S.C. 854, this Court in paragraph 18 at page Nos.865-866 of the report laid down certain principles on how to judge the constitutionality of an enactment. This Court held that in this exercise the Court should (a) try to sustain validity of the impugned law to the extent possible. It can strike down the enactment only when it is impossible to sustain it; (b) the Court should not approach the enactment with a view to pick holes or to search for defects of drafting or for the language employed; (c) the Court should consider that the Act made by the legislature represents the will of the people and that cannot be lightly interfered with; (d) the Court should strike down the Act only when the unconstitutionality is plainly and clearly established; (e) the Court must recognize the fundamental nature and importance of legislative process and accord due regard and deference to it. This Court abstracted those principles from various judgments of this Court. 104. In State of Bihar (supra), this Court also considered the observations of Lord Denning in Seaford Court Estates Ltd. vs. Asher - [1949 (2) K.B. 481] and highlighted that the job of a judge in construing a statute must proceed on the constructive task of finding the intention of Parliament and this must be done (a) not only from the language of the statute but also (b) upon consideration of the social conditions which gave rise to it (c) and also of the mischief to remedy which the statute was passed and if necessary (d) the judge must supplement the written word so as to give force and life to the intention of the legislature. 105. According to Lord Denning these are the principles laid down in Heydons case and is considered one of the safest guides today. This Court also accepted those principles. (See para 21 at page 867 of the report). 106. Reliance was also placed on another decision of this Court in Dharam Dutt and Ors. vs. Union of India & Ors. - (2004) 1 SCC 712. This judgment is relevant in order to deal with the argument of the learned counsel for the appellants that in reducing the period for bringing the no-confidence motion from two years to one year and then in reducing the required majority from 2/3rd to simple majority, the legislature was guided by the sinister motive of some influential Ministers to get rid of a local leader who, as a Pradhan of Panchayat, may have become very powerful and competitor of the Minister in the State. 107. In Dharam Dutt (supra) this Court held that if the legislature is competent to pass a particular law, the motive which impelled it to act are really irrelevant. If the legislature has competence, the question of motive does not arise at all and any inquiry into the motive which persuaded Parliament into passing the Act would be of no use at all. (See page 713 of the report). 108. Reliance was also placed on the Constitution Bench judgment of this Court in State of Gujarat vs. Mirzapur Moti Kureshi Kassab Jamat and Ors. - (2005) 8 SCC 534. Chief Justice Lahoti speaking for the Bench laid down in para 37, page 562 of the report that the legislature is in the best position to understand and appreciate the needs of the people as enjoined in the Constitution. The Court will interfere in legislative process only when the statute is clearly violative of the right conferred on a citizen under Part III or when the Act is beyond the legislative competence of the legislature. Of course the Court must always recognize the presumption in favour of the constitutionality of the statutes and the onus to prove its invalidity lies heavily on the party which assails it. 109. Chief Justice Lahoti also laid down several parameters in considering the constitutional validity of a statute at page No.562-563 of the report. One of the parameters which is relevant in this case is however important the right of citizen or an individual may be it has to yield to the larger interests of the country or the community. 110. Considering al | 0[ds]It has already been pointed out that the object and the reasons of Part IX are to lend status and dignity to Panchayati Raj Institutions and to impart certainty, continuity and strength to them. 76. The learned counsel for the appellant unfortunately, in his argument, missed the distinction between an individual and an institution. If a no-confidence motion is passed against the chairperson of a Panchayat, he/she ceases to be a Chairperson, but continues to be a member of the Panchayat and the Panchayat continues with a newly elected Chairperson. Therefore, there is no institutional set back or impediment to the continuity or stability of the Panchayati Rajcourse the Court must always recognize the presumption in favour of the constitutionality of the statutes and the onus to prove its invalidity lies heavily on the party which assailsJustice Lahoti also laid down several parameters in considering the constitutional validity of a statute at page No.562-563 of the report. One of the parameters which is relevant in this case is however important the right of citizen or an individual may be it has to yield to the larger interests of the country or theall these aspects, this Court sees no reason to take a view different from the one taken by the Honble High Courtby the aforesaid tests, as we must, this Court does not find any lack of legislative competence on the part of the State Legislature in enacting the impugned amendment Act. 74. The learned counsel for the appellant cited several judgments in support of the contention that theimpugned amendment in relation to the provisions forare unreasonable and ultra vires the provisions of Part. It hasalready been pointed out that the object and the reasons of Part IX are to lend status and dignity to Panchayati Raj Institutions and to impart certainty, continuity and strength to them. 76. The learned counsel for the appellant unfortunately, in his argument, missed the distinction between an individual and an institution. If amotion is passed against the chairperson of a Panchayat, he/she ceases to be a Chairperson, but continues to be a member of the Panchayat and the Panchayat continues with a newly elected Chairperson. Therefore, there is no institutional set back or impediment to the continuity or stability of the Panchayati RajInstitution. 77. These institutions must run on democratic principles. In democracy all persons heading public bodies can continue provided they enjoy the confidence of the persons who comprise such bodies. This is the essence of democratic republicanism. This explains why this provision ofmotion was there in the Act of 1961 even prior to the 73rd Constitution amendment and has been continued even thereafter. Similar provisions are there in different States in India. 78. Section 211 of the Tamil Nadu Panchayats Act, 1994 contains a provision for motion ofin respect ofof panchayat and Section 212 contains a provision for motion of non confidencein respect ofan of panchayat union council. 79. In the Bombay Village Panchayats Act, 1958 under Section 35 similar provision for motion ofis to be found. 80. In West Bengal Panchayat Act, 1973 under Section 12 there is a provision for the removal of Pradhan andif he has lost the confidence of the members of the Gram Panchayat. 81. In M.P. Panchayat Raj Avam Gram Samaj Adhiniyam, 1993, Section 21 provides formotion against Sarpanch and82. There is a similar provision ofmotion against Sarpanch under Section 19 of the Punjab Panchayati Raj Act, 1994 as also under Section 157 the Kerala Panchayat Raj Act, 1994. 83. The Karnataka Panchayat Raj Act, 1993 Section 49 has similar provision of a motion ofagainst Adhyaksha or Upadhyaksha of Gram Panchayat. 84. Such a provision is wholly compatible and consistent with the rejuvenated Panchayat contemplated in Part IX of the Constitution and is not at all inconsistent with the same. 85. Democracy demands accountability and transparency in the activities of the Chairperson especially in view of the important functions entrusted with the Chairperson in the running of Panchayati Raj Institutions. Such duties can be discharged by the Chairperson only if he/she enjoys the continuous confidence of the majority members in the Panchayat. So any statutory provision to demonstrate that the Chairperson has lost the confidence of the majority is conducive to public interest and adds strength to such bodies of self Governance. Such a statutory provision cannot be called either unreasonable or ultra vires Part IX of the Constitution. 86. Any head of a democratic institution must be prepared to face the test of confidence. Neither the democratically elected Prime Minister of the Country nor the Chief Minister of a State is immune from such a test of confidence under the Rules of Procedure framed under Articles 118 and 208 of the Constitution. Both the Prime Minister of India and Chief Ministers of several States heading the Council of Ministers at the Centre and in several States respectively have to adhere to the principles of collective responsibilities to their respective houses in accordance with Articles 75(3) and 164(2) of the Constitution. 87. The learned counsel for the appellant therefore compared the position of the Chairperson of a Panchayat with that of the President of India and argued that both are elected for five years and Presidents continuance in office is not subject to any vote ofThe post of Chairperson should have the same immunity. 88. This is an argument of desperation and has been advanced, with respect, without any regard to the vast difference in Constitutional status and position between the two posts. The two posts are not comparable at all by any standards. Even the President of India is subject to impeachment proceedings under Article 61 of the Constitution. No one is an imperium in imperio in our Constitutional set up. 89. In this matter various judgments have been cited by the learned counsel for the appellant. Of those judgments only the judgment in Mohan Lal Tripathi vs. District Magistrate, Rai Bareilly & others [1992 (4) SCC 80 ] is on the question of themotion against President of the municipality elected directly by the electorate.motion was passed by the board against the said President and not by the electorate. That was challenged. This Court repelled the challenge and upheld themotion holding that the recall by the Board amounts to recall by the electorate itself. 90. Upholding the aforesaid provision ofwhich is virtually a power of recall, this Court in Mohan Lal Tripathi (supra) held that the recall of the elected representative, so long it is in accordance with law, cannot be assailed on abstract laws of democracy. (Para 2, page 86 of the report) 91. Upholding the concept of vote ofin Mohan Lal Tripathi (supra) this Court further elaborated the concept as follows: "...Vote ofagainst elected representative is direct check flowing from accountability. Today democracy is not a rule of Poor as said by Aristotle or of Masses as opposed to Classes but by the majority elected from out of the people on basis of broad franchise. Recall of elected representative is advancement of political democracy ensuring true, fair, honest and just representation of the electorate. Therefore, a provision in a statute for recall of an elected representative has to be tested not on general or vague notions but on practical possibility and electoral feasibility of entrusting the power of recall to a body which is representative in character and is capable of projecting views of the electorate. Even though there was no provision in the Act initially for recall of a President it came to be introduced in 1926 and since then it has continued and the power always vested in the Board irrespective of whether the President was elected by the electorate or Board. Rationale for it is apparent from the provisions of the Act..." 92. In Ram Beti vs. District Panchayat Raj Adhikari & others [1998 (1) SCC 680 ] this Court has upheld the provisions of Section 14 of U.P. Panchayat Raj Act, 1947 as amended by U.P. Act No.9 of 1994 which empowers members of the Gram Panchayat to remove the Pradhan of Gram Sabha by vote ofThis Court held that such a provision is not unconstitutional nor does it infringe the principle of democracy or provisions of Article 14. This decision was rendered in 1997, which is after the incorporation of Part IX of the Constitution. 93. In fact, in Ram Beti (supra), this Court considered the impact of 73rd Amendment and also took into consideration the provisions of Article 243N introduced by 73rd Amendment. The ratio in Mohan Lal Tripathi (supra) was also affirmed in Ram Beti (supra). 94. In the background of this admitted position, the argument that 2007 Amendment Act lacks legislative competence has no merit. The relevant legislative entryin respect ofPanchayat is in Entry 5, list II of the 7th Schedule. The said entry is: "5. Local Government, that is to say, the constitution and powers of municipal, corporations, improvement trusts, district boards mining settlement authorities and other local authorities for the purpose of local self Government or village administration." 95. It is well known that legislative entry is generic in nature and virtually constitutes the legislative field and has to be very broadly construed. These entries demarcate areas, fields of legislation within which the respective laws are to be operate and do not merely confer legislative power as much. The words in the entry should be held to extend to all ancillary and subsidiary matters which can be reasonably said to be encompassed by it. (See Hans Muller of Nurenburg vs. Superintendent, Presidency Jail, Calcutta and others, AIR 1955 SC 367 ; Navinchandra Mafatlal, Bombay vs. Commissioner of Income Tax, Bombay City, AIR 1955 SC 58 , and also the decision of this Court rendered in Jilubhai Nanbhai Khachar etc. etc. vs. State of Gujarat and another reported in AIR 1955 SC 142 at 148]. 96. About interpretation of entries in the 7th Schedule reliance was placed by the learned counsel for the appellant on the judgment of Constitution Bench of this court in Diamond Sugar Mills Limited and another vs. The State of Uttar Pradesh and another reported in AIR 1961 SC 652 . In that case the Court considered the meaning of the word local area in Entry 52 of the State List in the 7th Schedule. The Constitution Bench of this Court held that in considering the meaning of the words in the 7th Schedule, the Court held bear in mind that the entries of such schedule should be liberally interpreted as they confer rights of legislation. But at the same time the Court should be careful enough not to extend the meaning of the words beyond their reasonable connotation in an anxiety to preserve the power of the legislature. On the basis of the above interpretation this Court held that premises of a factory is not a local area. 97. The said decision has no application in the present case in as much as Entry 5 of List Ii of the 7th Schedule is wide enough to authorize legislation ofagainst the Chairperson of the Panchayat. 98. The next judgment cited on this point was rendered in the case of State of Tamil Nadu vs. M/s. Payarelal Malhotra and Others [1976 (1) SCC 834 ]. 99. In that decision meaning of the expression that is to say was discussed with reference to Strouds Judicial Dictionary. 100. Relying on Stroud, this Court held the expression that is to say is resorted to for clarifying and fixing the meaning of what is defined. There is no difficulty about applying those principles to the facts of this case. In Payarelal (supra), this Court was construing the relevant entry in the context of single point Sales Tax subject to special conditions when imposed on separate categories of specified goods. Therefore, there is vast situational difference between the case in Payarelal (supra) and the present one. 101. The last decision cited on this point was rendered in the case of Commissioner of Sales Tax M.P. vs. Popular Trading Company, Ujjain [2000 (5) SCC 511 ]. This was also a case relating to Sales Tax and the expression that is to say has been used. This Court in explaining the purport of that is to say referred to the ratio in Payarelal (supra). Even if we accept the said ratio in construing the ambit of Entry 5 of List II in the 7th Schedule, this Court finds that the impugned provision ofagainst the Chairperson of the Panchayat is very much encompassed within Entry 5 if we read the entry liberally and in accordance with well settled principles of reading legislative entries in several lists of the 7th Schedule. The decision on Popular Trading (supra) does not at all advance the case of the appellant. 102. Learned counsel for the State of U.P. cited some decisions to point out how the Court should consider the challenge to the constitutional validity of a Statute. Some of the decisions cited by the learned counsel are quite helpful and are considered by this Court. 103. In the case of State of Bihar & Ors. vs. Bihar Distillery Ltd.JT 1996 (10) S.C. 854, this Court in paragraph 18 at pageof the report laid down certain principles on how to judge the constitutionality of an enactment. This Court held that in this exercise the Court should (a) try to sustain validity of the impugned law to the extent possible. It can strike down the enactment only when it is impossible to sustain it; (b) the Court should not approach the enactment with a view to pick holes or to search for defects of drafting or for the language employed; (c) the Court should consider that the Act made by the legislature represents the will of the people and that cannot be lightly interfered with; (d) the Court should strike down the Act only when the unconstitutionality is plainly and clearly established; (e) the Court must recognize the fundamental nature and importance of legislative process and accord due regard and deference to it. This Court abstracted those principles from various judgments of this Court. 104. In State of Bihar (supra), this Court also considered the observations of Lord Denning inSeaford Court Estates Ltd. vs. Asherand highlighted that the job of a judge in construing a statute must proceed on the constructive task of finding the intention of Parliament and this must be done (a) not only from the language of the statute but also (b) upon consideration of the social conditions which gave rise to it (c) and also of the mischief to remedy which the statute was passed and if necessary (d) the judge must supplement the written word so as to give force and life to the intention of the legislature. 105. According to Lord Denning these are the principles laid down in Heydons case and is considered one of the safest guides today. This Court also accepted those principles. (See para 21 at page 867 of the report). 106. Reliance was also placed on another decision of this Court in Dharam Dutt and Ors. vs. Union of India & Ors.(2004) 1 SCC 712. This judgment is relevant in order to deal with the argument of the learned counsel for the appellants that in reducing the period for bringing themotion from two years to one year and then in reducing the required majority from 2/3rd to simple majority, the legislature was guided by the sinister motive of some influential Ministers to get rid of a local leader who, as a Pradhan of Panchayat, may have become very powerful and competitor of the Minister in the State. 107. In Dharam Dutt (supra) this Court held that if the legislature is competent to pass a particular law, the motive which impelled it to act are really irrelevant. If the legislature has competence, the question of motive does not arise at all and any inquiry into the motive which persuaded Parliament into passing the Act would be of no use at all. (See page 713 of the report). 108. Reliance was also placed on the Constitution Bench judgment of this Court in State of Gujarat vs. Mirzapur Moti Kureshi Kassab Jamat and Ors.(2005) 8 SCC 534. Chief Justice Lahoti speaking for the Bench laid down in para 37, page 562 of the report that the legislature is in the best position to understand and appreciate the needs of the people as enjoined in the Constitution. The Court will interfere in legislative process only when the statute is clearly violative of the right conferred on a citizen under Part III or when the Act is beyond the legislative competence of the legislature. Ofcourse the Court must always recognize the presumption in favour of the constitutionality of the statutes and the onus to prove its invalidity lies heavily on the party which assailsit. 109. ChiefJustice Lahoti also laid down several parameters in considering the constitutional validity of a statute at pageof the report. One of the parameters which is relevant in this case is however important the right of citizen or an individual may be it has to yield to the larger interests of the country or the | 0 | 9,973 | 3,160 | ### Instruction:
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reference to Strouds Judicial Dictionary. 100. Relying on Stroud, this Court held the expression that is to say is resorted to for clarifying and fixing the meaning of what is defined. There is no difficulty about applying those principles to the facts of this case. In Payarelal (supra), this Court was construing the relevant entry in the context of single point Sales Tax subject to special conditions when imposed on separate categories of specified goods. Therefore, there is vast situational difference between the case in Payarelal (supra) and the present one. 101. The last decision cited on this point was rendered in the case of Commissioner of Sales Tax M.P. vs. Popular Trading Company, Ujjain [2000 (5) SCC 511 ]. This was also a case relating to Sales Tax and the expression that is to say has been used. This Court in explaining the purport of that is to say referred to the ratio in Payarelal (supra). Even if we accept the said ratio in construing the ambit of Entry 5 of List II in the 7th Schedule, this Court finds that the impugned provision of no-confidence against the Chairperson of the Panchayat is very much encompassed within Entry 5 if we read the entry liberally and in accordance with well settled principles of reading legislative entries in several lists of the 7th Schedule. The decision on Popular Trading (supra) does not at all advance the case of the appellant. 102. Learned counsel for the State of U.P. cited some decisions to point out how the Court should consider the challenge to the constitutional validity of a Statute. Some of the decisions cited by the learned counsel are quite helpful and are considered by this Court. 103. In the case of State of Bihar & Ors. vs. Bihar Distillery Ltd. - JT 1996 (10) S.C. 854, this Court in paragraph 18 at page Nos.865-866 of the report laid down certain principles on how to judge the constitutionality of an enactment. This Court held that in this exercise the Court should (a) try to sustain validity of the impugned law to the extent possible. It can strike down the enactment only when it is impossible to sustain it; (b) the Court should not approach the enactment with a view to pick holes or to search for defects of drafting or for the language employed; (c) the Court should consider that the Act made by the legislature represents the will of the people and that cannot be lightly interfered with; (d) the Court should strike down the Act only when the unconstitutionality is plainly and clearly established; (e) the Court must recognize the fundamental nature and importance of legislative process and accord due regard and deference to it. This Court abstracted those principles from various judgments of this Court. 104. In State of Bihar (supra), this Court also considered the observations of Lord Denning in Seaford Court Estates Ltd. vs. Asher - [1949 (2) K.B. 481] and highlighted that the job of a judge in construing a statute must proceed on the constructive task of finding the intention of Parliament and this must be done (a) not only from the language of the statute but also (b) upon consideration of the social conditions which gave rise to it (c) and also of the mischief to remedy which the statute was passed and if necessary (d) the judge must supplement the written word so as to give force and life to the intention of the legislature. 105. According to Lord Denning these are the principles laid down in Heydons case and is considered one of the safest guides today. This Court also accepted those principles. (See para 21 at page 867 of the report). 106. Reliance was also placed on another decision of this Court in Dharam Dutt and Ors. vs. Union of India & Ors. - (2004) 1 SCC 712. This judgment is relevant in order to deal with the argument of the learned counsel for the appellants that in reducing the period for bringing the no-confidence motion from two years to one year and then in reducing the required majority from 2/3rd to simple majority, the legislature was guided by the sinister motive of some influential Ministers to get rid of a local leader who, as a Pradhan of Panchayat, may have become very powerful and competitor of the Minister in the State. 107. In Dharam Dutt (supra) this Court held that if the legislature is competent to pass a particular law, the motive which impelled it to act are really irrelevant. If the legislature has competence, the question of motive does not arise at all and any inquiry into the motive which persuaded Parliament into passing the Act would be of no use at all. (See page 713 of the report). 108. Reliance was also placed on the Constitution Bench judgment of this Court in State of Gujarat vs. Mirzapur Moti Kureshi Kassab Jamat and Ors. - (2005) 8 SCC 534. Chief Justice Lahoti speaking for the Bench laid down in para 37, page 562 of the report that the legislature is in the best position to understand and appreciate the needs of the people as enjoined in the Constitution. The Court will interfere in legislative process only when the statute is clearly violative of the right conferred on a citizen under Part III or when the Act is beyond the legislative competence of the legislature. Of course the Court must always recognize the presumption in favour of the constitutionality of the statutes and the onus to prove its invalidity lies heavily on the party which assails it. 109. Chief Justice Lahoti also laid down several parameters in considering the constitutional validity of a statute at page No.562-563 of the report. One of the parameters which is relevant in this case is however important the right of citizen or an individual may be it has to yield to the larger interests of the country or the community. 110. Considering al
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Tamil Nadu vs. M/s. Payarelal Malhotra and Others [1976 (1) SCC 834 ]. 99. In that decision meaning of the expression that is to say was discussed with reference to Strouds Judicial Dictionary. 100. Relying on Stroud, this Court held the expression that is to say is resorted to for clarifying and fixing the meaning of what is defined. There is no difficulty about applying those principles to the facts of this case. In Payarelal (supra), this Court was construing the relevant entry in the context of single point Sales Tax subject to special conditions when imposed on separate categories of specified goods. Therefore, there is vast situational difference between the case in Payarelal (supra) and the present one. 101. The last decision cited on this point was rendered in the case of Commissioner of Sales Tax M.P. vs. Popular Trading Company, Ujjain [2000 (5) SCC 511 ]. This was also a case relating to Sales Tax and the expression that is to say has been used. This Court in explaining the purport of that is to say referred to the ratio in Payarelal (supra). Even if we accept the said ratio in construing the ambit of Entry 5 of List II in the 7th Schedule, this Court finds that the impugned provision ofagainst the Chairperson of the Panchayat is very much encompassed within Entry 5 if we read the entry liberally and in accordance with well settled principles of reading legislative entries in several lists of the 7th Schedule. The decision on Popular Trading (supra) does not at all advance the case of the appellant. 102. Learned counsel for the State of U.P. cited some decisions to point out how the Court should consider the challenge to the constitutional validity of a Statute. Some of the decisions cited by the learned counsel are quite helpful and are considered by this Court. 103. In the case of State of Bihar & Ors. vs. Bihar Distillery Ltd.JT 1996 (10) S.C. 854, this Court in paragraph 18 at pageof the report laid down certain principles on how to judge the constitutionality of an enactment. This Court held that in this exercise the Court should (a) try to sustain validity of the impugned law to the extent possible. It can strike down the enactment only when it is impossible to sustain it; (b) the Court should not approach the enactment with a view to pick holes or to search for defects of drafting or for the language employed; (c) the Court should consider that the Act made by the legislature represents the will of the people and that cannot be lightly interfered with; (d) the Court should strike down the Act only when the unconstitutionality is plainly and clearly established; (e) the Court must recognize the fundamental nature and importance of legislative process and accord due regard and deference to it. This Court abstracted those principles from various judgments of this Court. 104. In State of Bihar (supra), this Court also considered the observations of Lord Denning inSeaford Court Estates Ltd. vs. Asherand highlighted that the job of a judge in construing a statute must proceed on the constructive task of finding the intention of Parliament and this must be done (a) not only from the language of the statute but also (b) upon consideration of the social conditions which gave rise to it (c) and also of the mischief to remedy which the statute was passed and if necessary (d) the judge must supplement the written word so as to give force and life to the intention of the legislature. 105. According to Lord Denning these are the principles laid down in Heydons case and is considered one of the safest guides today. This Court also accepted those principles. (See para 21 at page 867 of the report). 106. Reliance was also placed on another decision of this Court in Dharam Dutt and Ors. vs. Union of India & Ors.(2004) 1 SCC 712. This judgment is relevant in order to deal with the argument of the learned counsel for the appellants that in reducing the period for bringing themotion from two years to one year and then in reducing the required majority from 2/3rd to simple majority, the legislature was guided by the sinister motive of some influential Ministers to get rid of a local leader who, as a Pradhan of Panchayat, may have become very powerful and competitor of the Minister in the State. 107. In Dharam Dutt (supra) this Court held that if the legislature is competent to pass a particular law, the motive which impelled it to act are really irrelevant. If the legislature has competence, the question of motive does not arise at all and any inquiry into the motive which persuaded Parliament into passing the Act would be of no use at all. (See page 713 of the report). 108. Reliance was also placed on the Constitution Bench judgment of this Court in State of Gujarat vs. Mirzapur Moti Kureshi Kassab Jamat and Ors.(2005) 8 SCC 534. Chief Justice Lahoti speaking for the Bench laid down in para 37, page 562 of the report that the legislature is in the best position to understand and appreciate the needs of the people as enjoined in the Constitution. The Court will interfere in legislative process only when the statute is clearly violative of the right conferred on a citizen under Part III or when the Act is beyond the legislative competence of the legislature. Ofcourse the Court must always recognize the presumption in favour of the constitutionality of the statutes and the onus to prove its invalidity lies heavily on the party which assailsit. 109. ChiefJustice Lahoti also laid down several parameters in considering the constitutional validity of a statute at pageof the report. One of the parameters which is relevant in this case is however important the right of citizen or an individual may be it has to yield to the larger interests of the country or the
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State Of Assam Vs. Ranga Mahammad And Ors | from which one may be given here. The words places of public resort assume a very different meaning when coupled with roads and streets from that which the same words would have if they were coupled with houses. In the same way the word posting cannot be understood in the sense of transfer when the idea of appointment and promotion is involved in the combination. In fact this meaning is quite out of place because transfer operates at a stage beyond appointment and promotion. If posting was intended to mean transfer the draftsman would have hardly chosen to place it between "appointment" and "promotion" and could have easily used the word transfer itself. It follows, therefore, that under Art. 233, the Governor is only concerned with the appointment, promotion and posting to the cadre of District Judges but not with the transfer of District Judges already appointed or promoted and posted to the cadre. The latter is obviously a matter of control of District Judges which is vested in the High Court. This meaning of the word posting is made all the more clear when one reads the provisions of Arts. 234 and 235. By the first of these articles the question of appointment is considered separately but by the second of these articles posting and promotion of persons belonging to the judicial service of the State and holding any post inferior to the post of a District Judge is also vested in the High Court. The word post used twice in the article clearly means the position or job and not the station or place and posting must obviously mean the assignment to a position or job and not placing in-charge of a station or Court. The association of words in Art. 235 is much clearer but as the word posting in the earlier article deals with the same subject-matter, it was most certainly used in the same sense and this conclusion is thus quite apparent. 10. This is, of course, as it should be. The High Court is in the day to day control of Courts and knows the capacity for work of individuals and the requirements of a particular station or Court. The High Court is better suited to make transfers than a Minister. For, however, well-meaning a Minister may be he can never possess the same intimate knowledge of the working of the judiciary as a whole and of individual Judges, as the High Court. He must depend on his department for information. The Chief Justice and his colleagues know these matters and deal with them personally. There is less chance of being influenced by secretaries who may withhold some vital information if they are interested themselves. It is also well known that all stations are not similar in climate and education, medical and other facilities. Some are good stations and some are not so good. There is less chance of success for a person seeking advantage for himself if the Chief Justice and his colleagues, with personal information, deal with the matter, than when a Minister deals with it on notes and information supplied by a secretary. The reason of the rule and the sense of the matter combine to suggest the narrow meaning accepted by us. The policy displayed by the Constitution has been in this direction as has been explained in earlier cases of this Court. The High Court was thus right in its conclusion that the powers of the Governor cease after he has appointed or promoted a person to be a District Judge and assigned him to a post in cadre. Thereafter, transfer of incumbents is a matter within the control of District Courts including the control of persons presiding there as explained in the cited case. 11. As the High Court is the authority to make transfers, there was no question of a consultation on this account. The State Government was not the authority to order the transfers. There was, however, need for consultation before D. N. Deka was promoted and posted as a District Judge. That such a consultation is mandatory has been laid down quite definitely in the recent decision of this Court in Chandra Mohan v. State of U. P., Civil Appeals Nos. 1136 and 1638 of 1966, D/-8-8-1966 : (reported in AIR 1966 SC 1987 ). On this part of the case it is sufficient to say that there was no consultation. 12. This brings us to the question whether the remarks of Mr. Justice Dutta should be expunged. There is no doubt that the State Government and the High Court were working together till Choudhurys name was suggested. This is not the first time when cordiality was ruined because a Secretarys name was suggested by the Minister and was not acceptable to the High Court. The Assam High Courts stand has been completely vindicated by Chandra Mohans case cited above, Civil Appeals Nos. 1136 and 1638 of 1966, D/- 8-8-1966: (reported in AIR 1966 SC 1987 ). Choudhury could not be transferred from another department and under the rules he could not be recruited from the Bar as there was no vacancy. Consultation loses all its meaning and becomes a mockery if what the High Court has to say is received with ill-grace or rejected out of hand. In such matters the opinion of the High Court is entitled to the highest regard. 13. We have considered very carefully the question of expunging Mr. Justice Duttas remarks. The power to expunge is an extraordinary power and can be exercised only when a clear case is made out. That another Judge in Mr. Justice Duttas place would not have made those comments is not the right criterion.The question is whether Mr. Justice Dutta can be said to have acted with impropriety. Although we think that Mr. Justice Dutta need not have made the remarks we cannot say that in making them he acted with such impropriety that the extraordinary powers should be exercised in this case. | 0[ds]9. In its ordinary dictionary meaning the word to post may denote either (a) to station someone at a place, or (b) to assign someone to a post, i.e., a position or a job, especially one to which a person is appointed. See Websters New World Dictionary (1962). The dispute in this case has arisen because the State Government applies the first of the two meanings and the High Court the second. In Art. 233 the word posting clearly bears the second meaning. This word occurs in association with the words appointment and promotion and takes its colour from them. These words indicate the stage when a person first gets a position or job and posting by association means the assignment of an appointee or promotee to a position in the cadre of District Judges. That a special meaning may be given to a word because of the collocation of words in which it figures, is a well-recognised canon of construction. Maxwell ("On Interpretation of Statutes", 11th Edn., p. 321 and the following pages) gives numerous examples of the application of this principle, from which one may be given here. The words places of public resort assume a very different meaning when coupled with roads and streets from that which the same words would have if they were coupled with houses. In the same way the word posting cannot be understood in the sense of transfer when the idea of appointment and promotion is involved in the combination. In fact this meaning is quite out of place because transfer operates at a stage beyond appointment and promotion. If posting was intended to mean transfer the draftsman would have hardly chosen to place it between "appointment" and "promotion" and could have easily used the word transfer itself. It follows, therefore, that under Art. 233, the Governor is only concerned with the appointment, promotion and posting to the cadre of District Judges but not with the transfer of District Judges already appointed or promoted and posted to the cadre. The latter is obviously a matter of control of District Judges which is vested in the High Court. This meaning of the word posting is made all the more clear when one reads the provisions of Arts. 234 and 235. By the first of these articles the question of appointment is considered separately but by the second of these articles posting and promotion of persons belonging to the judicial service of the State and holding any post inferior to the post of a District Judge is also vested in the High Court. The word post used twice in the article clearly means the position or job and not the station or place and posting must obviously mean the assignment to a position or job and not placing in-charge of a station or Court. The association of words in Art. 235 is much clearer but as the word posting in the earlier article deals with the same subject-matter, it was most certainly used in the same sense and this conclusion is thus quite apparent10. This is, of course, as it should be. The High Court is in the day to day control of Courts and knows the capacity for work of individuals and the requirements of a particular station or Court. The High Court is better suited to make transfers than a Minister. For, however, well-meaning a Minister may be he can never possess the same intimate knowledge of the working of the judiciary as a whole and of individual Judges, as the High Court. He must depend on his department for information. The Chief Justice and his colleagues know these matters and deal with them personally. There is less chance of being influenced by secretaries who may withhold some vital information if they are interested themselves. It is also well known that all stations are not similar in climate and education, medical and other facilities. Some are good stations and some are not so good. There is less chance of success for a person seeking advantage for himself if the Chief Justice and his colleagues, with personal information, deal with the matter, than when a Minister deals with it on notes and information supplied by a secretary. The reason of the rule and the sense of the matter combine to suggest the narrow meaning accepted by us. The policy displayed by the Constitution has been in this direction as has been explained in earlier cases of this Court. The High Court was thus right in its conclusion that the powers of the Governor cease after he has appointed or promoted a person to be a District Judge and assigned him to a post in cadre. Thereafter, transfer of incumbents is a matter within the control of District Courts including the control of persons presiding there as explained in the cited caseThere is no doubt that the State Government and the High Court were working together till Choudhurys name was suggested. This is not the first time when cordiality was ruined because a Secretarys name was suggested by the Minister and was not acceptable to the High Court. The Assam High Courts stand has been completely vindicated by Chandra Mohans case cited above, Civil Appeals Nos. 1136 and 1638 of 1966, D/- 8-8-1966: (reported in AIR 1966 SC 1987 ). Choudhury could not be transferred from another department and under the rules he could not be recruited from the Bar as there was no vacancy. Consultation loses all its meaning and becomes a mockery if what the High Court has to say is received with ill-grace or rejected out of hand. In such matters the opinion of the High Court is entitled to the highest regard13. We have considered very carefully the question of expunging Mr. Justice Duttas remarks. The power to expunge is an extraordinary power and can be exercised only when a clear case is made out. That another Judge in Mr. Justice Duttas place would not have made those comments is not the right criterion.The question is whether Mr. Justice Dutta can be said to have acted with impropriety. Although we think that Mr. Justice Dutta need not have made the remarks we cannot say that in making them he acted with such impropriety that the extraordinary powers should be exercised in this case. | 0 | 3,774 | 1,147 | ### Instruction:
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from which one may be given here. The words places of public resort assume a very different meaning when coupled with roads and streets from that which the same words would have if they were coupled with houses. In the same way the word posting cannot be understood in the sense of transfer when the idea of appointment and promotion is involved in the combination. In fact this meaning is quite out of place because transfer operates at a stage beyond appointment and promotion. If posting was intended to mean transfer the draftsman would have hardly chosen to place it between "appointment" and "promotion" and could have easily used the word transfer itself. It follows, therefore, that under Art. 233, the Governor is only concerned with the appointment, promotion and posting to the cadre of District Judges but not with the transfer of District Judges already appointed or promoted and posted to the cadre. The latter is obviously a matter of control of District Judges which is vested in the High Court. This meaning of the word posting is made all the more clear when one reads the provisions of Arts. 234 and 235. By the first of these articles the question of appointment is considered separately but by the second of these articles posting and promotion of persons belonging to the judicial service of the State and holding any post inferior to the post of a District Judge is also vested in the High Court. The word post used twice in the article clearly means the position or job and not the station or place and posting must obviously mean the assignment to a position or job and not placing in-charge of a station or Court. The association of words in Art. 235 is much clearer but as the word posting in the earlier article deals with the same subject-matter, it was most certainly used in the same sense and this conclusion is thus quite apparent. 10. This is, of course, as it should be. The High Court is in the day to day control of Courts and knows the capacity for work of individuals and the requirements of a particular station or Court. The High Court is better suited to make transfers than a Minister. For, however, well-meaning a Minister may be he can never possess the same intimate knowledge of the working of the judiciary as a whole and of individual Judges, as the High Court. He must depend on his department for information. The Chief Justice and his colleagues know these matters and deal with them personally. There is less chance of being influenced by secretaries who may withhold some vital information if they are interested themselves. It is also well known that all stations are not similar in climate and education, medical and other facilities. Some are good stations and some are not so good. There is less chance of success for a person seeking advantage for himself if the Chief Justice and his colleagues, with personal information, deal with the matter, than when a Minister deals with it on notes and information supplied by a secretary. The reason of the rule and the sense of the matter combine to suggest the narrow meaning accepted by us. The policy displayed by the Constitution has been in this direction as has been explained in earlier cases of this Court. The High Court was thus right in its conclusion that the powers of the Governor cease after he has appointed or promoted a person to be a District Judge and assigned him to a post in cadre. Thereafter, transfer of incumbents is a matter within the control of District Courts including the control of persons presiding there as explained in the cited case. 11. As the High Court is the authority to make transfers, there was no question of a consultation on this account. The State Government was not the authority to order the transfers. There was, however, need for consultation before D. N. Deka was promoted and posted as a District Judge. That such a consultation is mandatory has been laid down quite definitely in the recent decision of this Court in Chandra Mohan v. State of U. P., Civil Appeals Nos. 1136 and 1638 of 1966, D/-8-8-1966 : (reported in AIR 1966 SC 1987 ). On this part of the case it is sufficient to say that there was no consultation. 12. This brings us to the question whether the remarks of Mr. Justice Dutta should be expunged. There is no doubt that the State Government and the High Court were working together till Choudhurys name was suggested. This is not the first time when cordiality was ruined because a Secretarys name was suggested by the Minister and was not acceptable to the High Court. The Assam High Courts stand has been completely vindicated by Chandra Mohans case cited above, Civil Appeals Nos. 1136 and 1638 of 1966, D/- 8-8-1966: (reported in AIR 1966 SC 1987 ). Choudhury could not be transferred from another department and under the rules he could not be recruited from the Bar as there was no vacancy. Consultation loses all its meaning and becomes a mockery if what the High Court has to say is received with ill-grace or rejected out of hand. In such matters the opinion of the High Court is entitled to the highest regard. 13. We have considered very carefully the question of expunging Mr. Justice Duttas remarks. The power to expunge is an extraordinary power and can be exercised only when a clear case is made out. That another Judge in Mr. Justice Duttas place would not have made those comments is not the right criterion.The question is whether Mr. Justice Dutta can be said to have acted with impropriety. Although we think that Mr. Justice Dutta need not have made the remarks we cannot say that in making them he acted with such impropriety that the extraordinary powers should be exercised in this case.
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has arisen because the State Government applies the first of the two meanings and the High Court the second. In Art. 233 the word posting clearly bears the second meaning. This word occurs in association with the words appointment and promotion and takes its colour from them. These words indicate the stage when a person first gets a position or job and posting by association means the assignment of an appointee or promotee to a position in the cadre of District Judges. That a special meaning may be given to a word because of the collocation of words in which it figures, is a well-recognised canon of construction. Maxwell ("On Interpretation of Statutes", 11th Edn., p. 321 and the following pages) gives numerous examples of the application of this principle, from which one may be given here. The words places of public resort assume a very different meaning when coupled with roads and streets from that which the same words would have if they were coupled with houses. In the same way the word posting cannot be understood in the sense of transfer when the idea of appointment and promotion is involved in the combination. In fact this meaning is quite out of place because transfer operates at a stage beyond appointment and promotion. If posting was intended to mean transfer the draftsman would have hardly chosen to place it between "appointment" and "promotion" and could have easily used the word transfer itself. It follows, therefore, that under Art. 233, the Governor is only concerned with the appointment, promotion and posting to the cadre of District Judges but not with the transfer of District Judges already appointed or promoted and posted to the cadre. The latter is obviously a matter of control of District Judges which is vested in the High Court. This meaning of the word posting is made all the more clear when one reads the provisions of Arts. 234 and 235. By the first of these articles the question of appointment is considered separately but by the second of these articles posting and promotion of persons belonging to the judicial service of the State and holding any post inferior to the post of a District Judge is also vested in the High Court. The word post used twice in the article clearly means the position or job and not the station or place and posting must obviously mean the assignment to a position or job and not placing in-charge of a station or Court. The association of words in Art. 235 is much clearer but as the word posting in the earlier article deals with the same subject-matter, it was most certainly used in the same sense and this conclusion is thus quite apparent10. This is, of course, as it should be. The High Court is in the day to day control of Courts and knows the capacity for work of individuals and the requirements of a particular station or Court. The High Court is better suited to make transfers than a Minister. For, however, well-meaning a Minister may be he can never possess the same intimate knowledge of the working of the judiciary as a whole and of individual Judges, as the High Court. He must depend on his department for information. The Chief Justice and his colleagues know these matters and deal with them personally. There is less chance of being influenced by secretaries who may withhold some vital information if they are interested themselves. It is also well known that all stations are not similar in climate and education, medical and other facilities. Some are good stations and some are not so good. There is less chance of success for a person seeking advantage for himself if the Chief Justice and his colleagues, with personal information, deal with the matter, than when a Minister deals with it on notes and information supplied by a secretary. The reason of the rule and the sense of the matter combine to suggest the narrow meaning accepted by us. The policy displayed by the Constitution has been in this direction as has been explained in earlier cases of this Court. The High Court was thus right in its conclusion that the powers of the Governor cease after he has appointed or promoted a person to be a District Judge and assigned him to a post in cadre. Thereafter, transfer of incumbents is a matter within the control of District Courts including the control of persons presiding there as explained in the cited caseThere is no doubt that the State Government and the High Court were working together till Choudhurys name was suggested. This is not the first time when cordiality was ruined because a Secretarys name was suggested by the Minister and was not acceptable to the High Court. The Assam High Courts stand has been completely vindicated by Chandra Mohans case cited above, Civil Appeals Nos. 1136 and 1638 of 1966, D/- 8-8-1966: (reported in AIR 1966 SC 1987 ). Choudhury could not be transferred from another department and under the rules he could not be recruited from the Bar as there was no vacancy. Consultation loses all its meaning and becomes a mockery if what the High Court has to say is received with ill-grace or rejected out of hand. In such matters the opinion of the High Court is entitled to the highest regard13. We have considered very carefully the question of expunging Mr. Justice Duttas remarks. The power to expunge is an extraordinary power and can be exercised only when a clear case is made out. That another Judge in Mr. Justice Duttas place would not have made those comments is not the right criterion.The question is whether Mr. Justice Dutta can be said to have acted with impropriety. Although we think that Mr. Justice Dutta need not have made the remarks we cannot say that in making them he acted with such impropriety that the extraordinary powers should be exercised in this case.
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K.S. Varghese & Others Vs. St. Peter's & Paul's Syrian Orth. & Others | this aspect even though there is a strong protest which has led to repeated round of litigations before the courts up to the Honble Apex Court. The underlying object or the purpose even if it assumed that it is only for better administration, still it cannot have any predominance or the constitutional provision or the law of land." 30.After analysing the facts and the law in the matter, we have noticed that it is the duty of the society to take steps in accordance with Section 13 of the SR Act for its dissolution. We have further noted that unless the properties vested in the Trust are divested in accordance with the provisions of the SR Act and in accordance with the BPTA, merely by filing the change report(s), CNI cannot claim a merger of churches and thereby claim that the properties vested in the Trust would vest in them. In our opinion, it would only be evident from the steps taken that the passing of resolutions is nothing but an indication to show the intention to merge and nothing else. In fact, the City Civil Court has correctly held, in our opinion, which has been affirmed by the High Court, that there was no dissolution of the society and further merger was not carried out in accordance with the provisions of law. In these circumstances, we hold that the society and the Trust being creatures of statute, have to resort to the modes provided by the statute for its amalgamation and the so-called merger cannot be treated or can give effect to the dissolution of the Trust. In the matrix of the facts, we hold that without taking any steps in accordance with the provisions of law, the effect of the resolutions or deliberations is not acceptable in the domain of law. The question of estoppel also cannot stand in the way as the High Court has correctly pointed out that the freedom guaranteed under the Constitution with regard to the faith and religion, cannot take away the right in changing the faith and religion after giving a fresh look and thinking at any time and thereby cannot be bound by any rules of estoppel. Therefore, the resolution only resolved to accept the recommendation of joint unification but does not refer to dissolution." The decision is wholly inapplicable and does not espouse the cause of the appellants.MAINTAINABILITY OF MANNATHUR CHURCH SUIT : 180. It was also submitted by Shri Mohan Parasaran, learned senior counsel that the Mannathur Church matter suit was not maintainable. It was not of a representative character and in view of Order 1 Rule 8 CPC, fresh leave was not sought when the reliefs were amended and enlarged. We are not satisfied with the submissions raised. The suit was clearly representative in character and has been contested in that manner. It was not necessary to adopt the procedure as suggested after amendment as the amended relief was traceable from the main relief. It was not at all necessary to obtain fresh leave.H. FRAMING OF SCHEME UNDER SECTION 92 OF THE CIVIL PROCEDURE CODE181. We are also not impressed by the submission that the court should direct framing of a scheme under section 92 CPC in view of the decision of the Privy Council in Mohd. Ismile Ariff v. Ahmed Moolla Dowood 43 IA 127 (PC) in which it has been held that the court has the power to give direction and lay down rules that may facilitate the work of management and the appointment of trustees in the future. The primary duty of the Court is to consider the interest of the general body of the public for whose benefit the trust is created. Reliance has been placed by Shri S. Divan, learned senior counsel on Acharya Shri Shreepati Prasadji Barot Laxmidas 33 CWN 352 (PC) that the institutional trust must be respected by the sect and the body of worshippers for whose benefit it was set up to have the protection of the court against their property being subject to abuse, speculation and waste. Reliance was also placed on Ram Dularey v. Ram Lal AIR 1946 PC 34 in which it has been laid down thus: "Even if there were an inconsistency in that judgment, their Lordships would be very slow to disturb the safeguards which are provided in that scheme, if their Lordships found it necessary to reconsider the scheme; but in their view the scheme has been definitely approved by the Chief Court and they see no reason for interfering with the judgment. It has to be remembered that in these cases the Court has a duty, once it finds that it is a trust for public purposes to consider what is best in the interests of the public. That is made abundantly clear by the judge met of this Board, delivered by Mr. Ameer Ali, in Mahomed Ismail Ariff and others v. Ahmed MoollaDawood and another [43 IA 127: 43 Cal. 1085: 4 LW 269 (P.C.).]" (Emphasis supplied) 182. In our opinion there is no necessity of framing any scheme under section 92. There are adequate provisions and safeguards provided in section 92 for managing the Malankara Church and its properties. There is no dispute with the proposition laid down in the aforesaid decisions but we find no such necessity for framing such scheme under section 92 CPC in view of detailed wholesome provisions of 1934 Constitution.I. WHETHER IN THE FACTS, INTERIM ARRANGEMENT TO CONTINUE : 183. Lastly, it was submitted by Shri K. Parasaran, learned senior counsel, that as reconciliation does not appear to be possible between both factions, as such the religious services in the St. Marys Orthodox Church, Varikoli may be permitted to be conducted by two Vicars of each faith, Patriarch and Catholicos, in accordance with the faith of each denomination. The submission cannot be accepted as it would tantamount to patronizing parallel system of administration and would not be a legally permissible mode hence prayer is rejected. | 1[ds]In our opinion, the submission is wholly untenable. The representative suit was decided in 1995 and the judgment is binding even on those who were not parties to the case. All the Parishioners are bound by the judgment to the extent it has decided the matter. There is no conflict in the decree as well as the aforesaid observations that have been made by this Court. The majority opinion has left open the question that the property whether it is held by the Parish Churches or vested in the Catholicos and Para 155(8) deals with other rights and nature of the Church to be episcopal and with respect to the applicability of the 1934 Constitution the judgment is final, conclusive and binding in these cases.Though on the basis of Bhikhi Lal v. Tribeni AIR 1965 SC 1935 it was submitted that the decree has to be in accordance with the judgment, we find that the decree is wholly in tune with the judgment and the issues which were effectively decided by this Court and what was left open is absolutely in no conflict with the findings recorded in the judgment and in the decree. The decree is in accordance with the aforesaid dictum of thissubmission that declaration under section 35 of the Specific Relief Act since in personam and the 1995 judgment has to be considered in that spirit, cannot be accepted in view of the aforesaidour opinion, the Parishioners were parties in the previous suit decided in 1958 and 1995 earlier thereto. The question cannot be reopened again and again by them on the ground that they were not parties individually, otherwise the representative suit and issues as well as the right of suing in representative capacity, would lose entire significance. No doubt it is true as held in Deoki Nandan v. Muralidhar 1956 SCR 756 that the true beneficiaries of religious endowments are not the idols but the worshippers. This principle has also been reiterated in Veruareddi Ramaraghava Reddy v. Konduru Seshu Reddy 1966 Supp SCR 270 and Bishwanath v. Shri Thakur Radhaballabhji (1967) 2 SCR 618. There is no dispute with the proposition that the persons who go in only for the purpose of devotion have a greater and deeper interest in temples than mere servants who serve there for some pecuniary advantage. The decisions are based on Hindu religion. However, the principle is one of law applicable to all religious institutions including the churches having a public character.The submission cannot be made successfully as it ignores and overlooks the mandate of Explanation 6 to section 11 and provision of Order 1 Rule 8(6) CPC. The previous suit was a representative suit and the present appellants/churches are deemed to be parties in the representative suit as they could have applied for defending their rights or to sue as the case may be in the previous suits which had been decided by this Court. Thus there is no question of violation of the principle of natural justice in the case infind that the aforesaid submission is of no use to the present appellants. On one hand, they have submitted that the previous 1995 judgment has left certain issues open as to properties of Parish Church, and on the other hand, they are raising the aforesaid submission. However, the aforesaid submission does not affect the declaration so granted in the instantare unable to accept the submission. The finding of this Court which operates as res judicata is about the binding nature of the 1934 Constitution on the Parishioners and Parish Churches. This Court has made an exception under the aforesaid judgment with respect to Knanaya Church. It is not open to the Parishioners to contend that they can have their independent Constitution and not bound by the 1934 Constitution. The 1995 judgment cannot be misconstrued so as to confer the aforesaid right upon the Parishioners. The judgment is clear, unequivocal and unambiguous with respect to binding nature of the 1934submission is attractive but is not acceptable as what is the meaning of spiritual supremacy, what is, inter alia, the effect of establishment of Catholicos and what is the delegation of power as per Kalpana made by the Patriarch, what he has accepted subsequently in 1958 andhe respective rights of management of Parish Church would have to be decided. In our opinion, it would not be open to any faction or group to adopt any particular system of management of Churches and to have a parallel system of managing authorities under the guise of spiritual supremacy. The mismanagement of Church and chaos cannot be permitted to be created for temporal gains or otherwise. There is a system of management, and the spiritual aspect which has been claimed under the guise of spiritual supremacy in the instant case, is an effort to illegally take over the management of the Churches by rival factions in derogation of delegation of powers, as would be apparent from the discussion to be made hereinafter with reference to the provisions of the Constitution and Kalpanas. The power with respect to Orthodox Syrian Church of the East is the Primate i.e. Catholicos. Though the Primate of the Orthodox Syrian Church is the Patriarch of Antioch. Certain spiritual powers have also been vested in Malankara Metropolitan, as per section 94 of the 1934 Constitution. The prime jurisdiction regarding the temporal, ecclesiastical and spiritual administration of the Malankara Church is vested with the Malankara Metropolitan subject to provisions of the Constitution and under the guise of spiritual supremacy an effort is being made to obtain the appointments of Vicars and Priests as parallel authorities so as to manage the churches and to render religious services under the guise of Patriarch. On the other hand, there are already Vicars and other authorities appointed as per the 1934 Constitution. Thus under the garb of spiritual supremacy which had reached a vanishing point due to the establishment of Catholicos and Kalpana, and the 1934 Constitution which has been accepted and is binding, a parallel system of governance of churches would not be in the interest of the church and would destroy it. It is not the fight for spiritual gains but for other purposes as is apparent from the discussion made hereinafter.77. Shri K. Parasaran, learned senior counsel is right in his submission that the declaration sought in the form that the Church is governed by the 1934 Constitution as upheld by the Supreme Court, should not have been prayed in the form as if this Court had declared it as it could be a ground and a legal aspect. The declaration ought to have been sought that the Church is governed by the 1934 Constitution only and not adding prayer as upheld by this Court. He is right that the declaration in such form ought not to have been sought but in our opinion further submission is not correct that the declaration so sought, has adversely affected the decision of the trial court as well as the High Court. We have gone through the decision and have found that we have not been influenced by the declaration caused in the aforesaid form and no prejudice has been caused to the appellants.IN RE: ABANDONMENT OF PLEAS/OBJECTIONS TO THE REVIVAL OF THE CATHOLICATE, THE VALIDITY OF THE 1934we are unable to accept the aforesaid submission. When the Church is a Parish Church and since time immemorial it is a Parish Church and is a part of Malankara Church, it has to perpetually remain as such. Under the garb of pursuing their faith of the Patriarch being superior, they cannot create a parallel system of appointing a Vicar for performing spiritual/religious ceremonies conforming to that faith, as an appointment of Vicar is not a spiritual matter. It is a secular matter. Thus the submission so as to dilute the finding at para155(6) and (7) of the 1995 judgment cannot befind no merit in the aforesaid submission as the decision in Sha Mulchand & Co. (supra), is that the question of waiver, acquiescence or laches may sometime not amount to an abandonment of the right or create an estoppel in certain circumstances. A man who has a vested interest and in whom the legal title lies does not, and cannot, lose that title by mere laches or by saying that he has abandoned his right, unless there is something more, namely inducement of another party by his words or conduct to believe the truth of that statement and so as to make him act upon it to his detriment. Then such a person would be bound by estoppel. It is not abandonment or waiver, which prevents him from asserting that the legal forms were not duly observed. In the instant case the discussion which has been made in the 1995 judgment is too elaborate and is based primarily on various historical facts and background which clearly indicate that the Patriarch at no point of time had exercised temporal control and it was considered necessary to establish the office of the Catholicos so as to manage the Malankara Church which is a division of the Orthodox Syrian Church. The Malankara Church was founded by St. Thomas the Apostle and is included in the Orthodox Syrian Church of the East and the Primate of the Church is the Catholicos. It is apparent from Kalpanas, establishment of the office of Catholicos and other historical facts discussed in the judgments referred to in the 1995 judgment that once having created the office, it is not the plea of waiver or abandonment but the Kalpana issued by the Patriarch is binding upon him also. Thus it is a positive act and once having done so, the Patriarch is bound by it and cannot wriggle out of it and make the entire Parish Church systemdge Bench decision in the 1995 judgment cannot be said to be contrary to theBench decision in Sha Mulchand (supra) but on a closer scrutiny, Sha Mulchand (supra) does not buttress the plea of the appellants but negotiates against it. Too much cannot be made out of the observations made by this Court that the Patriarch cannot be said to have lost his spiritual supremacy over the Malankara Church but the fact that remains is that it has reached a vanishing point and the Church is to be managed as per the historical background, in accordance with the 1934 Constitution which has also the force behind it of the Patriarch himself in the form of Kalpana. The Parishioners can have faith in the spiritual supremacy of the Patriarch but not in all the matters. They have to give equal importance in the matter of management of the 1934 Constitution and cannot be permitted to commit regular breach and device ways to circumvent the judgment of this Court by one way or the other and under the garb of spiritual fight wrest the temporal control of the Churches. That the spiritual power of the Patriarch has reached to a vanishing point, has to be given the full meaning and it cannot mean that the powers can be exercised under the umbrella of spirituality to interfere in the administration of the Church and creating a parallel system of appointing Vicars and Priests etc. which will paralyze the functioning of the Churches for which they have been formed and it would be against the very spirit of creation of trust from time immemorial which inheres the concept that once a Trust always a Trust. No person under the guise of spiritual faith can be permitted to destroy a system which is prevailing for the management of such Churches and go on forming Constitution as per his will time and again. There is no need in case of any such Constitution as is framed in the year 2002. What is the guarantee that there would not be any other Constitution created by any other faction for the administration of same Churches any day hereafter or in future? Once any Parishioner wants to change the 1934 Constitution, it is open to them to amend it as per the procedure. It is right that it therefore is not a Bible or holy book of Quran or other holy books which cannot be amended. The 1934 Constitution has been amended in the form ofor regulations applicable for governance of Parish churches a number of times, as aforesaid, and it can still be amended to take care of the legitimate grievances, if any, but there appears to be none for which the fight has been going on unabated in the instant cases.IN RE: PARISHIONERS HAVE A RIGHT TO FOLLOW THEIR OWN FAITH UNDER ARTICLE 25 AND APPOINTMENT OF VICAR, PRIEST AND DEACONS ETC. AND MANAGE AFFAIRS UNDER ARTICLE 26 OF THE CONSTITUTION OFThus, we are unable to accept the submissions raised by Shri K. Parasaran, learned senior counsel for various reasons. The appointment of Vicar is not a spiritual matter but is a secular matter.The submission as to the violation of faith and violation of a right under Article 25 is to be rejected. No doubt about it that a religious denomination or organization enjoys a complete autonomy in the matter of deciding as to rites and ceremonies essential according to their tenets of religion they hold and no outside authority has any jurisdiction to interfere with their decisions in such matters. At the same time, secular matters can be controlled by the secular authorities in accordance with the law laid down by the competent legislature as laid down in the Commissioner, Hindu Religious Endowments v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt 1954 SCR 1005. Spiritual power is also with various authorities like Catholicos, Malankara Metropolitan etc. Thus it is too far fetched an argument that the Patriarch of Antioch or his delegate should appoint a Vicar or Priest. There is no violation of any right of Articles 25 or 26 of the Constitution of India. Neither any of the provisions relating to appointment of the Vicar can be said to be in violation of any of the rights under Articles 25 and 26 of the Constitution of India. The 1934 Constitution cannot be said to be in violation of Articles 25 and 26 of the Constitution of India. It was suggested that the faith involved in the present case refers to apostolic succession from Jesus Christ, viz., the blessings and grace of Christ descends through an apostle i.e. St. Peter or St. Thomas as the case may be, and from the said apostle to the Pope/Patriarch who appoints a Vicar. The argument ignores and overlooks other offices that arelike Catholicos, Malankara Metropolitan, and Diocesan Metropolitan etc. It is not necessary for the Pope and the Patriarch to appoint Vicar because management of a Church is not a religiousissue of Patriarch of Catholicos has been raisedIt is a Diocesan Metropolitan as per Section 40 of the Constitution who has the power to appoint Vicar, priests etc. and there is other hierarchy provided. Even Catholicos, Malankara Metropolitan has the spiritual powers. It is not that they have temporal powers only. They have spiritual status too that has to be respected equally. Shri C.V. Singh, learned counsel, is right in contending that no office is either superior or inferior in the matter of relationship between the two heads, the Catholicos and the Patriarch. Both are independent spiritual authorities. However, the Patriarch occupies the higher post in the hierarchy i.e. he has an honour or precedence if he is present that is in a sense he is the first among equals"primus inter parties". The Church functioning is based on division of responsibilities at various levels.The division of power is for the purpose of management and does not militate against the basic character of the church being Episcopal inhighest authority of Malankara church of the east is Catholicos being its primate as recognised in Section 2 of 1934 Constitution. What is sought for and intended is wholly uncalled for, wholly unnecessary and unpalatable. Community may divide but churches and places of worship cannot be divided. They have to be respected for the sake of religion and to exercise their coveted rights under Articles 25 and 26 and for preservation of such rights. We are not oblivious of the fact that still there may not be truce and peace in the church which cannot besubmission is not at all plausible. The properties would always remain to be Malankara Church properties. Only Office holders have to subscribe to the 1934 Constitution as held by this Court. The Parishioners can take no church property away, neither Catholicos faction by majority and the submission is based on the misconception as to the nature of rights in such property. It has to remain in Malankara Church. Neither the Church nor the cemetery can be confiscated by anybody. It has to remain with Parishioners as per the customary rights and nobody can be deprived of right one enjoys being a Parishioner in the church or to be buried honourably in the cemetery, in case he continues to have faith in Malankara Church.In our opinion, there is no force in the submission of Shri Vaidyanathan, learned senior counsel, that if services and ceremonies conducted by only those Vicars and priests who are appointed in accordance with the 1934 Constitution, would be violative of the basic object of the Parish Church. As already discussed we find no force in the submission. Diocesan Metropolitan appoints Vicar under the 1934 Constitution. It does not impinge upon the object of the Parish churches. The Catholicos or the Patriarch, as the case may be, are not supposed to deal with such matters which are reserved for Diocesan Metropolitan as apparent from various decisions and provisions in the 1934 Constitution. This is the position prevailing since long. As already discussed, Vicars or Priests can also be appointed by secular authorities of sovereign. The appointment made by Diocesan Metropolitan cannot be said to be suffering from any illegality or affecting the spiritual rights of the Parishioners. Deacons and Preist for ordination are required to undergo successfully, theological studies and principle has to certify as to their fitness. For ordination as Korooyo (Reader) successfully clearing of 3 years study is required. How Patriarch from abroad can exercise such powers is beyond comprehension and that would amount to unnecessary interference which is not supported by any Kalpana or historical document.129. The 1934 Constitution provides appointment of Vicar by Diocese in the area of its operation. Other provisions that we have discussed with respect to appointment detailed out in the 1934 Constitution. In the absence of anything having been provided in Udampady, the 1934 Constitution would hold the field.130. Faith is tried to be unnecessarily divided vis a vis the office of Catholicos and the Patriarch. Faith of church is in the Jesus Christ. An effort is being made to take over the management and other powers by such an action just to gain control of temporal matters under the garb of spirituality. Even if Vicar performs the functions, which are religious, there would not be infringement of the rights under article 25 and 26 of constitution of India in case the Diocesan Metropolitan appoints Vicar as provided in the Constitution and it is clear the Patriarch of Antioch has not reserved this power to himself. Why there is such dispute is most unfortunate and is for inexplicable reasons. There is no good or genuine cause for it. As a matter of fact the 1995 judgment settled such disputes, between the parties. This court has tried its best to take care of the prevailing situation while passing the decree. It was observed in utter breach during its execution itself. We are unable to accept and appreciate why for the Patriarch himself should appoint Vicar, Priest etc. The Diocesan Metropolitan as per the Constitution of 1934 appoints vicar. The submission that Vicar of a Catholicos group cannot be thrust on a worshipper of Patriarch faith against his will, is totally unsound and is simply a ploy to take over the control of the management of the Church by putting faith in a Vicar who is running a parallel governance at the cost of Church by creating factionalism within the Churches. It is settled proposition of law that when a mode is prescribed for doing a thing, it can be done only in that manner and not otherwise. This Court in 1995 Judgment made it clear that the Patriarch has no such authority, he could not exercise any such spiritual power unilaterally as done in 1972 which became the cause of unrest in Church. The appointment of Vicar, Priest by the Patriarch or through delegate unilaterally was held to be not permissible in the decision of 1995 even if he has such powers. It appears he has no such power to interfere in the management of the church and now that question is agitated again and under the same guise of supremacy such an uncalled for attempt has to be thwarted and not to be countenanced for a moment. There is no violation of constitutional provisions or authority of Patriarch. Thus there is no question of violation of Parishnors rights and applicability of decisions in Olga Tellis v. Bombay Municipal Corporation AIR 1986 SC 180; Basheshar Nath v. I.T. Commissioner AIR 1959 SCar Singh Paul v. Union of India 2000 (3) SCC 588. IN RE : REPUDIATION OF THE SPIRITUAL SUPREMACY OF THE PATRIARCH BY THE CATHOLICOSNone of the aforesaid submissions are acceptable for various reasons. It is apparent from M M B Catholicos v. T.Paulo Avira (supra) and the 1958 judgment rendered by this Court that similar issues with respect to repudiation of powers of the Patriarch by the Catholicos group were raised. As apparent from the aforesaid extractedthe instant case also we find that due to Patriarchs action in the year 1972 of appointment of Vicar and priests etc. unilaterally, created unrest in the church. It again happened in 2002 onwards. It is in that context writ petitions came to be filed when Patriarch faction was not following the decision of this Court of 1995 and did not participate in the election and in 2002 created a new Constitution of 2002 and a parallel administration. The aforesaid writ petitions came to be filed in the High Court. The patriarch and his faction ought to have accepted the judgment of this Court. At the same time Catholicos ought to have respected the authority of the Patriarch. However the level at which the differences reached in spite of the judgment of 1995 which was binding on all concerned, the action of the Catholicos faction cannot be said to be wholly illegal as an effort was made by Patriarch to divide the church, and therefore they cannot be said to have incurred any disqualification or can be termed as heretics. The writ petitions were ultimately dismissed but the unpleasant events which happened in the case after 1995 judgment were wholly unwarranted and ought not to have been resorted to by the Patriarch faction. When this Court had appointed Justice Malimath by consent to hold the elections, the decision of 1995 ought to have been respected by the parties. It was the bare minimum respect to the judgment that was expected of the rival factions. Both the factions ought to resolve their differences, if any, on a common platform and in case of necessity to amend the Constitution further, if it became necessary but they could not have taken at all a recourse to create the parallel system for administration of the very churches, creating law and order problem, resulting into closure of the church for substantial time and having two Vicars in the same church, serving in the church at different times each day as per the interim order. The situation where the church has reached is neither expected nor tolerable and church is not meant to be a place for such a masculine culture. The matter was decided in the Vattipanam suit, Samudayam suit and the 1995 judgment and the Patriarch faction ought not to have violated the judgment of this Court in the method and manner in which it has been done. In the 1958 judgment also this court has laid down by an elaborate reasoning process that the 1934 Constitution is binding on the Parish Churches. M.D. Seminary meeting was properly held in which the 1934 Constitution was adopted.The principle enunciated by this Court in respect of Knanaya Church is not at all applicable with respect to Parish Churches where the finding of this Court is otherwise to the effect that they are bound by the 1934 Constitution. The spiritual supremacy of the Patriarch has not been put into question by the Catholicos faction it was not pleaded that his appointment is not recognized by the Catholicos faction. The Universal Synod in accordance with the applicable Canon appoints the Patriarch. We are of the opinion that in the absence of any dispute as to the identity who is the Patriarch, there is no question of not recognizing Patriarch by the Malankara Church hence. Rightly it has not been pleaded, but that does not help the appellants with respect to appointment of Vicar and Priests etc. However, what is the extent of authority of the Patriarch has to be seen and gazed in the light of historical backgroundand what has been held in various representative suits from time to time which are binding to the extent the issues decided. We are of the considered opinion that once office of the Catholicos has beenPatriarch could not exercise the powers which have been dealt with in the 1934 Constitution, and conferred on various authorities in hierarchy of church, that too unilaterally to create another centre of power and thereby the Patriarch cannot be permitted to create parallel system of administration by appointing Vicars, Priests and Deacon or another authority of Church. He is bound to act within the four corners of the1934 constitution for the sake of peace in the church. In the temporal matters, Patriarch has no power and the spiritual power had also come to the vanishing point by his own acts as noticed by this Court in the 1995 and other judgments. Submission to the contrary on behalf of the appellants that he can exercise the powers after informing the Catholicos, cannot be accepted. The Malankara Metropolitan has to be of local area. Logically also for proper management of the affairs of Churches power cannot be exercised from abroad. Such a scenario is neither conceived nor feasible or permissible. The spiritual supremacy of one holy authority over the other, also cannot per se mean exclusion and subordination of the other religious authority. When there is delegation and delimitation of the territorial and other powers, concerned authorities however high they may be, spiritually or otherwise, have to follow the discipline and strictly act as per delimitation of zones and powers. It is absolutely necessary for survival of the Church and for properfind that the source of the entire problem is that the Patriarchs faction is not ready to accept Vicar and priests and the management which vests not only in Catholicos but also in Malankara Metropolitan, Diocesan Metropolitan. They want to have their own system of management by creating parallel managing groups as noted by this Court in the 1995 judgment also. In 1972 genesis of entire problem in the Churches was appointment of Vicar etc. made unilaterally on behalf of the Patriarch. Thereafter this Court had rendered the judgment and held that it was not open to the Patriarch to do it in the method and manner that it was done. Even assuming for a moment that Patriarch was having those powers, he could not exercise them unilaterally and the 1934 Constitution prevails in the churches, is a clear finding of this Court. Thus the Patriarch has also acted against the 1934 Constitution as well as the Canon by which Catholicos have beenin 1912 and after delimitation of areas. The Patriarch faction for no good cause is ready to accept the ecclesiastical and spiritual powers of the Catholicos and others as provided in the Constitution and Kalpanas and as held by this Court in the previous judgments. It was held in 1905 in the Arthat Suit that the Churches and their properties are subject to spiritual, temporal and ecclesiastical jurisdiction of Malankara Metropolitan. The Patriarchs claim of control over the temporal affairs of the Malankara Church was rejected. It was also rejected in the Seminary Suit filed in 1879. The effort made by the Patriarch faction appears to be for the temporal gains under the guise of supremacy of the Patriarch as the Vicar and priests have the power of management in addition to performing the religious duties. The submission that the 1934 Constitution has been breached by the Catholicos cannot be accepted. There is not only violation of binding judgment 1995 of this Court by the Patriarch faction but of other binding precedentsthe Church has been created and is for the benefit of beneficiaries, in our opinion, it is not open for beneficiaries even by majority to usurp its property ordoubt about it that the dispute in Samudayam Suit was with respect to community property but considering the rival claims, various issues which were raised, had been gone into and the findings had been recorded thereupon in order to decide the said controversy, are binding as suit was representative suit. Thus the issues which have been decided in the suit, cannot beincluding the question of adoption of the 1934 Constitution, its validity and binding nature. The applicability and legality of 1934 Constitution was questioned in the Samudayam suit. A ground was raised that by formation of the 1934 Constitution, supremacy of the Patriarch has been taken away. This Court in 1995 judgment construed Samudayam judgment and there is no scope to differ with theour opinion the High Court has rightly granted the declaration sought for in the facts and circumstances of the case, projected in the case. The declaration given that the Parish Churches are governed by the 1934 Constitution is just andfind that in the instant the Patriarch faction is more to be blamed for disorder in the churches than the Catholicos faction. They ought to have followed 1995 judgment and other decisions. That they have not done and have insisted upon their own system of management that is not permissible.IN RE: UDAMPADYENFORCEABILITY, OF BINDING NATURE AND 2002submission that the Udampady will prevail cannot be accepted in view of the provisions made in section 132 of the 1934 Constitution to the effect that all agreements which are not consistent with the provisions of this Constitution are made ineffective and annulled and also in view of the finding in the 1958 Samudayam matter that the Constitution had been validly adopted and is applicable. The question cannot beand reopened under the guise of Udampady. Udampady cannot hold the field for administration of such Parish Churches. Udampady is not a document by which the Church came to be established. It is with respect to its management only. Udampady cannot prevail over the Constitution that has been adopted for all the Malankara Churches and is holding the field. The registration of the Udampady cannot make it superior than the Constitution and the latter will prevail as found by this Court in earlier decisions. The finding is binding, conclusive and has to be respected. Even otherwise, in our opinion, Udampady cannot hold the field.We are unable to accept the arguments by Shri Mohan Parasaran, learned senior counsel for various reasons. Firstly, no one can deny the right under Article 20 of the Universal Declaration of Human Rights. In our opinion, counsel is right that no one may be compelled to belong to an association. There is no compulsion with any of the Parishioners to be part of the Malankara Church or Parish Church. There can be an exercise of unfettered volition not to be a part of an Association but the question in the case is whether one can form another Association within the same Association and to run a parallel system of management of the same very church which is not permissible. Leaving a Church is not the right denied but the question is whether the existing Malankara Church can be regulated otherwise than by the 1934 Constitution. If the effort of certain group of Patriarch otherwise is to form a new Constitution 2002 to appoint Vicars, Priests etc., giving a go by to the 1934 Constitution and to form a new Church under the guise of same Malankara Church, it is not permissible. The Malankara Church its properties and other matters are to be governed by the 1934 Constitution and even majority of parishioners has no right to take away and usurp the church itself or to create new system of management contrary to 1934 Constitution. It was a trust created as Malankara church that is supreme, for once a trust always a trust.As per the 1934 Constitution, it is clear that while individual Parishioners may choose to leave the Church, there is no question of even a majority of the Parishioners in the Parish Assembly by themselves being able to take the movable or immovable properties out of the ambit of the 1934 Constitution, without the approval of the Church hierarchy.Various provisions of the Constitution make it clear that there is a hierarchy of control and Parish Church properties cannot be dealt with otherwise, the provisions contained in section 23 as to the written consent of the Diocesan Metropolitan and the detailed system of management, appointment of Vicar and the Kaisthani, Parish Assembly, as also the power to spend certain amounts as provided in section 22 of the Constitution. The accounts are supervised and to be signed by the Diocesan Metropolitan. Similarly the acquisition of any immovable property for the Diocese can be with the written consent of the Malankara Metropolitan. It is apparent from the aforesaid provisions that there is a hierarchy of control that is provided with respect to the Church properties also. The community trustees are also provided for the Vattipanam that is Trust Fund. Section 94 provides for the temporal, ecclesiastical and spiritual control of the Malankara Metropolitan. Catholicos can also hold the office of Malankara Metropolitan. The Episcopal Synod has the power to consecrate Cathlicos. Whatever autonomy is there, is provided in the Constitution for the Churches for necessary expenditure as provided in section 22, otherwise it is Episcopal nature of the Church and once the property vests in Malankara Church, it remains vested in it and cannot be taken away and in case there is any dispute with respect to faith etc. as is raised in the present case, it has to be decided by the Episcopal Synod and in case anyis to be changed, its remedy is available under the provisions of sections 126, 127 and 129. Faction of Parish cannot decide against Constitution. Byelaws must conform to Constitution. The income has to be distributed as per sections 120 to 123.164. The submission raised that by majority, decision can be taken to opt out of the 1934 Constitution by the Parish Assembly and to form a new church under a new name, as has been done in 2002. In our opinion Constitution prohibits such a course. Eventhat do not conform to Constitution cannot be framed and that has to be placed before Rule Committee under sections 126, 127 and 129. In existing system of Malankara Church, a Parish Church that is a part of Malankara Church cannot be usurped even by majority in Church under the guise of formation of new Church.The majority view in the 1995 judgment refused to give declaration with respect to property in the absence of Parish churches. However it was observed that the 1934 Constitution shall govern and regulate the affairs of the Parish Churches insofar as the Constitution provides for the same. In the absence of any further prayer made, suffice it to hold that the 1934 Constitution shall govern the affairs of the Parish Churches in respect of temporal matters also insofar as it so provides and discussed by us. The Malankara Church is Episcopal to the extent it is so declared in the 1934 Constitution as held in the 1995 judgment. The 1934 Constitution governs the affairs of Parish Malankara Churches and shall prevail.166. In our opinion, otherwise also, property cannot be taken away by the majority or otherwise and it will remain in Trust as it has been for the time immemorial for the sake of beneficiaries. It is for the benefit of beneficiaries. No one can become owners by majority decision or permitted to usurp Church itself. It has to remain in perpetual succession for the purpose it has been created a Malankara Church.From the aforesaid it is apparent that the Parish Assembly by majority cannot take away the property and divert it to a separate and different church that is not a Malankara Church administered as per the 1934 Constitution, though it is open to amend the Constitution of 1934. As the basic documents of creation of church have not been placed on record, usage and custom for determining the competing claims of rival factions becomes relevant.Thus, we have no hesitation to hold that the 2002 Constitution cannot hold the field to govern the appellant churches and the 1934 Constitution is binding. Finding recorded by the High Court that the Kolencherry Church was not administered by the 1913 Udampady and was administered in accordance with the 1934 Constitution, in our opinion, is correct at least after the Consitution was adopted. General body meeting of 8.3.1959 has adopted the 1934 Constitution. Udampady cannot hold the field by virtue of section 132 of the Constitution and there is other oral evidence that had been assessed by the High Court including the documentary evidence and the Udampady cannot be taken to govern. Moreover in view of the findings in the 1958 Samudayam suit and the 1995 judgment, the Constitution of 1934 is binding which has been held to be valid and Malankara Church has to be administered as per the provisions contained therein. Thus Udampady of 1913 cannot be set up or used as ploy to avoid the provisions of 1934 Constitution. Thus the main plank of submissions is also barred by the principle of res judicata.In our opinion, none of submission of Shri Divan is legally tenable. The church was created way back in the 7th century. The Udampady of 1913 is not a document of creation of the Trust. The thenperson executed it just for the management of the church in question. The 1934 Constitution after being adopted in 1959 by the Church is binding. The Udampady of 1913 has lost its efficacy and utility. The Udampady stands annulled by Section 132 of the Constitution. It cannot be revived. Thus it is not open to the church or parishioners by majority to wriggle out of 1934 Constitution. In view of the findings recorded in the Samudayam suit also by the 1995 judgment, the question operates, as res judicata and the administration on the basis of Udampady cannot be claimed. The inconsistent provisions in the Udampady shall stand annulled as per section 132 of the 1934 Constitution.174. There are inconsistencies between the 1934 Constitution and 1913 Udampady as such the latter cannot prevail. In terms of Section 132, any Udampady (agreement) which is inconsistent with the provisions of 1932 constitution stands annulled and is ineffective. The following among others, are the important inconsistencies between the provisions of 1913 Udampady and the 1934 Constitution.In view of the above inconsistencies, as well as in light of the findings of the Supreme Court in 1959 judgment and the 1995 judgment regarding the validity and the binding character of the 1934 constitution, the 1913 Udampady would, in any event, no longer survive and Parish Church would be governed in accordance with the 1934 Constitution.176. Shri Anam, learned counsel, was right in submitting that educational institutions have to be run in accordance with the provisions of the Kerala Education Act. Educational institutions cannot be governed by the Udampady of 1913 as per sections 6 and 7 of the Kerala Education Act, 1959.IN RE: EFFECT OF NON REGISTRATION OF 1934 CONSTITUTION AND EFFECT OF REGISTERED UDAMPADY177. The Udampadies were for administration of the Church at the relevant time and lost their efficacy due to efflux of time and cannot hold the field in view of the system of administration provided in the 1934 Constitution. The 1934 Constitution was not required to be registered document as the Udampadies are not documents of creation of Trust/s, the Udampadies were not required to be registered. Udampady cannot prevail over the 1934 Constitution for various reasons discussed in theour opinion, the 1934 Constitution does not create, declare, assign, limit or extinguish, whether in present or future, any right, title or interest, whether vested or contingent, in the Malankara church properties. It provides a system of administration as such and not required to be registered, and moreover the question of effect ofof the 1934 Constitution cannot be raised in view of the findings recorded in theand the 1995judgments. The question could, and ought to have been raised but was not raised at the time of authoritative pronouncement made by this Court. Otherwise also, facts have not been pleaded nor any provision of the constitution pointed out that may attract the provisions of section 17(1)(b) of the Registration Act. Thus, it is not open to question the validity of the 1934 Constitution on the ground that it cannot be looked into for want of its registration. Reliance was placed upon Kashinath Bhaskar Datar v. Bhaskar Vishweshwar 1952 SCR 491 in which it has been laid down that when a document restricting or expanding the interest in an immovable property requires compulsory registration, otherwise it cannot be admitted in evidence. Udampady itself is not a document of creation of Trust. It related to the management only. Thus, by its registration no legal superior right is acquired to prevail over the Constitution. Reliance was placed upon decision of this Court in Chandrakant Shankarrao Machale v. Parubai Bhairu Mohite (2008) 6 SCC 745 to contend that the terms of a registered document could be varied or altered only by another registered document. The court was dealing with the mortgage deed dated 28.2.1983. When there is such a deed of mortgage, its terms could not have been varied or altered by an unregistered document so as to change its status from that of a mortgage to that of a lease. The decision has no application as the Udampady pertained only to administration. No registered document was required for administration of the Church. Document of creation of a Trust may require registration and not a document like the 1934 Constitution. Reliance was also placed upon S. Saktivel (Dead) by LRs. v. M. Venugopal Pillai & Ors. (2000) 7 SCCTC Ltd. v. State of U.P. (2011) 7 SCC 493. The decision in S. Saktivel (supra) deals with the terms of the registered document whereas the decision in ITC Ltd. (supra) is also in a different context. S. Saktivel (supra) was a case where property itself was registered by a registered settlement deed dated 26.3.2015. It was held that it could not be modified or altered or substituted in 1941 by unregistered document. The decision has no application for the aforesaiddecision is wholly inapplicable and does not espouse the cause of the appellants.MAINTAINABILITY OF MANNATHUR CHURCH SUITare not satisfied with the submissions raised. The suit was clearly representative in character and has been contested in that manner. It was not necessary to adopt the procedure as suggested after amendment as the amended relief was traceable from the main relief. It was not at all necessary to obtain fresh leave.H. FRAMING OF SCHEME UNDER SECTION 92 OF THE CIVIL PROCEDURE CODE181. We are also not impressed by the submission that the court should direct framing of a scheme under section 92 CPC in view of the decision of the Privy Council in Mohd.In our opinion there is no necessity of framing any scheme under section 92. There are adequate provisions and safeguards provided in section 92 for managing the Malankara Church and its properties. There is no dispute with the proposition laid down in the aforesaid decisions but we find no such necessity for framing such scheme under section 92 CPC in view of detailed wholesome provisions of 1934 Constitution.I. WHETHER IN THE FACTS, INTERIM ARRANGEMENT TO CONTINUEsubmission cannot be accepted as it would tantamount to patronizing parallel system of administration and would not be a legally permissible mode hence prayer is rejected.184. Resultantly, based on the aforesaid findings in the judgment, our main conclusions, inter alia, are as follows :(i) Malankara Church is Episcopal in character to the extent it is so declared in the 1934 Constitution. The 1934 Constitution fully governs the affairs of the Parish Churches and shall prevail.(ii) The decree in the 1995 judgment is completely in tune with the judgment. There is no conflict between the judgment and the decree.(iii) The 1995 judgment arising out of the representative suit is binding and operates as res judicata with respect to the matters it has decided, in the wake of provisions of Order 1 Rule 8 and Explanation 6 to section 11 CPC. The same binds not only the parties named in the suit but all those who have interest in the Malankara Church. Findings in earlier representative suit, i.e., Samudayam suit are also binding on Parish Churches/Parishioners to the extent issues have been decided.(iv) As the 1934 Constitution is valid and binding upon the Parish Churches, it is not open to any individual Church, to decide to have their new Constitution like that of 2002 in theexercise of right under Articles 25 and 26 of the Constitution of India. It is also not permissible to create a parallel system of management in the churches under the guise of spiritual supremacy of the Patriarch.(v) The Primate of Orthodox Syrian Church of the East is Catholicos. He enjoys spiritual powers as well, as the Malankara Metropolitan. Malankara Metropolitan has the prime jurisdiction regarding temporal, ecclesiastical and spiritual administration of Malankara Church subject to the riders provided in the 1934 Constitution.(vi) Full effect has to be given to the finding that the spiritual power of the Patriarch has reached to a vanishing point. Consequently, he cannot interfere in the governance of Parish Churches by appointing Vicar, Priests, Deacons, Prelates (High Priests) etc. and thereby cannot create a parallel system of administration. The appointment has to be made as per the power conferred under the 1934 Constitution on the concerned Diocese, Metropolitan etc.(vii) Though it is open to the individual member to leave a Church in exercise of the right not to be a member of any Association and as per Article 20 of the Universal Declaration of Human Rights, the Parish Assembly of the Church by majority or otherwise cannot decide to move church out of the Malankara Church. Once a trust, is always a trust.(viii) When the Church has been created and is for the benefit of the beneficiaries, it is not open for the beneficiaries, even by a majority, to usurp its property or management. The Malankara Church is in the form of a trust in which, its properties have vested. As per the 1934 Constitution, the Parishioners though may individually leave the Church, they are not permitted to take the movable or immovable properties out of the ambit of 1934 Constitution without the approval of the Church hierarchy.(ix) The spiritual power of Patriarch has been set up by the appellants clearly in order to violate the mandate of the 1995 judgment of this Court which is binding on the Patriarch, Catholicos and all concerned.(x) As per the historical background and the practices which have been noted, the Patriarch is not to exercise the power to appoint Vicar, Priests, Deacons, Prelates etc. Such powers are reserved to other authorities in the Church hierarchy. The Patriarch, thus, cannot be permitted to exercise the power in violation of the 1934 Constitution to create a parallel system of administration of Churches as done in 2002 and onwards.(xi) This Court has held in 1995 that the unilateral exercise of such power by the Patriarch was illegal. The said decision has also been violated. It was only in the alternative this Court held in the 1995 judgment that even if he has such power, he could not have exercised the same unilaterally which we have explained in this judgment.(xii) It is open to the Parishioners to believe in the spiritual supremacy of Patriarch or apostolic succession but it cannot be used to appoint Vicars, Priests, Deacons, Prelates etc. in contravention of the 1934 Constitution.(xiii) Malankara Church is Episcopal to the extent as provided in the 1934 Constitution, and the right is possessed by the Diocese to settle all internal matters and elect their own Bishops in terms of the said Constitution.(xiv) Appointment of Vicar is a secular matter. There is no violation of any of the rights encompassed under Articles 25 and 26 of the Constitution of India, if the appointment of Vicar, Priests, Deacons, Prelates (High Priests) etc. is made as per the 1934 Constitution. The Patriarch has no power to interfere in such matters under the guise of spiritual supremacy unless the 1934 Constitution is amended in accordance with law. The same is binding on all concerned.(xv) Udampadis do not provide for appointment of Vicar, Priests, Deacons, Prelates etc. Even otherwise once the 1934 Constitution has been adopted, the appointment of Vicar, Priests, Deacons, Prelates (high priests) etc. is to be as per the 1934 Constitution. It is not within the domain of the spiritual right of the Patriarch to appoint Vicar, Priests etc. The spiritual power also vests in the other functionaries of Malankara Church.(xvi) The functioning of the Church is based upon the division of responsibilities at various levels and cannot be usurped by a single individual howsoever high he may be. The division of powers under the 1934 Constitution is for the purpose of effective management of the Church and does not militate against the basic character of the church being Episcopal in nature as mandated thereby. The 1934 Constitution cannot be construed to be opposed to the concept of spiritual supremacy of the Patriarch of Antioch. It cannot as well, be said to be an instrument of injustice or vehicle of oppression on the Parishioners who believe in the spiritual supremacy of the Patriarch.(xvii) The Church and the Cemetry cannot be confiscated by anybody. It has to remain with the Parishioners as per the customary rights and nobody can be deprived of the right to enjoy the same as a Parishioner in the Church or to be buried honourably in the cemetery, in case he continues to have faith in the Malankara Church. The property of the Malankara Church in which is also vested the property of the Parish Churches, would remain in trust as it has for the time immemorial for the sake of the beneficiaries and no one can claim to be owners thereof even by majority and usurp the Church and the properties.(xviii) The faith of Church is unnecessarily sought to be dividedthe office of Catholicos and the Patriarch as the common faith of the Church is in Jesus Christ. In fact an effort is being made to take over the management and other powers by raising such disputes as to supremacy of Patriarch or Catholicos to gain control of temporal matters under the garb of spirituality. There is no good or genuine cause for disputes which have been raised.(xix) The authority of Patriarch had never extended to the government of temporalities of the Churches. By questioning the action of the Patriarch and his undue interference in the administration of Churches in violation of the 1995 judgment, it cannot be said that the Catholicos faction is guilty of repudiating the spiritual supremacy of the Patriarch. The Patriarch faction is to be blamed for the situation which has been created post 1995 judgment. The property of the Church is to be managed as per the 1934 Constitution. The judgment of 1995 has not been respected by the Patriarch faction which was binding on all concerned. Filing of writ petitions in the High Court by the Catholicos faction was to deter the Patriarch/his representatives to appoint the Vicar etc. in violation of the 1995 judgment of this Court.(xx) The 1934 Constitution is enforceable at present and the plea of its frustration or breach is not available to the Patriarch faction. Once there is Malankara Church, it has to remain as such including the property. No group or denomination by majority or otherwise can take away the management or the property as that would virtually tantamount to illegal interference in the management and illegal usurpation of its properties. It is not open to the beneficiaries even by majority to change the nature of the Church, its property and management. The only method to change management is to amend the Constitution of 1934 in accordance with law. It is not open to the Parish Churches to even framein violation of the provisions of the 1934 Constitution.(xxi) The Udampadies of 1890 and 1913 are with respect to administration of Churches and are not documents of the creation of the Trust and are not of utility at present and even otherwise cannot hold the field containing provisions inconsistent with the 1934 Constitution, as per section 132 thereof. The Udampady also cannot hold the field in view of the authoritative pronouncements made by this Court in the earlier judgments as to the binding nature of the 1934 Constitution.(xxii) The 1934 Constitution does not create, declare, assign, limit or extinguish, whether in present or future any right, title or interest, whether vested or contingent in the Malankara Church properties and only provides a system of administration and as such is not required to be registered. In any case, the Udampadis for the reasons already cited, cannot supersede the 1934 Constitution only because these are claimed to be registered.(xxiii) In otherwise Episcopal church, whatever autonomy is provided in the Constitution for the Churches is for management and necessary expenditure as provided in section 22 etc.(xxiv) The formation of 2002 Constitution is the result of illegal and void exercise. It cannot be recognized and the parallel system created thereunder for administration of Parish Churches of Malankara Church cannot hold the field. It has to be administered under the 1934 Constitution.(xxv) It was not necessary, after amendment of the plaint in Mannathur Church matter, to adopt the procedure once again of representative suit under Order 1 Rule 8 CPC. It remained a representative suit and proper procedure has been followed. It was not necessary to obtain fresh leave.(xxvi) The 1934 Constitution is appropriate and adequate for management of the Parish Churches, as such there is no necessity of framing a scheme under section 92 of the CPC.(xxvii) The plea that in face of the prevailing dissension between the two factions and the remote possibility of reconciliation, the religious services may be permitted to be conducted by two Vicars of each faith cannot be accepted as that would amount to patronizing parallel systems of administration.(xxviii) Both the factions, for the sake of the sacred religion they profess and to preempt further bickering and unpleasantness precipitating avoidable institutional degeneration, ought to resolve their differences if any, on a common platform if necessary by amending the Constitution further in accordance with law, but by no means, any attempt to create parallel systems of administration of the same Churches resulting in law and order situations leading to even closure of the Churches can be accepted. | 1 | 75,558 | 10,153 | ### 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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this aspect even though there is a strong protest which has led to repeated round of litigations before the courts up to the Honble Apex Court. The underlying object or the purpose even if it assumed that it is only for better administration, still it cannot have any predominance or the constitutional provision or the law of land." 30.After analysing the facts and the law in the matter, we have noticed that it is the duty of the society to take steps in accordance with Section 13 of the SR Act for its dissolution. We have further noted that unless the properties vested in the Trust are divested in accordance with the provisions of the SR Act and in accordance with the BPTA, merely by filing the change report(s), CNI cannot claim a merger of churches and thereby claim that the properties vested in the Trust would vest in them. In our opinion, it would only be evident from the steps taken that the passing of resolutions is nothing but an indication to show the intention to merge and nothing else. In fact, the City Civil Court has correctly held, in our opinion, which has been affirmed by the High Court, that there was no dissolution of the society and further merger was not carried out in accordance with the provisions of law. In these circumstances, we hold that the society and the Trust being creatures of statute, have to resort to the modes provided by the statute for its amalgamation and the so-called merger cannot be treated or can give effect to the dissolution of the Trust. In the matrix of the facts, we hold that without taking any steps in accordance with the provisions of law, the effect of the resolutions or deliberations is not acceptable in the domain of law. The question of estoppel also cannot stand in the way as the High Court has correctly pointed out that the freedom guaranteed under the Constitution with regard to the faith and religion, cannot take away the right in changing the faith and religion after giving a fresh look and thinking at any time and thereby cannot be bound by any rules of estoppel. Therefore, the resolution only resolved to accept the recommendation of joint unification but does not refer to dissolution." The decision is wholly inapplicable and does not espouse the cause of the appellants.MAINTAINABILITY OF MANNATHUR CHURCH SUIT : 180. It was also submitted by Shri Mohan Parasaran, learned senior counsel that the Mannathur Church matter suit was not maintainable. It was not of a representative character and in view of Order 1 Rule 8 CPC, fresh leave was not sought when the reliefs were amended and enlarged. We are not satisfied with the submissions raised. The suit was clearly representative in character and has been contested in that manner. It was not necessary to adopt the procedure as suggested after amendment as the amended relief was traceable from the main relief. It was not at all necessary to obtain fresh leave.H. FRAMING OF SCHEME UNDER SECTION 92 OF THE CIVIL PROCEDURE CODE181. We are also not impressed by the submission that the court should direct framing of a scheme under section 92 CPC in view of the decision of the Privy Council in Mohd. Ismile Ariff v. Ahmed Moolla Dowood 43 IA 127 (PC) in which it has been held that the court has the power to give direction and lay down rules that may facilitate the work of management and the appointment of trustees in the future. The primary duty of the Court is to consider the interest of the general body of the public for whose benefit the trust is created. Reliance has been placed by Shri S. Divan, learned senior counsel on Acharya Shri Shreepati Prasadji Barot Laxmidas 33 CWN 352 (PC) that the institutional trust must be respected by the sect and the body of worshippers for whose benefit it was set up to have the protection of the court against their property being subject to abuse, speculation and waste. Reliance was also placed on Ram Dularey v. Ram Lal AIR 1946 PC 34 in which it has been laid down thus: "Even if there were an inconsistency in that judgment, their Lordships would be very slow to disturb the safeguards which are provided in that scheme, if their Lordships found it necessary to reconsider the scheme; but in their view the scheme has been definitely approved by the Chief Court and they see no reason for interfering with the judgment. It has to be remembered that in these cases the Court has a duty, once it finds that it is a trust for public purposes to consider what is best in the interests of the public. That is made abundantly clear by the judge met of this Board, delivered by Mr. Ameer Ali, in Mahomed Ismail Ariff and others v. Ahmed MoollaDawood and another [43 IA 127: 43 Cal. 1085: 4 LW 269 (P.C.).]" (Emphasis supplied) 182. In our opinion there is no necessity of framing any scheme under section 92. There are adequate provisions and safeguards provided in section 92 for managing the Malankara Church and its properties. There is no dispute with the proposition laid down in the aforesaid decisions but we find no such necessity for framing such scheme under section 92 CPC in view of detailed wholesome provisions of 1934 Constitution.I. WHETHER IN THE FACTS, INTERIM ARRANGEMENT TO CONTINUE : 183. Lastly, it was submitted by Shri K. Parasaran, learned senior counsel, that as reconciliation does not appear to be possible between both factions, as such the religious services in the St. Marys Orthodox Church, Varikoli may be permitted to be conducted by two Vicars of each faith, Patriarch and Catholicos, in accordance with the faith of each denomination. The submission cannot be accepted as it would tantamount to patronizing parallel system of administration and would not be a legally permissible mode hence prayer is rejected.
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the Patriarch to appoint Vicar, Priests etc. The spiritual power also vests in the other functionaries of Malankara Church.(xvi) The functioning of the Church is based upon the division of responsibilities at various levels and cannot be usurped by a single individual howsoever high he may be. The division of powers under the 1934 Constitution is for the purpose of effective management of the Church and does not militate against the basic character of the church being Episcopal in nature as mandated thereby. The 1934 Constitution cannot be construed to be opposed to the concept of spiritual supremacy of the Patriarch of Antioch. It cannot as well, be said to be an instrument of injustice or vehicle of oppression on the Parishioners who believe in the spiritual supremacy of the Patriarch.(xvii) The Church and the Cemetry cannot be confiscated by anybody. It has to remain with the Parishioners as per the customary rights and nobody can be deprived of the right to enjoy the same as a Parishioner in the Church or to be buried honourably in the cemetery, in case he continues to have faith in the Malankara Church. The property of the Malankara Church in which is also vested the property of the Parish Churches, would remain in trust as it has for the time immemorial for the sake of the beneficiaries and no one can claim to be owners thereof even by majority and usurp the Church and the properties.(xviii) The faith of Church is unnecessarily sought to be dividedthe office of Catholicos and the Patriarch as the common faith of the Church is in Jesus Christ. In fact an effort is being made to take over the management and other powers by raising such disputes as to supremacy of Patriarch or Catholicos to gain control of temporal matters under the garb of spirituality. There is no good or genuine cause for disputes which have been raised.(xix) The authority of Patriarch had never extended to the government of temporalities of the Churches. By questioning the action of the Patriarch and his undue interference in the administration of Churches in violation of the 1995 judgment, it cannot be said that the Catholicos faction is guilty of repudiating the spiritual supremacy of the Patriarch. The Patriarch faction is to be blamed for the situation which has been created post 1995 judgment. The property of the Church is to be managed as per the 1934 Constitution. The judgment of 1995 has not been respected by the Patriarch faction which was binding on all concerned. Filing of writ petitions in the High Court by the Catholicos faction was to deter the Patriarch/his representatives to appoint the Vicar etc. in violation of the 1995 judgment of this Court.(xx) The 1934 Constitution is enforceable at present and the plea of its frustration or breach is not available to the Patriarch faction. Once there is Malankara Church, it has to remain as such including the property. No group or denomination by majority or otherwise can take away the management or the property as that would virtually tantamount to illegal interference in the management and illegal usurpation of its properties. It is not open to the beneficiaries even by majority to change the nature of the Church, its property and management. The only method to change management is to amend the Constitution of 1934 in accordance with law. It is not open to the Parish Churches to even framein violation of the provisions of the 1934 Constitution.(xxi) The Udampadies of 1890 and 1913 are with respect to administration of Churches and are not documents of the creation of the Trust and are not of utility at present and even otherwise cannot hold the field containing provisions inconsistent with the 1934 Constitution, as per section 132 thereof. The Udampady also cannot hold the field in view of the authoritative pronouncements made by this Court in the earlier judgments as to the binding nature of the 1934 Constitution.(xxii) The 1934 Constitution does not create, declare, assign, limit or extinguish, whether in present or future any right, title or interest, whether vested or contingent in the Malankara Church properties and only provides a system of administration and as such is not required to be registered. In any case, the Udampadis for the reasons already cited, cannot supersede the 1934 Constitution only because these are claimed to be registered.(xxiii) In otherwise Episcopal church, whatever autonomy is provided in the Constitution for the Churches is for management and necessary expenditure as provided in section 22 etc.(xxiv) The formation of 2002 Constitution is the result of illegal and void exercise. It cannot be recognized and the parallel system created thereunder for administration of Parish Churches of Malankara Church cannot hold the field. It has to be administered under the 1934 Constitution.(xxv) It was not necessary, after amendment of the plaint in Mannathur Church matter, to adopt the procedure once again of representative suit under Order 1 Rule 8 CPC. It remained a representative suit and proper procedure has been followed. It was not necessary to obtain fresh leave.(xxvi) The 1934 Constitution is appropriate and adequate for management of the Parish Churches, as such there is no necessity of framing a scheme under section 92 of the CPC.(xxvii) The plea that in face of the prevailing dissension between the two factions and the remote possibility of reconciliation, the religious services may be permitted to be conducted by two Vicars of each faith cannot be accepted as that would amount to patronizing parallel systems of administration.(xxviii) Both the factions, for the sake of the sacred religion they profess and to preempt further bickering and unpleasantness precipitating avoidable institutional degeneration, ought to resolve their differences if any, on a common platform if necessary by amending the Constitution further in accordance with law, but by no means, any attempt to create parallel systems of administration of the same Churches resulting in law and order situations leading to even closure of the Churches can be accepted.
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VED & ANR Vs. STATE OF HARYANA & ANR | Phases II and III) at Rs.41.40 lakhs per acre; while the value for lands from village Manesar (covered by Phase IV) was assessed at Rs.62.10 lakhs per acre. The appeals arising therefrom were decided by this Court vide its Judgment dated 11.01.2019 (2019) 13 SCC 101 as modified by Order dated 08.02.2019 (2019) 13 SCC 123 in Civil Appeal Nos.264- 270 of 2019 and other connected matters (Wazir and Another vs. State of Haryana (2019) 13 SCC 101 ) i.e., after the decision of the High Court which is presently under appeal. The relevant operative directions issued by this Court were:- 32. In the circumstances, we direct: 32.1 In respect of lands under acquisition from Villages Naharpur Kasan and Kasan the market value shall be Rs.39,54,666 per acre. Additionally, all statutory benefits would be payable. 32.2 In respect of lands under acquisition from Villages Bas Kusla, Bas Haria and Dhana the market value shall be Rs.29,77,333 per acre. Additionally, all statutory benefits would be payable. 32.3 In respect of lands from Village Manesar the market value shall be Rs.59,31,999 lakhs per acre. Additionally, all statutory benefits would be payable. 5. In these appeals, it was submitted on behalf of the landholders that:- a) The lands from villages Naurangpur, Lakhnoula and Shikohpur being abutting National Highway No.8 towards Delhi and closer to Gurgaon than the lands from villages like Manesar, the lands from these villages were on a better footing. b) The lands had immense potentiality for residential and commercial purposes, being surrounded by many reputed Industrial Units, Resorts, Hotels and Farm houses. c) Certain Sale Deeds including Exhibit P.20 executed on 28.04.2004 showed value greater than what was assessed by the High Court. d) Even if, the valuation determined in Wazir and Another vs. State of Haryana (2019) 13 SCC 101 be taken as the base, after conferring cumulative increase for a period of 2 ½ years, the appropriate valuation for lands from village Naharpur Kasan would be: TABLE 6. On the other hand, it was submitted by the State that the valuation arrived at and the discussion by the High Court on the point did not call for any interference. 7. In the instant case, the High Court considered Exhibit P13 concerning an extent of land admeasuring 8 Kanals and 8 Marlas in the limits of Village Lakhnoula and two Sale Deeds in respect of M/s Conway Developers Private Limited. (Exhibits P24 and P25). It also considered the assessment of market value made by it in respect of acquisition pertaining to Phases II, III and IV in its decision in Madan Pal III vs. State of Haryana (2018) SCC OnLine P&H 2871 and finally arrived at the market value for the villages in question. 8. As a matter of fact, the assessment in Madan Pal III vs. State of Haryana (2018) SCC OnLine P&H 2871 which was the foundation of the decision of the High Court in the present case, was scaled down by this Court in Wazir and Another vs. State of Haryana (2019) 13 SCC 101 . Therefore, theoretically, the market value arrived at by the High Court would be on the higher side. 9. Even then we proceed to consider the evidence placed on record to see if the landholders are right in seeking enhancement Exhibit P-20 Sale Deed was rightly rejected by the Reference Court and the reasoning in that behalf, as quoted hereinabove is quite correct. The other Sale Deeds i.e. Exhibits P-13, P-24 and P-25, the extent of lands involved therein, their location and other features were considered by the High Court in right perspective and the matter calls for no interference That leaves us to consider whether by adopting the method of annual increase over the values determined in connection with acquisition for Phases II, III and IV any advantage can still be conferred upon the landholders 10. In General Manager, Oil and Natural Gas Corporation Limited vs. Rameshbhai Jivanbhai Patel and Another (2008) 14 SCC 745 , this Court dealt with the issue of grant of annual increase and expressed caution in following words.:- 15. Normally, recourse is taken to the mode of determining the market value by providing appropriate escalation over the proved market value of nearby lands in previous years (as evidenced by sale transactions or acquisitions), where there is no evidence of any contemporaneous sale transactions or acquisitions of comparable lands in the neighbourhood. The said method is reasonably safe where the relied-on sale transactions/acquisitions precede the subject acquisition by only a few years, that is, up to four to five years. Beyond that it may be unsafe, even if it relates to a neighbouring land. What may be a reliable standard if the gap is of only a few years, may become unsafe and unreliable standard where the gap is larger. For example, for determining the market value of a land acquired in 1992, adopting the annual increase method with reference to a sale or acquisition in 1970 or 1980 may have many pitfalls. This is because, over the course of years, the rate of annual increase may itself undergo drastic change apart from the likelihood of occurrence of varying periods of stagnation in prices or sudden spurts in prices affecting the very standard of increase. 11. It is true that the process of determining the value by annual increase was considered as one of the alternatives in Wazir and Another vs. State of Haryana (2019) 13 SCC 101 . But in that case, three methods including one relating to cumulative annual increase were considered and that method which led to the highest valuation was adopted. But the law laid down in ONGC Ltd. 2008) 14 SCC 745 is quite clear. In case we go by the method of cumulative annual increase it would mean that cumulative increase over the valuation in Wazir and Another vs. State of Haryana (2019) 13 SCC 101 must displace the valuation based on Sale Deed, which is normally the safest method. | 0[ds]7. In the instant case, the High Court considered Exhibit P13 concerning an extent of land admeasuring 8 Kanals and 8 Marlas in the limits of Village Lakhnoula and two Sale Deeds in respect of M/s Conway Developers Private Limited. (Exhibits P24 and P25). It also considered the assessment of market value made by it in respect of acquisition pertaining to Phases II, III and IV in its decision in Madan Pal III vs. State ofand finally arrived at the market value for the villages in question.8. As a matter of fact, the assessment in Madan Pal III vs. State ofwhich was the foundation of the decision of the High Court in the present case, was scaled down by this Court in Wazir and Another vs. State of. Therefore, theoretically, the market value arrived at by the High Court would be on the higher side.Exhibit P-20 Sale Deed was rightly rejected by the Reference Court and the reasoning in that behalf, as quoted hereinabove is quite correct. The other Sale Deeds i.e. Exhibits P-13, P-24 and P-25, the extent of lands involved therein, their location and other features were considered by the High Court in right perspective and the matter calls for no interference10. In General Manager, Oil and Natural Gas Corporation Limited vs. Rameshbhai Jivanbhai Patel and Another (2008) 14 SCC 745 , this Court dealt with the issue of grant of annual increase and expressed caution in following words.:-15. Normally, recourse is taken to the mode of determining the market value by providing appropriate escalation over the proved market value of nearby lands in previous years (as evidenced by sale transactions or acquisitions), where there is no evidence of any contemporaneous sale transactions or acquisitions of comparable lands in the neighbourhood. The said method is reasonably safe where the relied-on sale transactions/acquisitions precede the subject acquisition by only a few years, that is, up to four to five years. Beyond that it may be unsafe, even if it relates to a neighbouring land. What may be a reliable standard if the gap is of only a few years, may become unsafe and unreliable standard where the gap is larger. For example, for determining the market value of a land acquired in 1992, adopting the annual increase method with reference to a sale or acquisition in 1970 or 1980 may have many pitfalls. This is because, over the course of years, the rate of annual increase may itself undergo drastic change apart from the likelihood of occurrence of varying periods of stagnation in prices or sudden spurts in prices affecting the very standard of increase.11. It is true that the process of determining the value by annual increase was considered as one of the alternatives in Wazir and Another vs. State of. But in that case, three methods including one relating to cumulative annual increase were considered and that method which led to the highest valuation was adopted. But the law laid down in ONGCis quite clear.In case we go by the method of cumulative annual increase it would mean that cumulative increase over the valuation in Wazir and Another vs. State ofmust displace the valuation based on Sale Deed, which is normally the safest method. | 0 | 3,601 | 590 | ### 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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Phases II and III) at Rs.41.40 lakhs per acre; while the value for lands from village Manesar (covered by Phase IV) was assessed at Rs.62.10 lakhs per acre. The appeals arising therefrom were decided by this Court vide its Judgment dated 11.01.2019 (2019) 13 SCC 101 as modified by Order dated 08.02.2019 (2019) 13 SCC 123 in Civil Appeal Nos.264- 270 of 2019 and other connected matters (Wazir and Another vs. State of Haryana (2019) 13 SCC 101 ) i.e., after the decision of the High Court which is presently under appeal. The relevant operative directions issued by this Court were:- 32. In the circumstances, we direct: 32.1 In respect of lands under acquisition from Villages Naharpur Kasan and Kasan the market value shall be Rs.39,54,666 per acre. Additionally, all statutory benefits would be payable. 32.2 In respect of lands under acquisition from Villages Bas Kusla, Bas Haria and Dhana the market value shall be Rs.29,77,333 per acre. Additionally, all statutory benefits would be payable. 32.3 In respect of lands from Village Manesar the market value shall be Rs.59,31,999 lakhs per acre. Additionally, all statutory benefits would be payable. 5. In these appeals, it was submitted on behalf of the landholders that:- a) The lands from villages Naurangpur, Lakhnoula and Shikohpur being abutting National Highway No.8 towards Delhi and closer to Gurgaon than the lands from villages like Manesar, the lands from these villages were on a better footing. b) The lands had immense potentiality for residential and commercial purposes, being surrounded by many reputed Industrial Units, Resorts, Hotels and Farm houses. c) Certain Sale Deeds including Exhibit P.20 executed on 28.04.2004 showed value greater than what was assessed by the High Court. d) Even if, the valuation determined in Wazir and Another vs. State of Haryana (2019) 13 SCC 101 be taken as the base, after conferring cumulative increase for a period of 2 ½ years, the appropriate valuation for lands from village Naharpur Kasan would be: TABLE 6. On the other hand, it was submitted by the State that the valuation arrived at and the discussion by the High Court on the point did not call for any interference. 7. In the instant case, the High Court considered Exhibit P13 concerning an extent of land admeasuring 8 Kanals and 8 Marlas in the limits of Village Lakhnoula and two Sale Deeds in respect of M/s Conway Developers Private Limited. (Exhibits P24 and P25). It also considered the assessment of market value made by it in respect of acquisition pertaining to Phases II, III and IV in its decision in Madan Pal III vs. State of Haryana (2018) SCC OnLine P&H 2871 and finally arrived at the market value for the villages in question. 8. As a matter of fact, the assessment in Madan Pal III vs. State of Haryana (2018) SCC OnLine P&H 2871 which was the foundation of the decision of the High Court in the present case, was scaled down by this Court in Wazir and Another vs. State of Haryana (2019) 13 SCC 101 . Therefore, theoretically, the market value arrived at by the High Court would be on the higher side. 9. Even then we proceed to consider the evidence placed on record to see if the landholders are right in seeking enhancement Exhibit P-20 Sale Deed was rightly rejected by the Reference Court and the reasoning in that behalf, as quoted hereinabove is quite correct. The other Sale Deeds i.e. Exhibits P-13, P-24 and P-25, the extent of lands involved therein, their location and other features were considered by the High Court in right perspective and the matter calls for no interference That leaves us to consider whether by adopting the method of annual increase over the values determined in connection with acquisition for Phases II, III and IV any advantage can still be conferred upon the landholders 10. In General Manager, Oil and Natural Gas Corporation Limited vs. Rameshbhai Jivanbhai Patel and Another (2008) 14 SCC 745 , this Court dealt with the issue of grant of annual increase and expressed caution in following words.:- 15. Normally, recourse is taken to the mode of determining the market value by providing appropriate escalation over the proved market value of nearby lands in previous years (as evidenced by sale transactions or acquisitions), where there is no evidence of any contemporaneous sale transactions or acquisitions of comparable lands in the neighbourhood. The said method is reasonably safe where the relied-on sale transactions/acquisitions precede the subject acquisition by only a few years, that is, up to four to five years. Beyond that it may be unsafe, even if it relates to a neighbouring land. What may be a reliable standard if the gap is of only a few years, may become unsafe and unreliable standard where the gap is larger. For example, for determining the market value of a land acquired in 1992, adopting the annual increase method with reference to a sale or acquisition in 1970 or 1980 may have many pitfalls. This is because, over the course of years, the rate of annual increase may itself undergo drastic change apart from the likelihood of occurrence of varying periods of stagnation in prices or sudden spurts in prices affecting the very standard of increase. 11. It is true that the process of determining the value by annual increase was considered as one of the alternatives in Wazir and Another vs. State of Haryana (2019) 13 SCC 101 . But in that case, three methods including one relating to cumulative annual increase were considered and that method which led to the highest valuation was adopted. But the law laid down in ONGC Ltd. 2008) 14 SCC 745 is quite clear. In case we go by the method of cumulative annual increase it would mean that cumulative increase over the valuation in Wazir and Another vs. State of Haryana (2019) 13 SCC 101 must displace the valuation based on Sale Deed, which is normally the safest method.
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7. In the instant case, the High Court considered Exhibit P13 concerning an extent of land admeasuring 8 Kanals and 8 Marlas in the limits of Village Lakhnoula and two Sale Deeds in respect of M/s Conway Developers Private Limited. (Exhibits P24 and P25). It also considered the assessment of market value made by it in respect of acquisition pertaining to Phases II, III and IV in its decision in Madan Pal III vs. State ofand finally arrived at the market value for the villages in question.8. As a matter of fact, the assessment in Madan Pal III vs. State ofwhich was the foundation of the decision of the High Court in the present case, was scaled down by this Court in Wazir and Another vs. State of. Therefore, theoretically, the market value arrived at by the High Court would be on the higher side.Exhibit P-20 Sale Deed was rightly rejected by the Reference Court and the reasoning in that behalf, as quoted hereinabove is quite correct. The other Sale Deeds i.e. Exhibits P-13, P-24 and P-25, the extent of lands involved therein, their location and other features were considered by the High Court in right perspective and the matter calls for no interference10. In General Manager, Oil and Natural Gas Corporation Limited vs. Rameshbhai Jivanbhai Patel and Another (2008) 14 SCC 745 , this Court dealt with the issue of grant of annual increase and expressed caution in following words.:-15. Normally, recourse is taken to the mode of determining the market value by providing appropriate escalation over the proved market value of nearby lands in previous years (as evidenced by sale transactions or acquisitions), where there is no evidence of any contemporaneous sale transactions or acquisitions of comparable lands in the neighbourhood. The said method is reasonably safe where the relied-on sale transactions/acquisitions precede the subject acquisition by only a few years, that is, up to four to five years. Beyond that it may be unsafe, even if it relates to a neighbouring land. What may be a reliable standard if the gap is of only a few years, may become unsafe and unreliable standard where the gap is larger. For example, for determining the market value of a land acquired in 1992, adopting the annual increase method with reference to a sale or acquisition in 1970 or 1980 may have many pitfalls. This is because, over the course of years, the rate of annual increase may itself undergo drastic change apart from the likelihood of occurrence of varying periods of stagnation in prices or sudden spurts in prices affecting the very standard of increase.11. It is true that the process of determining the value by annual increase was considered as one of the alternatives in Wazir and Another vs. State of. But in that case, three methods including one relating to cumulative annual increase were considered and that method which led to the highest valuation was adopted. But the law laid down in ONGCis quite clear.In case we go by the method of cumulative annual increase it would mean that cumulative increase over the valuation in Wazir and Another vs. State ofmust displace the valuation based on Sale Deed, which is normally the safest method.
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Azad Singh and Others Vs. Barkat Ullah Khan | original plaintiffs provided for personal cultivation of the land by the Thekedar or personal cultivation was incidental to other rights and obligations such as collection of rent . from the other tenants ? This would necessitate examination of the original document creating Theka. That was not read to us, but Mr. Rangarajan relied upon the following observation in the judgment of the learned trial Judge:"I have read the context (sic) (possibly contract, of the Thekanama. There is no authority given specifically or impliedly for personal cultivation by the Thekedars of the land comprised in the Theka unless there was such a provision. I fear no rights of hereditary tenancy could have been acquired by the plaintiffs."9. It was urged that the learned Judge specifically came to the conclusion that the Theka was not created exclusively and specifically for personal cultivation of the lands involved in the Theka. The learned appellate Judge found that the Thekedars were in actual possession and personal cultivation of the land for a period of 11 years. He further found that the Theka would be deemed to have been granted for personal cultivation and if the plaintiffs (Thekedars) have been found to be in personal cultivation of the suit on 1st May, 1950 as Thekedars, they would be entitled to the benefit of sec. 12 of 1950 Act. The learned appellate Judge then concluded that it is satisfactorily proved that the plaintiffs-Thekedars were in possession on 1st May, 1950.However the learned Judge declined to grant relief to the plaintiffs on the finding that the lessees had acquired Adhivasis right under 1952 Act. It clearly transpires from the findings of the first appellate court, which is the last fact finding court, that the Theka was for personal cultivation of the land involved in the Theka and the Thekedars were personally cultivating the land for a period of 11 years. The High Court in second appeal noticed that the Thekedars were personally cultivating the land. Nothing was pointed out to us to show that Thekedars had any other duty to perform such as collecting rent from other tenants. There is nothing in the record to show that the Theka was as a consideration for some other duties to be performed by the Thekedars to the Zamindars. Therefore, the conclusion is inescapable, that the Theka was created exclusively for personal cultivation of the land involved in the Theka by the Thekedars.If it is clearly established that the Theka was created exclusively for personal cultivation of the land by the Thekedars, the ratio of the decision of this Court would lead to the conclusion that the Thekedars acquired the status of the hereditary tenants under sec. 12 of the 1 950 Act.10. The only question then remains for the consideration is whether the original lessees acquired Adhivasis rights under sec. 3 of the 1952 Act. Sec. 3 which has been extracted herein before provides that any person who has not become a bhumidar, sirdar, adhivasi or asami under 1950 Act if he is in cultivatory possession of any land during the yea r 1359 Fasli and if the bhumidar or sirdar was not such a person, such a person in cultivatory possession would acquire the status of an adhivasi. The High Court then examined what is the significance of the expression cultivatory possession in se c. 3. The High Court rightly held that if the Thekedars had acquired the status of hereditary tenants as Theka was up to and inclusive of the year 1359 Fasli, the Zamindars had no right to induct lessees in possession after depriving the Thekedars of their possession and therefore possession of the lessees was not lawful against the Thekedars. The High Court rightly held that A the lessees could not be said to be in cultivatory possession of the land on the appointed day. In reaching this conclusion, the High Court relied upon a decision of this Court in Sonawati &ors. v. Shri Ram Anr.(1) The Court held as under:"The expression "cultivatory possession" is not defined in the Act, but the Explanation clearly implies that the claimant must have a lawful right to be in possession of the land, and must not belong to the classes specified in the explanation. "Cultivatory possession" to be recognized for the purpose of the Act must b e lawful and for the whole year 1359 Fasli. A trespasser who has no right to be in possession by merely entering upon the land forcibly or surreptitiously cannot be said to be a person in "cultivatory possession" within the meaning of s. 3 of U.P. Act of 1952. We are of the view that the Allahabad High Court was right in holding in Ram Krishna v. Bhagwan Baksh Singh(2) that a person who through force inducts himself over and into some land and succeeds in continuing his occupation over it cannot be said to be in cultivatory possession of that land so as to invest him with the rights of an asami or an adhivasi, and we are unable to agree with the subsequent judgment of a Full Bench of the Allahabad High Court in Nanhoo Mal v. Muloo and ors.(B) that occupation by a wrongdoer without any right to the land is cultivatory possession within the meaning of s. 3 of the U.P. Ac t 31 of 1952".Therefore in order to obtain the benefit of sec. 3 of 1952 Act, the person claiming to be in cultivatory possession must show that his or her possession was lawful. The High Court consistent with certain findings of the tria l Court and the first appellate court held that possession of the lessees in 1359 Fasli was not lawful and this necessarily follows from the finding given by the courts that the Thekedars were in cultivatory possession of the plots in dispute on the appointed day i.e. 1st May, 1950 and thereby became entitled to acquire the rights of hereditary tenants. We are in agreement with the conclusion recorded by the High Court.11 | 0[ds]The only question then remains for the consideration is whether the original lessees acquired Adhivasis rights under sec. 3 of the 1952 Act.Sec. 3 which has been extracted herein before provides that any person who has not become a bhumidar, sirdar, adhivasi or asami under 1950 Act if he is in cultivatory possession of any land during the yea r 1359 Fasli and if the bhumidar or sirdar was not such a person, such a person in cultivatory possession would acquire the status of an adhivasi. The High Court then examined what is the significance of the expression cultivatory possession in se c. 3. The High Court rightly held that if the Thekedars had acquired the status of hereditary tenants as Theka was up to and inclusive of the year 1359 Fasli, the Zamindars had no right to induct lessees in possession after depriving the Thekedars of their possession and therefore possession of the lessees was not lawful against the Thekedars. The High Court rightly held that A the lessees could not be said to be in cultivatory possession of the land on the appointed day. In reaching this conclusion, the High Court relied upon a decision of this Court in Sonawati &ors. v. Shri Ram Anr.(1) The Court held asexpression "cultivatory possession" is not defined in the Act, but the Explanation clearly implies that the claimant must have a lawful right to be in possession of the land, and must not belong to the classes specified in the explanation. "Cultivatory possession" to be recognized for the purpose of the Act must b e lawful and for the whole year 1359 Fasli. A trespasser who has no right to be in possession by merely entering upon the land forcibly or surreptitiously cannot be said to be a person in "cultivatory possession" within the meaning of s. 3 of U.P. Act of 1952. We are of the view that the Allahabad High Court was right in holding in Ram Krishna v. Bhagwan Baksh Singh(2) that a person who through force inducts himself over and into some land and succeeds in continuing his occupation over it cannot be said to be in cultivatory possession of that land so as to invest him with the rights of an asami or an adhivasi, and we are unable to agree with the subsequent judgment of a Full Bench of the Allahabad High Court in Nanhoo Mal v. Muloo and ors.(B) that occupation by a wrongdoer without any right to the land is cultivatory possession within the meaning of s. 3 of the U.P. Ac t 31 ofin order to obtain the benefit of sec. 3 of 1952 Act, the person claiming to be in cultivatory possession must show that his or her possession was lawful. The High Court consistent with certain findings of the tria l Court and the first appellate court held that possession of the lessees in 1359 Fasli was not lawful and this necessarily follows from the finding given by the courts that the Thekedars were in cultivatory possession of the plots in dispute on the appointed day i.e. 1st May, 1950 and thereby became entitled to acquire the rights of hereditary tenants. We are in agreement with the conclusion recorded by the High Court. | 0 | 2,718 | 594 | ### 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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original plaintiffs provided for personal cultivation of the land by the Thekedar or personal cultivation was incidental to other rights and obligations such as collection of rent . from the other tenants ? This would necessitate examination of the original document creating Theka. That was not read to us, but Mr. Rangarajan relied upon the following observation in the judgment of the learned trial Judge:"I have read the context (sic) (possibly contract, of the Thekanama. There is no authority given specifically or impliedly for personal cultivation by the Thekedars of the land comprised in the Theka unless there was such a provision. I fear no rights of hereditary tenancy could have been acquired by the plaintiffs."9. It was urged that the learned Judge specifically came to the conclusion that the Theka was not created exclusively and specifically for personal cultivation of the lands involved in the Theka. The learned appellate Judge found that the Thekedars were in actual possession and personal cultivation of the land for a period of 11 years. He further found that the Theka would be deemed to have been granted for personal cultivation and if the plaintiffs (Thekedars) have been found to be in personal cultivation of the suit on 1st May, 1950 as Thekedars, they would be entitled to the benefit of sec. 12 of 1950 Act. The learned appellate Judge then concluded that it is satisfactorily proved that the plaintiffs-Thekedars were in possession on 1st May, 1950.However the learned Judge declined to grant relief to the plaintiffs on the finding that the lessees had acquired Adhivasis right under 1952 Act. It clearly transpires from the findings of the first appellate court, which is the last fact finding court, that the Theka was for personal cultivation of the land involved in the Theka and the Thekedars were personally cultivating the land for a period of 11 years. The High Court in second appeal noticed that the Thekedars were personally cultivating the land. Nothing was pointed out to us to show that Thekedars had any other duty to perform such as collecting rent from other tenants. There is nothing in the record to show that the Theka was as a consideration for some other duties to be performed by the Thekedars to the Zamindars. Therefore, the conclusion is inescapable, that the Theka was created exclusively for personal cultivation of the land involved in the Theka by the Thekedars.If it is clearly established that the Theka was created exclusively for personal cultivation of the land by the Thekedars, the ratio of the decision of this Court would lead to the conclusion that the Thekedars acquired the status of the hereditary tenants under sec. 12 of the 1 950 Act.10. The only question then remains for the consideration is whether the original lessees acquired Adhivasis rights under sec. 3 of the 1952 Act. Sec. 3 which has been extracted herein before provides that any person who has not become a bhumidar, sirdar, adhivasi or asami under 1950 Act if he is in cultivatory possession of any land during the yea r 1359 Fasli and if the bhumidar or sirdar was not such a person, such a person in cultivatory possession would acquire the status of an adhivasi. The High Court then examined what is the significance of the expression cultivatory possession in se c. 3. The High Court rightly held that if the Thekedars had acquired the status of hereditary tenants as Theka was up to and inclusive of the year 1359 Fasli, the Zamindars had no right to induct lessees in possession after depriving the Thekedars of their possession and therefore possession of the lessees was not lawful against the Thekedars. The High Court rightly held that A the lessees could not be said to be in cultivatory possession of the land on the appointed day. In reaching this conclusion, the High Court relied upon a decision of this Court in Sonawati &ors. v. Shri Ram Anr.(1) The Court held as under:"The expression "cultivatory possession" is not defined in the Act, but the Explanation clearly implies that the claimant must have a lawful right to be in possession of the land, and must not belong to the classes specified in the explanation. "Cultivatory possession" to be recognized for the purpose of the Act must b e lawful and for the whole year 1359 Fasli. A trespasser who has no right to be in possession by merely entering upon the land forcibly or surreptitiously cannot be said to be a person in "cultivatory possession" within the meaning of s. 3 of U.P. Act of 1952. We are of the view that the Allahabad High Court was right in holding in Ram Krishna v. Bhagwan Baksh Singh(2) that a person who through force inducts himself over and into some land and succeeds in continuing his occupation over it cannot be said to be in cultivatory possession of that land so as to invest him with the rights of an asami or an adhivasi, and we are unable to agree with the subsequent judgment of a Full Bench of the Allahabad High Court in Nanhoo Mal v. Muloo and ors.(B) that occupation by a wrongdoer without any right to the land is cultivatory possession within the meaning of s. 3 of the U.P. Ac t 31 of 1952".Therefore in order to obtain the benefit of sec. 3 of 1952 Act, the person claiming to be in cultivatory possession must show that his or her possession was lawful. The High Court consistent with certain findings of the tria l Court and the first appellate court held that possession of the lessees in 1359 Fasli was not lawful and this necessarily follows from the finding given by the courts that the Thekedars were in cultivatory possession of the plots in dispute on the appointed day i.e. 1st May, 1950 and thereby became entitled to acquire the rights of hereditary tenants. We are in agreement with the conclusion recorded by the High Court.11
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### Explanation:
The only question then remains for the consideration is whether the original lessees acquired Adhivasis rights under sec. 3 of the 1952 Act.Sec. 3 which has been extracted herein before provides that any person who has not become a bhumidar, sirdar, adhivasi or asami under 1950 Act if he is in cultivatory possession of any land during the yea r 1359 Fasli and if the bhumidar or sirdar was not such a person, such a person in cultivatory possession would acquire the status of an adhivasi. The High Court then examined what is the significance of the expression cultivatory possession in se c. 3. The High Court rightly held that if the Thekedars had acquired the status of hereditary tenants as Theka was up to and inclusive of the year 1359 Fasli, the Zamindars had no right to induct lessees in possession after depriving the Thekedars of their possession and therefore possession of the lessees was not lawful against the Thekedars. The High Court rightly held that A the lessees could not be said to be in cultivatory possession of the land on the appointed day. In reaching this conclusion, the High Court relied upon a decision of this Court in Sonawati &ors. v. Shri Ram Anr.(1) The Court held asexpression "cultivatory possession" is not defined in the Act, but the Explanation clearly implies that the claimant must have a lawful right to be in possession of the land, and must not belong to the classes specified in the explanation. "Cultivatory possession" to be recognized for the purpose of the Act must b e lawful and for the whole year 1359 Fasli. A trespasser who has no right to be in possession by merely entering upon the land forcibly or surreptitiously cannot be said to be a person in "cultivatory possession" within the meaning of s. 3 of U.P. Act of 1952. We are of the view that the Allahabad High Court was right in holding in Ram Krishna v. Bhagwan Baksh Singh(2) that a person who through force inducts himself over and into some land and succeeds in continuing his occupation over it cannot be said to be in cultivatory possession of that land so as to invest him with the rights of an asami or an adhivasi, and we are unable to agree with the subsequent judgment of a Full Bench of the Allahabad High Court in Nanhoo Mal v. Muloo and ors.(B) that occupation by a wrongdoer without any right to the land is cultivatory possession within the meaning of s. 3 of the U.P. Ac t 31 ofin order to obtain the benefit of sec. 3 of 1952 Act, the person claiming to be in cultivatory possession must show that his or her possession was lawful. The High Court consistent with certain findings of the tria l Court and the first appellate court held that possession of the lessees in 1359 Fasli was not lawful and this necessarily follows from the finding given by the courts that the Thekedars were in cultivatory possession of the plots in dispute on the appointed day i.e. 1st May, 1950 and thereby became entitled to acquire the rights of hereditary tenants. We are in agreement with the conclusion recorded by the High Court.
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The Officer In?-Charge, Sub-?Regional Provident Fund Office & Anr Vs. M/s Godavari Garments Limited | the employer, and includes any person employed by or through a contractor in or in connection with the work of the establishment.? It will be noticed that the terms of the definition are wide. They include not only persons employed directly by the employer but also persons employed through a contractor. Moreover, they include not only persons employed in the factory but also persons employed in connection with the work of the factory. It seems to us that a home worker, by virtue of the fact that he rolls beedis, is involved in an activity connected with the work of the factory. We are unable to accept the narrow construction sought by the petitioners that the words ?in connection with? in the definition of ?employee? must be confined to work performed in the factory itself as a part of the total process of the manufacture.…10. In the context of the conditions and the circumstances set out earlier in which the home workers of a single manufacturer go about their work, including the receiving of raw material, rolling the beedis at home and delivering them to the manufacturer subject to the right of rejection there is sufficient evidence of the requisite degree of control and supervision for establishing the relationship of master and servant between the manufacturer and the home worker. It must be remembered that the work of rolling beedis is not of a sophisticated nature, requiring control and supervision at the time when the work is done. It is a simple operation which, as practice has shown, has been performed satisfactorily by thousands of illiterate workers. It is a task which can be performed by young and old, men and women, with equal facility and it does not require a high order of skill. In the circumstances, the right of rejection can constitute in itself an effective degree of supervision and control. We may point out that there is evidence to show that the rejection takes place in the presence of the home worker. That factor, however, plays a merely supportive role in determining the existence of the relationship of the master and servant. The petitioners point out that there is no element of personal service in beedi rolling and that it is open to a home worker to get the work done by one or the other member of his family at home. The element of personal service, it seems to us, is of little significance when the test of control and supervision lies in the right of rejection.?(emphasis supplied)6.7. The aforesaid judgments make it abundantly clear that the women workers employed by the Respondent Company are covered by the definition of ?employee? under Section 2(f) of the EPF Act.6.8. The EPF Act is a beneficial social welfare legislation which was enacted by the Legislature for the benefit of the workmen, Regional Provident Fund Commissioner v. The Hooghly Mills Company Ltd. and Ors. 2012 (1) SCALE 422. This Court in The Daily Partap v. The Regional Provident Fund Commissioner, Punjab, Haryana, Himachal Pradesh and Union Territory, Chandigarh, (1998) 8 SCC 90. held that:?9. … It has to be kept in view that the Act in question, is a beneficial social welfare legislation meant for the protection of weaker sections of society, namely, workmen who had to eke out their livelihood from the meagre wages they receive after toiling hard for the same.?Hence, the provisions under the EPF Act have to be interpreted in a manner which is beneficial to the workmen.6.9. In the present case, the women workers were certainly employed for wages in connection with the work of the Respondent Company. The definition of ?employee? under Section 2(f) is an inclusive definition, and includes workers who are engaged either directly or indirectly in connection with the work of the establishment, and are paid wages.In the present case, the women workers were directly engaged by the Management in connection with the work of the Respondent Company, which was set up as a ready¬made garments industry in Marathwada. The women workers were paid wages on per¬piece basis for the services rendered. Merely because the women workers were permitted to do the work off site, would not take away their status as employees of the Respondent Company7. The Respondent Company placed reliance on this Court?s decision in C.E.S.C. Limited and Ors. v. Subhash Chandra Bose and Ors., (1992) 1 SCC 441. wherein it was held that:?14. … In the textual sense ‘supervision? of the principal employer or his agent is on ‘work? at the places envisaged and the word ‘work? can neither he construed so broadly to be the final act of acceptance or rejection of work, nor so narrowly so as to be supervision at all limes and at each and every step of the work. A harmonious construction alone would help carry out the purpose of the Act, which would mean moderating the two extremes. When the employee is put to work under the eye and gaze of the principal employer, or his agent, where he can be watched secretly, accidentally, or occasionally, while the work is in progress, so as to scrutinise the quality thereof and to detect faults therein, as also put to timely remedial measures by directions given, finally leading to the satisfactory completion and acceptance of the work, that would in our view be supervision for the purposes of Section 2(9) of the Act.?The decision in C.E.S.C. Limited (supra) however, is not applicable to the facts of the present case. In that case, this Court interpreted the meaning of the term ?supervision? as used in the definition of ?employee? Section 2(9) of the Employees? State Insurance Act, 1948. However, the term ?supervision? is nowhere used in the definition of ?employee? under Section 2(f) of the EPF Act. The decision in P.M. Patel (supra) could not be used to interpret the word ?supervision? under the Employees? State Insurance Act, 1948 because the said word has not been used in Section 2(f) of the EPF Act. | 1[ds]6.1. The definition of ?employee? under Section 2(f) of the EPF Act is an inclusive definition, and is widely worded to include any person engaged either directly or indirectly in connection with the work of an establishment.6.2. In the present case, the women workers employed by the Respondent Company were provided all the raw materials, such as the fabric, thread, buttons, etc. from the Respondent – Employer. With this material, the women workers were required to stitch the garments as per the specifications given by the Respondent Company. The women workers could stitch the garments at their homes, and provide them to the Respondent Company. The Respondent Company had the absolute right to reject the finished product i.e. the garments, in case of any defects6.3. The mere fact that the women workers stitched the garments at home, would make no difference. It is the admitted position that the women workers were paid wages directly by the Respondent Company on a perpiece basis for every garment stitched.6.4. The issue in the present case is squarely covered by the decision of this Court in Silver Jubilee Tailoring House and Ors. v. Chief Inspector of Shops and Establishments and Ors. (1974) 3 SCC 498 The appellants therein were engaged in the business of producing garments. They employed workers who were provided with the cloth, and were instructed by the appellants how to stitch it. The workers were paid on piece-rate basis. If a worker failed to stitch a garment as per the instructions, the appellants rejected the work, and asked the worker to re-stitch the garment. This Court held that such workers fell within the definition of ?person employed? under Section 2(14) of the Andhra Pradesh (Telangana Area) Shops and Establishments Act, 1956. It was heldOn the issue where payment is made by piece¬rate to the workers, would they be covered by the definition of ?employee?, this Court in Shining Tailors v. Industrial Tribunal II, U.P., Lucknow and) 4 SCC 464 . heldThe aforesaid judgments make it abundantly clear that the women workers employed by the Respondent Company are covered by the definition of ?employee? under Section 2(f) of the EPF Act.6.8. The EPF Act is a beneficial social welfare legislation which was enacted by the Legislature for the benefit of theCourt in The Daily Partap v. The Regional Provident Fund Commissioner, Punjab, Haryana, Himachal Pradesh and Union Territory, Chandigarh, (1998) 8 SCC 90. held… It has to be kept in view that the Act in question, is a beneficial social welfare legislation meant for the protection of weaker sections of society, namely, workmen who had to eke out their livelihood from the meagre wages they receive after toiling hard for thethe provisions under the EPF Act have to be interpreted in a manner which is beneficial to the workmen.6.9. In the present case, the women workers were certainly employed for wages in connection with the work of the Respondent Company. The definition of ?employee? under Section 2(f) is an inclusive definition, and includes workers who are engaged either directly or indirectly in connection with the work of the establishment, and are paid wages.In the present case, the women workers were directly engaged by the Management in connection with the work of the Respondent Company, which was set up as a ready¬made garments industry in Marathwada. The women workers were paid wages on per¬piece basis for the services rendered. Merely because the women workers were permitted to do the work off site, would not take away their status as employees of the Respondentn the issue where payment is made by piece¬rate to the workers, would they be covered by the definition of ?employee?, this Court in Shining Tailors v. Industrial Tribunal II, U.P., Lucknow and) 4 SCC 464 . heldWe have gone through the record and especially the evidence recorded by the Tribunal. The Tribunal has committed a glaring error apparent on record that whenever payment is made by piece rate, there is no relationship of master and the servant and that such relationship can only be as between principal and principal and therefore, the respondents were independent contractors. Frankly, we must say that the Tribunal has not clearly grasped the meaning of what is the piece rate, If every piece rated workmen is an independent contractor, lakhs and lakhs of workmen in various industries where payment is correlated to production would be carved out of the expression ‘workmen? as defined in the Industrial Disputes Act. In the past the test to determine the relationship of employer and the workmen was the test of control and not the method of payment. Piece rate payment meaning thereby payment correlated to production is a wellrecognised mode of payment to industrial workmen. In fact, wherever possible that method of payment has to be encouraged so that there is utmost sincerity, efficiency and single minded devotion to increase production which would be beneficial both to the employer, the workmen and the nation at large. But the test employed in the past was one of determining the degree of control that the employer wielded over the workmen. However, in the identical situation in Silver Jubilee Tailoring House and Ors. v. Chief Inspector of Shops and Establishments and Anr. (1973) IILLJ 495 SC Methew, J. speaking for the Court observed that the control idea was more suited to the agricultural society prior to Industrial Revolution and during the last two decades the emphasis in the field is shifted from and no longer rests exclusively or strongly upon the question of control. It was further observed that a search for a formula in the nature of a single test will not serve the useful purpose, and all factors that have been referred to in the cases on topics, should be considered to tell a contract of service. Approaching the matter from this angle, the Court observed that the employers right to reject the end product if it does not conform to the instructions of the employer speaks for the element of control and supervision. So also the right of removal of the workman or not to give the work has the element of control and supervision. If these aspects are considered decisive, they are amply satisfied in the facts of this case. The Tribunal ignored the well laid test in law and completely misdirected itself by showing that piece rate itself indicates a relationship of independent contractor and error apparent on the record disclosing a total lack of knowledge of the method of payment in various occupations in different industries. The right of rejection coupled with the right to refuse work would certainly establish master servant relationship and both these tests are amply satisfied in the facts of this case. Viewed from this angle, the respondents were the workmen of the employer and the preliminary objection therefore, raised on behalf of the appellantemployer was untenable and ought to have been overruled and we hereby overrule it.Quite apart from all these circumstances, as the employer has the right to reject the end product if it does not conform to the instruction of the employer and direct the worker to restitch it, the element of control and supervision as formulated in the decisions of this Court is alsoAct.6.8. The EPF Act is a beneficial social welfare legislation which was enacted by the Legislature for the benefit of theRegional Provident Fund Commissioner v. The Hooghly Mills Company Ltd. and2012 (1) SCALE 422. | 1 | 3,495 | 1,375 | ### Instruction:
Make a prediction on the court's ruling (acceptance (1) or rejection (0) of the petition), and then dissect the proceeding to provide a detailed explanation using key textual passages.
### Input:
the employer, and includes any person employed by or through a contractor in or in connection with the work of the establishment.? It will be noticed that the terms of the definition are wide. They include not only persons employed directly by the employer but also persons employed through a contractor. Moreover, they include not only persons employed in the factory but also persons employed in connection with the work of the factory. It seems to us that a home worker, by virtue of the fact that he rolls beedis, is involved in an activity connected with the work of the factory. We are unable to accept the narrow construction sought by the petitioners that the words ?in connection with? in the definition of ?employee? must be confined to work performed in the factory itself as a part of the total process of the manufacture.…10. In the context of the conditions and the circumstances set out earlier in which the home workers of a single manufacturer go about their work, including the receiving of raw material, rolling the beedis at home and delivering them to the manufacturer subject to the right of rejection there is sufficient evidence of the requisite degree of control and supervision for establishing the relationship of master and servant between the manufacturer and the home worker. It must be remembered that the work of rolling beedis is not of a sophisticated nature, requiring control and supervision at the time when the work is done. It is a simple operation which, as practice has shown, has been performed satisfactorily by thousands of illiterate workers. It is a task which can be performed by young and old, men and women, with equal facility and it does not require a high order of skill. In the circumstances, the right of rejection can constitute in itself an effective degree of supervision and control. We may point out that there is evidence to show that the rejection takes place in the presence of the home worker. That factor, however, plays a merely supportive role in determining the existence of the relationship of the master and servant. The petitioners point out that there is no element of personal service in beedi rolling and that it is open to a home worker to get the work done by one or the other member of his family at home. The element of personal service, it seems to us, is of little significance when the test of control and supervision lies in the right of rejection.?(emphasis supplied)6.7. The aforesaid judgments make it abundantly clear that the women workers employed by the Respondent Company are covered by the definition of ?employee? under Section 2(f) of the EPF Act.6.8. The EPF Act is a beneficial social welfare legislation which was enacted by the Legislature for the benefit of the workmen, Regional Provident Fund Commissioner v. The Hooghly Mills Company Ltd. and Ors. 2012 (1) SCALE 422. This Court in The Daily Partap v. The Regional Provident Fund Commissioner, Punjab, Haryana, Himachal Pradesh and Union Territory, Chandigarh, (1998) 8 SCC 90. held that:?9. … It has to be kept in view that the Act in question, is a beneficial social welfare legislation meant for the protection of weaker sections of society, namely, workmen who had to eke out their livelihood from the meagre wages they receive after toiling hard for the same.?Hence, the provisions under the EPF Act have to be interpreted in a manner which is beneficial to the workmen.6.9. In the present case, the women workers were certainly employed for wages in connection with the work of the Respondent Company. The definition of ?employee? under Section 2(f) is an inclusive definition, and includes workers who are engaged either directly or indirectly in connection with the work of the establishment, and are paid wages.In the present case, the women workers were directly engaged by the Management in connection with the work of the Respondent Company, which was set up as a ready¬made garments industry in Marathwada. The women workers were paid wages on per¬piece basis for the services rendered. Merely because the women workers were permitted to do the work off site, would not take away their status as employees of the Respondent Company7. The Respondent Company placed reliance on this Court?s decision in C.E.S.C. Limited and Ors. v. Subhash Chandra Bose and Ors., (1992) 1 SCC 441. wherein it was held that:?14. … In the textual sense ‘supervision? of the principal employer or his agent is on ‘work? at the places envisaged and the word ‘work? can neither he construed so broadly to be the final act of acceptance or rejection of work, nor so narrowly so as to be supervision at all limes and at each and every step of the work. A harmonious construction alone would help carry out the purpose of the Act, which would mean moderating the two extremes. When the employee is put to work under the eye and gaze of the principal employer, or his agent, where he can be watched secretly, accidentally, or occasionally, while the work is in progress, so as to scrutinise the quality thereof and to detect faults therein, as also put to timely remedial measures by directions given, finally leading to the satisfactory completion and acceptance of the work, that would in our view be supervision for the purposes of Section 2(9) of the Act.?The decision in C.E.S.C. Limited (supra) however, is not applicable to the facts of the present case. In that case, this Court interpreted the meaning of the term ?supervision? as used in the definition of ?employee? Section 2(9) of the Employees? State Insurance Act, 1948. However, the term ?supervision? is nowhere used in the definition of ?employee? under Section 2(f) of the EPF Act. The decision in P.M. Patel (supra) could not be used to interpret the word ?supervision? under the Employees? State Insurance Act, 1948 because the said word has not been used in Section 2(f) of the EPF Act.
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1
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stitch a garment as per the instructions, the appellants rejected the work, and asked the worker to re-stitch the garment. This Court held that such workers fell within the definition of ?person employed? under Section 2(14) of the Andhra Pradesh (Telangana Area) Shops and Establishments Act, 1956. It was heldOn the issue where payment is made by piece¬rate to the workers, would they be covered by the definition of ?employee?, this Court in Shining Tailors v. Industrial Tribunal II, U.P., Lucknow and) 4 SCC 464 . heldThe aforesaid judgments make it abundantly clear that the women workers employed by the Respondent Company are covered by the definition of ?employee? under Section 2(f) of the EPF Act.6.8. The EPF Act is a beneficial social welfare legislation which was enacted by the Legislature for the benefit of theCourt in The Daily Partap v. The Regional Provident Fund Commissioner, Punjab, Haryana, Himachal Pradesh and Union Territory, Chandigarh, (1998) 8 SCC 90. held… It has to be kept in view that the Act in question, is a beneficial social welfare legislation meant for the protection of weaker sections of society, namely, workmen who had to eke out their livelihood from the meagre wages they receive after toiling hard for thethe provisions under the EPF Act have to be interpreted in a manner which is beneficial to the workmen.6.9. In the present case, the women workers were certainly employed for wages in connection with the work of the Respondent Company. The definition of ?employee? under Section 2(f) is an inclusive definition, and includes workers who are engaged either directly or indirectly in connection with the work of the establishment, and are paid wages.In the present case, the women workers were directly engaged by the Management in connection with the work of the Respondent Company, which was set up as a ready¬made garments industry in Marathwada. The women workers were paid wages on per¬piece basis for the services rendered. Merely because the women workers were permitted to do the work off site, would not take away their status as employees of the Respondentn the issue where payment is made by piece¬rate to the workers, would they be covered by the definition of ?employee?, this Court in Shining Tailors v. Industrial Tribunal II, U.P., Lucknow and) 4 SCC 464 . heldWe have gone through the record and especially the evidence recorded by the Tribunal. The Tribunal has committed a glaring error apparent on record that whenever payment is made by piece rate, there is no relationship of master and the servant and that such relationship can only be as between principal and principal and therefore, the respondents were independent contractors. Frankly, we must say that the Tribunal has not clearly grasped the meaning of what is the piece rate, If every piece rated workmen is an independent contractor, lakhs and lakhs of workmen in various industries where payment is correlated to production would be carved out of the expression ‘workmen? as defined in the Industrial Disputes Act. In the past the test to determine the relationship of employer and the workmen was the test of control and not the method of payment. Piece rate payment meaning thereby payment correlated to production is a wellrecognised mode of payment to industrial workmen. In fact, wherever possible that method of payment has to be encouraged so that there is utmost sincerity, efficiency and single minded devotion to increase production which would be beneficial both to the employer, the workmen and the nation at large. But the test employed in the past was one of determining the degree of control that the employer wielded over the workmen. However, in the identical situation in Silver Jubilee Tailoring House and Ors. v. Chief Inspector of Shops and Establishments and Anr. (1973) IILLJ 495 SC Methew, J. speaking for the Court observed that the control idea was more suited to the agricultural society prior to Industrial Revolution and during the last two decades the emphasis in the field is shifted from and no longer rests exclusively or strongly upon the question of control. It was further observed that a search for a formula in the nature of a single test will not serve the useful purpose, and all factors that have been referred to in the cases on topics, should be considered to tell a contract of service. Approaching the matter from this angle, the Court observed that the employers right to reject the end product if it does not conform to the instructions of the employer speaks for the element of control and supervision. So also the right of removal of the workman or not to give the work has the element of control and supervision. If these aspects are considered decisive, they are amply satisfied in the facts of this case. The Tribunal ignored the well laid test in law and completely misdirected itself by showing that piece rate itself indicates a relationship of independent contractor and error apparent on the record disclosing a total lack of knowledge of the method of payment in various occupations in different industries. The right of rejection coupled with the right to refuse work would certainly establish master servant relationship and both these tests are amply satisfied in the facts of this case. Viewed from this angle, the respondents were the workmen of the employer and the preliminary objection therefore, raised on behalf of the appellantemployer was untenable and ought to have been overruled and we hereby overrule it.Quite apart from all these circumstances, as the employer has the right to reject the end product if it does not conform to the instruction of the employer and direct the worker to restitch it, the element of control and supervision as formulated in the decisions of this Court is alsoAct.6.8. The EPF Act is a beneficial social welfare legislation which was enacted by the Legislature for the benefit of theRegional Provident Fund Commissioner v. The Hooghly Mills Company Ltd. and2012 (1) SCALE 422.
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Nanhu Prasad Singh Vs. State of Bihar | to whom the appellant had paid the said amount on being identified as such by one Thakur Prasad Chaudhary, that the appellant had paid the said amount to that Biseshwar under a bona fide belief that he was the true remittee, and that subsequently, after the enquiry was instituted, he discovered his mistake and got the said Biseshwar to refund the amount to him, which amount the appellant in his turn paid to the Post Office. The second defence was that he being a public servant, the Special Judge could not take cognizance of the offence unless sanction to prosecute him under Section 6 of the Act was first obtained and that not having been done the trial was vitiated. Both these contentions were rejected by the Special Judge and the High Court on the ground that whereas the Special Judge took cognizance of the offence on July 16, 1962, the appellant had already been dismissed from service long before that date, and therefore although he was a public servant at the date of the offence, he had ceased to be one on the date when the Trial Judge took cognizance of the offence. Therefore, no sanction under Section 6 was required, and there was no defect in the trial.4. for the appellant did not raise before us any contention on the merits of the prosecution case in view of the concurrent findings of both the Courts of facts. Consequently, the only contention he raised was about the necessity of sanction without which, he urged, the trial was vitiated in view of the requirement being mandatory under Section 6 of the Act. Therefore, the only question which need an answer is whether the appellant was in fact removed from service prior to July 16, 1962.5. It is not in dispute that the appellant was an extra-departmental agent and as such he was only performing the duties which would be the duties of a village post-master. It is also not disputed that his service could be terminated and he could be removed from service by the Inspector of Post Offices, the relevant Inspector at the material time being witness Suren, who also was the appointing authority. It is on record that on May 12, 1961 Suren passed an order in the following terms :"Subject : Chairaila M.O. fraud case.Please remove Shri Nanhu Singh R. D. A. Chairaila at once pending enquiry."At first sight it would appear from the penultimate words of that order that the appellant was merely suspended pending enquiry, but not removed from service. That perhaps would have been the meaning placed on the order, if that was the only evidence to indicate what actually the order meant. In his evidence, however, Suren explained that the appellant was dismissed by that order. It would seem that the appellant also understood the order, Ex. 16, as being one of dismissal for, no questions were asked to Suren in cross-examination pointing out the words "pending enquiry" in that order meant suspension and not removal from service. Apparently, the order, Ex. 16 was expressed in loose language. Nevertheless, everybody concerned understood that order to be a dismissal order and acted accordingly. Besides, it was never the case of the appellant that he was suspended pending an enquiry and he, therefore, never claimed any subsistence allowance or any other allowance ordinarily claimed by public servants suspended during an enquiry held against them or a trial where they are prosecuted. If the appellant had understood the order as one of suspension we would have expected him to put that case to Suren when the latter asserted in his evidence that he had by that order dismissed him from service. Witness Shiv Shankar Raut, the Head Clerk in the office of the Superintendent of Post Offices, also deposed that the appellant was only an extra-departmental agent and that such agents were appointed and were removable from service by Inspectors of Post Offices. He also deposed that as from May 15, 1961 the appellant never worked as an extra-departmental agent. No questions were asked to him also in cross-examination disputing the fact that he was removed from service by the said order. Witness Sarjug Prasad also deposed that he took charge of Chairaila Post Office from the appellant "because he was removed from service". The investigating officer also deposed likewise that when he submitted the charge-sheet in this case, the appellant was no longer in service. None of these witnesses was cross-examined do dispute the aforesaid position deposed to by each one of them.6. It would thus appear from the evidence that every one concerned, including the appellant, understood the order, Ex. 16, to be one of removal from service as the extra-departmental agent. The words "pending enquiry" in the order did not mean that the order was intended or understood to be one of suspension. Those words appear to have been used by Suren to mean that though the appellant was removed from service, if the enquiry did not turn out to be against him, he could once more be appointed as an agent. It seems that such being the understanding of the order by all the concerned parties, no cross-examination was addressed to any one of the witnesses suggesting that the said order was only an order of suspension. Even in the written statement, which the appellant filed in the trial Court in answer to the evidence led by the prosecution the appellant submitted that the trial was bad for want of sanction "as the service of this accused has not been terminated as yet as contemplated by law". The contention thus was not that he was suspended from service, but that his removal therefrom was not in accordance with law. He did not even then suggest that the order was one suspending him from service pending an enquiry or that he was not factually dismissed. No contention also was raised before us that the dismissal was in any way unauthorised or illegal otherwise. | 0[ds]6. It would thus appear from the evidence that every one concerned, including the appellant, understood the order, Ex. 16, to be one of removal from service as theagent. The words "pending enquiry" in the order did not mean that the order was intended or understood to be one of suspension. Those words appear to have been used by Suren to mean that though the appellant was removed from service, if the enquiry did not turn out to be against him, he could once more be appointed as an agent. It seems that such being the understanding of the order by all the concerned parties, nowas addressed to any one of the witnesses suggesting that the said order was only an order of suspension. Even in the written statement, which the appellant filed in the trial Court in answer to the evidence led by the prosecution the appellant submitted that the trial was bad for want of sanction "as the service of this accused has not been terminated as yet as contemplated by law". The contention thus was not that he was suspended from service, but that his removal therefrom was not in accordance with law. He did not even then suggest that the order was one suspending him from service pending an enquiry or that he was not factually dismissed. No contention also was raised before us that the dismissal was in any way unauthorised or illegal otherwise. | 0 | 1,334 | 266 | ### Instruction:
Determine the likely decision of the case (acceptance (1) or rejection (0)) and follow up with an explanation highlighting key sentences that support this prediction.
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to whom the appellant had paid the said amount on being identified as such by one Thakur Prasad Chaudhary, that the appellant had paid the said amount to that Biseshwar under a bona fide belief that he was the true remittee, and that subsequently, after the enquiry was instituted, he discovered his mistake and got the said Biseshwar to refund the amount to him, which amount the appellant in his turn paid to the Post Office. The second defence was that he being a public servant, the Special Judge could not take cognizance of the offence unless sanction to prosecute him under Section 6 of the Act was first obtained and that not having been done the trial was vitiated. Both these contentions were rejected by the Special Judge and the High Court on the ground that whereas the Special Judge took cognizance of the offence on July 16, 1962, the appellant had already been dismissed from service long before that date, and therefore although he was a public servant at the date of the offence, he had ceased to be one on the date when the Trial Judge took cognizance of the offence. Therefore, no sanction under Section 6 was required, and there was no defect in the trial.4. for the appellant did not raise before us any contention on the merits of the prosecution case in view of the concurrent findings of both the Courts of facts. Consequently, the only contention he raised was about the necessity of sanction without which, he urged, the trial was vitiated in view of the requirement being mandatory under Section 6 of the Act. Therefore, the only question which need an answer is whether the appellant was in fact removed from service prior to July 16, 1962.5. It is not in dispute that the appellant was an extra-departmental agent and as such he was only performing the duties which would be the duties of a village post-master. It is also not disputed that his service could be terminated and he could be removed from service by the Inspector of Post Offices, the relevant Inspector at the material time being witness Suren, who also was the appointing authority. It is on record that on May 12, 1961 Suren passed an order in the following terms :"Subject : Chairaila M.O. fraud case.Please remove Shri Nanhu Singh R. D. A. Chairaila at once pending enquiry."At first sight it would appear from the penultimate words of that order that the appellant was merely suspended pending enquiry, but not removed from service. That perhaps would have been the meaning placed on the order, if that was the only evidence to indicate what actually the order meant. In his evidence, however, Suren explained that the appellant was dismissed by that order. It would seem that the appellant also understood the order, Ex. 16, as being one of dismissal for, no questions were asked to Suren in cross-examination pointing out the words "pending enquiry" in that order meant suspension and not removal from service. Apparently, the order, Ex. 16 was expressed in loose language. Nevertheless, everybody concerned understood that order to be a dismissal order and acted accordingly. Besides, it was never the case of the appellant that he was suspended pending an enquiry and he, therefore, never claimed any subsistence allowance or any other allowance ordinarily claimed by public servants suspended during an enquiry held against them or a trial where they are prosecuted. If the appellant had understood the order as one of suspension we would have expected him to put that case to Suren when the latter asserted in his evidence that he had by that order dismissed him from service. Witness Shiv Shankar Raut, the Head Clerk in the office of the Superintendent of Post Offices, also deposed that the appellant was only an extra-departmental agent and that such agents were appointed and were removable from service by Inspectors of Post Offices. He also deposed that as from May 15, 1961 the appellant never worked as an extra-departmental agent. No questions were asked to him also in cross-examination disputing the fact that he was removed from service by the said order. Witness Sarjug Prasad also deposed that he took charge of Chairaila Post Office from the appellant "because he was removed from service". The investigating officer also deposed likewise that when he submitted the charge-sheet in this case, the appellant was no longer in service. None of these witnesses was cross-examined do dispute the aforesaid position deposed to by each one of them.6. It would thus appear from the evidence that every one concerned, including the appellant, understood the order, Ex. 16, to be one of removal from service as the extra-departmental agent. The words "pending enquiry" in the order did not mean that the order was intended or understood to be one of suspension. Those words appear to have been used by Suren to mean that though the appellant was removed from service, if the enquiry did not turn out to be against him, he could once more be appointed as an agent. It seems that such being the understanding of the order by all the concerned parties, no cross-examination was addressed to any one of the witnesses suggesting that the said order was only an order of suspension. Even in the written statement, which the appellant filed in the trial Court in answer to the evidence led by the prosecution the appellant submitted that the trial was bad for want of sanction "as the service of this accused has not been terminated as yet as contemplated by law". The contention thus was not that he was suspended from service, but that his removal therefrom was not in accordance with law. He did not even then suggest that the order was one suspending him from service pending an enquiry or that he was not factually dismissed. No contention also was raised before us that the dismissal was in any way unauthorised or illegal otherwise.
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0
### Explanation:
6. It would thus appear from the evidence that every one concerned, including the appellant, understood the order, Ex. 16, to be one of removal from service as theagent. The words "pending enquiry" in the order did not mean that the order was intended or understood to be one of suspension. Those words appear to have been used by Suren to mean that though the appellant was removed from service, if the enquiry did not turn out to be against him, he could once more be appointed as an agent. It seems that such being the understanding of the order by all the concerned parties, nowas addressed to any one of the witnesses suggesting that the said order was only an order of suspension. Even in the written statement, which the appellant filed in the trial Court in answer to the evidence led by the prosecution the appellant submitted that the trial was bad for want of sanction "as the service of this accused has not been terminated as yet as contemplated by law". The contention thus was not that he was suspended from service, but that his removal therefrom was not in accordance with law. He did not even then suggest that the order was one suspending him from service pending an enquiry or that he was not factually dismissed. No contention also was raised before us that the dismissal was in any way unauthorised or illegal otherwise.
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State Of M.P Vs. Rakesh Kohli | on the ground of violation of any of the articles in Part III of the Constitution, the ascertainment of its true nature and character becomes necessary i.e. its subject-matter, the area in which it is intended to operate, its purport and intent have to be determined. In order to do so it is legitimate to take into consideration all the factors such as history of the legislation, the purpose thereof, the surrounding circumstances and conditions, the mischief which it intended to suppress, the remedy for the disease which the legislature resolved to cure and the true reason for the remedy.” 25. In Hamdard Dawakhana17, the Court also followed the statement of law in Mahant Moti Das16 and the two earlier decisions, namely, Charanjit Lal Chowdhury v. Union of India and others [AIR 1951 SC 41 ] and The State of Bombay and another v. F.N. Balsara [AIR 1951 SC 318 ] and reiterated the principle that presumption was always in favour of constitutionality of an enactment. 26. In one of the recent cases in Karnataka Bank Limited6, while referring to some of the above decisions, in para 19 (at pgs. 262-263) of the Report, this Court held as under : “19. The rules that guide the constitutional courts in discharging their solemn duty to declare laws passed by a legislature unconstitutional are well known. There is always a presumption in favour of constitutionality, and a law will not be declared unconstitutional unless the case is so clear as to be free from doubt; “to doubt the constitutionality of a law is to resolve it in favour of its validity”. Where the validity of a statute is questioned and there are two interpretations, one of which would make the law valid and the other void, the former must be preferred and the validity of law upheld. In pronouncing on the constitutional validity of a statute, the court is not concerned with the wisdom or unwisdom, the justice or injustice of the law. If that which is passed into law is within the scope of the power conferred on a legislature and violates no restrictions on that power, the law must be upheld whatever a court may think of it. (See State of Bombay v. F.N. Balsara.)” 27. A well-known principle that in the field of taxation, the Legislature enjoys a greater latitude for classification, has been noted by this Court in long line of cases. Some of these decisions are : M/s. Steelworth Limited v. State of Assam [1962 Supp (2) SCR 589]; Gopal Narain v. State of Uttar Pradesh and another. [AIR 1964 SC 370 ]; Ganga Sugar Corporation Limited v. State of Uttar Pradesh and others [1980) 1 SCC 223 ]; R.K. Garg v. Union of India and others [1981) 4 SCC 675 ] and State of W.B. and another v. E.I.T.A. India Limited and others [2003) 5 SCC 239 ]. 28. In R.K. Garg, the Constitution Bench of this Court stated that laws relating to economic activities should be viewed with greater latitude than laws touching civil rights such as freedom of speech, religion, etc. 29. While dealing with constitutional validity of a taxation law enacted by Parliament or State Legislature, the court must have regard to the following principles: (i), there is always presumption in favour of constitutionality of a law made by Parliament or a State Legislature (ii), no enactment can be struck down by just saying that it is arbitrary or unreasonable or irrational but some constitutional infirmity has to be found (iii), the court is not concerned with the wisdom or unwisdom, the justice or injustice of the law as the Parliament and State Legislatures are supposed to be alive to the needs of the people whom they represent and they are the best judge of the community by whose suffrage they come into existence (iv), hardship is not relevant in pronouncing on the constitutional validity of a fiscal statute or economic law and (v), in the field of taxation, the Legislature enjoys greater latitude for classification.30. Had the High Court kept in view the above well-known and important principles in law, it would not have declared Clause (d), Article 45 of Schedule 1-A as violative of Article 14 of the Constitution being arbitrary, unreasonable and irrational while holding that the provision may pass test of classification. By creating two categories, namely, an agent who is a blood relation, i.e. father, mother, wife or husband, son or daughter, brother or sister and an agent other than the kith and kin, without consideration, the Legislature has sought to curb inappropriate mode of transfer of immovable properties. Ordinarily, where executant himself is unable, for any reason, to execute the document, he would appoint his kith and kin as his power of attorney to complete the transaction on his behalf. If one does not have any kith or kin who he can appoint as power of attorney, he may execute the conveyance himself. The legislative idea behind Clause (d), Article 45 of Schedule 1-A is to curb tendency of transferring immovable properties through power of attorney and inappropriate documentation. By making a provision like this, the State Government has sought to collect stamp duty on such indirect and inappropriate mode of transfer by providing that power of attorney given to a person other than kith or kin, without consideration, authorizing such person to sell immovable property situated in Madhya Pradesh will attract stamp duty at two per cent on the market value of the property which is subject matter of power of attorney. In effect, by bringing in this law, the Madhya Pradesh State Legislature has sought to levy stamp duty on such ostensible document, the real intention of which is the transfer of immovable property. The classification, thus, cannot be said to be without any rationale. It has a direct nexus to the object of the 1899 Act. The conclusion of the High Court, therefore, that the impugned provision is arbitrary, unreasonable and irrational is unsustainable. | 1[ds]29. While dealing with constitutional validity of a taxation law enacted by Parliament or State Legislature, the court must have regard to the following principles: (i), there is always presumption in favour of constitutionality of a law made by Parliament or a State Legislature (ii), no enactment can be struck down by just saying that it is arbitrary or unreasonable or irrational but some constitutional infirmity has to be found (iii), the court is not concerned with the wisdom or unwisdom, the justice or injustice of the law as the Parliament and State Legislatures are supposed to be alive to the needs of the people whom they represent and they are the best judge of the community by whose suffrage they come into existence (iv), hardship is not relevant in pronouncing on the constitutional validity of a fiscal statute or economic law and (v), in the field of taxation, the Legislature enjoys greater latitude for classification.30. Had the High Court kept in view the above well-known and important principles in law, it would not have declared Clause (d), Article 45 of Schedule 1-A as violative of Article 14 of the Constitution being arbitrary, unreasonable and irrational while holding that the provision may pass test of classification. By creating two categories, namely, an agent who is a blood relation, i.e. father, mother, wife or husband, son or daughter, brother or sister and an agent other than the kith and kin, without consideration, the Legislature has sought to curb inappropriate mode of transfer of immovable properties. Ordinarily, where executant himself is unable, for any reason, to execute the document, he would appoint his kith and kin as his power of attorney to complete the transaction on his behalf. If one does not have any kith or kin who he can appoint as power of attorney, he may execute the conveyance himself. The legislative idea behind Clause (d), Article 45 of Schedule 1-A is to curb tendency of transferring immovable properties through power of attorney and inappropriate documentation. By making a provision like this, the State Government has sought to collect stamp duty on such indirect and inappropriate mode of transfer by providing that power of attorney given to a person other than kith or kin, without consideration, authorizing such person to sell immovable property situated in Madhya Pradesh will attract stamp duty at two per cent on the market value of the property which is subject matter of power of attorney. In effect, by bringing in this law, the Madhya Pradesh State Legislature has sought to levy stamp duty on such ostensible document, the real intention of which is the transfer of immovable property. The classification, thus, cannot be said to be without any rationale. It has a direct nexus to the object of the 1899 Act. The conclusion of the High Court, therefore, that the impugned provision is arbitrary, unreasonable and irrational is unsustainable. | 1 | 6,433 | 553 | ### 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:
on the ground of violation of any of the articles in Part III of the Constitution, the ascertainment of its true nature and character becomes necessary i.e. its subject-matter, the area in which it is intended to operate, its purport and intent have to be determined. In order to do so it is legitimate to take into consideration all the factors such as history of the legislation, the purpose thereof, the surrounding circumstances and conditions, the mischief which it intended to suppress, the remedy for the disease which the legislature resolved to cure and the true reason for the remedy.” 25. In Hamdard Dawakhana17, the Court also followed the statement of law in Mahant Moti Das16 and the two earlier decisions, namely, Charanjit Lal Chowdhury v. Union of India and others [AIR 1951 SC 41 ] and The State of Bombay and another v. F.N. Balsara [AIR 1951 SC 318 ] and reiterated the principle that presumption was always in favour of constitutionality of an enactment. 26. In one of the recent cases in Karnataka Bank Limited6, while referring to some of the above decisions, in para 19 (at pgs. 262-263) of the Report, this Court held as under : “19. The rules that guide the constitutional courts in discharging their solemn duty to declare laws passed by a legislature unconstitutional are well known. There is always a presumption in favour of constitutionality, and a law will not be declared unconstitutional unless the case is so clear as to be free from doubt; “to doubt the constitutionality of a law is to resolve it in favour of its validity”. Where the validity of a statute is questioned and there are two interpretations, one of which would make the law valid and the other void, the former must be preferred and the validity of law upheld. In pronouncing on the constitutional validity of a statute, the court is not concerned with the wisdom or unwisdom, the justice or injustice of the law. If that which is passed into law is within the scope of the power conferred on a legislature and violates no restrictions on that power, the law must be upheld whatever a court may think of it. (See State of Bombay v. F.N. Balsara.)” 27. A well-known principle that in the field of taxation, the Legislature enjoys a greater latitude for classification, has been noted by this Court in long line of cases. Some of these decisions are : M/s. Steelworth Limited v. State of Assam [1962 Supp (2) SCR 589]; Gopal Narain v. State of Uttar Pradesh and another. [AIR 1964 SC 370 ]; Ganga Sugar Corporation Limited v. State of Uttar Pradesh and others [1980) 1 SCC 223 ]; R.K. Garg v. Union of India and others [1981) 4 SCC 675 ] and State of W.B. and another v. E.I.T.A. India Limited and others [2003) 5 SCC 239 ]. 28. In R.K. Garg, the Constitution Bench of this Court stated that laws relating to economic activities should be viewed with greater latitude than laws touching civil rights such as freedom of speech, religion, etc. 29. While dealing with constitutional validity of a taxation law enacted by Parliament or State Legislature, the court must have regard to the following principles: (i), there is always presumption in favour of constitutionality of a law made by Parliament or a State Legislature (ii), no enactment can be struck down by just saying that it is arbitrary or unreasonable or irrational but some constitutional infirmity has to be found (iii), the court is not concerned with the wisdom or unwisdom, the justice or injustice of the law as the Parliament and State Legislatures are supposed to be alive to the needs of the people whom they represent and they are the best judge of the community by whose suffrage they come into existence (iv), hardship is not relevant in pronouncing on the constitutional validity of a fiscal statute or economic law and (v), in the field of taxation, the Legislature enjoys greater latitude for classification.30. Had the High Court kept in view the above well-known and important principles in law, it would not have declared Clause (d), Article 45 of Schedule 1-A as violative of Article 14 of the Constitution being arbitrary, unreasonable and irrational while holding that the provision may pass test of classification. By creating two categories, namely, an agent who is a blood relation, i.e. father, mother, wife or husband, son or daughter, brother or sister and an agent other than the kith and kin, without consideration, the Legislature has sought to curb inappropriate mode of transfer of immovable properties. Ordinarily, where executant himself is unable, for any reason, to execute the document, he would appoint his kith and kin as his power of attorney to complete the transaction on his behalf. If one does not have any kith or kin who he can appoint as power of attorney, he may execute the conveyance himself. The legislative idea behind Clause (d), Article 45 of Schedule 1-A is to curb tendency of transferring immovable properties through power of attorney and inappropriate documentation. By making a provision like this, the State Government has sought to collect stamp duty on such indirect and inappropriate mode of transfer by providing that power of attorney given to a person other than kith or kin, without consideration, authorizing such person to sell immovable property situated in Madhya Pradesh will attract stamp duty at two per cent on the market value of the property which is subject matter of power of attorney. In effect, by bringing in this law, the Madhya Pradesh State Legislature has sought to levy stamp duty on such ostensible document, the real intention of which is the transfer of immovable property. The classification, thus, cannot be said to be without any rationale. It has a direct nexus to the object of the 1899 Act. The conclusion of the High Court, therefore, that the impugned provision is arbitrary, unreasonable and irrational is unsustainable.
### Response:
1
### Explanation:
29. While dealing with constitutional validity of a taxation law enacted by Parliament or State Legislature, the court must have regard to the following principles: (i), there is always presumption in favour of constitutionality of a law made by Parliament or a State Legislature (ii), no enactment can be struck down by just saying that it is arbitrary or unreasonable or irrational but some constitutional infirmity has to be found (iii), the court is not concerned with the wisdom or unwisdom, the justice or injustice of the law as the Parliament and State Legislatures are supposed to be alive to the needs of the people whom they represent and they are the best judge of the community by whose suffrage they come into existence (iv), hardship is not relevant in pronouncing on the constitutional validity of a fiscal statute or economic law and (v), in the field of taxation, the Legislature enjoys greater latitude for classification.30. Had the High Court kept in view the above well-known and important principles in law, it would not have declared Clause (d), Article 45 of Schedule 1-A as violative of Article 14 of the Constitution being arbitrary, unreasonable and irrational while holding that the provision may pass test of classification. By creating two categories, namely, an agent who is a blood relation, i.e. father, mother, wife or husband, son or daughter, brother or sister and an agent other than the kith and kin, without consideration, the Legislature has sought to curb inappropriate mode of transfer of immovable properties. Ordinarily, where executant himself is unable, for any reason, to execute the document, he would appoint his kith and kin as his power of attorney to complete the transaction on his behalf. If one does not have any kith or kin who he can appoint as power of attorney, he may execute the conveyance himself. The legislative idea behind Clause (d), Article 45 of Schedule 1-A is to curb tendency of transferring immovable properties through power of attorney and inappropriate documentation. By making a provision like this, the State Government has sought to collect stamp duty on such indirect and inappropriate mode of transfer by providing that power of attorney given to a person other than kith or kin, without consideration, authorizing such person to sell immovable property situated in Madhya Pradesh will attract stamp duty at two per cent on the market value of the property which is subject matter of power of attorney. In effect, by bringing in this law, the Madhya Pradesh State Legislature has sought to levy stamp duty on such ostensible document, the real intention of which is the transfer of immovable property. The classification, thus, cannot be said to be without any rationale. It has a direct nexus to the object of the 1899 Act. The conclusion of the High Court, therefore, that the impugned provision is arbitrary, unreasonable and irrational is unsustainable.
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Ramashankar Kaushik And Another Vs. Election Commission Of India And Another | meanings. When it is used in the sense of "combine", it may imply mingling together of things, often with a loss of distinction of elements that completely merge with one another. When it is used in the sense of "unite", it implies joining or combining of things to form a single whole. When it is used in the sense of "associate", it implies joining with another or others as companion, partner, etc. According to the same dictionary, the word "component" is derived from "Com" plus "Ponere". Componere means serving as one of the parts of whole, constituent. So the word component means: "part, constituent, ingredient,"17.The expression "joining together" in paragraph 16(1) is apparently used in its broad meaning. There is nothing in the context to restrict its meaning to a case of merger of two or more political parties and their resultant extinction on formation of a new political party. It will also embrace a case of two or more political parties agreeing to form a new political party while retaining their separate identity. Our construction gets support from the expression "all the component units thereof". We think this expression is included in paragraph 16 (2) with the object of comprehending a case where two or more political parties have federated into a new political party while retaining their separate identity instead of merging themselves into the new political party. It seems to us that this expression also includes in paragraph 16 (1) a third type of case where two or more political parties, after deciding to destroy their separate identity, have brought into existence a new political party even though the process of extinction is not formally completed or is invalid and ineffective. In such a case, they retain their separate identity and will be deemed to be component units of the new party. In the second and third types, when the Commission has given recognition to the newly formed political party as a National Party or a State Party and has allotted a symbol to it, his order will be binding on them as they should be regarded as the "component units" of the new party.18. Returning to the argument of Sri Patel, we are of opinion that paragraph 15 of the Order is not attracted to the facts of the present case. The appellants did not claim before the Chief Election Commissioner that their group represented the Socialist Party recognised under paragraph 16 of the Order. The case set up by Sri Maniram Bagri was that the Socialist Party has been dissolved and that the Socialist Party is rebornSri Kaushik also pressed the claim of the S.S.P. against the Socialist Party. Admittedly there are important differences between the S.S.P. and the Socialist Party. Their flags are different so are their constitutions. Their membership is also different. The S.S.P. does not claim that it is the Socialist Party. On the facts of the present case, the appellants cannot derive any assistance from the decision in Sadiq Ali (1972) 2 SCR 318 = (AIR 1972 SC 187 ) (supra). In that case two rival groups claimed to be the Indian National Congress.19. The next argument of Sri Patel also cannot prevail. Paragraph 18(b) of the Order provides that the Commission may issue instructions and directions for the removal of any difficulty which may arise in relation to the implementation of the provisions of the Order. Obviously, no difficulty can arise in regard to the implementation of paragraph 16 of the Order in the present case. For the sake of argument it may be assumed that he merger of the Samyukta Socialist Party in the Socialist Party was not a valid and accomplished fact on the date when the symbol "Tree" was allotted to the Socialist Party under paragraph 16 and that the Samyukta Socialist Party has been enjoying a ceaseless existence. Even so, the Samyukta Socialist Party is bound by the decision of the Chief Election Commissioner under paragraph 16 (2) because the Samyukta Socialist Party would be regarded as a component unit of the Socialist Party. It cannot now go back from his decision and claim the symbol. "Tree". It should be observed that it has not been proved that the Socialist Party has ceased to exist.20. On the view that we are taking, it is not necessary to decide whether the S.S.P. had merged in the Socialist Party and destroyed its separate identity. But we should observe that if it were necessary for us to decide that matter, we should have required evidence on certain aspects. Two vital elements of an association are members and a common purpose for which they associate. If an association is constituted under a statute; it can be dissolved only in accordance with that statute; if it is organised on the basis of a contract, then it can be dissolved only in accordance with the terms of the contract, commonly called the constitution. If the constitution provides for dissolution by the consent of all the members, the rule of decision by majority is excluded. There seems to be no evidence on these material aspects.21.The last argument also does not prevail. Rule 10 (4) of the Rules will apply only when the Returning Officer is considering the choice of a symbol expressed by a contesting candidate in his nomination paper. We are not concerned with such a case at present. Rule 5 will also not apply now. The provisions of paragraph 16 of the Order will prevail over Rules 5 and 10 because rules 5 and 10 expressly are subject to any general or special directions or restrictions issued by the Election Commission. Sri Patel has relied on Samyukta Socialist Party (1967) 1 SCR 643 = (AIR 1967 SC 898 ) (supra). That decision was given under Rule 5 at a time when the Commission had not enacted the Order. As the present case is now directly governed by the provisions of the Order, the appellants cannot derive any help from that decision. | 0[ds]16. It is first necessary to consider the impact of paragraph 16 on this case. A new political party is formed by the joining together of at least one recognised political party and another political party. The newly formed political party may apply for recognised to the Election Commission under paragraph 16. After due hearing, the Elction Commission may recognise the newly formed political party either as a National Party or as a State Party and may allot a symbol to it. The decision of the Commission is binding on the newly formed political party and "all the component units thereof." The two significant expressions in paragraph 16 are "joining together" and "all the component units thereof". According to the Websters New World Dictionary, 1962 Edn. page 789 the word "join" has these meanings, "(1) to place together, bring together, connect, pass on, combine; (2) to make into one, unite; (3) to become a part or a member of; enter into association with; (4) to go to and combine with; (5) to enter into the company of; a company; (6) to go and take ones proper place in." The word has evidently got several meanings. When it is used in the sense of "combine", it may imply mingling together of things, often with a loss of distinction of elements that completely merge with one another. When it is used in the sense of "unite", it implies joining or combining of things to form a single whole. When it is used in the sense of "associate", it implies joining with another or others as companion, partner, etc. According to the same dictionary, the word "component" is derived from "Com" plus "Ponere". Componere means serving as one of the parts of whole, constituent. So the word component means: "part, constituent, ingredient,"17.The expression "joining together" in paragraph 16(1) is apparently used in its broad meaning. There is nothing in the context to restrict its meaning to a case of merger of two or more political parties and their resultant extinction on formation of a new political party. It will also embrace a case of two or more political parties agreeing to form a new political party while retaining their separate identity. Our construction gets support from the expression "all the component units thereof". We think this expression is included in paragraph 16 (2) with the object of comprehending a case where two or more political parties have federated into a new political party while retaining their separate identity instead of merging themselves into the new political party. It seems to us that this expression also includes in paragraph 16 (1) a third type of case where two or more political parties, after deciding to destroy their separate identity, have brought into existence a new political party even though the process of extinction is not formally completed or is invalid and ineffective. In such a case, they retain their separate identity and will be deemed to be component units of the new party. In the second and third types, when the Commission has given recognition to the newly formed political party as a National Party or a State Party and has allotted a symbol to it, his order will be binding on them as they should be regarded as the "component units" of the new party.18. Returning to the argument of Sri Patel, we are of opinion that paragraph 15 of the Order is not attracted to the facts of the present case. The appellants did not claim before the Chief Election Commissioner that their group represented the Socialist Party recognised under paragraph 16 of the Order. The case set up by Sri Maniram Bagri was that the Socialist Party has been dissolved and that the Socialist Party is rebornSri Kaushik also pressed the claim of the S.S.P. against the Socialist Party. Admittedly there are important differences between the S.S.P. and the Socialist Party. Their flags are different so are their constitutions. Their membership is also different. The S.S.P. does not claim that it is the Socialist Party. On the facts of the present case, the appellants cannot derive any assistance from the decision in Sadiq Ali (1972) 2 SCR 318 = (AIR 1972 SC 187 ) (supra). In that case two rival groups claimed to be the Indian National Congress.19. The next argument of Sri Patel also cannot prevail. Paragraph 18(b) of the Order provides that the Commission may issue instructions and directions for the removal of any difficulty which may arise in relation to the implementation of the provisions of the Order. Obviously, no difficulty can arise in regard to the implementation of paragraph 16 of the Order in the present case. For the sake of argument it may be assumed that he merger of the Samyukta Socialist Party in the Socialist Party was not a valid and accomplished fact on the date when the symbol "Tree" was allotted to the Socialist Party under paragraph 16 and that the Samyukta Socialist Party has been enjoying a ceaseless existence. Even so, the Samyukta Socialist Party is bound by the decision of the Chief Election Commissioner under paragraph 16 (2) because the Samyukta Socialist Party would be regarded as a component unit of the Socialist Party. It cannot now go back from his decision and claim the symbol. "Tree". It should be observed that it has not been proved that the Socialist Party has ceased to exist.20. On the view that we are taking, it is not necessary to decide whether the S.S.P. had merged in the Socialist Party and destroyed its separate identity. But we should observe that if it were necessary for us to decide that matter, we should have required evidence on certain aspects. Two vital elements of an association are members and a common purpose for which they associate. If an association is constituted under a statute; it can be dissolved only in accordance with that statute; if it is organised on the basis of a contract, then it can be dissolved only in accordance with the terms of the contract, commonly called the constitution. If the constitution provides for dissolution by the consent of all the members, the rule of decision by majority is excluded. There seems to be no evidence on these material aspects.21.The last argument also does not prevail. Rule 10 (4) of the Rules will apply only when the Returning Officer is considering the choice of a symbol expressed by a contesting candidate in his nomination paper. We are not concerned with such a case at present. Rule 5 will also not apply now. The provisions of paragraph 16 of the Order will prevail over Rules 5 and 10 because rules 5 and 10 expressly are subject to any general or special directions or restrictions issued by the Election Commission. Sri Patel has relied on Samyukta Socialist Party (1967) 1 SCR 643 = (AIR 1967 SC 898 ) (supra). That decision was given under Rule 5 at a time when the Commission had not enacted the Order. As the present case is now directly governed by the provisions of the Order, the appellants cannot derive any help from that decision. | 0 | 6,208 | 1,374 | ### 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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meanings. When it is used in the sense of "combine", it may imply mingling together of things, often with a loss of distinction of elements that completely merge with one another. When it is used in the sense of "unite", it implies joining or combining of things to form a single whole. When it is used in the sense of "associate", it implies joining with another or others as companion, partner, etc. According to the same dictionary, the word "component" is derived from "Com" plus "Ponere". Componere means serving as one of the parts of whole, constituent. So the word component means: "part, constituent, ingredient,"17.The expression "joining together" in paragraph 16(1) is apparently used in its broad meaning. There is nothing in the context to restrict its meaning to a case of merger of two or more political parties and their resultant extinction on formation of a new political party. It will also embrace a case of two or more political parties agreeing to form a new political party while retaining their separate identity. Our construction gets support from the expression "all the component units thereof". We think this expression is included in paragraph 16 (2) with the object of comprehending a case where two or more political parties have federated into a new political party while retaining their separate identity instead of merging themselves into the new political party. It seems to us that this expression also includes in paragraph 16 (1) a third type of case where two or more political parties, after deciding to destroy their separate identity, have brought into existence a new political party even though the process of extinction is not formally completed or is invalid and ineffective. In such a case, they retain their separate identity and will be deemed to be component units of the new party. In the second and third types, when the Commission has given recognition to the newly formed political party as a National Party or a State Party and has allotted a symbol to it, his order will be binding on them as they should be regarded as the "component units" of the new party.18. Returning to the argument of Sri Patel, we are of opinion that paragraph 15 of the Order is not attracted to the facts of the present case. The appellants did not claim before the Chief Election Commissioner that their group represented the Socialist Party recognised under paragraph 16 of the Order. The case set up by Sri Maniram Bagri was that the Socialist Party has been dissolved and that the Socialist Party is rebornSri Kaushik also pressed the claim of the S.S.P. against the Socialist Party. Admittedly there are important differences between the S.S.P. and the Socialist Party. Their flags are different so are their constitutions. Their membership is also different. The S.S.P. does not claim that it is the Socialist Party. On the facts of the present case, the appellants cannot derive any assistance from the decision in Sadiq Ali (1972) 2 SCR 318 = (AIR 1972 SC 187 ) (supra). In that case two rival groups claimed to be the Indian National Congress.19. The next argument of Sri Patel also cannot prevail. Paragraph 18(b) of the Order provides that the Commission may issue instructions and directions for the removal of any difficulty which may arise in relation to the implementation of the provisions of the Order. Obviously, no difficulty can arise in regard to the implementation of paragraph 16 of the Order in the present case. For the sake of argument it may be assumed that he merger of the Samyukta Socialist Party in the Socialist Party was not a valid and accomplished fact on the date when the symbol "Tree" was allotted to the Socialist Party under paragraph 16 and that the Samyukta Socialist Party has been enjoying a ceaseless existence. Even so, the Samyukta Socialist Party is bound by the decision of the Chief Election Commissioner under paragraph 16 (2) because the Samyukta Socialist Party would be regarded as a component unit of the Socialist Party. It cannot now go back from his decision and claim the symbol. "Tree". It should be observed that it has not been proved that the Socialist Party has ceased to exist.20. On the view that we are taking, it is not necessary to decide whether the S.S.P. had merged in the Socialist Party and destroyed its separate identity. But we should observe that if it were necessary for us to decide that matter, we should have required evidence on certain aspects. Two vital elements of an association are members and a common purpose for which they associate. If an association is constituted under a statute; it can be dissolved only in accordance with that statute; if it is organised on the basis of a contract, then it can be dissolved only in accordance with the terms of the contract, commonly called the constitution. If the constitution provides for dissolution by the consent of all the members, the rule of decision by majority is excluded. There seems to be no evidence on these material aspects.21.The last argument also does not prevail. Rule 10 (4) of the Rules will apply only when the Returning Officer is considering the choice of a symbol expressed by a contesting candidate in his nomination paper. We are not concerned with such a case at present. Rule 5 will also not apply now. The provisions of paragraph 16 of the Order will prevail over Rules 5 and 10 because rules 5 and 10 expressly are subject to any general or special directions or restrictions issued by the Election Commission. Sri Patel has relied on Samyukta Socialist Party (1967) 1 SCR 643 = (AIR 1967 SC 898 ) (supra). That decision was given under Rule 5 at a time when the Commission had not enacted the Order. As the present case is now directly governed by the provisions of the Order, the appellants cannot derive any help from that decision.
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the sense of "combine", it may imply mingling together of things, often with a loss of distinction of elements that completely merge with one another. When it is used in the sense of "unite", it implies joining or combining of things to form a single whole. When it is used in the sense of "associate", it implies joining with another or others as companion, partner, etc. According to the same dictionary, the word "component" is derived from "Com" plus "Ponere". Componere means serving as one of the parts of whole, constituent. So the word component means: "part, constituent, ingredient,"17.The expression "joining together" in paragraph 16(1) is apparently used in its broad meaning. There is nothing in the context to restrict its meaning to a case of merger of two or more political parties and their resultant extinction on formation of a new political party. It will also embrace a case of two or more political parties agreeing to form a new political party while retaining their separate identity. Our construction gets support from the expression "all the component units thereof". We think this expression is included in paragraph 16 (2) with the object of comprehending a case where two or more political parties have federated into a new political party while retaining their separate identity instead of merging themselves into the new political party. It seems to us that this expression also includes in paragraph 16 (1) a third type of case where two or more political parties, after deciding to destroy their separate identity, have brought into existence a new political party even though the process of extinction is not formally completed or is invalid and ineffective. In such a case, they retain their separate identity and will be deemed to be component units of the new party. In the second and third types, when the Commission has given recognition to the newly formed political party as a National Party or a State Party and has allotted a symbol to it, his order will be binding on them as they should be regarded as the "component units" of the new party.18. Returning to the argument of Sri Patel, we are of opinion that paragraph 15 of the Order is not attracted to the facts of the present case. The appellants did not claim before the Chief Election Commissioner that their group represented the Socialist Party recognised under paragraph 16 of the Order. The case set up by Sri Maniram Bagri was that the Socialist Party has been dissolved and that the Socialist Party is rebornSri Kaushik also pressed the claim of the S.S.P. against the Socialist Party. Admittedly there are important differences between the S.S.P. and the Socialist Party. Their flags are different so are their constitutions. Their membership is also different. The S.S.P. does not claim that it is the Socialist Party. On the facts of the present case, the appellants cannot derive any assistance from the decision in Sadiq Ali (1972) 2 SCR 318 = (AIR 1972 SC 187 ) (supra). In that case two rival groups claimed to be the Indian National Congress.19. The next argument of Sri Patel also cannot prevail. Paragraph 18(b) of the Order provides that the Commission may issue instructions and directions for the removal of any difficulty which may arise in relation to the implementation of the provisions of the Order. Obviously, no difficulty can arise in regard to the implementation of paragraph 16 of the Order in the present case. For the sake of argument it may be assumed that he merger of the Samyukta Socialist Party in the Socialist Party was not a valid and accomplished fact on the date when the symbol "Tree" was allotted to the Socialist Party under paragraph 16 and that the Samyukta Socialist Party has been enjoying a ceaseless existence. Even so, the Samyukta Socialist Party is bound by the decision of the Chief Election Commissioner under paragraph 16 (2) because the Samyukta Socialist Party would be regarded as a component unit of the Socialist Party. It cannot now go back from his decision and claim the symbol. "Tree". It should be observed that it has not been proved that the Socialist Party has ceased to exist.20. On the view that we are taking, it is not necessary to decide whether the S.S.P. had merged in the Socialist Party and destroyed its separate identity. But we should observe that if it were necessary for us to decide that matter, we should have required evidence on certain aspects. Two vital elements of an association are members and a common purpose for which they associate. If an association is constituted under a statute; it can be dissolved only in accordance with that statute; if it is organised on the basis of a contract, then it can be dissolved only in accordance with the terms of the contract, commonly called the constitution. If the constitution provides for dissolution by the consent of all the members, the rule of decision by majority is excluded. There seems to be no evidence on these material aspects.21.The last argument also does not prevail. Rule 10 (4) of the Rules will apply only when the Returning Officer is considering the choice of a symbol expressed by a contesting candidate in his nomination paper. We are not concerned with such a case at present. Rule 5 will also not apply now. The provisions of paragraph 16 of the Order will prevail over Rules 5 and 10 because rules 5 and 10 expressly are subject to any general or special directions or restrictions issued by the Election Commission. Sri Patel has relied on Samyukta Socialist Party (1967) 1 SCR 643 = (AIR 1967 SC 898 ) (supra). That decision was given under Rule 5 at a time when the Commission had not enacted the Order. As the present case is now directly governed by the provisions of the Order, the appellants cannot derive any help from that decision.
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Association of Registration Plates Vs. Union of India and Others | Act says: nothing in this section shall apply to motor vehicle in possession of a dealer subject to such conditions as may be prescribed by the Central Government. Section 41 also points to the same position. It casts an obligation on the owner of a motor vehicle to obtain registration. The question of issuing a certificate of registration and assigning to a motor vehicle a registration mark arises only after sale of motor vehicle. Therefore, until the motor vehicle has been sold to a person by a dealer, the registering authority would not come into the picture and there is no occasion for assigning it a registration mark. A manufacturer of motor vehicle is not at all concerned with registration thereof by the registering authority. On the basis of above interpretation of provisions of the Act, the submission made is that under section 109(3), the Central Government can only prescribe standards for any article or process used by the manufacturer in the manufacturing of the vehicle and not for selecting any manufacturer or registration plates to the exclusion of others. It is submitted that reading sub-section (3) with sub-section (1) & (2) of section 109 of the Act, the position is that the provisions have nothing to do with registration plates of the vehicles. 52. It is further submitted that power to issue directions a contained in para 4(x) of the statutory order of 2001, cannot be traced to any provision in chapter IV of the Act dealing with registration of motor vehicles or to the rule making power under section 64(d). It is submitted that any provision regarding registration plates can only be made by rule framed by Central Government in accordance with provisions of the Act. Sub-section (4) of section 212 of the Act, prescribes a mandatory requirement of first publishing draft rule before making a final rule on any subject. Since in promulgating para 4(x) of the statutory order of 2001, mandatory requirement of section 212(4) has not been complied with, the impugned para of the said statutory order of 2001 cannot be supported even as a statutory rule. The other submission made on the subject is that provisions for selecting only one manufacturer for registration plates in a region or a State is not a subject of prescribing manner and form in which the registration mark would be displayed on the motor vehicles. On the above ground, it is submitted that para 4(x) of the statutory order of 2001 deserves to be struck down as ultra vires the Act. It is violate of the Article 19(1)(g) of the Constitution. 53. The above argument based on section 109(3) and the other provisions in Chapter IV of the Act have been suitably replied by the counsel appearing for the respondents. The reasoning advanced on behalf of the respondents is worthy of acceptance. The statutory order of 2001 is expressly issued under section 109 (3) of the Act which no doubt is concerned with construction, equipment and maintenance of motor vehicles. Sub-section (3) of section 109 permits Central Government to " notify that any article or process used by a manufacturer shall conform to such standard as prescribed". The word "manufacturer" is defined in section 2(21A) of the Act to mean a person engaged in the manufacture of the motor vehicles but the definition clause is prefixed by the words "unless the context otherwise requires". I the context of sub-section (3) of section 109, an article to be affixed to the motor vehicle like a high security registration plates is covered by the use of expression "any article or process used by a manufacturer". `In the context if the provision contained in sub-section 3 is read reasonably, an article which is adjunct or necessarily attachable to a motor vehicle, would also be covered in the said expression. The statutory order of 2001 is published in the official gazette. It does not fall outside the scope of sub-section (3) of section 109 of the Act. The expression `any article or process used by a manufacturer has to be construed `in the context as not to restrict the expression `manufacturer to only manufacturer of motor vehicle as defined under section 2 (21A) of the Act. The definition in the Act has to be construed according to the `context and if the `context otherwise indicates a meaningful interpretation is to be given to the words `any article or process used by any manufacturer as used in sub-section 3 of section 109 of the Act. Registration plates are not manufactured by the manufacturer of motor vehicles but for maintenance and operations of motor vehicles, registration plates are necessary. Therefore, manufacturer of registration plates can be subjected to certain standards by a statutory order to be notified and published in accordance with sub-section (3) of section 109 of the Act. Any restrictive interpretation of the said sub-section is neither called for from the language of the sub-section or the object of the provision. Reference is made to the opinion of learned Brother G.P. Mathur J., in these cases. For the reasons mentioned by us above, in our opinion, the statutory order of 2001 and clause 4(x) thereof cannot be held to be beyond the purview of sub-section 3 of section 109 of the Act. Clause 4(x) of the statutory order of 2001, could be issued under section 109(3), as an aid to the fulfillment of provisions of high security registration plates contained in rule 50. Such power of the State to issue order containing clause 4(x) is not only supported by sub-section 3 of section 109 but by rule 50 itself. Clause 4(x) of the statutory order of 2001 is merely enabling one and re-states what rule 50 contemplates. We also find force in the alternative submission made on behalf of the respondents that the statutory order including clause 4(x) can be supported as having been issued in exercise of executive power of the Central Government which is co-extensive with its legislative power. 54. | 0[ds]In the matter of formulating conditions of a tender document and awarding a contract of the nature of ensuring supply of high security registration plates, greater latitude is required to be conceded to the State authorities. Unless the action of tendering Authority is found to be malicious and misuse of its statutory powers, tender conditions are unassailable. On intensive examination of tender conditions, we do not find that they violate the equality clause under Article 14 or encroach on fundamental rights of a class of intending tenderer under Article 19 of the constitution. On the basis of the submissions made on behalf of the Union and State authorities and the justification shown for the terms of the impugned tender conditions, we do not find that the clauses requiring experience in the field of supplying registration plates in foreign countries and the quantum of business turnover are intended only to keep out of field indigenous manufacturers. It is explained that on the date of formulation of scheme in rule 50 and issuance of guidelines thereunder by Central Government, there were not many indigenous manufacturers in India with technical and financial capability to undertake the job of supply of such high dimension, on a long term basis and in a manner to ensure safety and security which is the prime object to be achieved by the introduction of new sophisticated registration plates.Selecting one manufacturer through a process of open competition is not creation of any monopoly, as contended, in violation of Article 19(1)(g) of the Constitution read with clause (6) of the said Article. As is sought to be pointed out, the implementation involves large network of operations of highly sophisticated materials. The manufacturer has to have embossing stations within the premises of the RTO. He has to maintain a data of each plate which he would be getting from his main unit. It has to be cross-checked by the RTO data. There has to be a server in the RTOs office which is linked with all RTOs in each State and thereon linked to the whole nation. Maintenance of record by one and supervision over its activity would be simpler for the State if there is one manufacturer instead of multi-manufacturers as suppliers. The actual operation of the scheme through the RTOs in their premises would get complicated and confused if multi-manufacturers are involved. That would also seriously impair the high security concept in affixation of new plates on the vehicles. If there is a single manufacturer he can be forced to go and serve rural areas with thin vehicular population and less volume of business. Multi-manufacturers might concentrate only on urban areas with higher vehicular population.The fifteen years contract period has also been supported by Union of Indian and State authorities. We find great substance in the submissions made on the data supplied as a justification for awarding contract for long period of 15 years. There would be a huge investment required towards the infrastructure by the selected manufacturer and the major return would be expected in initial period of two years although he would be bound down to render his services for future vehicles on periodically for a long period. Looking to the huge investment required and the nature of the job which is most sophisticated requiring network and infrastructure, a long term contract, if thought viable and feasible, cannot be faulted by the court. If there are two alternatives available of giving a short-term or a long-term contract, it is not for the court to suggest that the short-term contract should be given. On the subject of business management, expertise is available with the State authorities. The policy has been chalked out and the tender conditions have been formulated after joint deliberations of authorities of the State and the intending manufactures. Contract providing technical expertise, financial capability and experience qualifications with a long term of 15 years would serve a dual purpose of attracting sound parties to stake their money in undertaking the job of supply and safeguard public interest by ensuring that for a long period the work of affixation of security plates would continue uninterrupted in fulfilment of the object of the scheme contained in rule 50. Our consideration opinion, therefore, is that none of the impugned clauses in the tender conditions can be held to be arbitrary or discriminatory deserving its striking down as prayed for on behalf of theis no material on record to infer any mala fide design on the part of the tendering authority to favour parties having foreign collaborations and keep out of fray indigenous manufacturers. The high security plates is a sophisticated article - new for manufacturer in India. It is being introduced for the first time under the scheme contained in rule 50 of the Rules and the Act. At the time of issuance of Notices of Tender, technical know-how for manufacture of plates and its further development was undoubtedly outside the country. Only a few concerns in India having collaboration with foreign parties possessed the expertise and were available in the market. The terms of the notice inviting tender were formulated after joint deliberations of Central and State Authorities and the available manufacturers in the field. The terms of the tender prescribing quantum of turnover of its business and business in plates with fixation of long term period of the contract are said to have been incorporated to ensure uninterrupted supply of plates to a large number of existing vehicles within a period of two years and new vehicles for a long period in the coming years. It is easy to allege but difficult to accept that terms of the Notices Inviting Tenders which were fixed after joint deliberations between State authorities and intending tenderers were so tailored as to benefit only a certain identified manufacturers having foreign collaboration. Merely because few manufacturers like the petitioners do not qualify to submit tender, being not in a position to satisfy the terms and conditions laid down, the tender conditions cannot be held to be discriminatory.Certain preconditions or qualifications for tenders have to be laid down to ensure that the contractor has the capacity and the resources to successfully execute the work Article 14 of the Constitution prohibits the government from arbitrarily choosing a contractor at its will and pleasure. It has to act reasonably, fairly and in public interest in awarding contract. At the same time, no person can claim fundamental right to carry on business with the government. All that he can claim is that in competing for the contract, he should not be unfairly treated and discriminated to the detriment of public interest. Undisputedly, the legal position which has been firmly established from various decisions of this Court, cited at the Bar (supra) is that government contracts are highly valuable assets and the court should be prepared to enforce standards of fairness on government in its dealings with tenderers and contractors.The grievance that the terms of notice inviting tender in the present cases virtually creates a monopoly in favour of parties having foreign collaborations, is without substance. Selection of a competent contractor for assigning job of supply of a sophisticated article through an open tender procedure, is not an act of creating monopoly, as is sought to be suggested on behalf of the petitioners. What has been argued is that the terms of the Notices Inviting Tenders deliberately exclude domestic manufacturers and new entrepreneurs in the field. In the absence of any indication from the record that the terms and conditions were tailor-made to promote parties with foreign collaborations and to exclude indigenous manufacturers, judicial interference ins uncalled for.Learned counsel for the petitions argues that the use of the word "approved" in para 2 of clause (v) of rule 50(1) has to be given its natural meaning and cannot be read to mean "selected" through notice inviting tender. In this respect, it is further submitted that the rule making authority has used the word `approved and `approve twice in the same paragraph. The rule read harmoniously rules out selection of sole manufacturer through a tender process. The argument in substance is that every approved licence plate manufacturer can be entrusted with the job of supplying the registration plates and selection of one manufacturer for the job is against the intendment of the rule.The above argument seems attractive but on closer scrutiny is unacceptable. The rule is interpreted to mean that the registration plates can either be issued by RTO to the exclusion of all others or all type approval certificate holders must be allowed to do business of supply in open market. In other words, according to the petitioners, the rule contemplates that if the registering authority does not supply the plates itself, it allows all TAC holders to do the business without anyabove argument based on section 109(3) and the other provisions in Chapter IV of the Act have been suitably replied by the counsel appearing for the respondents. The reasoning advanced on behalf of the respondents is worthy of acceptance. The statutory order of 2001 is expressly issued under section 109 (3) of the Act which no doubt is concerned with construction, equipment and maintenance of motor vehicles. Sub-section (3) of section 109 permits Central Government to " notify that any article or process used by a manufacturer shall conform to such standard as prescribed". The word "manufacturer" is defined in section 2(21A) of the Act to mean a person engaged in the manufacture of the motor vehicles but the definition clause is prefixed by the words "unless the context otherwise requires". I the context of sub-section (3) of section 109, an article to be affixed to the motor vehicle like a high security registration plates is covered by the use of expression "any article or process used by a manufacturer". `In the context if the provision contained in sub-section 3 is read reasonably, an article which is adjunct or necessarily attachable to a motor vehicle, would also be covered in the said expression. The statutory order of 2001 is published in the official gazette. It does not fall outside the scope of sub-section (3) of section 109 of the Act. The expression `any article or process used by a manufacturer has to be construed `in the context as not to restrict the expression `manufacturer to only manufacturer of motor vehicle as defined under section 2 (21A) of the Act. The definition in the Act has to be construed according to the `context and if the `context otherwise indicates a meaningful interpretation is to be given to the words `any article or process used by any manufacturer as used in sub-section 3 of section 109 of the Act. Registration plates are not manufactured by the manufacturer of motor vehicles but for maintenance and operations of motor vehicles, registration plates are necessary. Therefore, manufacturer of registration plates can be subjected to certain standards by a statutory order to be notified and published in accordance with sub-section (3) of section 109 of the Act. Any restrictive interpretation of the said sub-section is neither called for from the language of the sub-section or the object of the provision. Reference is made to the opinion of learned Brother G.P. Mathur J., in these cases. For the reasons mentioned by us above, in our opinion, the statutory order of 2001 and clause 4(x) thereof cannot be held to be beyond the purview of sub-section 3 of section 109 of the Act. Clause 4(x) of the statutory order of 2001, could be issued under section 109(3), as an aid to the fulfillment of provisions of high security registration plates contained in rule 50. Such power of the State to issue order containing clause 4(x) is not only supported by sub-section 3 of section 109 but by rule 50 itself. Clause 4(x) of the statutory order of 2001 is merely enabling one and re-states what rule 50 contemplates. We also find force in the alternative submission made on behalf of the respondents that the statutory order including clause 4(x) can be supported as having been issued in exercise of executive power of the Central Government which is co-extensive with its legislative | 0 | 10,664 | 2,214 | ### Instruction:
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Act says: nothing in this section shall apply to motor vehicle in possession of a dealer subject to such conditions as may be prescribed by the Central Government. Section 41 also points to the same position. It casts an obligation on the owner of a motor vehicle to obtain registration. The question of issuing a certificate of registration and assigning to a motor vehicle a registration mark arises only after sale of motor vehicle. Therefore, until the motor vehicle has been sold to a person by a dealer, the registering authority would not come into the picture and there is no occasion for assigning it a registration mark. A manufacturer of motor vehicle is not at all concerned with registration thereof by the registering authority. On the basis of above interpretation of provisions of the Act, the submission made is that under section 109(3), the Central Government can only prescribe standards for any article or process used by the manufacturer in the manufacturing of the vehicle and not for selecting any manufacturer or registration plates to the exclusion of others. It is submitted that reading sub-section (3) with sub-section (1) & (2) of section 109 of the Act, the position is that the provisions have nothing to do with registration plates of the vehicles. 52. It is further submitted that power to issue directions a contained in para 4(x) of the statutory order of 2001, cannot be traced to any provision in chapter IV of the Act dealing with registration of motor vehicles or to the rule making power under section 64(d). It is submitted that any provision regarding registration plates can only be made by rule framed by Central Government in accordance with provisions of the Act. Sub-section (4) of section 212 of the Act, prescribes a mandatory requirement of first publishing draft rule before making a final rule on any subject. Since in promulgating para 4(x) of the statutory order of 2001, mandatory requirement of section 212(4) has not been complied with, the impugned para of the said statutory order of 2001 cannot be supported even as a statutory rule. The other submission made on the subject is that provisions for selecting only one manufacturer for registration plates in a region or a State is not a subject of prescribing manner and form in which the registration mark would be displayed on the motor vehicles. On the above ground, it is submitted that para 4(x) of the statutory order of 2001 deserves to be struck down as ultra vires the Act. It is violate of the Article 19(1)(g) of the Constitution. 53. The above argument based on section 109(3) and the other provisions in Chapter IV of the Act have been suitably replied by the counsel appearing for the respondents. The reasoning advanced on behalf of the respondents is worthy of acceptance. The statutory order of 2001 is expressly issued under section 109 (3) of the Act which no doubt is concerned with construction, equipment and maintenance of motor vehicles. Sub-section (3) of section 109 permits Central Government to " notify that any article or process used by a manufacturer shall conform to such standard as prescribed". The word "manufacturer" is defined in section 2(21A) of the Act to mean a person engaged in the manufacture of the motor vehicles but the definition clause is prefixed by the words "unless the context otherwise requires". I the context of sub-section (3) of section 109, an article to be affixed to the motor vehicle like a high security registration plates is covered by the use of expression "any article or process used by a manufacturer". `In the context if the provision contained in sub-section 3 is read reasonably, an article which is adjunct or necessarily attachable to a motor vehicle, would also be covered in the said expression. The statutory order of 2001 is published in the official gazette. It does not fall outside the scope of sub-section (3) of section 109 of the Act. The expression `any article or process used by a manufacturer has to be construed `in the context as not to restrict the expression `manufacturer to only manufacturer of motor vehicle as defined under section 2 (21A) of the Act. The definition in the Act has to be construed according to the `context and if the `context otherwise indicates a meaningful interpretation is to be given to the words `any article or process used by any manufacturer as used in sub-section 3 of section 109 of the Act. Registration plates are not manufactured by the manufacturer of motor vehicles but for maintenance and operations of motor vehicles, registration plates are necessary. Therefore, manufacturer of registration plates can be subjected to certain standards by a statutory order to be notified and published in accordance with sub-section (3) of section 109 of the Act. Any restrictive interpretation of the said sub-section is neither called for from the language of the sub-section or the object of the provision. Reference is made to the opinion of learned Brother G.P. Mathur J., in these cases. For the reasons mentioned by us above, in our opinion, the statutory order of 2001 and clause 4(x) thereof cannot be held to be beyond the purview of sub-section 3 of section 109 of the Act. Clause 4(x) of the statutory order of 2001, could be issued under section 109(3), as an aid to the fulfillment of provisions of high security registration plates contained in rule 50. Such power of the State to issue order containing clause 4(x) is not only supported by sub-section 3 of section 109 but by rule 50 itself. Clause 4(x) of the statutory order of 2001 is merely enabling one and re-states what rule 50 contemplates. We also find force in the alternative submission made on behalf of the respondents that the statutory order including clause 4(x) can be supported as having been issued in exercise of executive power of the Central Government which is co-extensive with its legislative power. 54.
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execute the work Article 14 of the Constitution prohibits the government from arbitrarily choosing a contractor at its will and pleasure. It has to act reasonably, fairly and in public interest in awarding contract. At the same time, no person can claim fundamental right to carry on business with the government. All that he can claim is that in competing for the contract, he should not be unfairly treated and discriminated to the detriment of public interest. Undisputedly, the legal position which has been firmly established from various decisions of this Court, cited at the Bar (supra) is that government contracts are highly valuable assets and the court should be prepared to enforce standards of fairness on government in its dealings with tenderers and contractors.The grievance that the terms of notice inviting tender in the present cases virtually creates a monopoly in favour of parties having foreign collaborations, is without substance. Selection of a competent contractor for assigning job of supply of a sophisticated article through an open tender procedure, is not an act of creating monopoly, as is sought to be suggested on behalf of the petitioners. What has been argued is that the terms of the Notices Inviting Tenders deliberately exclude domestic manufacturers and new entrepreneurs in the field. In the absence of any indication from the record that the terms and conditions were tailor-made to promote parties with foreign collaborations and to exclude indigenous manufacturers, judicial interference ins uncalled for.Learned counsel for the petitions argues that the use of the word "approved" in para 2 of clause (v) of rule 50(1) has to be given its natural meaning and cannot be read to mean "selected" through notice inviting tender. In this respect, it is further submitted that the rule making authority has used the word `approved and `approve twice in the same paragraph. The rule read harmoniously rules out selection of sole manufacturer through a tender process. The argument in substance is that every approved licence plate manufacturer can be entrusted with the job of supplying the registration plates and selection of one manufacturer for the job is against the intendment of the rule.The above argument seems attractive but on closer scrutiny is unacceptable. The rule is interpreted to mean that the registration plates can either be issued by RTO to the exclusion of all others or all type approval certificate holders must be allowed to do business of supply in open market. In other words, according to the petitioners, the rule contemplates that if the registering authority does not supply the plates itself, it allows all TAC holders to do the business without anyabove argument based on section 109(3) and the other provisions in Chapter IV of the Act have been suitably replied by the counsel appearing for the respondents. The reasoning advanced on behalf of the respondents is worthy of acceptance. The statutory order of 2001 is expressly issued under section 109 (3) of the Act which no doubt is concerned with construction, equipment and maintenance of motor vehicles. Sub-section (3) of section 109 permits Central Government to " notify that any article or process used by a manufacturer shall conform to such standard as prescribed". The word "manufacturer" is defined in section 2(21A) of the Act to mean a person engaged in the manufacture of the motor vehicles but the definition clause is prefixed by the words "unless the context otherwise requires". I the context of sub-section (3) of section 109, an article to be affixed to the motor vehicle like a high security registration plates is covered by the use of expression "any article or process used by a manufacturer". `In the context if the provision contained in sub-section 3 is read reasonably, an article which is adjunct or necessarily attachable to a motor vehicle, would also be covered in the said expression. The statutory order of 2001 is published in the official gazette. It does not fall outside the scope of sub-section (3) of section 109 of the Act. The expression `any article or process used by a manufacturer has to be construed `in the context as not to restrict the expression `manufacturer to only manufacturer of motor vehicle as defined under section 2 (21A) of the Act. The definition in the Act has to be construed according to the `context and if the `context otherwise indicates a meaningful interpretation is to be given to the words `any article or process used by any manufacturer as used in sub-section 3 of section 109 of the Act. Registration plates are not manufactured by the manufacturer of motor vehicles but for maintenance and operations of motor vehicles, registration plates are necessary. Therefore, manufacturer of registration plates can be subjected to certain standards by a statutory order to be notified and published in accordance with sub-section (3) of section 109 of the Act. Any restrictive interpretation of the said sub-section is neither called for from the language of the sub-section or the object of the provision. Reference is made to the opinion of learned Brother G.P. Mathur J., in these cases. For the reasons mentioned by us above, in our opinion, the statutory order of 2001 and clause 4(x) thereof cannot be held to be beyond the purview of sub-section 3 of section 109 of the Act. Clause 4(x) of the statutory order of 2001, could be issued under section 109(3), as an aid to the fulfillment of provisions of high security registration plates contained in rule 50. Such power of the State to issue order containing clause 4(x) is not only supported by sub-section 3 of section 109 but by rule 50 itself. Clause 4(x) of the statutory order of 2001 is merely enabling one and re-states what rule 50 contemplates. We also find force in the alternative submission made on behalf of the respondents that the statutory order including clause 4(x) can be supported as having been issued in exercise of executive power of the Central Government which is co-extensive with its legislative
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Bhujangarao Daulatrao Vs. Malojirao Daulatrao & Others | not relate to land and in any event are not claims against the Crown.35. In my opinion, this is not a suit in which the rights claimed against the other defendants can be divorced from the claim against Government and considered separately. That is evident enough from para. 10 of the plaint. In para 9 the power of Government to deprive the plaintiff of the rights he claims is challenged and in para. 10 the plaintiff explains that therefore defendants 1 and 2 are not entitled to any of the rights and privileges of the Saranjamdar. One of those rights, as we have seen from Rr. VII and IX is to take the revenues of the entire estate in order that he might fulfil his obligation regarding the payment of maintenance to certain members of the family; and if the defendants claim to hold their lands under the orders of Government and the plaintiff insists on retaining Government as a party in order that it may be bound by the decree he wants against the other defendants it is obvious that his claim against these defendants cannot be separated from this claim against the Government. 36. In any event, if the claim against Government is to be ignored it can only be on the basis that its orders cannot be challenged and if the orders stand it is evident that the plaintiff can have no hope of success because both sides hold their respective properties on the basis of those orders. 37. There are two decisions of the Bombay High Court which have taken his view. Basalingappagouda v. Secy. of State,28 Bom. L. R. 651, was a Watan case. Government had recognised the second defendant as the Watandar. Plaintiff sued Government and the second defendant and sought a declaration and injunction. On being faced with the dilemma that the suit against Government did not lie because of S. 4 (a) (3) of Bombay Revenue Jurisdiction Act of 1876, he asked the Court, as here to leave the Government out of consideration and decree his claim against the second defendant alone. The learned Judges held that that would amount to striking out the main relief sought against both the defendants and would entirely change the character of the suit and added that as long as the Secretary of State is a party to the suit, such a declaration could not be granted. 38. In the other case, Basangauda v. Secy. of State,32 Bom. L. R. 1370, Beaumont C. J. and Baker. J. took the same view. They said : Mr. Gumaste, who appears for the appellant, says that his claim is not a claim against the Government but in that case he ought to strike out the Government. He is not prepared to strike out the Government, because if he does they will not be bound by these proceedings and will follow the decision of their revenue tribunals. Therefore, he wants to make the Government a party in order that they may be bound. But, if they remain a party, it seems to me that there is a claim against them relating to property appertaining to the office of an hereditary officer, although no doubt it is quite true that the appellant does not desire to get any order against the Government as to the way in which the property should be dealt with or anything of the sort, and he only wants a declaration as to his title which will bind Government. 39. That held that the jurisdiction of the Courts was ousted. 40. It was next contended, on the strength of a decision of the Judicial Committee of the Privy Council reported in Province of Bombay v. Hormusji Manekji,74 Ind. App. 103, that the Courts have jurisdiction to decide whether Government acted in excess of its powers and that that question must be decided first. In my opinion, this decision does not apply here. 41. Their Lordships were dealing with a case falling under S. 4 (b), Bombay Revenue Jurisdiction Act of 1876. That provides that: ....... no Civil Court shall exercise jurisdiction as to ...... * * * * (b) objections to the amount or incidence of any assessment of land revenue authorized by the Provincial Government. 42. As pointed out by Strangman K. C., on behalf of the plaintiff-respondent, authorised must mean duly authorised, and in that particular case the impugned assessment would not be duly authorised if the Government Resolution of 11-4-1930 purporting to treat the agreement relied on by the respondent as cancelled and authorising the levy of the full assessment was ultra vires under S. 211 of the Land Revenue Code. Thus, before the exclusion of the Civil Courts jurisdiction under S. 4 (b) could come into play the Court had to determine the issue of ultra vires. Consequently, their Lordships held that that question was outside the scope of the bar. But the position here is different. We are concerned here with S. 4 (a) and under that no question about an authorised act of Government arises. The section is general and barsall claims against the Crown relating to lands . . . . . held as Saranjam. That is to say even if the Governments act in relation to such lands was ultra vires,a claim impugning the validity of such an act would fall within the scope of the exclusion in clause (a) provided it relates to such land. 43. There is a difference of opinion in the Bombay High Court as to whether S. 4 is attracted if the only relief sought against Government is a declaration. One set of decisions holds that does not amount to a claim against Government .Dattatraya Vishwanath v. Secretary of State, I.L.R. (1948) Bom 809 at p. 820, is typical of that view. On the other hand Daulatrao v. Govt. of Bombay,47 Bom. L. R. 214, a case relating to the Gajendragad estate, took the other view. In my opinion, the latter view is correct. | 0[ds]30. It was strenuously contended that this is not a claim against the Crown but one against defendants 1 andThat, in my opinion, is an idle contention in view of paras. 9 and 12 of the plaint and reliefs (a) and (d). In any event, Mr. Somayya was asked whether he would strike out defendant 3 and those portions of the plaint which sought relief against it. He said he was not prepared to do so.I cannot see how a plaintiff can insist on retaining a person against whom he claims no relief as a party. I am clear that this is a suit against the Crown within the meaning of S. 4 (a)31. The next question is whether, assuming that to be the case, it is also one relating to lands held as Saranjam.So far as the reliefs sought against Government are concerned, that is clearly the case. Paragraph 9 of the plaint challenges Governments jurisdiction to deprive the plaintiff of the full benefit of all rights and privileges appertaining to the holder of a Saranjam. These rights cannot exist apart from the lands which form part of the Saranjam estate and the implication of the prayer is that Government has, for example, no right to resume the Saranjam either under Rule 5 on the death of the last Saranjamdar or under R. 9 during his lifetime. It is to be observed that a resumption under R. 9 can only be of the land because the rule directs that when the Saranjam is resumed Government itself shall make provision for the maintenance of those entitled to it out of the revenue of the Saranjam so resumed. These revenues can only come out of the land32. Relief (d) in the prayer clause seeks a declaration that Government have no right to change Resolution No. 8969 dated 7th June 1932. That Resolution directly relates to the land because it directs that the Gajendragad Saranjam be resumed and the Collector is directed to take steps to place the Saranjamdar in possession of the villages of the Saranjamestate etc33. It is impossible to contend that this is not a claim relating to lands held as Saranjam37. There are two decisions of the Bombay High Court which have taken his view. Basalingappagouda v. Secy. of State,28 Bom. L. R. 651, was a Watan case. Government had recognised the second defendant as the Watandar. Plaintiff sued Government and the second defendant and sought a declaration and injunction. On being faced with the dilemma that the suit against Government did not lie because of S. 4 (a) (3) of Bombay Revenue Jurisdiction Act of 1876, he asked the Court, as here to leave the Government out of consideration and decree his claim against the second defendant alone. The learned Judges held that that would amount to striking out the main relief sought against both the defendants and would entirely change the character of the suit and added that as long as the Secretary of State is a party to the suit, such a declaration could not be granted38. In the other case, Basangauda v. Secy. of State,32 Bom. L. R. 1370, Beaumont C. J. and Baker. J. took the same view. They said :Mr. Gumaste, who appears for the appellant, says that his claim is not a claim against the Government but in that case he ought to strike out the Government. He is not prepared to strike out the Government, because if he does they will not be bound by these proceedings and will follow the decision of their revenue tribunals. Therefore, he wants to make the Government a party in order that they may be bound. But, if they remain a party, it seems to me that there is a claim against them relating to property appertaining to the office of an hereditary officer, although no doubt it is quite true that the appellant does not desire to get any order against the Government as to the way in which the property should be dealt with or anything of the sort, and he only wants a declaration as to his title which will bind Government39. That held that the jurisdiction of the Courts was ousted40. It was next contended, on the strength of a decision of the Judicial Committee of the Privy Council reported in Province of Bombay v. Hormusji Manekji,74 Ind. App. 103, that the Courts have jurisdiction to decide whether Government acted in excess of its powers and that that question must be decided first.In my opinion, this decision does not apply here42. As pointed out by Strangman K. C., on behalf of the, authorised must mean duly authorised,and in that particular case the impugned assessment would not be duly authorised if the Government Resolution of0 purporting to treat the agreement relied on by the respondent as cancelled and authorising the levy of the full assessment was ultra vires under S. 211 of the Land Revenue Code. Thus, before the exclusion of the Civil Courts jurisdiction under S. 4 (b) could come into play the Court had to determine the issue of ultra vires. Consequently, their Lordships held that that question was outside the scope of the bar. But the position here is different. We are concerned here with S. 4 (a) and under that no question about an authorised act of Government arises. The section is general and barsall claims against the Crown relating to lands . . . . . held as Saranjam. That is to say even if the Governments act in relation to such lands was ultra vires,a claim impugning the validity of such an act would fall within the scope of the exclusion in clause (a) provided it relates to such land43. There is a difference of opinion in the Bombay High Court as to whether S. 4 is attracted if the only relief sought against Government is a declaration. One set of decisions holds that does not amount to a claim against Government .Dattatraya Vishwanath v. Secretary of State, I.L.R. (1948) Bom 809 at p. 820, is typical of that view. On the other hand Daulatrao v. Govt. of Bombay,47 Bom. L. R. 214, a case relating to the Gajendragad estate, took the other view. In my opinion, the latter view is correct | 0 | 4,851 | 1,161 | ### Instruction:
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not relate to land and in any event are not claims against the Crown.35. In my opinion, this is not a suit in which the rights claimed against the other defendants can be divorced from the claim against Government and considered separately. That is evident enough from para. 10 of the plaint. In para 9 the power of Government to deprive the plaintiff of the rights he claims is challenged and in para. 10 the plaintiff explains that therefore defendants 1 and 2 are not entitled to any of the rights and privileges of the Saranjamdar. One of those rights, as we have seen from Rr. VII and IX is to take the revenues of the entire estate in order that he might fulfil his obligation regarding the payment of maintenance to certain members of the family; and if the defendants claim to hold their lands under the orders of Government and the plaintiff insists on retaining Government as a party in order that it may be bound by the decree he wants against the other defendants it is obvious that his claim against these defendants cannot be separated from this claim against the Government. 36. In any event, if the claim against Government is to be ignored it can only be on the basis that its orders cannot be challenged and if the orders stand it is evident that the plaintiff can have no hope of success because both sides hold their respective properties on the basis of those orders. 37. There are two decisions of the Bombay High Court which have taken his view. Basalingappagouda v. Secy. of State,28 Bom. L. R. 651, was a Watan case. Government had recognised the second defendant as the Watandar. Plaintiff sued Government and the second defendant and sought a declaration and injunction. On being faced with the dilemma that the suit against Government did not lie because of S. 4 (a) (3) of Bombay Revenue Jurisdiction Act of 1876, he asked the Court, as here to leave the Government out of consideration and decree his claim against the second defendant alone. The learned Judges held that that would amount to striking out the main relief sought against both the defendants and would entirely change the character of the suit and added that as long as the Secretary of State is a party to the suit, such a declaration could not be granted. 38. In the other case, Basangauda v. Secy. of State,32 Bom. L. R. 1370, Beaumont C. J. and Baker. J. took the same view. They said : Mr. Gumaste, who appears for the appellant, says that his claim is not a claim against the Government but in that case he ought to strike out the Government. He is not prepared to strike out the Government, because if he does they will not be bound by these proceedings and will follow the decision of their revenue tribunals. Therefore, he wants to make the Government a party in order that they may be bound. But, if they remain a party, it seems to me that there is a claim against them relating to property appertaining to the office of an hereditary officer, although no doubt it is quite true that the appellant does not desire to get any order against the Government as to the way in which the property should be dealt with or anything of the sort, and he only wants a declaration as to his title which will bind Government. 39. That held that the jurisdiction of the Courts was ousted. 40. It was next contended, on the strength of a decision of the Judicial Committee of the Privy Council reported in Province of Bombay v. Hormusji Manekji,74 Ind. App. 103, that the Courts have jurisdiction to decide whether Government acted in excess of its powers and that that question must be decided first. In my opinion, this decision does not apply here. 41. Their Lordships were dealing with a case falling under S. 4 (b), Bombay Revenue Jurisdiction Act of 1876. That provides that: ....... no Civil Court shall exercise jurisdiction as to ...... * * * * (b) objections to the amount or incidence of any assessment of land revenue authorized by the Provincial Government. 42. As pointed out by Strangman K. C., on behalf of the plaintiff-respondent, authorised must mean duly authorised, and in that particular case the impugned assessment would not be duly authorised if the Government Resolution of 11-4-1930 purporting to treat the agreement relied on by the respondent as cancelled and authorising the levy of the full assessment was ultra vires under S. 211 of the Land Revenue Code. Thus, before the exclusion of the Civil Courts jurisdiction under S. 4 (b) could come into play the Court had to determine the issue of ultra vires. Consequently, their Lordships held that that question was outside the scope of the bar. But the position here is different. We are concerned here with S. 4 (a) and under that no question about an authorised act of Government arises. The section is general and barsall claims against the Crown relating to lands . . . . . held as Saranjam. That is to say even if the Governments act in relation to such lands was ultra vires,a claim impugning the validity of such an act would fall within the scope of the exclusion in clause (a) provided it relates to such land. 43. There is a difference of opinion in the Bombay High Court as to whether S. 4 is attracted if the only relief sought against Government is a declaration. One set of decisions holds that does not amount to a claim against Government .Dattatraya Vishwanath v. Secretary of State, I.L.R. (1948) Bom 809 at p. 820, is typical of that view. On the other hand Daulatrao v. Govt. of Bombay,47 Bom. L. R. 214, a case relating to the Gajendragad estate, took the other view. In my opinion, the latter view is correct.
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asked whether he would strike out defendant 3 and those portions of the plaint which sought relief against it. He said he was not prepared to do so.I cannot see how a plaintiff can insist on retaining a person against whom he claims no relief as a party. I am clear that this is a suit against the Crown within the meaning of S. 4 (a)31. The next question is whether, assuming that to be the case, it is also one relating to lands held as Saranjam.So far as the reliefs sought against Government are concerned, that is clearly the case. Paragraph 9 of the plaint challenges Governments jurisdiction to deprive the plaintiff of the full benefit of all rights and privileges appertaining to the holder of a Saranjam. These rights cannot exist apart from the lands which form part of the Saranjam estate and the implication of the prayer is that Government has, for example, no right to resume the Saranjam either under Rule 5 on the death of the last Saranjamdar or under R. 9 during his lifetime. It is to be observed that a resumption under R. 9 can only be of the land because the rule directs that when the Saranjam is resumed Government itself shall make provision for the maintenance of those entitled to it out of the revenue of the Saranjam so resumed. These revenues can only come out of the land32. Relief (d) in the prayer clause seeks a declaration that Government have no right to change Resolution No. 8969 dated 7th June 1932. That Resolution directly relates to the land because it directs that the Gajendragad Saranjam be resumed and the Collector is directed to take steps to place the Saranjamdar in possession of the villages of the Saranjamestate etc33. It is impossible to contend that this is not a claim relating to lands held as Saranjam37. There are two decisions of the Bombay High Court which have taken his view. Basalingappagouda v. Secy. of State,28 Bom. L. R. 651, was a Watan case. Government had recognised the second defendant as the Watandar. Plaintiff sued Government and the second defendant and sought a declaration and injunction. On being faced with the dilemma that the suit against Government did not lie because of S. 4 (a) (3) of Bombay Revenue Jurisdiction Act of 1876, he asked the Court, as here to leave the Government out of consideration and decree his claim against the second defendant alone. The learned Judges held that that would amount to striking out the main relief sought against both the defendants and would entirely change the character of the suit and added that as long as the Secretary of State is a party to the suit, such a declaration could not be granted38. In the other case, Basangauda v. Secy. of State,32 Bom. L. R. 1370, Beaumont C. J. and Baker. J. took the same view. They said :Mr. Gumaste, who appears for the appellant, says that his claim is not a claim against the Government but in that case he ought to strike out the Government. He is not prepared to strike out the Government, because if he does they will not be bound by these proceedings and will follow the decision of their revenue tribunals. Therefore, he wants to make the Government a party in order that they may be bound. But, if they remain a party, it seems to me that there is a claim against them relating to property appertaining to the office of an hereditary officer, although no doubt it is quite true that the appellant does not desire to get any order against the Government as to the way in which the property should be dealt with or anything of the sort, and he only wants a declaration as to his title which will bind Government39. That held that the jurisdiction of the Courts was ousted40. It was next contended, on the strength of a decision of the Judicial Committee of the Privy Council reported in Province of Bombay v. Hormusji Manekji,74 Ind. App. 103, that the Courts have jurisdiction to decide whether Government acted in excess of its powers and that that question must be decided first.In my opinion, this decision does not apply here42. As pointed out by Strangman K. C., on behalf of the, authorised must mean duly authorised,and in that particular case the impugned assessment would not be duly authorised if the Government Resolution of0 purporting to treat the agreement relied on by the respondent as cancelled and authorising the levy of the full assessment was ultra vires under S. 211 of the Land Revenue Code. Thus, before the exclusion of the Civil Courts jurisdiction under S. 4 (b) could come into play the Court had to determine the issue of ultra vires. Consequently, their Lordships held that that question was outside the scope of the bar. But the position here is different. We are concerned here with S. 4 (a) and under that no question about an authorised act of Government arises. The section is general and barsall claims against the Crown relating to lands . . . . . held as Saranjam. That is to say even if the Governments act in relation to such lands was ultra vires,a claim impugning the validity of such an act would fall within the scope of the exclusion in clause (a) provided it relates to such land43. There is a difference of opinion in the Bombay High Court as to whether S. 4 is attracted if the only relief sought against Government is a declaration. One set of decisions holds that does not amount to a claim against Government .Dattatraya Vishwanath v. Secretary of State, I.L.R. (1948) Bom 809 at p. 820, is typical of that view. On the other hand Daulatrao v. Govt. of Bombay,47 Bom. L. R. 214, a case relating to the Gajendragad estate, took the other view. In my opinion, the latter view is correct
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CHOTANBEN Vs. KIRITBHAI JALKRUSHNABHAI THAKKAR | dated 18 th October, 1996. The limitation to challenge the registered sale deed ordinarily would start running from the date on which the sale deed was registered. However, the specific case of the appellants (plaintiffs) is that until 2013 they had no knowledge whatsoever regarding execution of such sale deed by their brothers - original defendant Nos.1 & 2, in favour of Jaikrishnabhai Prabhudas Thakkar or defendant Nos.3 to 6. They acquired that knowledge on 26.12.2012 and immediately took steps to obtain a certified copy of the registered sale deed and on receipt thereof they realised the fraud played on them by their brothers concerning the ancestral property and two days prior to the filing of the suit, had approached their brothers (original defendant Nos.1 & 2) calling upon them to stop interfering with their possession and to partition the property and provide exclusive possession of half (1/2) portion of the land so designated towards their share. However, when they realized that the original defendant Nos.1 & 2 would not pay any heed to their request, they had no other option but to approach the court of law and filed the subject suit within two days therefrom. According to the appellants, the suit has been filed within time after acquiring the knowledge about the execution of the registered sale deed. In this context, the Trial Court opined that it was a triable issue and declined to accept the application filed by respondent No.1 (defendant No.5) for rejection of the plaint under Order VII Rule 11(d). That view commends to us.13. The High Court on the other hand, has considered the matter on the basis of conjectures and surmises and not even bothered to analyse the averments in the plaint, although it has passed a speaking order running into 19 paragraphs. It has attempted to answer the issue in one paragraph which has been reproduced hitherto (in paragraph 7). The approach of the Trial Court, on the other hand, was consistent with the settled legal position expounded in Saleem Bhai and Others Vs. State of Maharashtra and Others 1 , Mayar (H.K.) Ltd. and Others Vs. Owners & Parties, Vessel M.V. Fortune Express and Others 2 and also T. Arivandandam Vs. T.V. Satyapal and Another 3 .14. These decisions have been noted in the case of Church of Christ Charitable Trust and Educational Charitable Society Vs. Ponniamman Educational Trust, 4 where this Court, in paragraph 11, observed thus:?11. This position was explained by this Court in Saleem Bhai v. State of Maharashtra, in which, while considering Order 7 Rule 11 of the Code, it was held as under: (SCC p. 560, para 9)?9. A perusal of Order 7 Rule 11 CPC makes it clear that the relevant facts which need to be looked into for deciding an application thereunder are the averments in the plaint. The trial court can exercise the power under Order 7 Rule 11 CPC at any stage of the suit—before registering the plaint or after issuing summons to the defendant at any time before the conclusion of the trial. For the purposes of deciding an application under clauses (a) and (d) of Rule 11 of Order 7 CPC, the averments in the plaint are germane; the pleas taken by the defendant in the written statement would be wholly irrelevant at that stage, therefore, a direction to file the written statement without deciding the application under Order 7 Rule 11 CPC cannot but be procedural irregularity touching the exercise of jurisdiction by the trial court.?It is clear that in order to consider Order 7 Rule 11, the court has to look into the averments in the plaint and the same can be exercised by the trial court at any stage of the suit. It is also clear that the averments in the written statement are immaterial and it is the duty of the Court to scrutinise the averments/pleas in the plaint. In other words, what needs to be looked into in deciding such an application are the averments in the plaint. At that stage, the pleas taken by the defendant in the written statement are wholly irrelevant and the matter is to be decided only on the plaint averments. These principles have been reiterated in Raptakos Brett & Co. Ltd. v. Ganesh Property and Mayar (H.K.) Ltd. v. Vessel M.V. Fortune Express.?15. The High Court has adverted to the case of Church of Christ Charitable Trust and Educational Charitable Society (supra), which had occasion to consider the correctness of the view taken by the High Court in ordering rejection of the plaint in part, against one defendant, on the ground that it did not disclose any cause of action qua that defendant. The High Court has also noted the decision relied upon by the contesting respondents in the case of Mayur (H.K.) Ltd. and Ors. (supra), which has restated the settled legal position about the scope of power of the Court to reject the plaint under Order VII Rule 11(d) of CPC.16. In the present case, we find that the appellants (plaintiffs) have asserted that the suit was filed immediately after getting knowledge about the fraudulent sale deed executed by original defendant Nos.1 & 2 by keeping them in the dark about such execution and within two days from the refusal by the original defendant Nos.1 & 2 to refrain from obstructing the peaceful enjoyment of use and possession of the ancestral property of the appellants. We affirm the view taken by the Trial Court that the issue regarding the suit being barred by limitation in the facts of the present case, is a triable issue and for which reason the plaint cannot be rejected at the threshold in exercise of the power under Order VII Rule 11(d).17. In the above conspectus, we have no hesitation in reversing the view taken by the High Court and restoring the order of the Trial Court rejecting the application (Exh.21) filed by respondent No.1 (defendant No.5) under Order VII Rule 11(d). | 1[ds]11. After having cogitated over the averments in the plaint and the reasons recorded by the Trial Court as well as the High Court, we have no manner of doubt that the High Court committed manifest error in reversing the view taken by the Trial Court that the factum of suit being barred by limitation, was a triable issue in the fact situation of the present case. We say so because the appellants (plaintiffs) have asserted that until 2013 they had no knowledge whatsoever about the execution of the registered sale deed concerning their ancestral property. Further, they have denied the thumb impressions on the registered sale deed as belonging to them and have alleged forgery and impersonation. In the context of totality of averments in the plaint and the reliefs claimed, which of the Articles from amongst Articles 56, 58, 59, 65 or 110 or any other Article of the Limitation Act will apply to the facts of the present case, may have to be considered at the appropriateto the appellants, the suit has been filed within time after acquiring the knowledge about the execution of the registered sale deed.In this context, the Trial Court opined that it was a triable issue and declined to accept the application filed by respondent No.1 (defendant No.5) for rejection of the plaint under Order VII Rule 11(d). That view commends to us.13. The High Court on the other hand, has considered the matter on the basis of conjectures and surmises and not even bothered to analyse the averments in the plaint, although it has passed a speaking order running into 19 paragraphs. It has attempted to answer the issue in one paragraph which has been reproduced hitherto (in paragraph 7). The approach of the Trial Court, on the other hand, was consistent with the settled legal position expounded in Saleem Bhai and Others Vs. State of Maharashtra and Others 1 , Mayar (H.K.) Ltd. and Others Vs. Owners & Parties, Vessel M.V. Fortune Express and Others 2 and also T. Arivandandam Vs. T.V. Satyapal and Another 3 ..16. In the present case, we find that the appellants (plaintiffs) have asserted that the suit was filed immediately after getting knowledge about the fraudulent sale deed executed by original defendant Nos.1 & 2 by keeping them in the dark about such execution and within two days from the refusal by the original defendant Nos.1 & 2 to refrain from obstructing the peaceful enjoyment of use and possession of the ancestral property of the appellants. We affirm the view taken by the Trial Court that the issue regarding the suit being barred by limitation in the facts of the present case, is a triable issue and for which reason the plaint cannot be rejected at the threshold in exercise of the power under Order VII Rule 11(d).17. In the above conspectus, we have no hesitation in reversing the view taken by the High Court and restoring the order of the Trial Court rejecting the application (Exh.21) filed by respondent No.1 (defendant No.5) under Order VII Rule 11(d). | 1 | 4,644 | 575 | ### 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:
dated 18 th October, 1996. The limitation to challenge the registered sale deed ordinarily would start running from the date on which the sale deed was registered. However, the specific case of the appellants (plaintiffs) is that until 2013 they had no knowledge whatsoever regarding execution of such sale deed by their brothers - original defendant Nos.1 & 2, in favour of Jaikrishnabhai Prabhudas Thakkar or defendant Nos.3 to 6. They acquired that knowledge on 26.12.2012 and immediately took steps to obtain a certified copy of the registered sale deed and on receipt thereof they realised the fraud played on them by their brothers concerning the ancestral property and two days prior to the filing of the suit, had approached their brothers (original defendant Nos.1 & 2) calling upon them to stop interfering with their possession and to partition the property and provide exclusive possession of half (1/2) portion of the land so designated towards their share. However, when they realized that the original defendant Nos.1 & 2 would not pay any heed to their request, they had no other option but to approach the court of law and filed the subject suit within two days therefrom. According to the appellants, the suit has been filed within time after acquiring the knowledge about the execution of the registered sale deed. In this context, the Trial Court opined that it was a triable issue and declined to accept the application filed by respondent No.1 (defendant No.5) for rejection of the plaint under Order VII Rule 11(d). That view commends to us.13. The High Court on the other hand, has considered the matter on the basis of conjectures and surmises and not even bothered to analyse the averments in the plaint, although it has passed a speaking order running into 19 paragraphs. It has attempted to answer the issue in one paragraph which has been reproduced hitherto (in paragraph 7). The approach of the Trial Court, on the other hand, was consistent with the settled legal position expounded in Saleem Bhai and Others Vs. State of Maharashtra and Others 1 , Mayar (H.K.) Ltd. and Others Vs. Owners & Parties, Vessel M.V. Fortune Express and Others 2 and also T. Arivandandam Vs. T.V. Satyapal and Another 3 .14. These decisions have been noted in the case of Church of Christ Charitable Trust and Educational Charitable Society Vs. Ponniamman Educational Trust, 4 where this Court, in paragraph 11, observed thus:?11. This position was explained by this Court in Saleem Bhai v. State of Maharashtra, in which, while considering Order 7 Rule 11 of the Code, it was held as under: (SCC p. 560, para 9)?9. A perusal of Order 7 Rule 11 CPC makes it clear that the relevant facts which need to be looked into for deciding an application thereunder are the averments in the plaint. The trial court can exercise the power under Order 7 Rule 11 CPC at any stage of the suit—before registering the plaint or after issuing summons to the defendant at any time before the conclusion of the trial. For the purposes of deciding an application under clauses (a) and (d) of Rule 11 of Order 7 CPC, the averments in the plaint are germane; the pleas taken by the defendant in the written statement would be wholly irrelevant at that stage, therefore, a direction to file the written statement without deciding the application under Order 7 Rule 11 CPC cannot but be procedural irregularity touching the exercise of jurisdiction by the trial court.?It is clear that in order to consider Order 7 Rule 11, the court has to look into the averments in the plaint and the same can be exercised by the trial court at any stage of the suit. It is also clear that the averments in the written statement are immaterial and it is the duty of the Court to scrutinise the averments/pleas in the plaint. In other words, what needs to be looked into in deciding such an application are the averments in the plaint. At that stage, the pleas taken by the defendant in the written statement are wholly irrelevant and the matter is to be decided only on the plaint averments. These principles have been reiterated in Raptakos Brett & Co. Ltd. v. Ganesh Property and Mayar (H.K.) Ltd. v. Vessel M.V. Fortune Express.?15. The High Court has adverted to the case of Church of Christ Charitable Trust and Educational Charitable Society (supra), which had occasion to consider the correctness of the view taken by the High Court in ordering rejection of the plaint in part, against one defendant, on the ground that it did not disclose any cause of action qua that defendant. The High Court has also noted the decision relied upon by the contesting respondents in the case of Mayur (H.K.) Ltd. and Ors. (supra), which has restated the settled legal position about the scope of power of the Court to reject the plaint under Order VII Rule 11(d) of CPC.16. In the present case, we find that the appellants (plaintiffs) have asserted that the suit was filed immediately after getting knowledge about the fraudulent sale deed executed by original defendant Nos.1 & 2 by keeping them in the dark about such execution and within two days from the refusal by the original defendant Nos.1 & 2 to refrain from obstructing the peaceful enjoyment of use and possession of the ancestral property of the appellants. We affirm the view taken by the Trial Court that the issue regarding the suit being barred by limitation in the facts of the present case, is a triable issue and for which reason the plaint cannot be rejected at the threshold in exercise of the power under Order VII Rule 11(d).17. In the above conspectus, we have no hesitation in reversing the view taken by the High Court and restoring the order of the Trial Court rejecting the application (Exh.21) filed by respondent No.1 (defendant No.5) under Order VII Rule 11(d).
### Response:
1
### Explanation:
11. After having cogitated over the averments in the plaint and the reasons recorded by the Trial Court as well as the High Court, we have no manner of doubt that the High Court committed manifest error in reversing the view taken by the Trial Court that the factum of suit being barred by limitation, was a triable issue in the fact situation of the present case. We say so because the appellants (plaintiffs) have asserted that until 2013 they had no knowledge whatsoever about the execution of the registered sale deed concerning their ancestral property. Further, they have denied the thumb impressions on the registered sale deed as belonging to them and have alleged forgery and impersonation. In the context of totality of averments in the plaint and the reliefs claimed, which of the Articles from amongst Articles 56, 58, 59, 65 or 110 or any other Article of the Limitation Act will apply to the facts of the present case, may have to be considered at the appropriateto the appellants, the suit has been filed within time after acquiring the knowledge about the execution of the registered sale deed.In this context, the Trial Court opined that it was a triable issue and declined to accept the application filed by respondent No.1 (defendant No.5) for rejection of the plaint under Order VII Rule 11(d). That view commends to us.13. The High Court on the other hand, has considered the matter on the basis of conjectures and surmises and not even bothered to analyse the averments in the plaint, although it has passed a speaking order running into 19 paragraphs. It has attempted to answer the issue in one paragraph which has been reproduced hitherto (in paragraph 7). The approach of the Trial Court, on the other hand, was consistent with the settled legal position expounded in Saleem Bhai and Others Vs. State of Maharashtra and Others 1 , Mayar (H.K.) Ltd. and Others Vs. Owners & Parties, Vessel M.V. Fortune Express and Others 2 and also T. Arivandandam Vs. T.V. Satyapal and Another 3 ..16. In the present case, we find that the appellants (plaintiffs) have asserted that the suit was filed immediately after getting knowledge about the fraudulent sale deed executed by original defendant Nos.1 & 2 by keeping them in the dark about such execution and within two days from the refusal by the original defendant Nos.1 & 2 to refrain from obstructing the peaceful enjoyment of use and possession of the ancestral property of the appellants. We affirm the view taken by the Trial Court that the issue regarding the suit being barred by limitation in the facts of the present case, is a triable issue and for which reason the plaint cannot be rejected at the threshold in exercise of the power under Order VII Rule 11(d).17. In the above conspectus, we have no hesitation in reversing the view taken by the High Court and restoring the order of the Trial Court rejecting the application (Exh.21) filed by respondent No.1 (defendant No.5) under Order VII Rule 11(d).
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Commissioner Of Income-Tax, Bombay City-1, Bombay Vs. National Storage Pvt. Ltd., Bombay | profession or vocation carried on by him." 9. The word business" is defined in S. 2(4) to include any trade, commerce, or manufacture or any adventure or concern in the nature of trade, commerce or manufacture." 10. The question which really arises in the present case is whether the assessee is carrying on any business, i. e., is it carrying on any adventure or concern in the nature of trade, commerce or manufacture? If it is carrying on any adventure or concern in the nature of trade, then Section 9 specifically excludes the income derived from property from computation under Section 9 if the property is occupied for the purpose of adventure or concern. Similar questions have arisen under the English Income-tax Act. Though the scheme of the English Income-tax Act is different, some of the cases throw light on the question as to "what is adventure or concern in the nature of trade." In the Governors of the Rotunda Hospital, Dublin v. Coman, (1919) 7 Tax Cas 517, the Governors of a maternity hospital established for charitable purposes were owners of a building which comprised rooms adapted for public entertainments, and which was connected with the hospital buildings proper by an internal passage. The hospital derived a substantial income from letting the rooms for public entertainments, concerts, etc., for periods varying from one night to six months and applied the income to the general maintenance of the hospital. The rooms were let upon terms which included the provision of seating, heating, and attendance, but an additional charge was made for gas and electricity consumed. The House of Lords held that the profits derived from the letting of the rooms were assessable to Income Tax under Schedule D, either under Case I, as the profits of a trade or business or under Case VI of that Schedule. 11. The learned counsel for the assessee strongly relies on this case. It seems to us that the reasoning of the Law Lords in their speeches does assist the assessee. The Lord Chancellor observed at p. 582:"Profits are undoubtedly received in the present case which are applied to charitable purposes, but they are profits derived not merely from the letting of the tenement but from its being let properly equipped for entertainments, with seats, lighting, heating and attendance. The subject which is hired out is a complex one. The mere tenement as it stands, without furniture etc. would be almost useless for entertainments. The business of the Governors in respect of those entertainments is to have the hall properly fitted and prepared for being hired out for such uses. The profits fall under Schedule D, and to such profits the allowance in question has no application as they cannot be properly described as rents or profits of lands, tenements, hereditaments or heritages. They are the proceeds of a concern in the nature of a trade which is carried on by the Governors, and consists in finding tenants and having the rooms so equipped as to be suitable for letting." In our view the High Court was right in holding that the assessee was carrying on an adventure or concern in the nature of trade. The assessee not only constructed vaults of special design and special doors and electric fittings, but it also rendered other services to the vault-holders. It installed fire alarm and was incurring expenditure for the maintenance of fire alarm by paying charges to the Municipality. Two Railway Booking Offices were opened in the premises for the despatch and receipt of film parcels. This it appears to us, is a valuable service. It also maintained a regular staff consisting of a secretary, a peon a watchman and a sweeper, and apart from that it paid for the entire staff of the Indian Motion Picture Distributors Association an amount of Rs. 800 per month for services rendered to the licensees. These vaults could only be used for the specific purpose of storing of films and other activities connected with the examination, repairs, cleaning, waxing and rewinding of the films. 12. But the learned counsel for the Commissioner says that Section 9 applies because the assessee cannot be said to be in occupation of the premises for the purpose of any concern of its own. He says that the licensees were in possession of the vaults as lessees and not merely as licensees.But, in our opinion, the agreements are licenses and not leases. The assessee kept the key of the entrance which permitted access to the vaults in its own exclusive possession. The assessee was thus in occupation of all the premises for the purpose of its own concern, the concern being the hiring out of specially built vaults and providing special services to the licensees.As observed by the Lord Chancellor in (1919) 7 Tax Cas 517 "the subject which is hired out is a complex one" and the return received by the assessee is not the income derived from the exercise of property rights only but is derived from carrying on adventure or concern in the nature of trade. 13. There is no force in the sixth submission of the learned counsel for the appellant because the Indian Income-tax Act does not contemplate assessment of property under Section 9 in respect of the rental income and assessment under Section 10 in respect of the extra income derived from the carrying on of an adventure or concern in the nature of trade if the assessee is in occupation of the premises for the purposes of the business. The scheme of the English Act is different and special statutory provisions exist in the English Income-tax Act (see Rule 5, Schedule D. English Income-tax Act, 1918). 14. A number of other cases have been cited before us but it is not necessary to deal with them because the answer to the question whether an activity is an adventure or concern in the nature of trade or business must depend upon the facts of each case. | 0[ds]It is not disputed that the scheme of the Indian Income-tax Act, 1922, is that the various heads of income, profits and gains enumerated in Section 6 are mutually exclusive, each head being specific to cover the item arising from a particular source. Further "whether an income falls under one head or another has to be decided according to the common notions of practical men for the Act does not provide any guidance in the matterIf it is carrying on any adventure or concern in the nature of trade, then Section 9 specifically excludes the income derived from property from computation under Section 9 if the property is occupied for the purpose of adventure or concernIt seems to us that the reasoning of the Law Lords in their speeches does assist the assesseeIn our view the High Court was right in holding that the assessee was carrying on an adventure or concern in the nature of trade. The assessee not only constructed vaults of special design and special doors and electric fittings, but it also rendered other services to the vault-holders. It installed fire alarm and was incurring expenditure for the maintenance of fire alarm by paying charges to the Municipality. Two Railway Booking Offices were opened in the premises for the despatch and receipt of film parcels. This it appears to us, is a valuable service. It also maintained a regular staff consisting of a secretary, a peon a watchman and a sweeper, and apart from that it paid for the entire staff of the Indian Motion Picture Distributors Association an amount of Rs. 800 per month for services rendered to the licensees. These vaults could only be used for the specific purpose of storing of films and other activities connected with the examination, repairs, cleaning, waxing and rewinding of the films12. But the learned counsel for the Commissioner says that Section 9 applies because the assessee cannot be said to be in occupation of the premises for the purpose of any concern of its own. He says that the licensees were in possession of the vaults as lessees and not merely as licensees.But, in our opinion, the agreements are licenses and not leases. The assessee kept the key of the entrance which permitted access to the vaults in its own exclusive possession. The assessee was thus in occupation of all the premises for the purpose of its own concern, the concern being the hiring out of specially built vaults and providing special services to the licensees13. There is no force in the sixth submission of the learned counsel for the appellant because the Indian Income-tax Act does not contemplate assessment of property under Section 9 in respect of the rental income and assessment under Section 10 in respect of the extra income derived from the carrying on of an adventure or concern in the nature of trade if the assessee is in occupation of the premises for the purposes of the business. The scheme of the English Act is different and special statutory provisions exist in the English Income-tax Act14. A number of other cases have been cited before us but it is not necessary to deal with them because the answer to the question whether an activity is an adventure or concern in the nature of trade or business must depend upon the facts of each case. | 0 | 3,325 | 597 | ### 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:
profession or vocation carried on by him." 9. The word business" is defined in S. 2(4) to include any trade, commerce, or manufacture or any adventure or concern in the nature of trade, commerce or manufacture." 10. The question which really arises in the present case is whether the assessee is carrying on any business, i. e., is it carrying on any adventure or concern in the nature of trade, commerce or manufacture? If it is carrying on any adventure or concern in the nature of trade, then Section 9 specifically excludes the income derived from property from computation under Section 9 if the property is occupied for the purpose of adventure or concern. Similar questions have arisen under the English Income-tax Act. Though the scheme of the English Income-tax Act is different, some of the cases throw light on the question as to "what is adventure or concern in the nature of trade." In the Governors of the Rotunda Hospital, Dublin v. Coman, (1919) 7 Tax Cas 517, the Governors of a maternity hospital established for charitable purposes were owners of a building which comprised rooms adapted for public entertainments, and which was connected with the hospital buildings proper by an internal passage. The hospital derived a substantial income from letting the rooms for public entertainments, concerts, etc., for periods varying from one night to six months and applied the income to the general maintenance of the hospital. The rooms were let upon terms which included the provision of seating, heating, and attendance, but an additional charge was made for gas and electricity consumed. The House of Lords held that the profits derived from the letting of the rooms were assessable to Income Tax under Schedule D, either under Case I, as the profits of a trade or business or under Case VI of that Schedule. 11. The learned counsel for the assessee strongly relies on this case. It seems to us that the reasoning of the Law Lords in their speeches does assist the assessee. The Lord Chancellor observed at p. 582:"Profits are undoubtedly received in the present case which are applied to charitable purposes, but they are profits derived not merely from the letting of the tenement but from its being let properly equipped for entertainments, with seats, lighting, heating and attendance. The subject which is hired out is a complex one. The mere tenement as it stands, without furniture etc. would be almost useless for entertainments. The business of the Governors in respect of those entertainments is to have the hall properly fitted and prepared for being hired out for such uses. The profits fall under Schedule D, and to such profits the allowance in question has no application as they cannot be properly described as rents or profits of lands, tenements, hereditaments or heritages. They are the proceeds of a concern in the nature of a trade which is carried on by the Governors, and consists in finding tenants and having the rooms so equipped as to be suitable for letting." In our view the High Court was right in holding that the assessee was carrying on an adventure or concern in the nature of trade. The assessee not only constructed vaults of special design and special doors and electric fittings, but it also rendered other services to the vault-holders. It installed fire alarm and was incurring expenditure for the maintenance of fire alarm by paying charges to the Municipality. Two Railway Booking Offices were opened in the premises for the despatch and receipt of film parcels. This it appears to us, is a valuable service. It also maintained a regular staff consisting of a secretary, a peon a watchman and a sweeper, and apart from that it paid for the entire staff of the Indian Motion Picture Distributors Association an amount of Rs. 800 per month for services rendered to the licensees. These vaults could only be used for the specific purpose of storing of films and other activities connected with the examination, repairs, cleaning, waxing and rewinding of the films. 12. But the learned counsel for the Commissioner says that Section 9 applies because the assessee cannot be said to be in occupation of the premises for the purpose of any concern of its own. He says that the licensees were in possession of the vaults as lessees and not merely as licensees.But, in our opinion, the agreements are licenses and not leases. The assessee kept the key of the entrance which permitted access to the vaults in its own exclusive possession. The assessee was thus in occupation of all the premises for the purpose of its own concern, the concern being the hiring out of specially built vaults and providing special services to the licensees.As observed by the Lord Chancellor in (1919) 7 Tax Cas 517 "the subject which is hired out is a complex one" and the return received by the assessee is not the income derived from the exercise of property rights only but is derived from carrying on adventure or concern in the nature of trade. 13. There is no force in the sixth submission of the learned counsel for the appellant because the Indian Income-tax Act does not contemplate assessment of property under Section 9 in respect of the rental income and assessment under Section 10 in respect of the extra income derived from the carrying on of an adventure or concern in the nature of trade if the assessee is in occupation of the premises for the purposes of the business. The scheme of the English Act is different and special statutory provisions exist in the English Income-tax Act (see Rule 5, Schedule D. English Income-tax Act, 1918). 14. A number of other cases have been cited before us but it is not necessary to deal with them because the answer to the question whether an activity is an adventure or concern in the nature of trade or business must depend upon the facts of each case.
### Response:
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### Explanation:
It is not disputed that the scheme of the Indian Income-tax Act, 1922, is that the various heads of income, profits and gains enumerated in Section 6 are mutually exclusive, each head being specific to cover the item arising from a particular source. Further "whether an income falls under one head or another has to be decided according to the common notions of practical men for the Act does not provide any guidance in the matterIf it is carrying on any adventure or concern in the nature of trade, then Section 9 specifically excludes the income derived from property from computation under Section 9 if the property is occupied for the purpose of adventure or concernIt seems to us that the reasoning of the Law Lords in their speeches does assist the assesseeIn our view the High Court was right in holding that the assessee was carrying on an adventure or concern in the nature of trade. The assessee not only constructed vaults of special design and special doors and electric fittings, but it also rendered other services to the vault-holders. It installed fire alarm and was incurring expenditure for the maintenance of fire alarm by paying charges to the Municipality. Two Railway Booking Offices were opened in the premises for the despatch and receipt of film parcels. This it appears to us, is a valuable service. It also maintained a regular staff consisting of a secretary, a peon a watchman and a sweeper, and apart from that it paid for the entire staff of the Indian Motion Picture Distributors Association an amount of Rs. 800 per month for services rendered to the licensees. These vaults could only be used for the specific purpose of storing of films and other activities connected with the examination, repairs, cleaning, waxing and rewinding of the films12. But the learned counsel for the Commissioner says that Section 9 applies because the assessee cannot be said to be in occupation of the premises for the purpose of any concern of its own. He says that the licensees were in possession of the vaults as lessees and not merely as licensees.But, in our opinion, the agreements are licenses and not leases. The assessee kept the key of the entrance which permitted access to the vaults in its own exclusive possession. The assessee was thus in occupation of all the premises for the purpose of its own concern, the concern being the hiring out of specially built vaults and providing special services to the licensees13. There is no force in the sixth submission of the learned counsel for the appellant because the Indian Income-tax Act does not contemplate assessment of property under Section 9 in respect of the rental income and assessment under Section 10 in respect of the extra income derived from the carrying on of an adventure or concern in the nature of trade if the assessee is in occupation of the premises for the purposes of the business. The scheme of the English Act is different and special statutory provisions exist in the English Income-tax Act14. A number of other cases have been cited before us but it is not necessary to deal with them because the answer to the question whether an activity is an adventure or concern in the nature of trade or business must depend upon the facts of each case.
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Vodafone India Services Private Limited Vs. Union of India | it is deemed to accrue, arise or received. The charge-ability to tax is when right to receive an income becomes vested in the assessee. However, the issue under consideration is different viz: whether the amount said to accrue, arise or receive is at all income. The issue of shares to the holding company is a capital account transaction, therefore, has nothing to do with income. We, thus do not find substance in the above submission.44. It was also contended that Chapter X of the Act is a complete code by itself and not merely a machinery provision to compute the ALP. It is a hidden benefit of the transaction which is being charged to tax and the charging Section is inherent in Chapter X of the Act. It is well settled position in law that a charge to tax must be found specifically mentioned in the Act. In the absence of there being a charging Section in Chapter X of the Act, it is not possible to read a charging provision into Chapter X of the Act. We can do no better than refer to the following observations of the five Member Bench of the Apex Court in CIT v. Vatika Township (P.) Ltd. [2011] 49 taxmann.com 249:—Tax laws are clearly in derogation of personal rights and property interests and are, therefore, subject to strict construction, and any ambiguity must be resolved against imposition of the tax. In Billings v. U. S, the Supreme Court clearly acknowledged this basic and long-standing rule of statutory construction:Tax Statutes …. should be construed, and, if any ambiguity be found to exist, it must be resolved in favour of the citizen. Eidman v. Martinez 184 U.S. 578, 583; …Again in Unites States v. Merriam, the Supreme Court clearly stated at pages 187-88:"On behalf of the Government it is urged that taxation is a practical matter and concerns itself with the substance of the thing upon which the tax is imposed, rather than with legal forms or expressions. But, in statutes levying taxes, the literal meaning of the words employed is most important, for such statutes are not to be extended by implication beyond the clear import of the language used. If the words are doubtful, the doubt must be resolved against the Government and in favour of the taxpayer. Gould v. Gould 245 U.S. 151, 153."As Lord Cairns said many years ago in Partington v. Attorney-General: As I understand the principle of all fiscal legislation it is this: If the person sought to be taxed comes within the letter of the law he must be taxed, however, great the hardship may appear to the judicial mind to be. On the other hand, if the Crown, seeking to recover the tax, cannot bring the subject within the letter of the law, the subject is free, however apparently within the spirit of the law the case might otherwise appear to be.In this case, we are not in the zone of uncertainty referred to above. There is no charge express or implied, in letter or in spirit to tax issue of shares at a premium as income.45. Chapter X of the Act is a machinery provision to arrive at the ALP of a transaction between AEs. The substantive charging provisions are found in Sections 4, 5, 15 (Salaries), 22 (Income from house property), 28 (Profits and gains of business), 45 (Capital gain) and 56 (Income from other Sources). Even Income arising from International Transaction between A.E. must satisfy the test of Income under the Act and must find its home in one of the above heads i.e. charging provisions. This the revenue has not been able to show.46. It was next submitted that the machinery Section of the Act cannot be read de-hors charging Section. The Act has to be read as an integrated whole. On the aforesaid submission also, there can be no dispute. However, as observed by the Supreme Court in CIT v. B.C. Srinivasa Shetti [1981] 128 ITR 294 /5 taxmann.com 1, "there is a qualitative difference between the charging provisions and computation provisions and ordinarily the operation of the charging provisions cannot be affected by the construction of computation provisions." In the present case, there is no charging provision to tax capital account transaction in respect of issue of shares at a premium. Computation provisions cannot replace/ substitute the charging provisions. In fact, in B.C. Srinivasa Shetti (supra), there was charging provision but the computation provision failed and in such a case the Court held that the transaction cannot be brought to tax. The present facts are on a higher pedestal as there is no charging provision to tax issue of shares at premium to a non-resident, then the occasion to invoke the computation provisions does not arise. We, therefore, find no substance in the aforesaid submission made on behalf of the Revenue.47. During the course of hearing the learned Solicitor General also made submissions with regard to taxing income in the hands of the Petitioner even though the income has allegedly been earned by the holding company. None of the notices issued to the Petitioner on the draft order passed by AO on the impugned order passed by DRP even proposes to assess the Petitioner in its representative capacity. Hence, the Petitioner had no occasion to challenge the jurisdiction of the Revenue on the above aspect. Therefore, we see no reason to examine the issue.48. Before parting, we may point out that in its written submissions, the revenue has raised an issue of alternative remedy which was not raised at the hearing and contended that there is no patent illegality in the impugned order warranting interference by this Court. However, the very fact that at the time of oral submissions, the Revenue supported the conclusions in the impugned order on grounds different from those mentioned therein would itself speak volumes of the patent non-sustainability of the impugned order. The preliminary objection, not raised at the hearing, is, completely devoid of any substance. | 1[ds]24. A plain reading of Section 92(1) of the Act very clearly brings out that income arising from a International Transaction is a condition precedent for application of Chapter X of the Act. This has already been so held by the order dated 29 November 2013 of this Court inBut we have examined the issue afresh. The word income for the purpose of the Act has a well understood meaning as defined in Section 2(24) of the Act. This even when the definition in Section 2(24) of the Act is an inclusive definition. It cannot be disputed that income will not in its normal meaning include capital receipts unless it is so specified, as in Section 2(24) (vi) of the Act. In such a case, Capital Gains chargeable to tax under Section 45 of the Act are, defined to be income. The amounts received on issue of share capital including the premium is undoubtedly on capital account. Share premium have been made taxable by a legal fiction under Section 56(2)(viib) of the Act and the same is enumerated as Income in Section 2(24)(xvi) of the Act. However, what is bought into the ambit of income is the premium received from a resident in excess of the fair market value of the shares. In this case what is being sought to be taxed is capital not received from ai.e. premium allegedly not received on application of ALP. Therefore, absent express legislation, no amount received, accrued or arising on capital account transaction can be subjected to tax as Income. This is settled by the decision of this Court in Cadell Weaving Mill Co. v. CIT [2011] 249 ITR 265/116 Taxman 77 was upheld by the Apex Court in CIT v. D.P Sandu Bros. Chember (P.) Ltd. [2005] 273 ITR 1 /142 Taxman 713 .We shall now consider the submissions on behalf of the Revenue in the context of the statutory provisions. At one point of time we were toying with the idea of only dealing with the new grounds in support of the impugned order, as canvassed before us by the learned Solicitor General. This was for the reason that the revenue itself did not adopt the basis/grounds found in the impugned order viz. the short receipt of share premium being sufficient justification to invoke Section 92(1) in Chapter X of the Act. The ground found in the impugned order was substituted/replaced at the hearing with a new ground viz: benefit given by the Petitioner to its holding company on application of Section 92(2) of the Act. However, on further consideration to comprehensively dispose of the proceedings, we decided to deal with both i.e. the grounds found in the impugned order as well as the reasons/grounds urged in support of the impugned conclusions by the learned Solicitor General at the hearing before us, as submissions made in the alternative.27.The first contention on behalf of the revenue is that no question of even examining the issue of jurisdiction to apply Chapter X of the Act arises in this case, as the Petitioner itself had filed Form 3CEB for purposes of Chapter X of theAct. The contention has to be stated to be rejected. Mr. Salve rightly submitted that ex abundanti cautela, the Petitioner had submitted Form 3CEB and informed theabout the International Transaction of issue of share capital, while denying any income arises from the International Transaction. After accepting the above defence of the Petitioner, this Court inby its order dated 29 November 2012 concluded that the issue of jurisdiction as raised by the Petitioner of income arising, is a condition precedent for applicability of Section 92(1) of the Act. We directed the above issue of jurisdiction be placed before DRP to examine the same as a preliminary issue of jurisdiction.e first contention on behalf of the revenue is that no question of even examining the issue of jurisdiction to apply Chapter X of the Act arises in this case, as the Petitioner itself had filed Form 3CEB for purposes of Chapter X of theAct. The contention has to be stated to be rejected. Mr. Salve rightly submitted that ex abundanti cautela, the Petitioner had submitted Form 3CEB and informed thet the International Transaction of issue of share capital, while denying any income arises from the International Transaction. After accepting the above defence of the Petitioner, this Court inby its order dated 29 November 2012 concluded that the issue of jurisdiction as raised by the Petitioner of income arising, is a condition precedent for applicability of Section 92(1) of the Act. We directed the above issue of jurisdiction be placed before DRP to examine the same as a preliminary issue of jurisdiction.We shall first deal with the grounds recorded in the impugned order to justify the conclusion that the Revenue has jurisdiction to apply Chapter X of the Act to the transaction of issue of shares by the Petitioner to its holding company. This conclusion has been reached on application of Section 92(1) of the Act. Section 92 of the Act provides for computation of income from International Taxation having regard to ALP. Section 92(1) of the Act states that while determining /computing/assessing income from an International Taxation regard shall be had to ALP. The impugned order correctly holds that although the words International Taxation has been defined in Section 92B of the Act for the purposes of Chapter X of the Act, the words Income has not been defined. Thereafter, the impugned order seeks to widen the meaning of the word "Income" to include all incomings. This is sought to be supported by the intent/object of Chapter X of the Act, particularly the definition of International Transaction given in Section 92B of the Act.Similarly, the reliance by the revenue upon the definition of International Taxation in the sub clause (c) and (e) of Explanation (i) to Section 92B of the Act to conclude that Income has to be given a broader meaning to include notional income, as otherwise Chapter X of the Act would be rendered otiose is far fetched. The issue of shares at a premium does not exhaust the universe of applicability of Chapter X of the Act. There are transactions which would otherwise qualify to be covered by the definition of International Transaction. The transaction on capital account or on account of restructuring would become taxable to the extent it impacts income i.e. under reporting of interest or over reporting of interest paid or claiming of depreciation etc. It is that income which is to be adjusted to the ALP price. It is not a tax on the capital receipts. This aspect appears to have been completely lost sight of in the impugned order.32. The other basis in the impugned order is that as a consequence of under valuation of shares, there is an impact on potential income. The reasoning is that if the ALP were received, the Petitioner would be able to invest the same and earn income, proceeds on a mere surmise/assumption. This cannot be the basis of taxation. In any case, the entire exercise of charging to tax the amounts allegedly not received as share premium fails, as no tax is being charged on the amount received as share premium. Chapter X is invoked to ensure that the transaction is charged to tax only on working out the income after arriving at the ALP of the transaction. This is only to ensure that there is no manipulation of prices/consideration between AEs. The entire consideration received would not be aof taxation. It appears for the above reason that the learned Solicitor General did not seek to defend the conclusion in the impugned order on the basis of the reasons found therein, but sought to support the conclusion with new reasons.33. Before dealing with the submissions advanced by the learned Solicitor General in his reply, to support the impugned order on grounds different from those found therein, it would be necessary to note that taxing of premium not received as the ground in the impugned order is given up and the jurisdiction to tax a transaction of issue of shares is on the basis of benefit given to the holding company. The basis/justification of the impugned order is based upon Section 92(1) of the Act, while beforeus the learned Solicitor General places reliance upon Section 92(2) read with 92(1) of the Act to subject the transaction to tax on the basis of the cost of the benefit passed.Therefore, many of the decisions cited by the Petitioner in its opening submissions are no longer relevant and therefore, not dealt with in this order.This indeed is a unique way of reading a provision i.e. to omit words in the Section. This manner of reading a provision by ignoring/rejecting certain words without any finding that in the absence of so rejecting, the provision would become unworkable, is certainly not a permitted mode of interpretation. It would lead to burial of the settled legal position that a provision should be read as a whole, without rejecting and/or adding words thereto. This rejecting of words in a statute to achieve a predetermined objective is not permissible. This would amount to redrafting the legislation which is beyond/outside the jurisdiction of Courts.36. Be that as it may, Section 92(2) of the Act deals with a situation where two or more AEs enter into an arrangement whereby they are to receive any benefit, service or facility then the allocation, apportionment or contribution towards the cost or expenditure is to be determined in respect of each AE having regard to ALP. Thus, to illustrate, the cost of research carried on by an AE for the benefit of three AEs, then the cost will be distributed i.e. allocated, apportioned or contributed depending upon the ALP of such benefit to be received by the assessed AE. It would have no application in the cases like the present one, where there is no occasion to allocate, apportion or contribute any cost and/or expenses between the Petitioner and the holding company. Therefore, we find no substance in the above submission.If the above provision is contrasted with the provisions of Chapter X of the Act and in particular Section 92 thereof, it would be noticed that the crucial words "shall be chargeable to income tax" which are found in Section 42(2) of the 1922 Act are absent in Chapter X of the Act. We pointed out this difference in the two provisions to the learned Solicitor General and he agreed that the above difference exists. However, according to him this was in view of the fact that Sections 4, 5, 14 and 56 of the Act does create a charge to income tax on deemed income earned from International taxation. Therefore, it is clear that the deemed income which was charged to tax under Section 42(2) of the 1922 Act was done away with under the Act. The charge of Income now has to be found in Section 4 of the Act. If it is income which is chargeable to tax, under the normal provision of the Act, then alone Chapter X of the Act could be invoked. Sections 4 and 5 of the Act brings /charges to tax total income of the previous year. This would take us to the meaning of the word income under the Act as defined in Section 2(24) of the Act. The amounts received on issue of shares is admittedly a capital account transaction not separately brought within the definition of Income, except in cases covered by Section 56(2) (viib) of the Act. Thus such capital account transaction not falling within a statutory exception cannot be brought to tax as already discussed herein above while considering the challenge to the grounds as mentioned in the impugned order.It was contended by the Revenue that in view of Chapter X of the Act, the notional income is to be brought to tax and real income will have no place.The entire exercise of determining the ALP is only to arrive at the real income earned i.e. the correct price of the transaction, shorn of the price arrived at between the parties on account of their relationship viz. AEs. In this case, the revenue seems to be confusing the measure to a charge and calling the measure a notional income. We find that there is absence of any charge in the Act to subject issue of shares at a premium to tax.41. We also find merit in the submission on behalf of the petitioners that w.e.f. 1 April 2013, the definition of income under Section 2(24)(xvi) of the Act includes within its scope the provisions of Section 56(2)(viib) of the Act.This indicates the intent of the Parliament to tax issue of shares to a resident, when the issue price is above its fair market value. In the instant case, the Revenues case is that the issue price of equity share is below the fair market value of the shares issued to aThus Parliament has consciously not brought to tax amounts received from afor issue of shares, as it would discourage capital inflow from abroad. The revenue has not been able to meet the above submission but have in their written submission only submitted that the above provisions would have no application to the present facts.42.It was contended by the Revenue that in any event the charge would be found in Section 56(1) of the Act. Section 56 of the Act does provide that income of every kind which is not excluded from the total income is chargeable under the head income from other sources. However, before Section 56 of the Act can be applied, there must be income whicharises. As pointed out above, the issue of shares at a premium is on Capital Account and gives rise to no income. The submission on behalf of the revenue that theshortfall in theALP as computed for the purposes of Chapter X of the Act give rise to income is misplaced. The ALP is meant to determine the real value of the transaction entered into between AEs. It is aexercise to be carried out only when income arises in case of an International transaction between AEs. It does not warrantof a consideration received/given on capital account. It permitsof Income arising out of a Capital Account Transaction, such as interest paid/received on loans taken/given, depreciation taken on machinery etc. All the above would be cases of income being affected due to a transaction on capital account. This is not the revenues case here. Therefore, although Section 56(1) of the Act would permit including within its head, all income not otherwise excluded, it does not provide for a charge to tax on Capital Account Transaction of issue of shares as is specifically provided for in Section 45 or Section 56(2)(viib) of the Act and included within the definition of income in Section 2(24) of thecan be no dispute with the proposition that income under the Act is taxable when it accrues or arises or is received or when it is deemed to accrue, arise or received. Theto tax is when right to receive an income becomes vested in the assessee. However, the issue under consideration is different viz: whether the amount said to accrue, arise or receive is at all income. The issue of shares to the holding company is a capital account transaction, therefore, has nothing to do with income. We, thus do not find substance in the above submission.44.It was also contended that Chapter X of the Act is a complete code by itself and not merely a machinery provision to compute the ALP.It is a hidden benefit of the transaction which is being charged to tax and the charging Section is inherent in Chapter X of the Act. It is well settled position in law that a charge to tax must be found specifically mentioned in the Act. In the absence of there being a charging Section in Chapter X of the Act, it is not possible to read a charging provision into Chapter X of the Act.Chapter X of the Act is a machinery provision to arrive at the ALP of a transaction between AEs. The substantive charging provisions are found in Sections 4, 5, 15 (Salaries), 22 (Income from house property), 28 (Profits and gains of business), 45 (Capital gain) and 56 (Income from other Sources). Even Income arising from International Transaction between A.E. must satisfy the test of Income under the Act and must find its home in one of the above heads i.e. charging provisions. This the revenue has not been able to show.46.It was next submitted that the machinery Section of the Act cannot be readg Section. The Act has to be read as an integrated whole.On the aforesaid submission also, there can be no dispute. However, as observed by the Supreme Court in CIT v. B.C. Srinivasa Shetti [1981] 128 ITR 294 /5 taxmann.com 1, "there is a qualitative difference between the charging provisions and computation provisions and ordinarily the operation of the charging provisions cannot be affected by the construction of computation provisions." In the present case, there is no charging provision to tax capital account transaction in respect of issue of shares at a premium. Computation provisions cannot replace/ substitute the charging provisions. In fact, in B.C. Srinivasa Shetti (supra), there was charging provision but the computation provision failed and in such a case the Court held that the transaction cannot be brought to tax. The present facts are on a higher pedestal as there is no charging provision to tax issue of shares at premium to athen the occasion to invoke the computation provisions does not arise. We, therefore, find no substance in the aforesaid submission made on behalf of the Revenue.47. During the course of hearing the learned Solicitor General also made submissions with regard to taxing income in the hands of the Petitioner even though the income has allegedly been earned by the holding company. None of the notices issued to the Petitioner on the draft order passed by AO on the impugned order passed by DRP even proposes to assess the Petitioner in its representative capacity. Hence, the Petitioner had no occasion to challenge the jurisdiction of the Revenue on the above aspect. Therefore, we see no reason to examine the issue.48. Before parting, we may point out that in its written submissions, the revenue has raised an issue of alternative remedy which was not raised at the hearing and contended that there is no patent illegality in the impugned order warranting interference by this Court. However, the very fact that at the time of oral submissions, the Revenue supported the conclusions in the impugned order on grounds different from those mentioned therein would itself speak volumes of the patentof the impugned order. The preliminary objection, not raised at the hearing, is, completely devoid of any substance. | 1 | 15,987 | 3,507 | ### Instruction:
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it is deemed to accrue, arise or received. The charge-ability to tax is when right to receive an income becomes vested in the assessee. However, the issue under consideration is different viz: whether the amount said to accrue, arise or receive is at all income. The issue of shares to the holding company is a capital account transaction, therefore, has nothing to do with income. We, thus do not find substance in the above submission.44. It was also contended that Chapter X of the Act is a complete code by itself and not merely a machinery provision to compute the ALP. It is a hidden benefit of the transaction which is being charged to tax and the charging Section is inherent in Chapter X of the Act. It is well settled position in law that a charge to tax must be found specifically mentioned in the Act. In the absence of there being a charging Section in Chapter X of the Act, it is not possible to read a charging provision into Chapter X of the Act. We can do no better than refer to the following observations of the five Member Bench of the Apex Court in CIT v. Vatika Township (P.) Ltd. [2011] 49 taxmann.com 249:—Tax laws are clearly in derogation of personal rights and property interests and are, therefore, subject to strict construction, and any ambiguity must be resolved against imposition of the tax. In Billings v. U. S, the Supreme Court clearly acknowledged this basic and long-standing rule of statutory construction:Tax Statutes …. should be construed, and, if any ambiguity be found to exist, it must be resolved in favour of the citizen. Eidman v. Martinez 184 U.S. 578, 583; …Again in Unites States v. Merriam, the Supreme Court clearly stated at pages 187-88:"On behalf of the Government it is urged that taxation is a practical matter and concerns itself with the substance of the thing upon which the tax is imposed, rather than with legal forms or expressions. But, in statutes levying taxes, the literal meaning of the words employed is most important, for such statutes are not to be extended by implication beyond the clear import of the language used. If the words are doubtful, the doubt must be resolved against the Government and in favour of the taxpayer. Gould v. Gould 245 U.S. 151, 153."As Lord Cairns said many years ago in Partington v. Attorney-General: As I understand the principle of all fiscal legislation it is this: If the person sought to be taxed comes within the letter of the law he must be taxed, however, great the hardship may appear to the judicial mind to be. On the other hand, if the Crown, seeking to recover the tax, cannot bring the subject within the letter of the law, the subject is free, however apparently within the spirit of the law the case might otherwise appear to be.In this case, we are not in the zone of uncertainty referred to above. There is no charge express or implied, in letter or in spirit to tax issue of shares at a premium as income.45. Chapter X of the Act is a machinery provision to arrive at the ALP of a transaction between AEs. The substantive charging provisions are found in Sections 4, 5, 15 (Salaries), 22 (Income from house property), 28 (Profits and gains of business), 45 (Capital gain) and 56 (Income from other Sources). Even Income arising from International Transaction between A.E. must satisfy the test of Income under the Act and must find its home in one of the above heads i.e. charging provisions. This the revenue has not been able to show.46. It was next submitted that the machinery Section of the Act cannot be read de-hors charging Section. The Act has to be read as an integrated whole. On the aforesaid submission also, there can be no dispute. However, as observed by the Supreme Court in CIT v. B.C. Srinivasa Shetti [1981] 128 ITR 294 /5 taxmann.com 1, "there is a qualitative difference between the charging provisions and computation provisions and ordinarily the operation of the charging provisions cannot be affected by the construction of computation provisions." In the present case, there is no charging provision to tax capital account transaction in respect of issue of shares at a premium. Computation provisions cannot replace/ substitute the charging provisions. In fact, in B.C. Srinivasa Shetti (supra), there was charging provision but the computation provision failed and in such a case the Court held that the transaction cannot be brought to tax. The present facts are on a higher pedestal as there is no charging provision to tax issue of shares at premium to a non-resident, then the occasion to invoke the computation provisions does not arise. We, therefore, find no substance in the aforesaid submission made on behalf of the Revenue.47. During the course of hearing the learned Solicitor General also made submissions with regard to taxing income in the hands of the Petitioner even though the income has allegedly been earned by the holding company. None of the notices issued to the Petitioner on the draft order passed by AO on the impugned order passed by DRP even proposes to assess the Petitioner in its representative capacity. Hence, the Petitioner had no occasion to challenge the jurisdiction of the Revenue on the above aspect. Therefore, we see no reason to examine the issue.48. Before parting, we may point out that in its written submissions, the revenue has raised an issue of alternative remedy which was not raised at the hearing and contended that there is no patent illegality in the impugned order warranting interference by this Court. However, the very fact that at the time of oral submissions, the Revenue supported the conclusions in the impugned order on grounds different from those mentioned therein would itself speak volumes of the patent non-sustainability of the impugned order. The preliminary objection, not raised at the hearing, is, completely devoid of any substance.
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equity share is below the fair market value of the shares issued to aThus Parliament has consciously not brought to tax amounts received from afor issue of shares, as it would discourage capital inflow from abroad. The revenue has not been able to meet the above submission but have in their written submission only submitted that the above provisions would have no application to the present facts.42.It was contended by the Revenue that in any event the charge would be found in Section 56(1) of the Act. Section 56 of the Act does provide that income of every kind which is not excluded from the total income is chargeable under the head income from other sources. However, before Section 56 of the Act can be applied, there must be income whicharises. As pointed out above, the issue of shares at a premium is on Capital Account and gives rise to no income. The submission on behalf of the revenue that theshortfall in theALP as computed for the purposes of Chapter X of the Act give rise to income is misplaced. The ALP is meant to determine the real value of the transaction entered into between AEs. It is aexercise to be carried out only when income arises in case of an International transaction between AEs. It does not warrantof a consideration received/given on capital account. It permitsof Income arising out of a Capital Account Transaction, such as interest paid/received on loans taken/given, depreciation taken on machinery etc. All the above would be cases of income being affected due to a transaction on capital account. This is not the revenues case here. Therefore, although Section 56(1) of the Act would permit including within its head, all income not otherwise excluded, it does not provide for a charge to tax on Capital Account Transaction of issue of shares as is specifically provided for in Section 45 or Section 56(2)(viib) of the Act and included within the definition of income in Section 2(24) of thecan be no dispute with the proposition that income under the Act is taxable when it accrues or arises or is received or when it is deemed to accrue, arise or received. Theto tax is when right to receive an income becomes vested in the assessee. However, the issue under consideration is different viz: whether the amount said to accrue, arise or receive is at all income. The issue of shares to the holding company is a capital account transaction, therefore, has nothing to do with income. We, thus do not find substance in the above submission.44.It was also contended that Chapter X of the Act is a complete code by itself and not merely a machinery provision to compute the ALP.It is a hidden benefit of the transaction which is being charged to tax and the charging Section is inherent in Chapter X of the Act. It is well settled position in law that a charge to tax must be found specifically mentioned in the Act. In the absence of there being a charging Section in Chapter X of the Act, it is not possible to read a charging provision into Chapter X of the Act.Chapter X of the Act is a machinery provision to arrive at the ALP of a transaction between AEs. The substantive charging provisions are found in Sections 4, 5, 15 (Salaries), 22 (Income from house property), 28 (Profits and gains of business), 45 (Capital gain) and 56 (Income from other Sources). Even Income arising from International Transaction between A.E. must satisfy the test of Income under the Act and must find its home in one of the above heads i.e. charging provisions. This the revenue has not been able to show.46.It was next submitted that the machinery Section of the Act cannot be readg Section. The Act has to be read as an integrated whole.On the aforesaid submission also, there can be no dispute. However, as observed by the Supreme Court in CIT v. B.C. Srinivasa Shetti [1981] 128 ITR 294 /5 taxmann.com 1, "there is a qualitative difference between the charging provisions and computation provisions and ordinarily the operation of the charging provisions cannot be affected by the construction of computation provisions." In the present case, there is no charging provision to tax capital account transaction in respect of issue of shares at a premium. Computation provisions cannot replace/ substitute the charging provisions. In fact, in B.C. Srinivasa Shetti (supra), there was charging provision but the computation provision failed and in such a case the Court held that the transaction cannot be brought to tax. The present facts are on a higher pedestal as there is no charging provision to tax issue of shares at premium to athen the occasion to invoke the computation provisions does not arise. We, therefore, find no substance in the aforesaid submission made on behalf of the Revenue.47. During the course of hearing the learned Solicitor General also made submissions with regard to taxing income in the hands of the Petitioner even though the income has allegedly been earned by the holding company. None of the notices issued to the Petitioner on the draft order passed by AO on the impugned order passed by DRP even proposes to assess the Petitioner in its representative capacity. Hence, the Petitioner had no occasion to challenge the jurisdiction of the Revenue on the above aspect. Therefore, we see no reason to examine the issue.48. Before parting, we may point out that in its written submissions, the revenue has raised an issue of alternative remedy which was not raised at the hearing and contended that there is no patent illegality in the impugned order warranting interference by this Court. However, the very fact that at the time of oral submissions, the Revenue supported the conclusions in the impugned order on grounds different from those mentioned therein would itself speak volumes of the patentof the impugned order. The preliminary objection, not raised at the hearing, is, completely devoid of any substance.
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Sidramappa Vs. Rajashetty And Ors | and Vishwanath entered into a compromise in pursuance of which Vishwanath delivered possession of the lands included in Schedule I to the defendant. Sometime thereafter the plaintiff applied to the court to reopen the execution proceedings and implead him as the legal representative of Lakshmibai claiming that he is the adopted son of Lakshmibai. The executing court dismissed his application holding that his remedy was by way of a separate suit. A revision taken against that order to the High Court was rejected. Thereafter the plaintiff filed a suit in the court of sub-ordinate District Judge, Bidar for a declaration that he is entitled to be impleaded in the execution proceedings mentioned earlier as the representative of Lakshmibai and to proceed with the execution after setting aside the order made by the executing court on the basis of the compromise entered into between the defendant and Vishwanath. It may be noted that that was the only relief asked for in the plaint. The purported cause of action for the suit was the dismissal of the plaintiffs application for impleading him in the execution proceedings. That suit should have been dismissed on the ground that it was not maintainable in law. But strangely enough it was dismissed on the ground that it was hit by Section 42 of the Specific Relief Act inasmuch as the plaintiff did not sue for possession of the concerned property. Thereafter the suit from which this appeal arises was instituted by the plaintiff on the basis of his title. The trial Court dismissed his suit in respect of the lands mentioned in Schedule I of the plaint on the ground that the relief in question is barred by Order 2 Rule 2, Code of Civil Procedure. It decreed the suit for the possession of the lands mentioned in Schedule II except items 3 and 9. It also decreed the plaintiffs claim in respect of the cash amount mentioned in the plaint.2. Both the plaintiff and the defendant went up in appeal to the High Court of Mysore as against the decision of the trial Court to the extent that decision was against them. The High Court affirmed the decision of the trial Court.3. Before the trial court and the High Court, there was controversy as regards the truth of adoption pleaded by the plaintiff. Both the courts have upheld the plaintiffs claim that he was adopted by the husband of Lakshmibai. That question was not reopened before us.4. Before the High Court, the learned Counsel for the plaintiff conceded that the plaintiffs suit in respect of items 8 and 9 of Schedule II of the plaint is barred by limitation. Hence that question stands concluded.5. The only question that remains for consideration is whether the High Court and the trial court were right in their conclusions that the plaintiffs claim in respect of the lands mentioned in Schedule I of the plaint is barred by Order 2, Rule 2, Code of Civil Procedure.6. We are of the opinion that the trial court and the High Court erred in holding that the plaintiffs suit in respect of the lands mentioned in plaint Schedule I is barred by Order 2, Rule 2, Code of Civil Procedure. The suit instituted by the plaintiff in the court of Subordinate District Judge, Bidar for a declaration that he is entitled to be impleaded in the execution proceedings as legal representative of Lakshmibai and to proceed with the execution proceedings, was as mentioned earlier, a misconceived one. It was exercise in futility. His remedy was to file a suit for the possession of the concerned properties on the basis of his title.7. The High Court and the trial court proceeded on the erroneous basis that the former suit was a suit for a declaration of the plaintiffs title to the lands mentioned in Schedule I of the plaint.The requirement of Order 2, Rule 2, Code of Civil Procedure is that every suit should include the whole of the claim which the plaintiff is entitled to make in respect of a cause of action. Cause of action means the cause of action for which the suit was brought.It cannot be said that the cause of action on which the present suit was brought is the same as that in the previous suit.Cause of action is a cause of action which gives occasion for and forms the foundation of the suit. If that cause of action enables a person to ask for a larger and wider relief than that to which he limits his claim, he cannot afterwards seek to recover the balance by independent proceedings-See Mohd. Hafiz v. Mohd. Zakaria, 49 Ind App 9 = (AIR 1922 PC 23).8. As seen earlier the cause of action on the basis of which the previous suit was brought does not form the foundation of the present suit.The cause of action mentioned in the earlier suit, assuming the same afforded a basis for a valid claim, did not enable the plaintiff to ask for any relief other than those he prayed for in that suit, in that suit he could not have claimed the relief which he seeks in this suit. Hence the trial court and the High Court were not right in holding that the plaintiffs suit is barred by Order 2, Rule 2, Code of Civil Procedure.9. In view of our above conclusion, we have not thought it necessary to go into the controversy whether Order 2, Rule 2, Code of Civil Procedure is applicable to a suit under Section 42 of the Specific Relief Act.10.We are unable to accept the contention of the learned Counsel for the appellant that we should allow to the appellant mesne profits at least from the date of the suit. No claim for mesne profits was made in the plaint. Therefore we cannot go into that question in this appeal. For the mesne profits, if any, due to the plaintiff, he must take separate steps according to law. | 1[ds]5. The only question that remains for consideration is whether the High Court and the trial court were right in their conclusions that the plaintiffs claim in respect of the lands mentioned in Schedule I of the plaint is barred by Order 2, Rule 2, Code of Civil Procedure.The only question that remains for consideration is whether the High Court and the trial court were right in their conclusions that the plaintiffs claim in respect of the lands mentioned in Schedule I of the plaint is barred by Order 2, Rule 2, Code of Civil Procedure.As seen earlier the cause of action on the basis of which the previous suit was brought does not form the foundation of the present suit.The cause of action mentioned in the earlier suit, assuming the same afforded a basis for a valid claim, did not enable the plaintiff to ask for any relief other than those he prayed for in that suit, in that suit he could not have claimed the relief which he seeks in this suit. Hence the trial court and the High Court were not right in holding that the plaintiffs suit is barred by Order 2, Rule 2, Code of Civilclaim for mesne profits was made in the plaint. Therefore we cannot go into that question in this appeal. For the mesne profits, if any, due to the plaintiff, he must take separate steps according to law. | 1 | 1,287 | 259 | ### Instruction:
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and Vishwanath entered into a compromise in pursuance of which Vishwanath delivered possession of the lands included in Schedule I to the defendant. Sometime thereafter the plaintiff applied to the court to reopen the execution proceedings and implead him as the legal representative of Lakshmibai claiming that he is the adopted son of Lakshmibai. The executing court dismissed his application holding that his remedy was by way of a separate suit. A revision taken against that order to the High Court was rejected. Thereafter the plaintiff filed a suit in the court of sub-ordinate District Judge, Bidar for a declaration that he is entitled to be impleaded in the execution proceedings mentioned earlier as the representative of Lakshmibai and to proceed with the execution after setting aside the order made by the executing court on the basis of the compromise entered into between the defendant and Vishwanath. It may be noted that that was the only relief asked for in the plaint. The purported cause of action for the suit was the dismissal of the plaintiffs application for impleading him in the execution proceedings. That suit should have been dismissed on the ground that it was not maintainable in law. But strangely enough it was dismissed on the ground that it was hit by Section 42 of the Specific Relief Act inasmuch as the plaintiff did not sue for possession of the concerned property. Thereafter the suit from which this appeal arises was instituted by the plaintiff on the basis of his title. The trial Court dismissed his suit in respect of the lands mentioned in Schedule I of the plaint on the ground that the relief in question is barred by Order 2 Rule 2, Code of Civil Procedure. It decreed the suit for the possession of the lands mentioned in Schedule II except items 3 and 9. It also decreed the plaintiffs claim in respect of the cash amount mentioned in the plaint.2. Both the plaintiff and the defendant went up in appeal to the High Court of Mysore as against the decision of the trial Court to the extent that decision was against them. The High Court affirmed the decision of the trial Court.3. Before the trial court and the High Court, there was controversy as regards the truth of adoption pleaded by the plaintiff. Both the courts have upheld the plaintiffs claim that he was adopted by the husband of Lakshmibai. That question was not reopened before us.4. Before the High Court, the learned Counsel for the plaintiff conceded that the plaintiffs suit in respect of items 8 and 9 of Schedule II of the plaint is barred by limitation. Hence that question stands concluded.5. The only question that remains for consideration is whether the High Court and the trial court were right in their conclusions that the plaintiffs claim in respect of the lands mentioned in Schedule I of the plaint is barred by Order 2, Rule 2, Code of Civil Procedure.6. We are of the opinion that the trial court and the High Court erred in holding that the plaintiffs suit in respect of the lands mentioned in plaint Schedule I is barred by Order 2, Rule 2, Code of Civil Procedure. The suit instituted by the plaintiff in the court of Subordinate District Judge, Bidar for a declaration that he is entitled to be impleaded in the execution proceedings as legal representative of Lakshmibai and to proceed with the execution proceedings, was as mentioned earlier, a misconceived one. It was exercise in futility. His remedy was to file a suit for the possession of the concerned properties on the basis of his title.7. The High Court and the trial court proceeded on the erroneous basis that the former suit was a suit for a declaration of the plaintiffs title to the lands mentioned in Schedule I of the plaint.The requirement of Order 2, Rule 2, Code of Civil Procedure is that every suit should include the whole of the claim which the plaintiff is entitled to make in respect of a cause of action. Cause of action means the cause of action for which the suit was brought.It cannot be said that the cause of action on which the present suit was brought is the same as that in the previous suit.Cause of action is a cause of action which gives occasion for and forms the foundation of the suit. If that cause of action enables a person to ask for a larger and wider relief than that to which he limits his claim, he cannot afterwards seek to recover the balance by independent proceedings-See Mohd. Hafiz v. Mohd. Zakaria, 49 Ind App 9 = (AIR 1922 PC 23).8. As seen earlier the cause of action on the basis of which the previous suit was brought does not form the foundation of the present suit.The cause of action mentioned in the earlier suit, assuming the same afforded a basis for a valid claim, did not enable the plaintiff to ask for any relief other than those he prayed for in that suit, in that suit he could not have claimed the relief which he seeks in this suit. Hence the trial court and the High Court were not right in holding that the plaintiffs suit is barred by Order 2, Rule 2, Code of Civil Procedure.9. In view of our above conclusion, we have not thought it necessary to go into the controversy whether Order 2, Rule 2, Code of Civil Procedure is applicable to a suit under Section 42 of the Specific Relief Act.10.We are unable to accept the contention of the learned Counsel for the appellant that we should allow to the appellant mesne profits at least from the date of the suit. No claim for mesne profits was made in the plaint. Therefore we cannot go into that question in this appeal. For the mesne profits, if any, due to the plaintiff, he must take separate steps according to law.
### Response:
1
### Explanation:
5. The only question that remains for consideration is whether the High Court and the trial court were right in their conclusions that the plaintiffs claim in respect of the lands mentioned in Schedule I of the plaint is barred by Order 2, Rule 2, Code of Civil Procedure.The only question that remains for consideration is whether the High Court and the trial court were right in their conclusions that the plaintiffs claim in respect of the lands mentioned in Schedule I of the plaint is barred by Order 2, Rule 2, Code of Civil Procedure.As seen earlier the cause of action on the basis of which the previous suit was brought does not form the foundation of the present suit.The cause of action mentioned in the earlier suit, assuming the same afforded a basis for a valid claim, did not enable the plaintiff to ask for any relief other than those he prayed for in that suit, in that suit he could not have claimed the relief which he seeks in this suit. Hence the trial court and the High Court were not right in holding that the plaintiffs suit is barred by Order 2, Rule 2, Code of Civilclaim for mesne profits was made in the plaint. Therefore we cannot go into that question in this appeal. For the mesne profits, if any, due to the plaintiff, he must take separate steps according to law.
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State Of Rajasthan Vs. M/S Deep Jyoti Company | the required mineral and rawanna book. Clause (3) of the said circular provides that if the contractor fails to produce copy of the short term permit, the works department will withhold the payment of bills. Clause (3) of the said circular further provided that in case, the government department which allots the work to the contractor makes the payment of contract bills without obtaining the copy of short term permit and rawanna book, then the works department shall be liable to deposit the cost of the mineral. Thus in terms of clauses (2) and (3), it is incumbent upon the works contractor to obtain short term permit before starting the work. 9. Some of the fundamental aspects, while dealing with the validity of the aforesaid circular dated 06.10.2008, need to be kept in mind. The said circular which mandates the contractors to obtain short-term permit fess is meant for those contractors who are registered as ‘A’ class contractors with various departments of Government of Rajasthan. Such registration qualifies them to bid for and obtain Government contracts, which are construction contracts. The circular dated 06.10.2008 imposing the conditions, thus, is required only for the purpose of undertaking that work which is awarded by the Government/Government Departments etc. Otherwise, there is no such requirement or obligation on the part of contractors while doing any other private work. It is trite that for awarding Government work, it can impose and stipulate conditions, eligibility criteria as well as terms and conditions on which the contract would be executed. If any person wants to bid for or undertake the work, such persons has to fulfill those conditions. The only limitation is that conditions so imposed should meet the test of fairness and reasonableness and such conditions should not be arbitrary or contrary to any law. The question, therefore, is as to whether imposition of the condition to obtain short-term permit as provided in circular dated 06.10.2008 is reasonable and not arbitrary. 10. In so far as the contention that in terms of the circular there is compulsion to obtain short term permit, in our view, as such there is no such compulsion. It is only to ensure that no mineral is excavated and used without payment of royalty. The purpose of short-term permit is to ensure that the material and minerals etc. used by the contractor in the construction work are royalty paid. It only means that such material is purchased by the contractor from the market which is legally mined and on which due royalty is paid. In other words, the objective is to see that illegally mined mineral/material is not purchased by the contractor and used in the construction work which is awarded by the Government. Not only it is a laudable object, such a stipulation is inserted in order to check illegal mining which unfortunately has assumed serious proportions in the recent past. Otherwise, the respondents herein do not stand to loose anything inasmuch as the moment evidence is produced to the effect that royalty was paid on the minerals by the leaseholder which was used in the construction, the construction contractor like the respondents would be refunded the royalty so paid by it in terms of circular dated 06.10.2008. In terms of clauses (5) and (7) of the said circular, the contractor has to pay royalty at the rates specified in the circular depending upon the nature of work and on production of bills showing payment of royalty, the contractor can get refund of royalty. There is, thus, no financial burden on the respondents of any nature. The purpose which is sought to be achieved, viz., non-royalty paid mineral (which would naturally be illegally mined mineral) is not used in the execution of the Government work and it cannot be treated as unreasonable or arbitrary. In our view, there is a complete justification for providing such a provision.11. The minor minerals removed from the quarries, admittedly are the property of the government and the same cannot be removed and used without payment of royalty. It is therefore the duty of the government to ensure that only royalty paid minerals are used in the work and the purpose of issuing such circular was to avoid pilferage/leakage of revenue because royalty can be very conveniently evaded by the contractors either by not purchasing the material from the mining leaseholders or obtaining it from unauthorized excavators. In case, if the contractor purchases the material from unauthorized person who has not paid royalty, there would be loss to the public exchequer and the circular was issued to check evasion or loss to the public exchequer. Such condition cannot be said to be unreasonable and arbitrary and therefore no prejudice could be said to have been caused to the contractors. 12. Learned counsel for the respondents contended that the royalty can be levied in respect of the mineral removed or consumed from lease areas at the rates prescribed in Mines and Mineral (Development and Regulation) Act 1957 and any such levy can only be by a legislation and not by any circular and the impugned circular dated 06.10.2008 which is in the nature of levy of royalty was rightly quashed by the High Court and the impugned orders warrant no interference. The clauses stipulating deduction of royalty payable to the mineral department at the rates stipulated in the circular cannot be said to be a levy. As noticed earlier, the circular stipulates that the royalty is deducted at the rates prescribed in the circular, on production of bills by the contractor to the mining department showing that they had purchased the royalty paid mineral from the leaseholder and thus it only provides the procedure for collection of royalty. The circular only provides the procedure for payment of royalty for the minerals used by the contractors who have been given the works contract by the government department. The High Court did not keep in view the object of the circular and erred in quashing the impugned circular. | 1[ds]10. In so far as the contention that in terms of the circular there is compulsion to obtain short term permit, in our view, as such there is no such compulsion. It is only to ensure that no mineral is excavated and used without payment of royalty. The purpose of short-term permit is to ensure that the material and minerals etc. used by the contractor in the construction work are royalty paid. It only means that such material is purchased by the contractor from the market which is legally mined and on which due royalty is paid. In other words, the objective is to see that illegally mined mineral/material is not purchased by the contractor and used in the construction work which is awarded by the Government. Not only it is a laudable object, such a stipulation is inserted in order to check illegal mining which unfortunately has assumed serious proportions in the recent past. Otherwise, the respondents herein do not stand to loose anything inasmuch as the moment evidence is produced to the effect that royalty was paid on the minerals by the leaseholder which was used in the construction, the construction contractor like the respondents would be refunded the royalty so paid by it in terms of circular dated 06.10.2008. In terms of clauses (5) and (7) of the said circular, the contractor has to pay royalty at the rates specified in the circular depending upon the nature of work and on production of bills showing payment of royalty, the contractor can get refund of royalty. There is, thus, no financial burden on the respondents of any nature. The purpose which is sought to be achieved, viz., non-royalty paid mineral (which would naturally be illegally mined mineral) is not used in the execution of the Government work and it cannot be treated as unreasonable or arbitrary. In our view, there is a complete justification for providing such a provision.11. The minor minerals removed from the quarries, admittedly are the property of the government and the same cannot be removed and used without payment of royalty. It is therefore the duty of the government to ensure that only royalty paid minerals are used in the work and the purpose of issuing such circular was to avoid pilferage/leakage of revenue because royalty can be very conveniently evaded by the contractors either by not purchasing the material from the mining leaseholders or obtaining it from unauthorized excavators. In case, if the contractor purchases the material from unauthorized person who has not paid royalty, there would be loss to the public exchequer and the circular was issued to check evasion or loss to the public exchequer. Such condition cannot be said to be unreasonable and arbitrary and therefore no prejudice could be said to have been caused to thecircular only provides the procedure for payment of royalty for the minerals used by the contractors who have been given the works contract by the government department. The High Court did not keep in view the object of the circular and erred in quashing the impugned circular. | 1 | 2,267 | 560 | ### Instruction:
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the required mineral and rawanna book. Clause (3) of the said circular provides that if the contractor fails to produce copy of the short term permit, the works department will withhold the payment of bills. Clause (3) of the said circular further provided that in case, the government department which allots the work to the contractor makes the payment of contract bills without obtaining the copy of short term permit and rawanna book, then the works department shall be liable to deposit the cost of the mineral. Thus in terms of clauses (2) and (3), it is incumbent upon the works contractor to obtain short term permit before starting the work. 9. Some of the fundamental aspects, while dealing with the validity of the aforesaid circular dated 06.10.2008, need to be kept in mind. The said circular which mandates the contractors to obtain short-term permit fess is meant for those contractors who are registered as ‘A’ class contractors with various departments of Government of Rajasthan. Such registration qualifies them to bid for and obtain Government contracts, which are construction contracts. The circular dated 06.10.2008 imposing the conditions, thus, is required only for the purpose of undertaking that work which is awarded by the Government/Government Departments etc. Otherwise, there is no such requirement or obligation on the part of contractors while doing any other private work. It is trite that for awarding Government work, it can impose and stipulate conditions, eligibility criteria as well as terms and conditions on which the contract would be executed. If any person wants to bid for or undertake the work, such persons has to fulfill those conditions. The only limitation is that conditions so imposed should meet the test of fairness and reasonableness and such conditions should not be arbitrary or contrary to any law. The question, therefore, is as to whether imposition of the condition to obtain short-term permit as provided in circular dated 06.10.2008 is reasonable and not arbitrary. 10. In so far as the contention that in terms of the circular there is compulsion to obtain short term permit, in our view, as such there is no such compulsion. It is only to ensure that no mineral is excavated and used without payment of royalty. The purpose of short-term permit is to ensure that the material and minerals etc. used by the contractor in the construction work are royalty paid. It only means that such material is purchased by the contractor from the market which is legally mined and on which due royalty is paid. In other words, the objective is to see that illegally mined mineral/material is not purchased by the contractor and used in the construction work which is awarded by the Government. Not only it is a laudable object, such a stipulation is inserted in order to check illegal mining which unfortunately has assumed serious proportions in the recent past. Otherwise, the respondents herein do not stand to loose anything inasmuch as the moment evidence is produced to the effect that royalty was paid on the minerals by the leaseholder which was used in the construction, the construction contractor like the respondents would be refunded the royalty so paid by it in terms of circular dated 06.10.2008. In terms of clauses (5) and (7) of the said circular, the contractor has to pay royalty at the rates specified in the circular depending upon the nature of work and on production of bills showing payment of royalty, the contractor can get refund of royalty. There is, thus, no financial burden on the respondents of any nature. The purpose which is sought to be achieved, viz., non-royalty paid mineral (which would naturally be illegally mined mineral) is not used in the execution of the Government work and it cannot be treated as unreasonable or arbitrary. In our view, there is a complete justification for providing such a provision.11. The minor minerals removed from the quarries, admittedly are the property of the government and the same cannot be removed and used without payment of royalty. It is therefore the duty of the government to ensure that only royalty paid minerals are used in the work and the purpose of issuing such circular was to avoid pilferage/leakage of revenue because royalty can be very conveniently evaded by the contractors either by not purchasing the material from the mining leaseholders or obtaining it from unauthorized excavators. In case, if the contractor purchases the material from unauthorized person who has not paid royalty, there would be loss to the public exchequer and the circular was issued to check evasion or loss to the public exchequer. Such condition cannot be said to be unreasonable and arbitrary and therefore no prejudice could be said to have been caused to the contractors. 12. Learned counsel for the respondents contended that the royalty can be levied in respect of the mineral removed or consumed from lease areas at the rates prescribed in Mines and Mineral (Development and Regulation) Act 1957 and any such levy can only be by a legislation and not by any circular and the impugned circular dated 06.10.2008 which is in the nature of levy of royalty was rightly quashed by the High Court and the impugned orders warrant no interference. The clauses stipulating deduction of royalty payable to the mineral department at the rates stipulated in the circular cannot be said to be a levy. As noticed earlier, the circular stipulates that the royalty is deducted at the rates prescribed in the circular, on production of bills by the contractor to the mining department showing that they had purchased the royalty paid mineral from the leaseholder and thus it only provides the procedure for collection of royalty. The circular only provides the procedure for payment of royalty for the minerals used by the contractors who have been given the works contract by the government department. The High Court did not keep in view the object of the circular and erred in quashing the impugned circular.
### Response:
1
### Explanation:
10. In so far as the contention that in terms of the circular there is compulsion to obtain short term permit, in our view, as such there is no such compulsion. It is only to ensure that no mineral is excavated and used without payment of royalty. The purpose of short-term permit is to ensure that the material and minerals etc. used by the contractor in the construction work are royalty paid. It only means that such material is purchased by the contractor from the market which is legally mined and on which due royalty is paid. In other words, the objective is to see that illegally mined mineral/material is not purchased by the contractor and used in the construction work which is awarded by the Government. Not only it is a laudable object, such a stipulation is inserted in order to check illegal mining which unfortunately has assumed serious proportions in the recent past. Otherwise, the respondents herein do not stand to loose anything inasmuch as the moment evidence is produced to the effect that royalty was paid on the minerals by the leaseholder which was used in the construction, the construction contractor like the respondents would be refunded the royalty so paid by it in terms of circular dated 06.10.2008. In terms of clauses (5) and (7) of the said circular, the contractor has to pay royalty at the rates specified in the circular depending upon the nature of work and on production of bills showing payment of royalty, the contractor can get refund of royalty. There is, thus, no financial burden on the respondents of any nature. The purpose which is sought to be achieved, viz., non-royalty paid mineral (which would naturally be illegally mined mineral) is not used in the execution of the Government work and it cannot be treated as unreasonable or arbitrary. In our view, there is a complete justification for providing such a provision.11. The minor minerals removed from the quarries, admittedly are the property of the government and the same cannot be removed and used without payment of royalty. It is therefore the duty of the government to ensure that only royalty paid minerals are used in the work and the purpose of issuing such circular was to avoid pilferage/leakage of revenue because royalty can be very conveniently evaded by the contractors either by not purchasing the material from the mining leaseholders or obtaining it from unauthorized excavators. In case, if the contractor purchases the material from unauthorized person who has not paid royalty, there would be loss to the public exchequer and the circular was issued to check evasion or loss to the public exchequer. Such condition cannot be said to be unreasonable and arbitrary and therefore no prejudice could be said to have been caused to thecircular only provides the procedure for payment of royalty for the minerals used by the contractors who have been given the works contract by the government department. The High Court did not keep in view the object of the circular and erred in quashing the impugned circular.
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State Of U.P Vs. Dr. Rajinder Prakash Mittal | been gaining momentum day by day and ultimately on the ill fated night it had culminated to this occurrence. 37. The next point for our consideration is whether the respondent was present in the house in the early morning of the day of occurrence or whether he had gone out of the house to treat a patient. In other words, whether the defence of alibi is true or not. PW-2 states that he saw the respondent even at 7.15 a.m. when he had been to the scene house carrying snacks in a basket. PW-4, the Head Constable was the first official to go to the scene house by chance on seeing a crowd which was attracted by the acrid smoke, emanating from the bed room. He testifies to the fact that at the time when he went to the house at about 8.00 a.m. he found the respondent standing inside the room in his night dress and quarrelling with PW-2 over the death of the deceased. PW-3, the Superintendent of Police, arrived at the scene at about 9.15 a.m. and found the respondent present. Thus, the evidence of PWs 2 to 4 positively establishes the fact that the respondent was very much present in the scene house, even in the early morning, falsifying his plea of alibi. 38. The case of the respondent that PW-2 and his brother arrived at the scene only at 11.15 a.m., that too on his information is belied by the testimony of PWs 4 and 10. The evidence of PW-4 is that PW-2 and his brother were found in the scene house even at 8.00 a.m. PW-10 has deposed that baskets containing snacks and sweets were lying scattered in the courtyard even at 8.30 a.m. which basket is stated to have been brought by PW-2. 39. If the respondent had returned from home after paying a visit to his patient by 8.00 a.m., as he now claims, he would not have been found in his night dress. The very fact that he was standing in his night dress at 8.00 a.m. demonstrably shows that the respondent had not left the house on his professional visit but he was very much present in the house. PW-6 (who was in service under the respondent for 4 year) and PW-9 who claims to have taken the respondent to attend on one Shashi have been treated as hostile witnesses. CWs 1 and 2, who support the defence theory are none other than the mother and brother of the respondent whose testimony is highly tainted. On a careful scanning of their evidence, we hold that no safe reliance could be placed on their testimony especially in view of the overwhelming circumstantial evidence falsifying their statements supporting the plea of alibi. 40. On an overall survey of the evidence, we are in full agreement with the observation of the Trial Court, holding that "his explanation that he was not present in the house at the time is patently false". The High Court has placed much reliance on the evidence of not only CWs 1 and 2 but also of the hostile witnesses PWs 6 and 9 for holding that the respondent was not in the house in the early morning, which finding of the High Court is absolutely untenable and in utter disregard of the evidence.41. Even though we are not finding the respondent guilty solely on his false explanation, yet that explanation assumes much significance because it is for the respondent to come forward with an acceptable and plausible explanation explaining the circumstances under which the deceased had met with her end, since, in our considered opinion, the respondent was in the company of his wife on the previous night and was found in the bed room in the early morning.42. Though the respondent has deliberately feigned ignorance and incredibly denied his complicity, the overwhelming persuasive circumstances attending the case and the crucial inculpatory evidence bear chilling testimony unmistakably proving the gruesome offence of murder and its diabolical execution and unerringly establishing the guilt of the respondent beyond all reasonable doubts.43. For all the reasons stated above, we, on our independent appraisal and evaluation of the evidence in accordance with the principle laid down in Chandra Mohan Tiwari v. State of Madhya Pradesh, JT 1992(1) SC 258 unhesitatingly hold that the conclusion arrived at by the Trial Court is logical, tenable, and reasonably sustainable and that the High Court after holding that the death of the deceased was homicidal has gone wrong in recording the impugned order of acquittal on erroneous and incredulous reasons. Hence the judgment of the High Court has become liable to be set aside. 44. Mr. Kohli, the learned counsel finally made a fervent but inexorable plea, submitting that since the occurrence took place in the year 1971 and that more than 14 years have now elapsed since the delivery of the judgment by the High Court in October 1977, this court be pleased not to disturb the finding of acquittal at this length of time. We gave our anxious consideration to the above submission, but we feel that this plea has to be summarily rejected when the facts and the impelling circumstances surrounding the present case cry for justice which in turn demands for awarding proper punishment according to law. In our view, if the impugned judgment of acquittal reversing the well reasoned judgment of the Trial Court, convicting the respondent is affirmed, it will be nothing but a mockery of justice and will also amount to prepetration of gross and irreparable injustice. Moreover, when a judgment appealed against suffers from illegality or manifest error or perversity, warranting an interference at the hands of an Appellate Court in the interest of justice on substantial and compelling reasons, the mere delay in the disposal of the said appeal will never serve as a ground for non- interference and on the other hand, the Appellate Court is duty bound to set at naught the miscarriage of justice. | 1[ds]36. As regards the motive, the High Court has held that there was nothing to aggravate the situation on the day of the occurrence for the respondent to take this extreme measure of putting her to death. This reasoning of the High Court is quite inconceivable, for the simple reason that there could be no evidence as to what had happened during the night of 11/12th October 1971 as the victim herself is dead. However, as we have discussed in the earlier part of this judgment, all was not well with the spouses and their strained relationship had been gaining momentum day by day and ultimately on the ill fated night it had culminated to this occurrence.On an overall survey of the evidence, we are in full agreement with the observation of the Trial Court, holding that "his explanation that he was not present in the house at the time is patently false". The High Court has placed much reliance on the evidence of not only CWs 1 and 2 but also of the hostile witnesses PWs 6 and 9 for holding that the respondent was not in the house in the early morning, which finding of the High Court is absolutely untenable and in utter disregard of the evidence.41. Even though we are not finding the respondent guilty solely on his false explanation, yet that explanation assumes much significance because it is for the respondent to come forward with an acceptable and plausible explanation explaining the circumstances under which the deceased had met with her end, since, in our considered opinion, the respondent was in the company of his wife on the previous night and was found in the bed room in the early morning.42. Though the respondent has deliberately feigned ignorance and incredibly denied his complicity, the overwhelming persuasive circumstances attending the case and the crucial inculpatory evidence bear chilling testimony unmistakably proving the gruesome offence of murder and its diabolical execution and unerringly establishing the guilt of the respondent beyond all reasonable doubts.43. For all the reasons stated above, we, on our independent appraisal and evaluation of the evidence in accordance with the principle laid down in Chandra Mohan Tiwari v. State of Madhya Pradesh, JT 1992(1) SC 258 unhesitatingly hold that the conclusion arrived at by the Trial Court is logical, tenable, and reasonably sustainable and that the High Court after holding that the death of the deceased was homicidal has gone wrong in recording the impugned order of acquittal on erroneous and incredulous reasons. Hence the judgment of the High Court has become liable to be setgave our anxious consideration to the above submission, but we feel that this plea has to be summarily rejected when the facts and the impelling circumstances surrounding the present case cry for justice which in turn demands for awarding proper punishment according to law. In our view, if the impugned judgment of acquittal reversing the well reasoned judgment of the Trial Court, convicting the respondent is affirmed, it will be nothing but a mockery of justice and will also amount to prepetration of gross and irreparable injustice. Moreover, when a judgment appealed against suffers from illegality or manifest error or perversity, warranting an interference at the hands of an Appellate Court in the interest of justice on substantial and compelling reasons, the mere delay in the disposal of the said appeal will never serve as a ground for non- interference and on the other hand, the Appellate Court is duty bound to set at naught the miscarriage of justice. | 1 | 7,343 | 635 | ### 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:
been gaining momentum day by day and ultimately on the ill fated night it had culminated to this occurrence. 37. The next point for our consideration is whether the respondent was present in the house in the early morning of the day of occurrence or whether he had gone out of the house to treat a patient. In other words, whether the defence of alibi is true or not. PW-2 states that he saw the respondent even at 7.15 a.m. when he had been to the scene house carrying snacks in a basket. PW-4, the Head Constable was the first official to go to the scene house by chance on seeing a crowd which was attracted by the acrid smoke, emanating from the bed room. He testifies to the fact that at the time when he went to the house at about 8.00 a.m. he found the respondent standing inside the room in his night dress and quarrelling with PW-2 over the death of the deceased. PW-3, the Superintendent of Police, arrived at the scene at about 9.15 a.m. and found the respondent present. Thus, the evidence of PWs 2 to 4 positively establishes the fact that the respondent was very much present in the scene house, even in the early morning, falsifying his plea of alibi. 38. The case of the respondent that PW-2 and his brother arrived at the scene only at 11.15 a.m., that too on his information is belied by the testimony of PWs 4 and 10. The evidence of PW-4 is that PW-2 and his brother were found in the scene house even at 8.00 a.m. PW-10 has deposed that baskets containing snacks and sweets were lying scattered in the courtyard even at 8.30 a.m. which basket is stated to have been brought by PW-2. 39. If the respondent had returned from home after paying a visit to his patient by 8.00 a.m., as he now claims, he would not have been found in his night dress. The very fact that he was standing in his night dress at 8.00 a.m. demonstrably shows that the respondent had not left the house on his professional visit but he was very much present in the house. PW-6 (who was in service under the respondent for 4 year) and PW-9 who claims to have taken the respondent to attend on one Shashi have been treated as hostile witnesses. CWs 1 and 2, who support the defence theory are none other than the mother and brother of the respondent whose testimony is highly tainted. On a careful scanning of their evidence, we hold that no safe reliance could be placed on their testimony especially in view of the overwhelming circumstantial evidence falsifying their statements supporting the plea of alibi. 40. On an overall survey of the evidence, we are in full agreement with the observation of the Trial Court, holding that "his explanation that he was not present in the house at the time is patently false". The High Court has placed much reliance on the evidence of not only CWs 1 and 2 but also of the hostile witnesses PWs 6 and 9 for holding that the respondent was not in the house in the early morning, which finding of the High Court is absolutely untenable and in utter disregard of the evidence.41. Even though we are not finding the respondent guilty solely on his false explanation, yet that explanation assumes much significance because it is for the respondent to come forward with an acceptable and plausible explanation explaining the circumstances under which the deceased had met with her end, since, in our considered opinion, the respondent was in the company of his wife on the previous night and was found in the bed room in the early morning.42. Though the respondent has deliberately feigned ignorance and incredibly denied his complicity, the overwhelming persuasive circumstances attending the case and the crucial inculpatory evidence bear chilling testimony unmistakably proving the gruesome offence of murder and its diabolical execution and unerringly establishing the guilt of the respondent beyond all reasonable doubts.43. For all the reasons stated above, we, on our independent appraisal and evaluation of the evidence in accordance with the principle laid down in Chandra Mohan Tiwari v. State of Madhya Pradesh, JT 1992(1) SC 258 unhesitatingly hold that the conclusion arrived at by the Trial Court is logical, tenable, and reasonably sustainable and that the High Court after holding that the death of the deceased was homicidal has gone wrong in recording the impugned order of acquittal on erroneous and incredulous reasons. Hence the judgment of the High Court has become liable to be set aside. 44. Mr. Kohli, the learned counsel finally made a fervent but inexorable plea, submitting that since the occurrence took place in the year 1971 and that more than 14 years have now elapsed since the delivery of the judgment by the High Court in October 1977, this court be pleased not to disturb the finding of acquittal at this length of time. We gave our anxious consideration to the above submission, but we feel that this plea has to be summarily rejected when the facts and the impelling circumstances surrounding the present case cry for justice which in turn demands for awarding proper punishment according to law. In our view, if the impugned judgment of acquittal reversing the well reasoned judgment of the Trial Court, convicting the respondent is affirmed, it will be nothing but a mockery of justice and will also amount to prepetration of gross and irreparable injustice. Moreover, when a judgment appealed against suffers from illegality or manifest error or perversity, warranting an interference at the hands of an Appellate Court in the interest of justice on substantial and compelling reasons, the mere delay in the disposal of the said appeal will never serve as a ground for non- interference and on the other hand, the Appellate Court is duty bound to set at naught the miscarriage of justice.
### Response:
1
### Explanation:
36. As regards the motive, the High Court has held that there was nothing to aggravate the situation on the day of the occurrence for the respondent to take this extreme measure of putting her to death. This reasoning of the High Court is quite inconceivable, for the simple reason that there could be no evidence as to what had happened during the night of 11/12th October 1971 as the victim herself is dead. However, as we have discussed in the earlier part of this judgment, all was not well with the spouses and their strained relationship had been gaining momentum day by day and ultimately on the ill fated night it had culminated to this occurrence.On an overall survey of the evidence, we are in full agreement with the observation of the Trial Court, holding that "his explanation that he was not present in the house at the time is patently false". The High Court has placed much reliance on the evidence of not only CWs 1 and 2 but also of the hostile witnesses PWs 6 and 9 for holding that the respondent was not in the house in the early morning, which finding of the High Court is absolutely untenable and in utter disregard of the evidence.41. Even though we are not finding the respondent guilty solely on his false explanation, yet that explanation assumes much significance because it is for the respondent to come forward with an acceptable and plausible explanation explaining the circumstances under which the deceased had met with her end, since, in our considered opinion, the respondent was in the company of his wife on the previous night and was found in the bed room in the early morning.42. Though the respondent has deliberately feigned ignorance and incredibly denied his complicity, the overwhelming persuasive circumstances attending the case and the crucial inculpatory evidence bear chilling testimony unmistakably proving the gruesome offence of murder and its diabolical execution and unerringly establishing the guilt of the respondent beyond all reasonable doubts.43. For all the reasons stated above, we, on our independent appraisal and evaluation of the evidence in accordance with the principle laid down in Chandra Mohan Tiwari v. State of Madhya Pradesh, JT 1992(1) SC 258 unhesitatingly hold that the conclusion arrived at by the Trial Court is logical, tenable, and reasonably sustainable and that the High Court after holding that the death of the deceased was homicidal has gone wrong in recording the impugned order of acquittal on erroneous and incredulous reasons. Hence the judgment of the High Court has become liable to be setgave our anxious consideration to the above submission, but we feel that this plea has to be summarily rejected when the facts and the impelling circumstances surrounding the present case cry for justice which in turn demands for awarding proper punishment according to law. In our view, if the impugned judgment of acquittal reversing the well reasoned judgment of the Trial Court, convicting the respondent is affirmed, it will be nothing but a mockery of justice and will also amount to prepetration of gross and irreparable injustice. Moreover, when a judgment appealed against suffers from illegality or manifest error or perversity, warranting an interference at the hands of an Appellate Court in the interest of justice on substantial and compelling reasons, the mere delay in the disposal of the said appeal will never serve as a ground for non- interference and on the other hand, the Appellate Court is duty bound to set at naught the miscarriage of justice.
|
Samyukta Socialist Party Vs. Election Commission Of India & Anr | new party and also accepted the request. It is equally clear that on January 31, 1963 the Samyukta Socialist Party broke up at its very first meeting and the Praja Socialist Party, which reorganized itself claimed its original symbol. The Election Commission did not decide whether the merger was final or provisional, but, after enquiry, found it established that the original leaders of the Praja Socialist Party together with the bulk of the members of the Party had, in fact, left the united Party. The Election Commission ascertained the relative strengths of the Praja Socialist Party and the Samyukta Socialist Party before and after the break-up and came to the conclusion that the Parties had reverted to their original state. The Election Commission, therefore, restored the symbol of Hut to the Praja Socialist Party as its original party symbol and the symbol of Tree to the Samyukta Socialist Party as representing the old Socialist Party leaving it open to the Samyukta Socialist Party to choose any other free symbol if it liked. 10. The question is whether in doing so the Election Commission acted capriciously or without jurisdiction. We think the facts support the action of the Election Commission and also that it was within its jurisdiction. If the Praja Socialist Party after the break-up, was a new party or had a new leadership then the symbol, which originally belonged to the defunct Praja Socialist Party, could not be claimed by the new Praja Socialist Party as a matter of right, but if it was the same party with the same leaders which contested the earlier elections with the symbol of Hut there was complete justification in restoring the party to its original position so that the advantage of a symbol identified with a party should not be lost to it. Although we are clear that a change of symbol by the Election Commission arbitrarily would be outside its competency, because the Rules framed by the Central Government and supplemented by the Election Commission in its Notification do not contemplate a discretion to the Election Commission, there is some jurisdiction in the Election Commission to regulate or restrict the choice of symbols in circumstances such as this. Although no power is given to the Election Commission to impose its own wishes on parties or candidates, it can, in a suitable case, restore the lost advantage to a party before the symbol can be said to be finally assigned to another party. Can we, therefore, say, in this case, that the Election Commission imposed its will arbitrarily or capriciously on the Samyukta Socialist Party when it took away the symbol of Hut from it? On a careful consideration of the correspondence between the Election Commission on the one hand, and the Praja Socialist Party on the other, and taking into consideration all available facts, we are satisfied that the action of the Election Commission was within its jurisdiction when it recognised the choice of the symbol by the Praja Socialist Party and cannot be described as an interference with the choice of the Samyukta Socialist Party. 11. To begin with the action is bona fide, for no malice or any other improper motive has even been suggested. The Samyukta Socialist Party only contends that the Election Commission, was not competent to cancel the symbol chosen by the Samyukta Socialist Party. It submits that unlike the earlier rule, the new R. 5 (1) only enables the Election Commission to place restrictions on the choice of the candidate or the party but the choice once made by the candidate or the party is final and the Election Commission has no further say in the matter. It also submits that the facts do not justify the assumption of the Election Commission that the parties had once again reverted to the pre-merger state. These arguments require careful consideration because the importance of the symbols to our system of elections needs no exaggeration. Symbols are its very soul and without them the exercise of franchise by the majority of our citizens would be impossible. No doubt elections are fought on party lines but even if there is a plebiscite between parties, the symbols play a key role by identifying the parties. Slogans, placards, appeals all invoke the symbols and not the candidates. In fact, the voters are asked to vote for this symbol or that symbol. The Election Commission can allot symbols as desired by parties and candidates but, in a case such as this, it has to decide who is to have which symbol without, of course, putting a hurdle in the way of any party. 12. But what we have said has a double edge on it. If the merger of Praja Socialist Party and the Socialist Party was unsuccessful and before any significant time had passed the Praja Socialist Party had decided to separate, and if all the leaders of the party and almost all its original members decided to quit the amalgamated party, the benefit of its symbol could not be left to the Socialist Party which, in the events that have happened, is bearing the name of the unified party. It is no longer the unified party it was when the name was assumed. Parties have a sentimental attachment for their symbols. The Hut was the symbol of the Praja Socialist Party and the amalgamated party chose the Hut rather than the Tree because of the greater success of the Praja Socialist Party at the polls. If disagreement led to a quick break-up before the new party or its symbol could be properly grounded, the reversion to the original position was not only logical but also eminently just. It is clear, therefore, that the Election Commission proceeded along the right lines and reached the right conclusion both legally and in the light of the facts ascertained by it from impartial sources. We see no force in the appeal and it will be dismissed but we make no order as to costs. | 0[ds]This is not correct. The restrictions which the Election Commission has framed for the use of the symbols are quite clear and permit the issuance of fresh notifications if symbols are required to be changed. The restrictions when analysed are these. Before a candidate can choose a symbol it must be free. Before a reserved symbol can be chosen the candidate must be accredited to the party whose symbol it is and it must be shown by the Election Commission in its notification as the symbol of that party. Obviously, therefore, if circumstances change the notification must follow suit. Parties may come into existence and parties may go out of existence: parties may unite or parties may separate. This will require amendment of the notification. Just as the Election Commission allotted the Hut as a symbol by a change of notification to the Samyukta Socialist Party, it can allot it to another party if circumstances made that course obligatory and just. The Election Commission is required to give effect to restrictions of its own making but that does not restrict its own powers so long as what it does is in consonance with facts and the action is dictated by them. It must not, of course, favour one party so as to harm another. It must only change a symbol when the circumstances justify such a change9. There is no doubt that for a time the Praja Socialist Party and the Socialist Party did genuinely unite to from the Samyukta Socialist Party and that the Secretaries of the two Parties wrote to the Election Commission recognised the new party and also accepted the request. It is equally clear that on January 31, 1963 the Samyukta Socialist Party broke up at its very first meeting and the Praja Socialist Party, which reorganized itself claimed its original symbol. The Election Commission did not decide whether the merger was final or provisional, but, after enquiry, found it established that the original leaders of the Praja Socialist Party together with the bulk of the members of the Party had, in fact, left the united Party. The Election Commission ascertained the relative strengths of the Praja Socialist Party and the Samyukta Socialist Party before and after the break-up and came to the conclusion that the Parties had reverted to their original state. The Election Commission, therefore, restored the symbol of Hut to the Praja Socialist Party as its original party symbol and the symbol of Tree to the Samyukta Socialist Party as representing the old Socialist Party leaving it open to the Samyukta Socialist Party to choose any other free symbol if it liked11. To begin with the action is bona fide, for no malice or any other improper motive has even been suggested. The Samyukta Socialist Party only contends that the Election Commission, was not competent to cancel the symbol chosen by the Samyukta Socialist Party. It submits that unlike the earlier rule, the new R. 5 (1) only enables the Election Commission to place restrictions on the choice of the candidate or the party but the choice once made by the candidate or the party is final and the Election Commission has no further say in the matter. It also submits that the facts do not justify the assumption of the Election Commission that the parties had once again reverted to the pre-merger state. These arguments require careful consideration because the importance of the symbols to our system of elections needs no exaggeration. Symbols are its very soul and without them the exercise of franchise by the majority of our citizens would be impossible. No doubt elections are fought on party lines but even if there is a plebiscite between parties, the symbols play a key role by identifying the parties. Slogans, placards, appeals all invoke the symbols and not the candidates. In fact, the voters are asked to vote for this symbol or that symbol. The Election Commission can allot symbols as desired by parties and candidates but, in a case such as this, it has to decide who is to have which symbol without, of course, putting a hurdle in the way of any party12. But what we have said has a double edge on it. If the merger of Praja Socialist Party and the Socialist Party was unsuccessful and before any significant time had passed the Praja Socialist Party had decided to separate, and if all the leaders of the party and almost all its original members decided to quit the amalgamated party, the benefit of its symbol could not be left to the Socialist Party which, in the events that have happened, is bearing the name of the unified party. It is no longer the unified party it was when the name was assumed. Parties have a sentimental attachment for their symbols. The Hut was the symbol of the Praja Socialist Party and the amalgamated party chose the Hut rather than the Tree because of the greater success of the Praja Socialist Party at the polls. If disagreement led to a quick break-up before the new party or its symbol could be properly grounded, the reversion to the original position was not only logical but also eminently just. It is clear, therefore, that the Election Commission proceeded along the right lines and reached the right conclusion both legally and in the light of the facts ascertained by it from impartial sources. We see no force in the appeal and it will be dismissed but we make no order as to costs. | 0 | 3,580 | 996 | ### 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:
new party and also accepted the request. It is equally clear that on January 31, 1963 the Samyukta Socialist Party broke up at its very first meeting and the Praja Socialist Party, which reorganized itself claimed its original symbol. The Election Commission did not decide whether the merger was final or provisional, but, after enquiry, found it established that the original leaders of the Praja Socialist Party together with the bulk of the members of the Party had, in fact, left the united Party. The Election Commission ascertained the relative strengths of the Praja Socialist Party and the Samyukta Socialist Party before and after the break-up and came to the conclusion that the Parties had reverted to their original state. The Election Commission, therefore, restored the symbol of Hut to the Praja Socialist Party as its original party symbol and the symbol of Tree to the Samyukta Socialist Party as representing the old Socialist Party leaving it open to the Samyukta Socialist Party to choose any other free symbol if it liked. 10. The question is whether in doing so the Election Commission acted capriciously or without jurisdiction. We think the facts support the action of the Election Commission and also that it was within its jurisdiction. If the Praja Socialist Party after the break-up, was a new party or had a new leadership then the symbol, which originally belonged to the defunct Praja Socialist Party, could not be claimed by the new Praja Socialist Party as a matter of right, but if it was the same party with the same leaders which contested the earlier elections with the symbol of Hut there was complete justification in restoring the party to its original position so that the advantage of a symbol identified with a party should not be lost to it. Although we are clear that a change of symbol by the Election Commission arbitrarily would be outside its competency, because the Rules framed by the Central Government and supplemented by the Election Commission in its Notification do not contemplate a discretion to the Election Commission, there is some jurisdiction in the Election Commission to regulate or restrict the choice of symbols in circumstances such as this. Although no power is given to the Election Commission to impose its own wishes on parties or candidates, it can, in a suitable case, restore the lost advantage to a party before the symbol can be said to be finally assigned to another party. Can we, therefore, say, in this case, that the Election Commission imposed its will arbitrarily or capriciously on the Samyukta Socialist Party when it took away the symbol of Hut from it? On a careful consideration of the correspondence between the Election Commission on the one hand, and the Praja Socialist Party on the other, and taking into consideration all available facts, we are satisfied that the action of the Election Commission was within its jurisdiction when it recognised the choice of the symbol by the Praja Socialist Party and cannot be described as an interference with the choice of the Samyukta Socialist Party. 11. To begin with the action is bona fide, for no malice or any other improper motive has even been suggested. The Samyukta Socialist Party only contends that the Election Commission, was not competent to cancel the symbol chosen by the Samyukta Socialist Party. It submits that unlike the earlier rule, the new R. 5 (1) only enables the Election Commission to place restrictions on the choice of the candidate or the party but the choice once made by the candidate or the party is final and the Election Commission has no further say in the matter. It also submits that the facts do not justify the assumption of the Election Commission that the parties had once again reverted to the pre-merger state. These arguments require careful consideration because the importance of the symbols to our system of elections needs no exaggeration. Symbols are its very soul and without them the exercise of franchise by the majority of our citizens would be impossible. No doubt elections are fought on party lines but even if there is a plebiscite between parties, the symbols play a key role by identifying the parties. Slogans, placards, appeals all invoke the symbols and not the candidates. In fact, the voters are asked to vote for this symbol or that symbol. The Election Commission can allot symbols as desired by parties and candidates but, in a case such as this, it has to decide who is to have which symbol without, of course, putting a hurdle in the way of any party. 12. But what we have said has a double edge on it. If the merger of Praja Socialist Party and the Socialist Party was unsuccessful and before any significant time had passed the Praja Socialist Party had decided to separate, and if all the leaders of the party and almost all its original members decided to quit the amalgamated party, the benefit of its symbol could not be left to the Socialist Party which, in the events that have happened, is bearing the name of the unified party. It is no longer the unified party it was when the name was assumed. Parties have a sentimental attachment for their symbols. The Hut was the symbol of the Praja Socialist Party and the amalgamated party chose the Hut rather than the Tree because of the greater success of the Praja Socialist Party at the polls. If disagreement led to a quick break-up before the new party or its symbol could be properly grounded, the reversion to the original position was not only logical but also eminently just. It is clear, therefore, that the Election Commission proceeded along the right lines and reached the right conclusion both legally and in the light of the facts ascertained by it from impartial sources. We see no force in the appeal and it will be dismissed but we make no order as to costs.
### Response:
0
### Explanation:
This is not correct. The restrictions which the Election Commission has framed for the use of the symbols are quite clear and permit the issuance of fresh notifications if symbols are required to be changed. The restrictions when analysed are these. Before a candidate can choose a symbol it must be free. Before a reserved symbol can be chosen the candidate must be accredited to the party whose symbol it is and it must be shown by the Election Commission in its notification as the symbol of that party. Obviously, therefore, if circumstances change the notification must follow suit. Parties may come into existence and parties may go out of existence: parties may unite or parties may separate. This will require amendment of the notification. Just as the Election Commission allotted the Hut as a symbol by a change of notification to the Samyukta Socialist Party, it can allot it to another party if circumstances made that course obligatory and just. The Election Commission is required to give effect to restrictions of its own making but that does not restrict its own powers so long as what it does is in consonance with facts and the action is dictated by them. It must not, of course, favour one party so as to harm another. It must only change a symbol when the circumstances justify such a change9. There is no doubt that for a time the Praja Socialist Party and the Socialist Party did genuinely unite to from the Samyukta Socialist Party and that the Secretaries of the two Parties wrote to the Election Commission recognised the new party and also accepted the request. It is equally clear that on January 31, 1963 the Samyukta Socialist Party broke up at its very first meeting and the Praja Socialist Party, which reorganized itself claimed its original symbol. The Election Commission did not decide whether the merger was final or provisional, but, after enquiry, found it established that the original leaders of the Praja Socialist Party together with the bulk of the members of the Party had, in fact, left the united Party. The Election Commission ascertained the relative strengths of the Praja Socialist Party and the Samyukta Socialist Party before and after the break-up and came to the conclusion that the Parties had reverted to their original state. The Election Commission, therefore, restored the symbol of Hut to the Praja Socialist Party as its original party symbol and the symbol of Tree to the Samyukta Socialist Party as representing the old Socialist Party leaving it open to the Samyukta Socialist Party to choose any other free symbol if it liked11. To begin with the action is bona fide, for no malice or any other improper motive has even been suggested. The Samyukta Socialist Party only contends that the Election Commission, was not competent to cancel the symbol chosen by the Samyukta Socialist Party. It submits that unlike the earlier rule, the new R. 5 (1) only enables the Election Commission to place restrictions on the choice of the candidate or the party but the choice once made by the candidate or the party is final and the Election Commission has no further say in the matter. It also submits that the facts do not justify the assumption of the Election Commission that the parties had once again reverted to the pre-merger state. These arguments require careful consideration because the importance of the symbols to our system of elections needs no exaggeration. Symbols are its very soul and without them the exercise of franchise by the majority of our citizens would be impossible. No doubt elections are fought on party lines but even if there is a plebiscite between parties, the symbols play a key role by identifying the parties. Slogans, placards, appeals all invoke the symbols and not the candidates. In fact, the voters are asked to vote for this symbol or that symbol. The Election Commission can allot symbols as desired by parties and candidates but, in a case such as this, it has to decide who is to have which symbol without, of course, putting a hurdle in the way of any party12. But what we have said has a double edge on it. If the merger of Praja Socialist Party and the Socialist Party was unsuccessful and before any significant time had passed the Praja Socialist Party had decided to separate, and if all the leaders of the party and almost all its original members decided to quit the amalgamated party, the benefit of its symbol could not be left to the Socialist Party which, in the events that have happened, is bearing the name of the unified party. It is no longer the unified party it was when the name was assumed. Parties have a sentimental attachment for their symbols. The Hut was the symbol of the Praja Socialist Party and the amalgamated party chose the Hut rather than the Tree because of the greater success of the Praja Socialist Party at the polls. If disagreement led to a quick break-up before the new party or its symbol could be properly grounded, the reversion to the original position was not only logical but also eminently just. It is clear, therefore, that the Election Commission proceeded along the right lines and reached the right conclusion both legally and in the light of the facts ascertained by it from impartial sources. We see no force in the appeal and it will be dismissed but we make no order as to costs.
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Ramkarandas Radhavallabh Vs. Bhagwandas Dwarkadas | hereunder, be instituted by presenting a plaint in the prescribed form but the summons shall be in form No. 4 in appendix B, or in such other form as may be from time to time prescribed.(2) In any case in which the plaint and summons are in such forms respectively, the defendant shall not defend the suit unless he enters an appearance and obtains leave from a Judge as hereinafter provided so to defend; and in dafault of his entering an appearance and of his obtaining such leave to defend, the allegations in the plaint shall be deemed to be admitted, and the Plaintiff shall be entitled to a decree for possession.It is by virtue of this rule that the decree in the present case was passed without permitting the tenant to be heard. This was because the tenant had been given leave to defend on May 2, 1961 on a condition that it paid the arrears of rent by instalments as prescribed in the order. This order had been made by consent and the tenant had failed to permorm that condition, the result of which was to deprive him of the leave to defend earlier granted; the case became one as if no leave to defend had been given to the tenant and upon which the landlord became entitled to a decree under sub-rule (2) of R. 2 of O. 37.8. The contention of learned advocate for the tenant is that under the provisions of the Rents Act the landlord is not entitled to a decree as a matter of right; the Court has to consider the position of the tenant and has a discretion to pass or not to pass a decree. Therefore to a suit governed by the Act the provisions of R. 2 of O. 37 which make it incumbent on the Court to pass a decree in circumstances coming within that sub-rule, are inapplicable. It is on this ground that it is said that R. 8 of the Rules made under the Rents Act is ultra vires and, void.9. The first difficulty that appears to us to arise on this line of argument is that even if the contention is right, we cannot in the present appeal make an order setting aside the decree. The appeal has come to us out of an application originally filed in a Court of Small Causes under the provisions of O. 37 R:4 by the tenant itself. If the present contention it right, then the tenants application was wholly incompetent. The result of that however would not be to set aside the decree; it would only cause the dismissal of the tenants application. The tenant has to take other appropriate proceedings to show that the decree was ineffective in case it wants to contend that the suit had not been brought according to the procedure permissible in law, and that it had been illegally deprived of a hearing. It itself having resorted to O. 37, it scarcely lies in it now to contend that that Order is wholly inapplicable. Furthermore, by consenting to the Order of May 2, 1961, it had in this case clearly agreed that the suit had been rightly brought under O. 37. It cannot be allowed to change its position in the proceedings arising out of that very suit. For that reason alone we think no relief can be granted to it in this appeal based on the present contention.10. On the merits too, we think that the contention is fallacious. It proceeds on the basis that when leave to defend has been refused to a defendant, the Court is bound to pass a decree. It seems to us that what sub-rule (2) of R. 2 of O. 37 contemplates is that the Court will accept the statements in the plaint as correct and on those statements pass such decree as the plaintiff may in law be entitled to. If, for example, the plaint discloses no cause of action, the Court cannot pass any decree in favour of the plaintiff. If this were not so, the words "allegations in the plaint shall be deemed to be admitted" in sub-rule(2) of R. 2 of O. 37 would have been unnecessry. The Court in making a decree under sub-rule (2) of R. 2 of O. 37 has to keep the law in mind. If the law requires the Court to exercise a discretion on the facts deemed to be admitted, it will have to do so.11. In the procedure laid down under O. 37 the defendant may not be allowed at the hearing to place his side of the case for assisting the Court in the exercise of that discretion, but that does not create any conflict with the Rents Act. A rule can be made quite consistently with the Act that the defendant will have to adopt a certain procedure and to act within a certain time in order to be heard in that matter. Suppose a defendant does not put in an appearance in a suit for ejectment not brought under O. 37, can he say that the Act gave him a right to appear at the hearing and place his case before the Judge? We feel no doubt that such a thing is not contemplated by the Act and cannot be permitted. Rules of procedure may be framed for the exercise of rights and such rules are not ultra vires only because the right has to be exercised in accordance with them.Therefore we do not think that R. 8 is ultra vires.12. In what we have-said in the preceding paragraph we have proceeded on the assumption that the Court has a discretion. Certain provisions in Ss. 12 and 13 of the Rents Act had been read to us and it had been contended that they conferred that discretion on the Court. In the view that we have taken, it is unnecessary to express any opinion on that contention and we do not do so. | 0[ds]We are unable to accept this contention,. It has been observed by this Court in Manohar Lal v. Hiralal, AIR 1962 SC 527 at p. 534 : "The inherent powers are to be exercised by the Court in very exceptional circumstances, for which the Code lays down no procedure". This is a well recognised principle. Rule 4 of O. 37 expressly gives power to a Court to set aside a decree passed under the provisions of that Order. Express provision is thus made for setting aside a decree passed under O. 37 and hence if a case does not come within the provisions of that rule, there is no scope to resort to S. l5l for setting aside such a decree. We, therefore, agree with the High Court that the appellate bench of the Court of Small Causes was in error in setting aside the ex parte decree in exercise of powers under S. l5l. Again all the Courts have taken the view, and we think rightly, that no circumstances justifying the setting aside of the decree under R. 4 of O. 37 existed in the present case. We did not also understand learned advocate for the tenant to rely on any such circumstances in this Court. No question of setting aside the decree under that Order, therefore, arises.The first difficulty that appears to us to arise on this line of argument is that even if the contention is right, we cannot in the present appeal make an order setting aside the decree. The appeal has come to us out of an application originally filed in a Court of Small Causes under the provisions of O. 37 R:4 by the tenant itself. If the present contention it right, then the tenants application was wholly incompetent. The result of that however would not be to set aside the decree; it would only cause the dismissal of the tenants application. The tenant has to take other appropriate proceedings to show that the decree was ineffective in case it wants to contend that the suit had not been brought according to the procedure permissible in law, and that it had been illegally deprived of a hearing. It itself having resorted to O. 37, it scarcely lies in it now to contend that that Order is wholly inapplicable. Furthermore, by consenting to the Order of May 2, 1961, it had in this case clearly agreed that the suit had been rightly brought under O. 37. It cannot be allowed to change its position in the proceedings arising out of that very suit. For that reason alone we think no relief can be granted to it in this appeal based on the present contention.10. On the merits too, we think that the contention is fallacious. It proceeds on the basis that when leave to defend has been refused to a defendant, the Court is bound to pass a decree. It seems to us that what sub-rule (2) of R. 2 of O. 37 contemplates is that the Court will accept the statements in the plaint as correct and on those statements pass such decree as the plaintiff may in law be entitled to. If, for example, the plaint discloses no cause of action, the Court cannot pass any decree in favour of the plaintiff. If this were not so, the words "allegations in the plaint shall be deemed to be admitted" in sub-rule(2) of R. 2 of O. 37 would have been unnecessry. The Court in making a decree under sub-rule (2) of R. 2 of O. 37 has to keep the law in mind. If the law requires the Court to exercise a discretion on the facts deemed to be admitted, it will have to do so.In the procedure laid down under O. 37 the defendant may not be allowed at the hearing to place his side of the case for assisting the Court in the exercise of that discretion, but that does not create any conflict with the Rents Act. A rule can be made quite consistently with the Act that the defendant will have to adopt a certain procedure and to act within a certain time in order to be heard in that matter. Suppose a defendant does not put in an appearance in a suit for ejectment not brought under O. 37, can he say that the Act gave him a right to appear at the hearing and place his case before the Judge? We feel no doubt that such a thing is not contemplated by the Act and cannot be permitted. Rules of procedure may be framed for the exercise of rights and such rules are not ultra vires only because the right has to be exercised in accordance with them.Therefore we do not think that R. 8 is ultrais a well recognised principle. Rule 4 of O. 37 expressly gives power to a Court to set aside a decree passed under the provisions of that Order. Express provision is thus made for setting aside a decree passed under O. 37 and hence if a case does not come within the provisions of that rule, there is no scope to resort to S. l5l for setting aside such a decree. We, therefore, agree with the High Court that the appellate bench of the Court of Small Causes was in error in setting aside the ex parte decree in exercise of powers under S. l5l. Again all the Courts have taken the view, and we think rightly, that no circumstances justifying the setting aside of the decree under R. 4 of O. 37 existed in the present case. We did not also understand learned advocate for the tenant to rely on any such circumstances in this Court. No question of setting aside the decree under that Order, therefore,vires.12. In what wein the preceding paragraph we have proceeded on the assumption that the Court has a discretion. Certain provisions in Ss. 12 and 13 of the Rents Act had been read to us and it had been contended that they conferred that discretion on the Court. In the view that we have taken, it is unnecessary to express any opinion on that contention and we do not do so. | 0 | 2,372 | 1,144 | ### Instruction:
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hereunder, be instituted by presenting a plaint in the prescribed form but the summons shall be in form No. 4 in appendix B, or in such other form as may be from time to time prescribed.(2) In any case in which the plaint and summons are in such forms respectively, the defendant shall not defend the suit unless he enters an appearance and obtains leave from a Judge as hereinafter provided so to defend; and in dafault of his entering an appearance and of his obtaining such leave to defend, the allegations in the plaint shall be deemed to be admitted, and the Plaintiff shall be entitled to a decree for possession.It is by virtue of this rule that the decree in the present case was passed without permitting the tenant to be heard. This was because the tenant had been given leave to defend on May 2, 1961 on a condition that it paid the arrears of rent by instalments as prescribed in the order. This order had been made by consent and the tenant had failed to permorm that condition, the result of which was to deprive him of the leave to defend earlier granted; the case became one as if no leave to defend had been given to the tenant and upon which the landlord became entitled to a decree under sub-rule (2) of R. 2 of O. 37.8. The contention of learned advocate for the tenant is that under the provisions of the Rents Act the landlord is not entitled to a decree as a matter of right; the Court has to consider the position of the tenant and has a discretion to pass or not to pass a decree. Therefore to a suit governed by the Act the provisions of R. 2 of O. 37 which make it incumbent on the Court to pass a decree in circumstances coming within that sub-rule, are inapplicable. It is on this ground that it is said that R. 8 of the Rules made under the Rents Act is ultra vires and, void.9. The first difficulty that appears to us to arise on this line of argument is that even if the contention is right, we cannot in the present appeal make an order setting aside the decree. The appeal has come to us out of an application originally filed in a Court of Small Causes under the provisions of O. 37 R:4 by the tenant itself. If the present contention it right, then the tenants application was wholly incompetent. The result of that however would not be to set aside the decree; it would only cause the dismissal of the tenants application. The tenant has to take other appropriate proceedings to show that the decree was ineffective in case it wants to contend that the suit had not been brought according to the procedure permissible in law, and that it had been illegally deprived of a hearing. It itself having resorted to O. 37, it scarcely lies in it now to contend that that Order is wholly inapplicable. Furthermore, by consenting to the Order of May 2, 1961, it had in this case clearly agreed that the suit had been rightly brought under O. 37. It cannot be allowed to change its position in the proceedings arising out of that very suit. For that reason alone we think no relief can be granted to it in this appeal based on the present contention.10. On the merits too, we think that the contention is fallacious. It proceeds on the basis that when leave to defend has been refused to a defendant, the Court is bound to pass a decree. It seems to us that what sub-rule (2) of R. 2 of O. 37 contemplates is that the Court will accept the statements in the plaint as correct and on those statements pass such decree as the plaintiff may in law be entitled to. If, for example, the plaint discloses no cause of action, the Court cannot pass any decree in favour of the plaintiff. If this were not so, the words "allegations in the plaint shall be deemed to be admitted" in sub-rule(2) of R. 2 of O. 37 would have been unnecessry. The Court in making a decree under sub-rule (2) of R. 2 of O. 37 has to keep the law in mind. If the law requires the Court to exercise a discretion on the facts deemed to be admitted, it will have to do so.11. In the procedure laid down under O. 37 the defendant may not be allowed at the hearing to place his side of the case for assisting the Court in the exercise of that discretion, but that does not create any conflict with the Rents Act. A rule can be made quite consistently with the Act that the defendant will have to adopt a certain procedure and to act within a certain time in order to be heard in that matter. Suppose a defendant does not put in an appearance in a suit for ejectment not brought under O. 37, can he say that the Act gave him a right to appear at the hearing and place his case before the Judge? We feel no doubt that such a thing is not contemplated by the Act and cannot be permitted. Rules of procedure may be framed for the exercise of rights and such rules are not ultra vires only because the right has to be exercised in accordance with them.Therefore we do not think that R. 8 is ultra vires.12. In what we have-said in the preceding paragraph we have proceeded on the assumption that the Court has a discretion. Certain provisions in Ss. 12 and 13 of the Rents Act had been read to us and it had been contended that they conferred that discretion on the Court. In the view that we have taken, it is unnecessary to express any opinion on that contention and we do not do so.
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in very exceptional circumstances, for which the Code lays down no procedure". This is a well recognised principle. Rule 4 of O. 37 expressly gives power to a Court to set aside a decree passed under the provisions of that Order. Express provision is thus made for setting aside a decree passed under O. 37 and hence if a case does not come within the provisions of that rule, there is no scope to resort to S. l5l for setting aside such a decree. We, therefore, agree with the High Court that the appellate bench of the Court of Small Causes was in error in setting aside the ex parte decree in exercise of powers under S. l5l. Again all the Courts have taken the view, and we think rightly, that no circumstances justifying the setting aside of the decree under R. 4 of O. 37 existed in the present case. We did not also understand learned advocate for the tenant to rely on any such circumstances in this Court. No question of setting aside the decree under that Order, therefore, arises.The first difficulty that appears to us to arise on this line of argument is that even if the contention is right, we cannot in the present appeal make an order setting aside the decree. The appeal has come to us out of an application originally filed in a Court of Small Causes under the provisions of O. 37 R:4 by the tenant itself. If the present contention it right, then the tenants application was wholly incompetent. The result of that however would not be to set aside the decree; it would only cause the dismissal of the tenants application. The tenant has to take other appropriate proceedings to show that the decree was ineffective in case it wants to contend that the suit had not been brought according to the procedure permissible in law, and that it had been illegally deprived of a hearing. It itself having resorted to O. 37, it scarcely lies in it now to contend that that Order is wholly inapplicable. Furthermore, by consenting to the Order of May 2, 1961, it had in this case clearly agreed that the suit had been rightly brought under O. 37. It cannot be allowed to change its position in the proceedings arising out of that very suit. For that reason alone we think no relief can be granted to it in this appeal based on the present contention.10. On the merits too, we think that the contention is fallacious. It proceeds on the basis that when leave to defend has been refused to a defendant, the Court is bound to pass a decree. It seems to us that what sub-rule (2) of R. 2 of O. 37 contemplates is that the Court will accept the statements in the plaint as correct and on those statements pass such decree as the plaintiff may in law be entitled to. If, for example, the plaint discloses no cause of action, the Court cannot pass any decree in favour of the plaintiff. If this were not so, the words "allegations in the plaint shall be deemed to be admitted" in sub-rule(2) of R. 2 of O. 37 would have been unnecessry. The Court in making a decree under sub-rule (2) of R. 2 of O. 37 has to keep the law in mind. If the law requires the Court to exercise a discretion on the facts deemed to be admitted, it will have to do so.In the procedure laid down under O. 37 the defendant may not be allowed at the hearing to place his side of the case for assisting the Court in the exercise of that discretion, but that does not create any conflict with the Rents Act. A rule can be made quite consistently with the Act that the defendant will have to adopt a certain procedure and to act within a certain time in order to be heard in that matter. Suppose a defendant does not put in an appearance in a suit for ejectment not brought under O. 37, can he say that the Act gave him a right to appear at the hearing and place his case before the Judge? We feel no doubt that such a thing is not contemplated by the Act and cannot be permitted. Rules of procedure may be framed for the exercise of rights and such rules are not ultra vires only because the right has to be exercised in accordance with them.Therefore we do not think that R. 8 is ultrais a well recognised principle. Rule 4 of O. 37 expressly gives power to a Court to set aside a decree passed under the provisions of that Order. Express provision is thus made for setting aside a decree passed under O. 37 and hence if a case does not come within the provisions of that rule, there is no scope to resort to S. l5l for setting aside such a decree. We, therefore, agree with the High Court that the appellate bench of the Court of Small Causes was in error in setting aside the ex parte decree in exercise of powers under S. l5l. Again all the Courts have taken the view, and we think rightly, that no circumstances justifying the setting aside of the decree under R. 4 of O. 37 existed in the present case. We did not also understand learned advocate for the tenant to rely on any such circumstances in this Court. No question of setting aside the decree under that Order, therefore,vires.12. In what wein the preceding paragraph we have proceeded on the assumption that the Court has a discretion. Certain provisions in Ss. 12 and 13 of the Rents Act had been read to us and it had been contended that they conferred that discretion on the Court. In the view that we have taken, it is unnecessary to express any opinion on that contention and we do not do so.
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Commnr.,Bangalore Dev. Authority Vs. S.Vasudeva | (a) the Authority shall pay to the lessee the allotted value of the site and an additional sum equal to the amount of interest at twelve per cent per annum thereon; and (ii) in case covered by clause (b) the lessee shall pay to the authority al sum equal to the amount of interest at twelve per cent per annum on the allotted value of the site." The said Rule did not permit transfer of site on which building had not been erected. According to sub-rule (3), under certain conditions an allottee could only surrender the site in which case he was entitled to receive the favor of the site plus 12 per cent interest thereon. It is only is a building was erected that permission could be given to sell the vacant site and building subject to payment of interest at the rate of 12 per cent on the allotted value of the site. It is represented before us that the BDA permitted the allottees to sell the sites, inasmuch as under Section 65 of the Act the Government of Karnataka had issued a direction requiring the BDA to permit the said transfers. Section 65 of the Act gives power to the Government to issue directions to the Authority and reads thus : 65. Governments power to give directions to the Authority - The Government may given such directions to the Authority as in its opinion are necessary or expedient for carrying out the purposes of this Act, and it shall be the duty of the Authority to comply with such directions. 10. As we read the above Section, the Government has no power to issue any directions which are in conflict with the provisions of the Act and, by necessary implication, in conflict with the Rules framed under the said Act. The directions which can be given under Section 65 are such which are necessary or expedient for the carrying out of the purposes of the Act. When Rule 14, as it stood in the year 1994-95, did not permit sale of vacant sites by an allottee to anybody else, even after getting permission from the BDA, the Government could not have permitted or directed the said land to be sold or transferred. This being the position, the transfer of land by 13 such ex-Legislature and ex-Ministers who were members of the respondent-Society, and whose names are included in the BDAs letter dated 27th/28th October, 1995 written to the Principal Secretary to Government, Housing & Urban Development Department, Bangalore, was clearly illegal and the permission so granted and the consequent transfer of land would become liable to be set aside. 11. Rule 14 has now been amended by Notification dated 6th February, 1998. Rule 5 of the Bangalore Development Authority (Allotment of Sites) (Amendment) Rules, 1997 which makes the amendment in Rule 14 reads thus : 5. Amendment of Rule 14 :- In rule-14 of the said rules. - (1) after sub-rule (2), the following shall be inserted namely :- "2A. Notwithstanding anything contained in sub-rule (2), where a lessee has alienated the site in contravention of sub-clause (iii) of clause (a) sub-rule (2), the authority may on application of the purchaser of such site and subject to payment by the purchaser an amount equal to twenty-five per cent of the sital value determined at the rates specified by the State Government from time to time for the purpose of registration, order for regularisation of such alienation and may also convey title to such purchaser." (2) in sub-rule (3), (i) after clause (a), the following clause shall be inserted namely :- "(aa) permit the allottee to sell the site during the lease period of ten years." (ii) in the proviso, after clause (i), the following clause shall be inserted namely :- ("ia) in case covered by clause (aa), mentioned above, the lessee shall pay to the Authority an amount equivalent to fifteen per cent of the sital value determined at the rates specified by the State Government from time to time for the purpose of registration." 12. As a result of the Rules as they now stand where there has been alienation of site in contravention of sub-rule (2), then on an application being made by the purchaser the said sale or alienation in his favour can be regularised on the purchaser paying an amount equal to 25 per cent of the sital value determined at the rates specified by the State Goverment from time to time. Inasmuch as the permission which was granted in 1994 and 1995 for transferring the land was illegal, the effect would be that the original allottees had transferred the land in violation of the provisions of sub-rule (2) of Rule 14 and now after the amendment of the said Rule regularisation of the said alienation can take place by the purchaser paying the amount referred to in sub-rule (2A). If this payment is not made, the result obviously would be that the alienation will not be validated and the allotment of land itself would stand cancelled. It is obvious that under Rule 14 permission to transfer can be granted under the circumstances provided by sub-rule (3). The said sub-rule provides that an application for transfer can be made by an allottee on the grounds that (a) for reasons beyond h is control he is unable to resident in the city of Bangalore; or (b) by reasons of his insolvency or impecuniosity, it is necessary for him to sell the site and the building. The High Court has interpreted this Rule to mean that it is only for reason of insolvency that permission under sub-rule (3) can be granted. This does not appear to be correct because on the ground that the allottee is unable to reside in the city of Bangalore and also on the ground of impecuniosity, permission can be granted to sell the land or the land and the building constructed thereof, after the amendment of the Rule in 1998. | 1[ds]5. At the outset, we are of the opinion that the High Court travelled way beyond the scope of the writ petition which was before it. The prayer in the writ petition was for quashing the out of turn allotments in favour of MLAs, MPs and others who were impleaded as respondents Nos. 4 to 38 before the High Court. The further prayer was that permission which had been granted to some of these MLAs, MPs and others to transfer plots of land which had been allotted to them should also be quashed. It is pertinent to note that in this writ petition there was no challenge either to the registration of thewith the BDA or to the allotment or land to the Society as such. As already noted, the challenge was to the allotment to the 34 persons who were stated to be members of the said Society. The High Court, on the other hand, not only came to the conclusion that bulk allotment of land was not permissible but also directed the constitution of a Committee to go into all allotments made by the BDA. The effect of this would be that the Committee which was sought to be constituted was empowered to carry out a moving and fishing inquiry with regard to allotments of land made by the BDA since the time it was constituted in the year 1976. There was neither any prayer in the writ petition to this effect nor do we find any affidavit having been filed by the respondents before the High Court in relation to such allotments of land to the Society and others. The writ petitioner had not chosen to enlarge the scope of the writ petition by amending his petition and, therefore, the High Court, in our opinion, was not justified in issuing the type of directions which it did.6. Coming to the merits of the case and without going into the question of laches we find that during the pendency of the hearing of the writ petition, two of the respondents, namely, Jagannatha Rao Chandraki and K.G. Ramaswamy had expired. The High Court ordered their deletion from the array of respondents. In addition thereto, it was found that some of the persons who were originally impleaded as respondents were not Legislators and on a memo being filed by the writ petitioner 13 such respondents were deleted from the array of respondents vide Courts order dated 27th August, 1998. We are th us concerned with the remainingAs we read the above Section,the Government haspower to issue any directions which are in conflict with the provisions of the, by necessary implication, in conflict with the Rules framed under the said Act.The directions which can be given under Section 65 are such which are necessary or expedient for the carrying out of the purposes of the Act. When Rule 14, as it stood in the yeardid not permit sale of vacant sites by an allottee to anybody else, even after getting permission from the BDA, the Government could not have permitted or directed the said land to be sold or transferred. This being the position, the transfer of land by 13 suchrs who were members of theand whose names are included in the BDAs letter dated 27th/28th October, 1995 written to the Principal Secretary to Government, Housing & Urban Development Department, Bangalore, was clearly illegal and the permission so granted and the consequent transfer of land would become liable to be set aside.As a result of the Rules as they now stand where there has been alienation of site in contravention of(2), then on an application being made by the purchaser the said sale or alienation in his favour can be regularised on the purchaser paying an amount equal to 25 per cent of the sital value determined at the rates specified by the State Goverment from time to time. Inasmuch as the permission which was granted in 1994 and 1995 for transferring the land was illegal, the effect would be that the original allottees had transferred the land in violation of the provisions of(2) of Rule 14 and now after the amendment of the said Rule regularisation of the said alienation can take place by the purchaser paying the amount referred to in(2A). If this payment is not made, the result obviously would be that the alienation will not be validated and the allotment of land itself would stand cancelled. It is obvious that under Rule 14 permission to transfer can be granted under the circumstances provided by(3). The saidprovides that an application for transfer can be made by an allottee on the grounds that (a) for reasons beyond h is control he is unable to resident in the city of Bangalore; or (b) by reasons of his insolvency or impecuniosity, it is necessary for him to sell the site and the building. The High Court has interpreted this Rule to mean that it is only for reason of insolvency that permission under(3) can be granted. This does not appear to be correct because on the ground that the allottee is unable to reside in the city of Bangalore and also on the ground of impecuniosity, permission can be granted to sell the land or the land and the building constructed thereof, after the amendment of the Rule in 1998. | 1 | 4,656 | 970 | ### Instruction:
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(a) the Authority shall pay to the lessee the allotted value of the site and an additional sum equal to the amount of interest at twelve per cent per annum thereon; and (ii) in case covered by clause (b) the lessee shall pay to the authority al sum equal to the amount of interest at twelve per cent per annum on the allotted value of the site." The said Rule did not permit transfer of site on which building had not been erected. According to sub-rule (3), under certain conditions an allottee could only surrender the site in which case he was entitled to receive the favor of the site plus 12 per cent interest thereon. It is only is a building was erected that permission could be given to sell the vacant site and building subject to payment of interest at the rate of 12 per cent on the allotted value of the site. It is represented before us that the BDA permitted the allottees to sell the sites, inasmuch as under Section 65 of the Act the Government of Karnataka had issued a direction requiring the BDA to permit the said transfers. Section 65 of the Act gives power to the Government to issue directions to the Authority and reads thus : 65. Governments power to give directions to the Authority - The Government may given such directions to the Authority as in its opinion are necessary or expedient for carrying out the purposes of this Act, and it shall be the duty of the Authority to comply with such directions. 10. As we read the above Section, the Government has no power to issue any directions which are in conflict with the provisions of the Act and, by necessary implication, in conflict with the Rules framed under the said Act. The directions which can be given under Section 65 are such which are necessary or expedient for the carrying out of the purposes of the Act. When Rule 14, as it stood in the year 1994-95, did not permit sale of vacant sites by an allottee to anybody else, even after getting permission from the BDA, the Government could not have permitted or directed the said land to be sold or transferred. This being the position, the transfer of land by 13 such ex-Legislature and ex-Ministers who were members of the respondent-Society, and whose names are included in the BDAs letter dated 27th/28th October, 1995 written to the Principal Secretary to Government, Housing & Urban Development Department, Bangalore, was clearly illegal and the permission so granted and the consequent transfer of land would become liable to be set aside. 11. Rule 14 has now been amended by Notification dated 6th February, 1998. Rule 5 of the Bangalore Development Authority (Allotment of Sites) (Amendment) Rules, 1997 which makes the amendment in Rule 14 reads thus : 5. Amendment of Rule 14 :- In rule-14 of the said rules. - (1) after sub-rule (2), the following shall be inserted namely :- "2A. Notwithstanding anything contained in sub-rule (2), where a lessee has alienated the site in contravention of sub-clause (iii) of clause (a) sub-rule (2), the authority may on application of the purchaser of such site and subject to payment by the purchaser an amount equal to twenty-five per cent of the sital value determined at the rates specified by the State Government from time to time for the purpose of registration, order for regularisation of such alienation and may also convey title to such purchaser." (2) in sub-rule (3), (i) after clause (a), the following clause shall be inserted namely :- "(aa) permit the allottee to sell the site during the lease period of ten years." (ii) in the proviso, after clause (i), the following clause shall be inserted namely :- ("ia) in case covered by clause (aa), mentioned above, the lessee shall pay to the Authority an amount equivalent to fifteen per cent of the sital value determined at the rates specified by the State Government from time to time for the purpose of registration." 12. As a result of the Rules as they now stand where there has been alienation of site in contravention of sub-rule (2), then on an application being made by the purchaser the said sale or alienation in his favour can be regularised on the purchaser paying an amount equal to 25 per cent of the sital value determined at the rates specified by the State Goverment from time to time. Inasmuch as the permission which was granted in 1994 and 1995 for transferring the land was illegal, the effect would be that the original allottees had transferred the land in violation of the provisions of sub-rule (2) of Rule 14 and now after the amendment of the said Rule regularisation of the said alienation can take place by the purchaser paying the amount referred to in sub-rule (2A). If this payment is not made, the result obviously would be that the alienation will not be validated and the allotment of land itself would stand cancelled. It is obvious that under Rule 14 permission to transfer can be granted under the circumstances provided by sub-rule (3). The said sub-rule provides that an application for transfer can be made by an allottee on the grounds that (a) for reasons beyond h is control he is unable to resident in the city of Bangalore; or (b) by reasons of his insolvency or impecuniosity, it is necessary for him to sell the site and the building. The High Court has interpreted this Rule to mean that it is only for reason of insolvency that permission under sub-rule (3) can be granted. This does not appear to be correct because on the ground that the allottee is unable to reside in the city of Bangalore and also on the ground of impecuniosity, permission can be granted to sell the land or the land and the building constructed thereof, after the amendment of the Rule in 1998.
### Response:
1
### Explanation:
5. At the outset, we are of the opinion that the High Court travelled way beyond the scope of the writ petition which was before it. The prayer in the writ petition was for quashing the out of turn allotments in favour of MLAs, MPs and others who were impleaded as respondents Nos. 4 to 38 before the High Court. The further prayer was that permission which had been granted to some of these MLAs, MPs and others to transfer plots of land which had been allotted to them should also be quashed. It is pertinent to note that in this writ petition there was no challenge either to the registration of thewith the BDA or to the allotment or land to the Society as such. As already noted, the challenge was to the allotment to the 34 persons who were stated to be members of the said Society. The High Court, on the other hand, not only came to the conclusion that bulk allotment of land was not permissible but also directed the constitution of a Committee to go into all allotments made by the BDA. The effect of this would be that the Committee which was sought to be constituted was empowered to carry out a moving and fishing inquiry with regard to allotments of land made by the BDA since the time it was constituted in the year 1976. There was neither any prayer in the writ petition to this effect nor do we find any affidavit having been filed by the respondents before the High Court in relation to such allotments of land to the Society and others. The writ petitioner had not chosen to enlarge the scope of the writ petition by amending his petition and, therefore, the High Court, in our opinion, was not justified in issuing the type of directions which it did.6. Coming to the merits of the case and without going into the question of laches we find that during the pendency of the hearing of the writ petition, two of the respondents, namely, Jagannatha Rao Chandraki and K.G. Ramaswamy had expired. The High Court ordered their deletion from the array of respondents. In addition thereto, it was found that some of the persons who were originally impleaded as respondents were not Legislators and on a memo being filed by the writ petitioner 13 such respondents were deleted from the array of respondents vide Courts order dated 27th August, 1998. We are th us concerned with the remainingAs we read the above Section,the Government haspower to issue any directions which are in conflict with the provisions of the, by necessary implication, in conflict with the Rules framed under the said Act.The directions which can be given under Section 65 are such which are necessary or expedient for the carrying out of the purposes of the Act. When Rule 14, as it stood in the yeardid not permit sale of vacant sites by an allottee to anybody else, even after getting permission from the BDA, the Government could not have permitted or directed the said land to be sold or transferred. This being the position, the transfer of land by 13 suchrs who were members of theand whose names are included in the BDAs letter dated 27th/28th October, 1995 written to the Principal Secretary to Government, Housing & Urban Development Department, Bangalore, was clearly illegal and the permission so granted and the consequent transfer of land would become liable to be set aside.As a result of the Rules as they now stand where there has been alienation of site in contravention of(2), then on an application being made by the purchaser the said sale or alienation in his favour can be regularised on the purchaser paying an amount equal to 25 per cent of the sital value determined at the rates specified by the State Goverment from time to time. Inasmuch as the permission which was granted in 1994 and 1995 for transferring the land was illegal, the effect would be that the original allottees had transferred the land in violation of the provisions of(2) of Rule 14 and now after the amendment of the said Rule regularisation of the said alienation can take place by the purchaser paying the amount referred to in(2A). If this payment is not made, the result obviously would be that the alienation will not be validated and the allotment of land itself would stand cancelled. It is obvious that under Rule 14 permission to transfer can be granted under the circumstances provided by(3). The saidprovides that an application for transfer can be made by an allottee on the grounds that (a) for reasons beyond h is control he is unable to resident in the city of Bangalore; or (b) by reasons of his insolvency or impecuniosity, it is necessary for him to sell the site and the building. The High Court has interpreted this Rule to mean that it is only for reason of insolvency that permission under(3) can be granted. This does not appear to be correct because on the ground that the allottee is unable to reside in the city of Bangalore and also on the ground of impecuniosity, permission can be granted to sell the land or the land and the building constructed thereof, after the amendment of the Rule in 1998.
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In Re: Modern Dekor Painting Contracts Private Limited and Modern Dekor Painting Contracts Private Limited Vs. Jenson and Nicholson Limited and Another | The notice of the petition referred to in r. 28 is not a letter addressed by the petitioning creditors advocate to the company intimating the date fixed by the court for the admission of the petition. This is made clear by the fact that after the admission of the petition, a notice has to be served upon the company and this is made amply clear by the said sub-r. (1) of r. 28 which states that the Registrar shall immediately on the admission of the petition send the notice together with the copy of the petition to the company by registered post. Therefore, the notice contemplated by sub-r. (1) of r. 28 is a notice which is to be served by the registrar after the winding-up petition is admitted. The Registrar is defined in r. 2 (11) : 2. (11) registrar means in the High Court, the Registrar of the High Court, and includes the prothonotary, master and assistant master and such other officer as may be authorised by the chief Justice to perform all or any of the duties assigned to the Registrar under these rules, and in the District Court, such officer of that court as may by authorised by the High Court to perform all or any of the duties assigned to the Registrar, under these rules. ( 18 ) THEREFORE, the prothonotary, master and assistant master or such other officer as may be authorised by the Chief Justice to perform all or any of the duties of the Registrar under these rules is the person who is made responsible for the service of the notice. Therefore, a letter intimating the date fixed for the admission of the petition given to the company is an altogether different aspect of the matter. This letter which has been termed as a notice in the arguments advanced before us is not under the Companies (Court) Rules, such a notice has not been provided for by the Companies (Court) Rules and such notice cannot be made a foothold for the submission that such a notice will be a deemed notice of the winding-up petition. Rule 28 is quite clear. Sub-rule (2) of r. 28 also provides the mode and the manner in which service upon the company is to be effected. In the first part of sub-r. (2) of r. 28, a personal service upon the company is contemplated while in the company, then service is to be effected by registered post. Again that r. 28 applies with all its force to a winding-up petition is made clear by the second of part sub-r. (2) of r. 28. The second part of sub-r. (2) of r. 28 provides : where the company is being wound-up, the petition or application shall also be served on the liquidator, if any, appointed for the purpose of winding-up the affairs of the company. ( 19 ) THE word also in this part makes it amply clear that the petition for winding-up has to be served upon the company. For this reason also, it is difficult to accept the submission of Shri tulzapurkar that to a winding-up petition, the only rules that are applicable are the rules to be found in Pt. III of the Companies (Court) Rules. It is also difficult to accept the submission of shri Tulzapurkar that the advertisements published in the newspapers and in the Government gazette should be taken as service upon the company. ( 20 ) THIS conclusion is further fortified by the subsequent rules, viz. , rr. 29 and 31. Rule 29 provides : save as otherwise provided by these rules and subject to any directions of the judge or registrar, the petitioner, applicant or any other person having the conduct of proceedings in court, shall be responsible for the service of all notices, summonses and other processes, for the advertisement and publication of notices required to be effected by these rules or by order of court. ( 21 ) WHILE r. 28 provides that the Registrar shall send the notice, rule 29 makes the petitioning creditor responsible for the service of notice. Here also, it will be noticed that the rules make a distinction between service of notice and issue of advertisement. Therefore, even if an advertisement is required to be published as provided in r. 96, it does not exclude service of notice upon the company. Rule 31 makes this position further clear. It states : in default of compliance with the requirements of the rules or the directions of the judge or registrar, as regards the advertisement and service of the petition, the petition shall, on the date fixed for hearing be posted for orders of the judge may either dismiss the petition or give such further directions as he thinks fit. ( 22 ) RULE 31 also distinguishes between issuance of an advertisement and service of notice upon the company. The provisions of rr. 27,28,29 and 31 make a complete provision in regard to the service of notice upon the company and in regard to the issuance of advertisements in newspapers and they apply ex proprio vigore to a winding-up petition. They exclude by necessary implication deeming service as submitted before us. There is no such deeming service contemplated by the Companies (Court) Rules, 1959. ( 23 ) THE next question is what is the effect of non-compliance of the notice as contemplated by rr. 27,28, and 29 of the Companies (Court) Rules upon the company The effect is as directed in r. 31 of the Companies (Court) Rules, viz. , that the petition will have to be posted for orders for dismissal of the petition or to pass such order as the court may deems fit. ( 24 ) SINCE the notice of the winding-up petition was not served upon the company, the appeal will have to be allowed and the order dated January 27, 1982, dismissing the judges summons, viz. , Company Application No. 204 of 1981, will have to be set aside. | 1[ds]( 7 ) IT is difficult to accept the submission of Shri Tulzapurkar. It must at first be stated that there is no provision in the Companies (Court) Rules, 1959, or in any other rules for acceptance of a winding up petition, but a practice has developed in this court of placing a winding up petition before the court for acceptance and this practice and procedure which is a long standing practice and procedure has been saved by r. 6 of the Companies (Court) Rules, 1959, Rule 6 provides :save as provided by the Act or by these rules, the practice and procedure of the court and the provisions of the Code so far as applicable, shall apply to all proceedings under the Act and these rules. The Registrar may decline to accept any document which is presented otherwise than in accordance with these rules or the practice and procedure of the court.( 15 ) IT is also difficult to accept the submission of Shri Tulzapurkar that rr. 27, 28, 29 and 31 do not apply to ap petition. Rule 28 of the Companies (Court) Rules, 1959, is as under : 28. Service on company.(1) Where a petition is presented against a company, it shall be accompanied by a notice of the petition in the prescribed form together with a copy of the petition for service on the company and an envelope addressed to the company at its registered office or its principal place of business and sufficiently stamped for being sent by registered post for acknowledgment. The Registrar shall immediately on the admission of the petition send the notice together with the copy of the petition to the company by registered post. (2) Every petition and, save as otherwise provided by these Rules or by an order of court, every application shall, unless presented by the company, be served on the company at its registered office, or, if there is no registered office, at its principal or last known principal place of business, by leaving a copy thereof with an officer or employee of the company and in case no such person is available, in such manner, as the judge or Registrar may direct or by sending a copy thereof by prepaid registered post addressed to the company at its registered office, or if there is no registered office, at its principal or last known principal place of business, or to such person and at such address as the judge or Registrar may direct. Where the company is being wound up, the petition or application shall also be served on the liquidator, if any, appointed for the purpose ofp the affairs of the company.It is also difficult to accept this submission of Shri Tulzapurkar. The opening words of r. 28 (1) are where a petition is presented against a company and the opening words of. (2) of r. 28 are every petition. Therefore, neither inp petition excepted. A plain reading of r. 28 shows that it is applicable to every petition filed against a company and it admits of no exception. Furthermore, the language or r. 28 shows that the service of notice upon the company is mandatory. The words every petition. . . every application shall, unless presented by the company be served on the company are not merely directory but also mandatory. Reading rr. 27 and 28 together, the prescribed form referred to in r. 28 is Form No. 6 which is prescribed by r. 27The effect is as directed in r. 31 of the Companies (Court) Rules, viz. , that the petition will have to be posted for orders for dismissal of the petition or to pass such order as the court may deems fit( 24 ) SINCE the notice of thep petition was not served upon the company, the appeal will have to be allowed and the order dated January 27, 1982, dismissing the judges summons, viz. , Company Application No. 204 of 1981, will have to be set aside. | 1 | 4,292 | 751 | ### 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 notice of the petition referred to in r. 28 is not a letter addressed by the petitioning creditors advocate to the company intimating the date fixed by the court for the admission of the petition. This is made clear by the fact that after the admission of the petition, a notice has to be served upon the company and this is made amply clear by the said sub-r. (1) of r. 28 which states that the Registrar shall immediately on the admission of the petition send the notice together with the copy of the petition to the company by registered post. Therefore, the notice contemplated by sub-r. (1) of r. 28 is a notice which is to be served by the registrar after the winding-up petition is admitted. The Registrar is defined in r. 2 (11) : 2. (11) registrar means in the High Court, the Registrar of the High Court, and includes the prothonotary, master and assistant master and such other officer as may be authorised by the chief Justice to perform all or any of the duties assigned to the Registrar under these rules, and in the District Court, such officer of that court as may by authorised by the High Court to perform all or any of the duties assigned to the Registrar, under these rules. ( 18 ) THEREFORE, the prothonotary, master and assistant master or such other officer as may be authorised by the Chief Justice to perform all or any of the duties of the Registrar under these rules is the person who is made responsible for the service of the notice. Therefore, a letter intimating the date fixed for the admission of the petition given to the company is an altogether different aspect of the matter. This letter which has been termed as a notice in the arguments advanced before us is not under the Companies (Court) Rules, such a notice has not been provided for by the Companies (Court) Rules and such notice cannot be made a foothold for the submission that such a notice will be a deemed notice of the winding-up petition. Rule 28 is quite clear. Sub-rule (2) of r. 28 also provides the mode and the manner in which service upon the company is to be effected. In the first part of sub-r. (2) of r. 28, a personal service upon the company is contemplated while in the company, then service is to be effected by registered post. Again that r. 28 applies with all its force to a winding-up petition is made clear by the second of part sub-r. (2) of r. 28. The second part of sub-r. (2) of r. 28 provides : where the company is being wound-up, the petition or application shall also be served on the liquidator, if any, appointed for the purpose of winding-up the affairs of the company. ( 19 ) THE word also in this part makes it amply clear that the petition for winding-up has to be served upon the company. For this reason also, it is difficult to accept the submission of Shri tulzapurkar that to a winding-up petition, the only rules that are applicable are the rules to be found in Pt. III of the Companies (Court) Rules. It is also difficult to accept the submission of shri Tulzapurkar that the advertisements published in the newspapers and in the Government gazette should be taken as service upon the company. ( 20 ) THIS conclusion is further fortified by the subsequent rules, viz. , rr. 29 and 31. Rule 29 provides : save as otherwise provided by these rules and subject to any directions of the judge or registrar, the petitioner, applicant or any other person having the conduct of proceedings in court, shall be responsible for the service of all notices, summonses and other processes, for the advertisement and publication of notices required to be effected by these rules or by order of court. ( 21 ) WHILE r. 28 provides that the Registrar shall send the notice, rule 29 makes the petitioning creditor responsible for the service of notice. Here also, it will be noticed that the rules make a distinction between service of notice and issue of advertisement. Therefore, even if an advertisement is required to be published as provided in r. 96, it does not exclude service of notice upon the company. Rule 31 makes this position further clear. It states : in default of compliance with the requirements of the rules or the directions of the judge or registrar, as regards the advertisement and service of the petition, the petition shall, on the date fixed for hearing be posted for orders of the judge may either dismiss the petition or give such further directions as he thinks fit. ( 22 ) RULE 31 also distinguishes between issuance of an advertisement and service of notice upon the company. The provisions of rr. 27,28,29 and 31 make a complete provision in regard to the service of notice upon the company and in regard to the issuance of advertisements in newspapers and they apply ex proprio vigore to a winding-up petition. They exclude by necessary implication deeming service as submitted before us. There is no such deeming service contemplated by the Companies (Court) Rules, 1959. ( 23 ) THE next question is what is the effect of non-compliance of the notice as contemplated by rr. 27,28, and 29 of the Companies (Court) Rules upon the company The effect is as directed in r. 31 of the Companies (Court) Rules, viz. , that the petition will have to be posted for orders for dismissal of the petition or to pass such order as the court may deems fit. ( 24 ) SINCE the notice of the winding-up petition was not served upon the company, the appeal will have to be allowed and the order dated January 27, 1982, dismissing the judges summons, viz. , Company Application No. 204 of 1981, will have to be set aside.
### Response:
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### Explanation:
( 7 ) IT is difficult to accept the submission of Shri Tulzapurkar. It must at first be stated that there is no provision in the Companies (Court) Rules, 1959, or in any other rules for acceptance of a winding up petition, but a practice has developed in this court of placing a winding up petition before the court for acceptance and this practice and procedure which is a long standing practice and procedure has been saved by r. 6 of the Companies (Court) Rules, 1959, Rule 6 provides :save as provided by the Act or by these rules, the practice and procedure of the court and the provisions of the Code so far as applicable, shall apply to all proceedings under the Act and these rules. The Registrar may decline to accept any document which is presented otherwise than in accordance with these rules or the practice and procedure of the court.( 15 ) IT is also difficult to accept the submission of Shri Tulzapurkar that rr. 27, 28, 29 and 31 do not apply to ap petition. Rule 28 of the Companies (Court) Rules, 1959, is as under : 28. Service on company.(1) Where a petition is presented against a company, it shall be accompanied by a notice of the petition in the prescribed form together with a copy of the petition for service on the company and an envelope addressed to the company at its registered office or its principal place of business and sufficiently stamped for being sent by registered post for acknowledgment. The Registrar shall immediately on the admission of the petition send the notice together with the copy of the petition to the company by registered post. (2) Every petition and, save as otherwise provided by these Rules or by an order of court, every application shall, unless presented by the company, be served on the company at its registered office, or, if there is no registered office, at its principal or last known principal place of business, by leaving a copy thereof with an officer or employee of the company and in case no such person is available, in such manner, as the judge or Registrar may direct or by sending a copy thereof by prepaid registered post addressed to the company at its registered office, or if there is no registered office, at its principal or last known principal place of business, or to such person and at such address as the judge or Registrar may direct. Where the company is being wound up, the petition or application shall also be served on the liquidator, if any, appointed for the purpose ofp the affairs of the company.It is also difficult to accept this submission of Shri Tulzapurkar. The opening words of r. 28 (1) are where a petition is presented against a company and the opening words of. (2) of r. 28 are every petition. Therefore, neither inp petition excepted. A plain reading of r. 28 shows that it is applicable to every petition filed against a company and it admits of no exception. Furthermore, the language or r. 28 shows that the service of notice upon the company is mandatory. The words every petition. . . every application shall, unless presented by the company be served on the company are not merely directory but also mandatory. Reading rr. 27 and 28 together, the prescribed form referred to in r. 28 is Form No. 6 which is prescribed by r. 27The effect is as directed in r. 31 of the Companies (Court) Rules, viz. , that the petition will have to be posted for orders for dismissal of the petition or to pass such order as the court may deems fit( 24 ) SINCE the notice of thep petition was not served upon the company, the appeal will have to be allowed and the order dated January 27, 1982, dismissing the judges summons, viz. , Company Application No. 204 of 1981, will have to be set aside.
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Union Of India & Anr Vs. Delhi Cloth & General Mills Co. Ltd. & Anr | before the Delhi High Court and, by the order under appeal, the writ petition was allowed, it being found that the calcium carbide manufactured by the respondents was not marketable.3. When this civil appeal against the Delhi High Courts judgment reached hearing Before a bench of two learned Judges, Counsel on behalf of the respondent relied upon the judgment of a Bench of three learned Judges of this Court in the case of Moti Laminates Pvt. Ltd. v. Collector of Central Excise, Ahmedabad, 1995 (76) E.L.T. 241, and contended that goods which were not marketable or acceptable in the market as a commercial commodity could not be subjected to excise duty. The Bench was of the view that, reliance having been placed on the Moti Laminates judgment, this appeal should be heard by a larger Bench. The papers having been placed before the Honble the Chief Justice, the appeal is now placed before us. 4. The first question to which we address ourselves is whether the Moti Laminates judgment requires to be looked into again, Sahai, J., speaking for the Bench of three learned Judges, noted that excise duty was levied by virtue of the provisions of Entry 84 of List 1 of the Seventh Schedule of the Constitution on goods which were manufactured or produced, which was why the charge under Section 3 of the Central Excise and Salt Act was on all excusable goods produced or manufactured. The expression “excisable goods” had been defined by Clause (d) of Section 2 to mean goods specified in the Schedule. The scheme in the Schedule was to divide goods into two broad categories, those for which rates were mentioned under different entries and goods under the residuary entry. The word ‘goods’ had not been defined in the said Act but it had to be understood in the sense in which it had been used in Entry 84 of the Schedule. That was why Section 3 levied duty on all excisable goods mentioned in the Schedule provided they were produced and manufactured. The learned Judge added: “Therefore, where the goods are specified in the Schedule they are excisable goods but whether such goods can be subjected to duty would depend on whether they were produced or manufactured by the person on whom duty is proposed to be levied. The expression ‘produced or manufactured’ has further been explained by this Court to mean that the goods so produced must satisfy the test of marketability. Consequently it is always open to an assessee to prove that even though the goods in which he was carrying on business were excisable goods being mentioned in the Schedule but they could not be subjected to duty as they were not goods either because they were not produced or manufactured by it or if they had been produced or manufactured they were not marketed or capable of being marketed.9. The duty of excise being on production and manufacture which means bringing out a new commodity, it is implicit that such goods must be usable, moveable, saleable and marketable. The duty is on manufacture or production but the production or manufacture is carried on for taking such goods to the market for sale. The obvious rationale for levying excise duty linking it with production or manufacture is that the goods so produced must be a distinct commodity known as such in common parlance or to the commercial community for purposes of buying and selling.” Reliance was placed for the above findings on the judgments of this Court in Union of Indiav. Delhi Cloth and General Mills Co. Ltd., AIR 1963 S.C. 791, South Bihar Sugar Mills Ltd.v. Union of India, AIR 1968 S.C. 922, A.P. Seb v.C.C.E., 1994 (2) S.C.C. 428, Union Carbide India Ltd.v. Union of India,1986 (2) S.C.C. 547, Bhor Industries Ltd. v. C.C.E.1989 (1) S.C.C. 602, Hindustan Polymers v. C.C.E., 1989 (1) S.C.C. 323, and Indian Cable Co. Ltd., Calcuttav. Collector of Central Excise, Calcutta and Ors.,1994 (6) S.C.C. 610. 5. We have perused the Moti Laminates judgment with care and have heard learned Counsel, We find that the view expressed in the Moti Laminates judgment is based on earlier judgments. It has been affirmed by this Court thereafter. We m ay refer to one such later judgment, Dharangadhra Chemical Works Ltd.v. Union of India,1997 (91) E.L.T. 253, and that is also by a Bench of three learned Judges. We do not entertain any doubt as to the correctness of the ratio of the Moti Laminates judgment. We proceed with the appeal on the basis that it lays down the correct law. 6. Learned Counsel for the appellant submitted that the calcium carbide manufactured by the respondents was marketable and he relied in this behalf upon the orders of the Appellate Collector and Government of India, to which we have made reference. He also submitted that the calcium carbide manufactured by the respondents was in fact marketed till 1967. 7. The order of the Collector shows that the calcium carbide that was manufactured by the respondent for further utilisation in the production of acetylene gas was not of a purity that rendered it marketable nor was it packed in such a way as to make it marketable, that is to say, in airtight containers. This is a finding of fact. Applying the ratio of the Moti Laminates judgment thereto, we must hold that the calcium carbide manufactured by the respondent to is not excisable. 8. Learned Counsel for the appellant submitted that Tariff Entry 14AA (1) was attracted, whatever might be the further process that the calcium carbide manufactured by the respondent might have to undergo by way of purification or packaging for that would not be tantamount to further manufacture. We are unable to agree for the simple reason that the commodity which is sought to be made liable to excise duty must be a commodity that is marketable as it is and not a commodity that may by further processing be made marketable. 9. | 0[ds]5. We have perused the Moti Laminates judgment with care and have heard learned Counsel, We find that the view expressed in the Moti Laminates judgment is based on earlier judgments. It has been affirmed by this Court thereafter. We m ay refer to one such later judgment, Dharangadhra Chemical Works Ltd.v. Union of India,1997 (91) E.L.T. 253, and that is also by a Bench of three learned Judges. We do not entertain any doubt as to the correctness of the ratio of the Moti Laminates judgment. We proceed with the appeal on the basis that it lays down the correct law.The order of the Collector shows that the calcium carbide that wasby the respondent for further utilisation in the production of acetylene gas was not of a purity that rendered it marketable nor was it packed in such a way as to make it marketable, that is to say, in airtight containers. This is a finding of fact. Applying the ratio of the Moti Laminates judgment thereto, we must hold that the calcium carbide manufactured by the respondent to is notare unable to agree for the simple reason that the commodity which is sought to be made liable to excise duty must be a commodity that is marketable as it is and not a commodity that may by further processing be made marketable. | 0 | 1,592 | 246 | ### 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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before the Delhi High Court and, by the order under appeal, the writ petition was allowed, it being found that the calcium carbide manufactured by the respondents was not marketable.3. When this civil appeal against the Delhi High Courts judgment reached hearing Before a bench of two learned Judges, Counsel on behalf of the respondent relied upon the judgment of a Bench of three learned Judges of this Court in the case of Moti Laminates Pvt. Ltd. v. Collector of Central Excise, Ahmedabad, 1995 (76) E.L.T. 241, and contended that goods which were not marketable or acceptable in the market as a commercial commodity could not be subjected to excise duty. The Bench was of the view that, reliance having been placed on the Moti Laminates judgment, this appeal should be heard by a larger Bench. The papers having been placed before the Honble the Chief Justice, the appeal is now placed before us. 4. The first question to which we address ourselves is whether the Moti Laminates judgment requires to be looked into again, Sahai, J., speaking for the Bench of three learned Judges, noted that excise duty was levied by virtue of the provisions of Entry 84 of List 1 of the Seventh Schedule of the Constitution on goods which were manufactured or produced, which was why the charge under Section 3 of the Central Excise and Salt Act was on all excusable goods produced or manufactured. The expression “excisable goods” had been defined by Clause (d) of Section 2 to mean goods specified in the Schedule. The scheme in the Schedule was to divide goods into two broad categories, those for which rates were mentioned under different entries and goods under the residuary entry. The word ‘goods’ had not been defined in the said Act but it had to be understood in the sense in which it had been used in Entry 84 of the Schedule. That was why Section 3 levied duty on all excisable goods mentioned in the Schedule provided they were produced and manufactured. The learned Judge added: “Therefore, where the goods are specified in the Schedule they are excisable goods but whether such goods can be subjected to duty would depend on whether they were produced or manufactured by the person on whom duty is proposed to be levied. The expression ‘produced or manufactured’ has further been explained by this Court to mean that the goods so produced must satisfy the test of marketability. Consequently it is always open to an assessee to prove that even though the goods in which he was carrying on business were excisable goods being mentioned in the Schedule but they could not be subjected to duty as they were not goods either because they were not produced or manufactured by it or if they had been produced or manufactured they were not marketed or capable of being marketed.9. The duty of excise being on production and manufacture which means bringing out a new commodity, it is implicit that such goods must be usable, moveable, saleable and marketable. The duty is on manufacture or production but the production or manufacture is carried on for taking such goods to the market for sale. The obvious rationale for levying excise duty linking it with production or manufacture is that the goods so produced must be a distinct commodity known as such in common parlance or to the commercial community for purposes of buying and selling.” Reliance was placed for the above findings on the judgments of this Court in Union of Indiav. Delhi Cloth and General Mills Co. Ltd., AIR 1963 S.C. 791, South Bihar Sugar Mills Ltd.v. Union of India, AIR 1968 S.C. 922, A.P. Seb v.C.C.E., 1994 (2) S.C.C. 428, Union Carbide India Ltd.v. Union of India,1986 (2) S.C.C. 547, Bhor Industries Ltd. v. C.C.E.1989 (1) S.C.C. 602, Hindustan Polymers v. C.C.E., 1989 (1) S.C.C. 323, and Indian Cable Co. Ltd., Calcuttav. Collector of Central Excise, Calcutta and Ors.,1994 (6) S.C.C. 610. 5. We have perused the Moti Laminates judgment with care and have heard learned Counsel, We find that the view expressed in the Moti Laminates judgment is based on earlier judgments. It has been affirmed by this Court thereafter. We m ay refer to one such later judgment, Dharangadhra Chemical Works Ltd.v. Union of India,1997 (91) E.L.T. 253, and that is also by a Bench of three learned Judges. We do not entertain any doubt as to the correctness of the ratio of the Moti Laminates judgment. We proceed with the appeal on the basis that it lays down the correct law. 6. Learned Counsel for the appellant submitted that the calcium carbide manufactured by the respondents was marketable and he relied in this behalf upon the orders of the Appellate Collector and Government of India, to which we have made reference. He also submitted that the calcium carbide manufactured by the respondents was in fact marketed till 1967. 7. The order of the Collector shows that the calcium carbide that was manufactured by the respondent for further utilisation in the production of acetylene gas was not of a purity that rendered it marketable nor was it packed in such a way as to make it marketable, that is to say, in airtight containers. This is a finding of fact. Applying the ratio of the Moti Laminates judgment thereto, we must hold that the calcium carbide manufactured by the respondent to is not excisable. 8. Learned Counsel for the appellant submitted that Tariff Entry 14AA (1) was attracted, whatever might be the further process that the calcium carbide manufactured by the respondent might have to undergo by way of purification or packaging for that would not be tantamount to further manufacture. We are unable to agree for the simple reason that the commodity which is sought to be made liable to excise duty must be a commodity that is marketable as it is and not a commodity that may by further processing be made marketable. 9.
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5. We have perused the Moti Laminates judgment with care and have heard learned Counsel, We find that the view expressed in the Moti Laminates judgment is based on earlier judgments. It has been affirmed by this Court thereafter. We m ay refer to one such later judgment, Dharangadhra Chemical Works Ltd.v. Union of India,1997 (91) E.L.T. 253, and that is also by a Bench of three learned Judges. We do not entertain any doubt as to the correctness of the ratio of the Moti Laminates judgment. We proceed with the appeal on the basis that it lays down the correct law.The order of the Collector shows that the calcium carbide that wasby the respondent for further utilisation in the production of acetylene gas was not of a purity that rendered it marketable nor was it packed in such a way as to make it marketable, that is to say, in airtight containers. This is a finding of fact. Applying the ratio of the Moti Laminates judgment thereto, we must hold that the calcium carbide manufactured by the respondent to is notare unable to agree for the simple reason that the commodity which is sought to be made liable to excise duty must be a commodity that is marketable as it is and not a commodity that may by further processing be made marketable.
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CIT, Patiala Vs. Shri Piara Singh | It proceed on the basis that the assessee was carrying on a regular smuggling activity which consisted of taking currency notes out of India and exchanging them with gold in Pakistan which was later smuggled into India. At the instance of the Revenue, a reference was made to the High Court of Punjab and Haryana on the following question : Whether on the facts and in the circumstances of the case the loss of Rs. 65,500 arising from the confiscation of the currency notes was an allowable deduction under S.10(1) of the Income Tax Act, 1922 ? The High Court answered the question in the affirmative. 4. And now this appeal by the Revenue. 5. In our judgment, the High Court is right. The Income tax authorities found that the assessee was carrying on the business of smuggling. They held that he was, therefore liable to income tax on income from that business. On the basis that such income was taxable, the question is whether the confiscation of the currency notes entitles the assessee to the deduction claimed. The currency notes carried by the assessee across the border constituted the means for acquiring gold in Pakistan, which gold he subsequently sold in India at a profit. The currency notes were necessary for acquiring the gold. The carriage of currency notes across the border was an essential part of the smuggling operation. If the activity of smuggling can be regarded as a business, those who are carrying on that business must be deemed to be aware that a necessary incident involved in the business is detection by the Customs authorities and the consequent confiscation of the currency notes. It is an incident as predictable in the course of carrying on the activity as any other feature of it. Having regard to the nature of the activity possible detection by the Custom authorities constitutes a normal feature integrated into all that implied and involved in it. The confiscation of the currency notes is a loss occasioned in pursuing the business; it is a loss in much the same way as if the currency notes had been stolen or dropped on the way while carrying on the business. It is a loss which springs directly from the carrying on of the business and is incidental to it. Applying the principle laid down by this Court in Badridas Daga v. C.I.T. (1958 (34) ITR 10 : AIR 1958 SC 783 : 1959 SCR 690 ) the deduction must be allowed. 6. In C.I.T., Gujarat v. S. C. Kothari (1971 (82) ITR 794 , 802 : (1972 (4) SCC 402 : 1974 SCC (Tax) 92) this Court held that for the purpose of S.10(1) of the Income Tax Act, 1922 a loss incurred on carrying on all illegal business must be deducted before the true figure of profits brought to tax can be computed. Grover, J., speaking for the court observed : (SCC p. 408, para 6) If the business is illegal neither the profits earned nor the losses incurred would be enforceable in law. But that does not take the profits out of the taxing of statute. Similarly the taint of illegality of the business cannot detract from the losses being taken into account for computation of the amount which can be subject to tax as "profits" under S.10(1) of the Act of 1922. The tax collector cannot be heard to say that he will bring the gross receipts to tax. He can only tax profits of a trade or business. That cannot be done without deducting the losses and the legitimate expenses of the business. 7. Reliance was placed by the Revenue on Haji Aziz and Abdul Shakoor Bros. v. C.I.T., Bombay City II (1961 (41) ITR 350 : AIR 1961 SC 663 : (1961 (2) SCR 651 ). In that case, however, the assessee carried on the lawful business of importing dates from abroad and selling them in India. The import of dates by steamer was prohibited. Nonetheless he imported dates from Iraq by steamer, and the consignments were confiscated by the Customs authorities. But the dates were released subsequently on payment of fine. The assessees claim to deduction under S.10(2)(xv) of the Income Tax Act was rejected on the ground that the amount was paid by way of penalty for a breach of the law. An infraction of the law was not a normal incident of business carried on by the assessee, and the penalty was rightly held on to fall on the assessee in some character other than that of a trader. Reference was made by the Revenue to Soni Hinduji Kushalji & Co. v. C.I.T., A.P. (1973 (89) ITR 112 (AP)) . The assessees claim to the deduction of the value of good confiscated by the Customs authorities was found unsustainable by the court. The decision in that case can be explained on the ground that the assessee was carrying on a lawful business in gold, silver and jewellery and committed an infraction of the law in smuggling gold into the country. Our attention has also been invited to J. S. Parkar v. V. B. Palekar (1974 (94) ITR 616 (Bom)) where on a difference of opinion between two learned Judges of the Bombay High Court a third learned Judge agreed with the view that the value of gold confiscated by the Customs authorities in smuggling operations was not entitled to deduction against the estimated and assessed income from an undisclosed source. It was observed that the loss arose by reason of an infraction of the law and as it had not fallen on the assessee as a trader or businessman a deduction could not be allowed. Apparently, the rule significance of the distinction between an infraction of the law committed in the carrying on of a lawful business and an infraction of the law committed in a business inherently unlawful and constituting a normal incident of it was not pointedly placed before the High Court in that case. | 0[ds]5. In our judgment, the High Court is right. The Income tax authorities found that the assessee was carrying on the business of smuggling. They held that he was, therefore liable to income tax on income from that business. On the basis that such income was taxable, the question is whether the confiscation of the currency notes entitles the assessee to the deduction claimed. The currency notes carried by the assessee across the border constituted the means for acquiring gold in Pakistan, which gold he subsequently sold in India at a profit. The currency notes were necessary for acquiring the gold. The carriage of currency notes across the border was an essential part of the smuggling operation. If the activity of smuggling can be regarded as a business, those who are carrying on that business must be deemed to be aware that a necessary incident involved in the business is detection by the Customs authorities and the consequent confiscation of the currency notes. It is an incident as predictable in the course of carrying on the activity as any other feature of it. Having regard to the nature of the activity possible detection by the Custom authorities constitutes a normal feature integrated into all that implied and involved in it. The confiscation of the currency notes is a loss occasioned in pursuing the business; it is a loss in much the same way as if the currency notes had been stolen or dropped on the way while carrying on the business.Reliance was placed by the Revenue on Haji Aziz and Abdul Shakoor Bros. v. C.I.T., Bombay City II (1961 (41) ITR 350 : AIR 1961 SC 663 : (1961 (2) SCR 651 ). In that case, however, the assessee carried on the lawful business of importing dates from abroad and selling them in India. The import of dates by steamer was prohibited. Nonetheless he imported dates from Iraq by steamer, and the consignments were confiscated by the Customs authorities. But the dates were released subsequently on payment of fine. The assessees claim to deduction under S.10(2)(xv) of the Income Tax Act was rejected on the ground that the amount was paid by way of penalty for a breach of the law. An infraction of the law was not a normal incident of business carried on by the assessee, and the penalty was rightly held on to fall on the assessee in some character other than that of a trader. Reference was made by the Revenue to Soni Hinduji KushaljiCo. v. C.I.T., A.P. (1973 (89) ITR 112 (AP)) . The assessees claim to the deduction of the value of good confiscated by the Customs authorities was found unsustainable by the court. The decision in that case can be explained on the ground that the assessee was carrying on a lawful business in gold, silver and jewellery and committed an infraction of the law in smuggling gold into the country. Our attention has also been invited to J. S. Parkar v. V. B. Palekar (1974 (94) ITR 616 (Bom)) where on a difference of opinion between two learned Judges of the Bombay High Court a third learned Judge agreed with the view that the value of gold confiscated by the Customs authorities in smuggling operations was not entitled to deduction against the estimated and assessed income from an undisclosed source. It was observed that the loss arose by reason of an infraction of the law and as it had not fallen on the assessee as a trader or businessman a deduction could not be allowed. Apparently, the rule significance of the distinction between an infraction of the law committed in the carrying on of a lawful business and an infraction of the law committed in a business inherently unlawful and constituting a normal incident of it was not pointedly placed before the High Court in that case. | 0 | 1,391 | 712 | ### Instruction:
Project the court's decision (favor (1) or against (0) the appeal) based on the case proceeding, and subsequently give an in-depth explanation by analyzing relevant sentences from the document.
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It proceed on the basis that the assessee was carrying on a regular smuggling activity which consisted of taking currency notes out of India and exchanging them with gold in Pakistan which was later smuggled into India. At the instance of the Revenue, a reference was made to the High Court of Punjab and Haryana on the following question : Whether on the facts and in the circumstances of the case the loss of Rs. 65,500 arising from the confiscation of the currency notes was an allowable deduction under S.10(1) of the Income Tax Act, 1922 ? The High Court answered the question in the affirmative. 4. And now this appeal by the Revenue. 5. In our judgment, the High Court is right. The Income tax authorities found that the assessee was carrying on the business of smuggling. They held that he was, therefore liable to income tax on income from that business. On the basis that such income was taxable, the question is whether the confiscation of the currency notes entitles the assessee to the deduction claimed. The currency notes carried by the assessee across the border constituted the means for acquiring gold in Pakistan, which gold he subsequently sold in India at a profit. The currency notes were necessary for acquiring the gold. The carriage of currency notes across the border was an essential part of the smuggling operation. If the activity of smuggling can be regarded as a business, those who are carrying on that business must be deemed to be aware that a necessary incident involved in the business is detection by the Customs authorities and the consequent confiscation of the currency notes. It is an incident as predictable in the course of carrying on the activity as any other feature of it. Having regard to the nature of the activity possible detection by the Custom authorities constitutes a normal feature integrated into all that implied and involved in it. The confiscation of the currency notes is a loss occasioned in pursuing the business; it is a loss in much the same way as if the currency notes had been stolen or dropped on the way while carrying on the business. It is a loss which springs directly from the carrying on of the business and is incidental to it. Applying the principle laid down by this Court in Badridas Daga v. C.I.T. (1958 (34) ITR 10 : AIR 1958 SC 783 : 1959 SCR 690 ) the deduction must be allowed. 6. In C.I.T., Gujarat v. S. C. Kothari (1971 (82) ITR 794 , 802 : (1972 (4) SCC 402 : 1974 SCC (Tax) 92) this Court held that for the purpose of S.10(1) of the Income Tax Act, 1922 a loss incurred on carrying on all illegal business must be deducted before the true figure of profits brought to tax can be computed. Grover, J., speaking for the court observed : (SCC p. 408, para 6) If the business is illegal neither the profits earned nor the losses incurred would be enforceable in law. But that does not take the profits out of the taxing of statute. Similarly the taint of illegality of the business cannot detract from the losses being taken into account for computation of the amount which can be subject to tax as "profits" under S.10(1) of the Act of 1922. The tax collector cannot be heard to say that he will bring the gross receipts to tax. He can only tax profits of a trade or business. That cannot be done without deducting the losses and the legitimate expenses of the business. 7. Reliance was placed by the Revenue on Haji Aziz and Abdul Shakoor Bros. v. C.I.T., Bombay City II (1961 (41) ITR 350 : AIR 1961 SC 663 : (1961 (2) SCR 651 ). In that case, however, the assessee carried on the lawful business of importing dates from abroad and selling them in India. The import of dates by steamer was prohibited. Nonetheless he imported dates from Iraq by steamer, and the consignments were confiscated by the Customs authorities. But the dates were released subsequently on payment of fine. The assessees claim to deduction under S.10(2)(xv) of the Income Tax Act was rejected on the ground that the amount was paid by way of penalty for a breach of the law. An infraction of the law was not a normal incident of business carried on by the assessee, and the penalty was rightly held on to fall on the assessee in some character other than that of a trader. Reference was made by the Revenue to Soni Hinduji Kushalji & Co. v. C.I.T., A.P. (1973 (89) ITR 112 (AP)) . The assessees claim to the deduction of the value of good confiscated by the Customs authorities was found unsustainable by the court. The decision in that case can be explained on the ground that the assessee was carrying on a lawful business in gold, silver and jewellery and committed an infraction of the law in smuggling gold into the country. Our attention has also been invited to J. S. Parkar v. V. B. Palekar (1974 (94) ITR 616 (Bom)) where on a difference of opinion between two learned Judges of the Bombay High Court a third learned Judge agreed with the view that the value of gold confiscated by the Customs authorities in smuggling operations was not entitled to deduction against the estimated and assessed income from an undisclosed source. It was observed that the loss arose by reason of an infraction of the law and as it had not fallen on the assessee as a trader or businessman a deduction could not be allowed. Apparently, the rule significance of the distinction between an infraction of the law committed in the carrying on of a lawful business and an infraction of the law committed in a business inherently unlawful and constituting a normal incident of it was not pointedly placed before the High Court in that case.
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5. In our judgment, the High Court is right. The Income tax authorities found that the assessee was carrying on the business of smuggling. They held that he was, therefore liable to income tax on income from that business. On the basis that such income was taxable, the question is whether the confiscation of the currency notes entitles the assessee to the deduction claimed. The currency notes carried by the assessee across the border constituted the means for acquiring gold in Pakistan, which gold he subsequently sold in India at a profit. The currency notes were necessary for acquiring the gold. The carriage of currency notes across the border was an essential part of the smuggling operation. If the activity of smuggling can be regarded as a business, those who are carrying on that business must be deemed to be aware that a necessary incident involved in the business is detection by the Customs authorities and the consequent confiscation of the currency notes. It is an incident as predictable in the course of carrying on the activity as any other feature of it. Having regard to the nature of the activity possible detection by the Custom authorities constitutes a normal feature integrated into all that implied and involved in it. The confiscation of the currency notes is a loss occasioned in pursuing the business; it is a loss in much the same way as if the currency notes had been stolen or dropped on the way while carrying on the business.Reliance was placed by the Revenue on Haji Aziz and Abdul Shakoor Bros. v. C.I.T., Bombay City II (1961 (41) ITR 350 : AIR 1961 SC 663 : (1961 (2) SCR 651 ). In that case, however, the assessee carried on the lawful business of importing dates from abroad and selling them in India. The import of dates by steamer was prohibited. Nonetheless he imported dates from Iraq by steamer, and the consignments were confiscated by the Customs authorities. But the dates were released subsequently on payment of fine. The assessees claim to deduction under S.10(2)(xv) of the Income Tax Act was rejected on the ground that the amount was paid by way of penalty for a breach of the law. An infraction of the law was not a normal incident of business carried on by the assessee, and the penalty was rightly held on to fall on the assessee in some character other than that of a trader. Reference was made by the Revenue to Soni Hinduji KushaljiCo. v. C.I.T., A.P. (1973 (89) ITR 112 (AP)) . The assessees claim to the deduction of the value of good confiscated by the Customs authorities was found unsustainable by the court. The decision in that case can be explained on the ground that the assessee was carrying on a lawful business in gold, silver and jewellery and committed an infraction of the law in smuggling gold into the country. Our attention has also been invited to J. S. Parkar v. V. B. Palekar (1974 (94) ITR 616 (Bom)) where on a difference of opinion between two learned Judges of the Bombay High Court a third learned Judge agreed with the view that the value of gold confiscated by the Customs authorities in smuggling operations was not entitled to deduction against the estimated and assessed income from an undisclosed source. It was observed that the loss arose by reason of an infraction of the law and as it had not fallen on the assessee as a trader or businessman a deduction could not be allowed. Apparently, the rule significance of the distinction between an infraction of the law committed in the carrying on of a lawful business and an infraction of the law committed in a business inherently unlawful and constituting a normal incident of it was not pointedly placed before the High Court in that case.
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Pepsico India Holdings P.Ltd Vs. State Of Kerala | energy had altered its position, the doctrine of promissory estoppel shall apply. The doctrine of promissory estoppel, it is now well-settled, applies also in the realm of a statute." 42. An exemption notification and a notification withdrawing the benefit granted would, however, stand on different footings. For the said purpose, the industrial policy is required to be kept in mind. It must also be taken into consideration for the purpose of construing the exemption notification.In A.P. Steel Re-Rolling Mill Ltd. v. State of Kerala and Others [(2007) 2 SCC 725] , this Court held: "32. The general principles with regard to construction of exemption notification are not of much dispute. Generally, an exemption notification is to be construed strictly, but once it is found that the entrepreneur fulfils the conditions laid down therein, liberal construction would be made.34. A question as to whether, in a given situation, an entrepreneur was entitled to the benefit under an exemption notification or not, thus, would depend upon the fact of each case. A bare perusal of the notification dated 6-2-1992 issued by the first respondent would show that the purport and object thereof was to grant benefit of a concessional power tariff which came into force on and from 1- 1-1992. The phraseology used in the said notification postulates that the benefit was to be granted in regard to the "enhanced power tariff". Thus, where the new units had started production between 1-1-1992 and 31-12-1996, such exemption was available to the entrepreneurs. 35. Evidently, except in a situation as might have been existing in Hitech Electrothermics that any application filed by the entrepreneur had not been processed within a reasonable time, in which case benefit might not be denied on equitable ground; in cases where there has been a substantial failure on the part of the industrial unit to obtain such benefit owing to acts of omission and commission on its part, in our opinion, no such benefit can be given." Yet again in U.P. Power Corporation Ltd. and Another v. Sant Steels & Alloys (P) Ltd. and Others [(2008) 2 SCC 777] , it was opined: "24. Learned Senior Counsel invited our attention to a decision of this Court in State of Punjab v. Nestle India Ltd. in which a representation was made by the Government in the manner dehors the rules but a statement was made by the Finance Minister in his Budget speech for 1996-1997 making representation to the effect that the State Government had abolished purchase tax on milk. The manufacturers of milk products, therefore, were not paying the purchase tax on milk for Assessment Year 1996-1997 and mentioned this fact in their returns. The taxing authority entertained such returns. The manufacturers passed on the benefit of exemption to the dairy farmers and milk producers. However, after expiry of the said assessment year, the Government took a decision not to abolish purchase tax on milk and the taxing authority therefore raised a demand for Assessment Year 1996-1997. On these facts, the Court held that in absence of proof of any overriding public interest rendering the enforcement of estoppel against the Government was inequitable, notwithstanding that no exemption notification as required by the statute was issued. It was held that the State Government cannot resile from its decision to exempt milk and raise a demand for the aforesaid assessment year. However, the same principle of estoppel was not invoked after Assessment Year 1996-1997. The Court enforced the principle of estoppel. All the earlier cases on the subject were reviewed by the Court and ultimately it was concluded as follows:(SCC pp. 481-82, para 47)"47. The appellant has been unable to establish any overriding public interest which would make it inequitable to enforce the estoppel against the State Government. The representation was made by the highest authorities including the Finance Minister in his Budget speech after considering the financial implications of the grant of the exemption to milk. It was found that the overall benefit to the States economy and the public would be greater if the exemption were allowed. The respondents have passed on the benefit of that exemption by providing various facilities and concessions for the upliftment of the milk producers. This has not been denied. It would, in the circumstances, be inequitable to allow the State Government now to resile from its decision to exempt milk and demand the purchase tax with retrospective effect from 1-4-1996 so that the respondents cannot in any event readjust the expenditure already made. The High Court was also right when it held that the operation of the estoppel would come to an end with the 1997 decision of the Cabinet." It was furthermore observed: "35. In this 21st century, when there is global economy, the question of faith is very important. The Government offers certain benefits to attract the entrepreneurs and the entrepreneurs act on those beneficial offers. Thereafter, the Government withdraws those benefits. This will seriously affect the credibility of the Government and would show the short-sightedness of governance. Therefore, in order to keep the faith of the people, the Government or its instrumentality should abide by their commitments. In this context, the action taken by the appellant Corporation in revoking the benefits given to the entrepreneurs in the hill areas will sadly reflect their credibility and people will not take the word of the Government. That will shake the faith of the people in the governance. Therefore, in order to keep the faith and maintain good governance it is necessary that whatever representation is made by the Government or its instrumentality which induces the other party to act, the Government should not be permitted to withdraw from that. This is a matter of faith." Furthermore, in this case, the appellant admittedly has even not realized any tax from its purchasers. Keeping in view the facts and circumstances of the case, we are of the opinion, that the respondents must, thus, be held to be bound by the doctrine of promissory estoppel. | 1[ds]Although a contention has been raised before us that despite opportunities granted, the appellant had not adduced the additional evidence to establish compliance of the conditions precedent for grant of eligibility certificate, it has not been denied or disputed that even in the first round of litigation, the requisite documents formed part of the writ petition. The Deputy Commissioner (General) Commercial Taxes, therefore, in our opinion, even it be assumed that he was not totally bound by the observations made therein, should have taken into consideration the interpretation of the notification adverted to by the learned Singlenotification dated 3.11.1993 was issued in terms of an industrial policy; pursuant whereto exemption was to be granted for a period of seven years. Appellant had placed orders for supply of plant and machinery both with advances and without advances.What was necessary was to take effective steps for setting up of new industrial units. A deeming provision existed in terms whereof the effective steps would be considered to have been taken; if it has :(a) obtained provisional registration (applicable only in the case of SSI units);(b) owned or acquired or has been allotted land for establishing the industrial units and applied for financial support from any regular financial institution/ government before 1.1.2000; or(c) in the case of self financed units acquired or placed firm orders for the purchase of the necessary plant and machinery before 1.1.2000.Although clause (a) has no application in the instant case but it becomes relevant for the purpose of construing the notification so as to measure the level of rigours imposed thereby. In case of SSI units, thus, merely a provisional registration would serve the purpose. Even no investment was necessary for obtaining the benefit. So far as clause (b) is concerned, mere application for financial support from any regular financial institution again would entitle the entrepreneur to obtain the benefit of the exemption notification. It is in the aforementioned context, applications for grant of exemption by theunits are required to be taken into consideration. They are either to acquire or place firm orders for the necessary plant and machinery. It is not that order for entire machinery and equipment were required to be placed for before the first day of January, 2000. Even in relation thereto, a legal fiction has been created stating that if such unit had made any advance payments therefore by means of demand draft or cheque, the requirements would stand satisfied.33. The Director of Industries and Commerce, as noticed hereinbefore, opined that apart from a few items, firm orders have been placed in respect of some machineries by means of demand draft or cheques and the same has been credited to the account of the sellor prior to the first day of January, 2000.It is also of some significance to notice that the exemption notification appears to have been drafted having regard to the decision of this Court in State of Rajasthan and Another v. Mahaveer Oil Industries and Others [(1999) 4 SCC 357] .A comparative chart placed before us by Mr. Billimoria may be noticed :Mahaveer OilThisobservationNotification 1092/99 as amendedThe respondent – firm got its provisional registration certificate on 15.2.1990.This is merely a provisional registration issued by the Directorate of IndustriesMere registration would be good enough for SSI units.They applied for allotment of land and land was allotted to them by RICO Limited, by its letter dated 19.2.1990. Possession of the land was handed over on 7.3.1990 and lease agreement was executed in March 1990.For this land, a very small amount was paid.If you bought or were allotted land and had merely applied for a loan from a regular financial institution/ Government, before the relevant date it is good enough.A loan of Rs. 7.5 lakhs was sanctioned by the Rajasthan Financial Corporation in favour of the respondents 17.4.1990.It is not stated how much loan was actually availed of by the respondents on before 7.5.1990.Mere application for loan is good enough for those who acquired or land.Mahaveer Oil claimed that they placed for machinery 18.4.1990.It is, however, not orders stated whether any on amount either as earnest or advance for the purchase of machinery was paid by the respondents to anybody before 7.5.1990.Show payment of any advance towards plant and machinery and it will be deemed that necessary orders have been placedThe aforementioned comparative chart throws a light on the legislative intent and deliberate dilutions of the rigours as to what effective steps would merit consideration of the application for grant of exemption by an entrepreneur.34. It is also of some significance that the said notification was withdrawn by a notification dated 31.12.1999, subject of course to an exception curved out therein, viz., the industries which had been set up on or before 1.1.2000 and which have already commenced commercial production, set up or taken effective steps to establish industrial unit prior to 1.1.2000 were to be allowed the benefit of exemption.That notification stood amended on 31.3.2000 in terms whereof some benefits had been given to an entrepreneur like the appellant, as noticed hereinbefore.35. Appellant need not have questioned the validity thereof as the notification in question was issued by relaxing the conditions imposed in the notification dated 31.12.1999 which was one of withdrawing the grant of earlier benefits. Thus, by reason of the said notification, certain benefits had been confirmed on it.36. There cannot be any doubt whatsoever that the burden of proof was on the appellant. According to the Director of Industries, he had discharged the burden. Only because the procedural sanction of grant of financial exemption was to be received from the Deputy Commissioner (General) Commercial Taxes, the same, in our opinion, would not mean that the conditions had not been satisfied. In any event, the certificate granted by the Director deserved serious consideration.Both the learned Single Judge as also the Division Bench did not consider this aspect of the matter.37. Although payment of advance in respect of some machinery and plant would subserve the requirements for the purpose of obtaining the eligibility certificate, the learned Single Judge read the word `any to be synonymous to the word `all, whereas the Division Bench considered it to beHigh Court although laid emphasis on the word "any" but proceeded on the basis as if, purchase of plant, machinery and equipment prior to 1st January, 2000 in their entirety, was imperative.38. Appellants bonafide is not in dispute. The fact that it had set up an industry and started commercial production nine months prior to thedate, viz., 31.12.2001 is also not disputed.39. Ordinarily, this Court would not have gone into the findings of the fact arrived at by the statutory authorities but was only required to consider the correctness of judgment of the learned Single Judge as also the Division Bench of the High Court. However, even in a case of this nature, the authorities stuck to their own stand which is not expected from a statutory authority. See, however, K.I. Shephard and Others v. Union of India and Others (1987) 4 SCC 431 and Rajesh Kumar and Others v. Dy. CIT and Others (2007) 2 SCC 181 ]40. Mr. Dave has placed strong reliance on a decision of this Court in Tata Iron & Steel Co. Ltd. v. State of Jharkhand and Others [(2005) 4 SCC 272] wherein it wasEligibility clause, it is well settled, in relation to exemption notification must be given a strict meaning.43. In Collector of Customs v. Maestro Motors Ltd. this Court held: (SCC p. 418, para 9) "It is settled law that to avail the benefit of a notification a party must comply with all the conditions of the notification. Further, a notification has to be interpreted in terms of itsaforementioned observations were made having regard to the nature of exemption claimed by the appellant therein as also having regard to the industrial policy of the State of Jharkhand.41. We may, however, notice that recently in Kusumam Hotels (P) Ltd. v. Kerala State Electricity Board & Ors. [2008 (9) SCALE 448 ], this CourtIt is now a well settled principle of law that the doctrine of promissory estoppel applies to thesaid principle was reiterated in M/s. Badri Kedar Paper Pvt. Ltd. v. U.P. Electricity Regulatory Commn. & Ors. [2009 (1) SCALE 137 ] in the followingis furthermore well known that even a right under a mandatory provision can be waived. [See Babulal Badriprasad Varma v. Surat Municipal Corporation and Ors.] If it had made a representation pursuant whereto or in furtherance whereof a consumer of electrical energy had altered its position, the doctrine of promissory estoppel shall apply. The doctrine of promissory estoppel, it is nowapplies also in the realm of a statute.An exemption notification and a notification withdrawing the benefit granted would, however, stand on different footings. For the said purpose, the industrial policy is required to be kept in mind. It must also be taken into consideration for the purpose of construing the exemption notification.In A.P. SteelMill Ltd. v. State of Kerala and Others [(2007) 2 SCC 725] , this CourtThe general principles with regard to construction of exemption notification are not of much dispute. Generally, an exemption notification is to be construed strictly, but once it is found that the entrepreneur fulfils the conditions laid down therein, liberal construction would be made.34. A question as to whether, in a given situation, an entrepreneur was entitled to the benefit under an exemption notification or not, thus, would depend upon the fact of each case. A bare perusal of the notification datedissued by the first respondent would show that the purport and object thereof was to grant benefit of a concessional power tariff which came into force on and from 1The phraseology used in the said notification postulates that the benefit was to be granted in regard to the "enhanced power tariff". Thus, where the new units had started production between6, such exemption was available to the entrepreneurs. 35. Evidently, except in a situation as might have been existing in Hitech Electrothermics that any application filed by the entrepreneur had not been processed within a reasonable time, in which case benefit might not be denied on equitable ground; in cases where there has been a substantial failure on the part of the industrial unit to obtain such benefit owing to acts of omission and commission on its part, in our opinion, no such benefit can beagain in U.P. Power Corporation Ltd. and Another v. Sant Steels & Alloys (P) Ltd. and Others [(2008) 2 SCC 777] , it wasLearned Senior Counsel invited our attention to a decision of this Court in State of Punjab v. Nestle India Ltd. in which a representation was made by the Government in the manner dehors the rules but a statement was made by the Finance Minister in his Budget speech formaking representation to the effect that the State Government had abolished purchase tax on milk. The manufacturers of milk products, therefore, were not paying the purchase tax on milk for Assessment Yearand mentioned this fact in their returns. The taxing authority entertained such returns. The manufacturers passed on the benefit of exemption to the dairy farmers and milk producers. However, after expiry of the said assessment year, the Government took a decision not to abolish purchase tax on milk and the taxing authority therefore raised a demand for Assessment YearOn these facts, the Court held that in absence of proof of any overriding public interest rendering the enforcement of estoppel against the Government was inequitable, notwithstanding that no exemption notification as required by the statute was issued. It was held that the State Government cannot resile from its decision to exempt milk and raise a demand for the aforesaid assessment year. However, the same principle of estoppel was not invoked after Assessment YearThe Court enforced the principle of estoppel. All the earlier cases on the subject were reviewed by the Court and ultimately it was concluded as follows:(SCC pp.para 47)"47. The appellant has been unable to establish any overriding public interest which would make it inequitable to enforce the estoppel against the State Government. The representation was made by the highest authorities including the Finance Minister in his Budget speech after considering the financial implications of the grant of the exemption to milk. It was found that the overall benefit to the States economy and the public would be greater if the exemption were allowed. The respondents have passed on the benefit of that exemption by providing various facilities and concessions for the upliftment of the milk producers. This has not been denied. It would, in the circumstances, be inequitable to allow the State Government now to resile from its decision to exempt milk and demand the purchase tax with retrospective effect fromso that the respondents cannot in any event readjust the expenditure already made. The High Court was also right when it held that the operation of the estoppel would come to an end with the 1997 decision of the35. In this 21st century, when there is global economy, the question of faith is very important. The Government offers certain benefits to attract the entrepreneurs and the entrepreneurs act on those beneficial offers. Thereafter, the Government withdraws those benefits. This will seriously affect the credibility of the Government and would show theof governance. Therefore, in order to keep the faith of the people, the Government or its instrumentality should abide by their commitments. In this context, the action taken by the appellant Corporation in revoking the benefits given to the entrepreneurs in the hill areas will sadly reflect their credibility and people will not take the word of the Government. That will shake the faith of the people in the governance. Therefore, in order to keep the faith and maintain good governance it is necessary that whatever representation is made by the Government or its instrumentality which induces the other party to act, the Government should not be permitted to withdraw from that. This is a matter ofin this case, the appellant admittedly has even not realized any tax from its purchasers. Keeping in view the facts and circumstances of the case, we are of the opinion, that the respondents must, thus, be held to be bound by the doctrine of promissory estoppel. | 1 | 10,786 | 2,623 | ### 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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energy had altered its position, the doctrine of promissory estoppel shall apply. The doctrine of promissory estoppel, it is now well-settled, applies also in the realm of a statute." 42. An exemption notification and a notification withdrawing the benefit granted would, however, stand on different footings. For the said purpose, the industrial policy is required to be kept in mind. It must also be taken into consideration for the purpose of construing the exemption notification.In A.P. Steel Re-Rolling Mill Ltd. v. State of Kerala and Others [(2007) 2 SCC 725] , this Court held: "32. The general principles with regard to construction of exemption notification are not of much dispute. Generally, an exemption notification is to be construed strictly, but once it is found that the entrepreneur fulfils the conditions laid down therein, liberal construction would be made.34. A question as to whether, in a given situation, an entrepreneur was entitled to the benefit under an exemption notification or not, thus, would depend upon the fact of each case. A bare perusal of the notification dated 6-2-1992 issued by the first respondent would show that the purport and object thereof was to grant benefit of a concessional power tariff which came into force on and from 1- 1-1992. The phraseology used in the said notification postulates that the benefit was to be granted in regard to the "enhanced power tariff". Thus, where the new units had started production between 1-1-1992 and 31-12-1996, such exemption was available to the entrepreneurs. 35. Evidently, except in a situation as might have been existing in Hitech Electrothermics that any application filed by the entrepreneur had not been processed within a reasonable time, in which case benefit might not be denied on equitable ground; in cases where there has been a substantial failure on the part of the industrial unit to obtain such benefit owing to acts of omission and commission on its part, in our opinion, no such benefit can be given." Yet again in U.P. Power Corporation Ltd. and Another v. Sant Steels & Alloys (P) Ltd. and Others [(2008) 2 SCC 777] , it was opined: "24. Learned Senior Counsel invited our attention to a decision of this Court in State of Punjab v. Nestle India Ltd. in which a representation was made by the Government in the manner dehors the rules but a statement was made by the Finance Minister in his Budget speech for 1996-1997 making representation to the effect that the State Government had abolished purchase tax on milk. The manufacturers of milk products, therefore, were not paying the purchase tax on milk for Assessment Year 1996-1997 and mentioned this fact in their returns. The taxing authority entertained such returns. The manufacturers passed on the benefit of exemption to the dairy farmers and milk producers. However, after expiry of the said assessment year, the Government took a decision not to abolish purchase tax on milk and the taxing authority therefore raised a demand for Assessment Year 1996-1997. On these facts, the Court held that in absence of proof of any overriding public interest rendering the enforcement of estoppel against the Government was inequitable, notwithstanding that no exemption notification as required by the statute was issued. It was held that the State Government cannot resile from its decision to exempt milk and raise a demand for the aforesaid assessment year. However, the same principle of estoppel was not invoked after Assessment Year 1996-1997. The Court enforced the principle of estoppel. All the earlier cases on the subject were reviewed by the Court and ultimately it was concluded as follows:(SCC pp. 481-82, para 47)"47. The appellant has been unable to establish any overriding public interest which would make it inequitable to enforce the estoppel against the State Government. The representation was made by the highest authorities including the Finance Minister in his Budget speech after considering the financial implications of the grant of the exemption to milk. It was found that the overall benefit to the States economy and the public would be greater if the exemption were allowed. The respondents have passed on the benefit of that exemption by providing various facilities and concessions for the upliftment of the milk producers. This has not been denied. It would, in the circumstances, be inequitable to allow the State Government now to resile from its decision to exempt milk and demand the purchase tax with retrospective effect from 1-4-1996 so that the respondents cannot in any event readjust the expenditure already made. The High Court was also right when it held that the operation of the estoppel would come to an end with the 1997 decision of the Cabinet." It was furthermore observed: "35. In this 21st century, when there is global economy, the question of faith is very important. The Government offers certain benefits to attract the entrepreneurs and the entrepreneurs act on those beneficial offers. Thereafter, the Government withdraws those benefits. This will seriously affect the credibility of the Government and would show the short-sightedness of governance. Therefore, in order to keep the faith of the people, the Government or its instrumentality should abide by their commitments. In this context, the action taken by the appellant Corporation in revoking the benefits given to the entrepreneurs in the hill areas will sadly reflect their credibility and people will not take the word of the Government. That will shake the faith of the people in the governance. Therefore, in order to keep the faith and maintain good governance it is necessary that whatever representation is made by the Government or its instrumentality which induces the other party to act, the Government should not be permitted to withdraw from that. This is a matter of faith." Furthermore, in this case, the appellant admittedly has even not realized any tax from its purchasers. Keeping in view the facts and circumstances of the case, we are of the opinion, that the respondents must, thus, be held to be bound by the doctrine of promissory estoppel.
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137 ] in the followingis furthermore well known that even a right under a mandatory provision can be waived. [See Babulal Badriprasad Varma v. Surat Municipal Corporation and Ors.] If it had made a representation pursuant whereto or in furtherance whereof a consumer of electrical energy had altered its position, the doctrine of promissory estoppel shall apply. The doctrine of promissory estoppel, it is nowapplies also in the realm of a statute.An exemption notification and a notification withdrawing the benefit granted would, however, stand on different footings. For the said purpose, the industrial policy is required to be kept in mind. It must also be taken into consideration for the purpose of construing the exemption notification.In A.P. SteelMill Ltd. v. State of Kerala and Others [(2007) 2 SCC 725] , this CourtThe general principles with regard to construction of exemption notification are not of much dispute. Generally, an exemption notification is to be construed strictly, but once it is found that the entrepreneur fulfils the conditions laid down therein, liberal construction would be made.34. A question as to whether, in a given situation, an entrepreneur was entitled to the benefit under an exemption notification or not, thus, would depend upon the fact of each case. A bare perusal of the notification datedissued by the first respondent would show that the purport and object thereof was to grant benefit of a concessional power tariff which came into force on and from 1The phraseology used in the said notification postulates that the benefit was to be granted in regard to the "enhanced power tariff". Thus, where the new units had started production between6, such exemption was available to the entrepreneurs. 35. Evidently, except in a situation as might have been existing in Hitech Electrothermics that any application filed by the entrepreneur had not been processed within a reasonable time, in which case benefit might not be denied on equitable ground; in cases where there has been a substantial failure on the part of the industrial unit to obtain such benefit owing to acts of omission and commission on its part, in our opinion, no such benefit can beagain in U.P. Power Corporation Ltd. and Another v. Sant Steels & Alloys (P) Ltd. and Others [(2008) 2 SCC 777] , it wasLearned Senior Counsel invited our attention to a decision of this Court in State of Punjab v. Nestle India Ltd. in which a representation was made by the Government in the manner dehors the rules but a statement was made by the Finance Minister in his Budget speech formaking representation to the effect that the State Government had abolished purchase tax on milk. The manufacturers of milk products, therefore, were not paying the purchase tax on milk for Assessment Yearand mentioned this fact in their returns. The taxing authority entertained such returns. The manufacturers passed on the benefit of exemption to the dairy farmers and milk producers. However, after expiry of the said assessment year, the Government took a decision not to abolish purchase tax on milk and the taxing authority therefore raised a demand for Assessment YearOn these facts, the Court held that in absence of proof of any overriding public interest rendering the enforcement of estoppel against the Government was inequitable, notwithstanding that no exemption notification as required by the statute was issued. It was held that the State Government cannot resile from its decision to exempt milk and raise a demand for the aforesaid assessment year. However, the same principle of estoppel was not invoked after Assessment YearThe Court enforced the principle of estoppel. All the earlier cases on the subject were reviewed by the Court and ultimately it was concluded as follows:(SCC pp.para 47)"47. The appellant has been unable to establish any overriding public interest which would make it inequitable to enforce the estoppel against the State Government. The representation was made by the highest authorities including the Finance Minister in his Budget speech after considering the financial implications of the grant of the exemption to milk. It was found that the overall benefit to the States economy and the public would be greater if the exemption were allowed. The respondents have passed on the benefit of that exemption by providing various facilities and concessions for the upliftment of the milk producers. This has not been denied. It would, in the circumstances, be inequitable to allow the State Government now to resile from its decision to exempt milk and demand the purchase tax with retrospective effect fromso that the respondents cannot in any event readjust the expenditure already made. The High Court was also right when it held that the operation of the estoppel would come to an end with the 1997 decision of the35. In this 21st century, when there is global economy, the question of faith is very important. The Government offers certain benefits to attract the entrepreneurs and the entrepreneurs act on those beneficial offers. Thereafter, the Government withdraws those benefits. This will seriously affect the credibility of the Government and would show theof governance. Therefore, in order to keep the faith of the people, the Government or its instrumentality should abide by their commitments. In this context, the action taken by the appellant Corporation in revoking the benefits given to the entrepreneurs in the hill areas will sadly reflect their credibility and people will not take the word of the Government. That will shake the faith of the people in the governance. Therefore, in order to keep the faith and maintain good governance it is necessary that whatever representation is made by the Government or its instrumentality which induces the other party to act, the Government should not be permitted to withdraw from that. This is a matter ofin this case, the appellant admittedly has even not realized any tax from its purchasers. Keeping in view the facts and circumstances of the case, we are of the opinion, that the respondents must, thus, be held to be bound by the doctrine of promissory estoppel.
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Sri Vedaraneeswararswamy Devasthanam Vs. The Dominion Of India And Another | the manager of the temple at the relevant time. Mr. Sastri has relied on the fact that the manager of a temple could not have entered into a transaction of permanent lease unless there was a compelling necessity so to do. A permanent lease amounts to an alienation of the property and would have to be justified as such. An annual lease, on the order hand, can be executed by the manager in his capacity as the manager and the same is treated as an act of prudent management. That, however, is not true about a permanent lease, and so in construing the document we should attribute to the manager the desire and intention to act within his powers and not without them. In support of this argument Mr. Sastri has referred us to the decisions of the Privy Council in Maharanee Shibessouree Debia v. Mothooranath Acharjo (1), Nainapillai Marakayar v. Ramanathan Chettiar (2), and Palaniappa Chetty v. Deivasikamony Pandara (3). The argument is that a fair and reasonable rule of construction would be to treat the document as executed in pursuance of the legitimate authority available to the manager of the temple and not as one which is executed in breach of the said authority. This position cannot be and is not disputed.( 15. ) In the application of this rule to the present case, however, two relevant facts cannot be ignored. The first important fact is that after the execution of the document more than a century has elapsed; and so, as observed by the Privy Council in Bawa Magniram Sitaram v. Kasturbai Manibhai (4), "where the validity of a permanent lease granted by a shebait comes in question a long time (in the present case nearly 100 years) after the grant, so that it is not possible to ascertain what were the circumstances in which it was made, the Court should, assume that the grant was made for necessity so as to be valid beyond the life of the grantor". In the present case more than a century has elapsed after the grant was made, and so the principle laid down by the Privy Council in that case can well be invoked by respondent 1.( 16. ) Besides, it is common ground that under the relevant provisions of Regulation 1 of 1805 the manufacture and sale of salt was made subject to the immediate direction and control of the general agent appointed by the Government, and the said manufacture and sale as well as transit, export and import of salt, whether by sea or by land in the territory subject to the Presidency of Fort St. George was prohibited except on account of Government or with their express sanction. It was also provided that all salt manufactured, sold, conveyed, exported or imported, directly on indirectly, otherwise than is provided for in the said Regulation, shall be liable to seizure and confiscation. In other words, part of this property belonging to the temple on which salt was being manufactured became absolutely useless for that purpose as the temple could no longer manufacture, or permit the manufacture of, salt. Faced with this situation it is not at all unlikely that the manager of the temple was compelled to enter into an arrangement with the Company and secure for the benefit of the temple a substantial permanent income accruing from year to year.( 17. ) It is common ground that the whole of the property was marshy and the only use to which it could be profitably put was for the manufacture of salt, and that could no longer be done after Regulation 1 of 1805 was passed. That is why we think that even the test of the rule of construction on which Mr. Sastri relies can be said to be satisfied in the present case. Circumstances as he was the then manager or trustee had no option but to enter into an agreement like the one which was evidenced by Ex. A. .1; thereby the manager provided for a recurring income to the temple and thus arranged for the upkeep of the temple, the worship of the idol and discharge his duties as trustee.( 18. ) We have already seen how the previous correspondence which preceded the execution of the document unambiguously shows that the intention of the Company was to take possession of the property on a permanent footing, and realising the limitations imposed by the Regulation the manager of the temple would also have wanted to give the property to the Company permanently and thereby create a permanent source of income for the temple. The subsequent conduct of the temple for over a century is consistent with the view that the temple knew that the property has been permanently given to the Company and is inconsistent with the present case that the lease is an annual lease. The payment and acceptance of the same uniform rent for over a century when so many political and other changes took place also support the same conclusion. The pleas set up by the appellant from, stage to stage in respect of its relationship with respondent 1 in regard to the possession of this land have changed from time to time and that shows that the appellant was at pains to put forward a basis on which it could claim either possession or enhanced rent. The fact that respondent 1 is making large profits out of this property may explain, the appellants desire to get some more share in the said income but that cannot assist the appellant if it has parted with the property permanently as early as 1805 on the terms and conditions specified in Ex. A. 1. In our opinion, the High Court was right in coming to the conclusion that the transaction evidenced by Ex. A. 1 is a permanent lease and that respondent 1 is entitled to retain possession of the whole of the property on the terms and conditions specified in the said document. | 0[ds]In computing the compensation- which may be paid to the temple the accounts of the pagoda were examined. It was found that the pagoda enjoyed revenue from the duties levied at ports at Thopputhurai and Kodikarai. Ten years account showed that the average annual income in that behalf was 283 Pagodas. To this amount was added the amount of magmata or charitable and litigious fees and the total worked out at an average of 532 Pagodas. From. this was deducted 46 Pagodas which was the average of charges and expenses incurred in collecting the port duties. Thus the net annual average revenue was 486 Pagodas. Then an account was made of the income received by the temple from salt manufacture in the salt pans and it was ascertained that an average income in that behalf would be Star Pagodas 1362. That is how the whole annual income was found .to be 1848 Pagodas. It would thus be seen that elaborate calculations were made to determine the amount of compensation which should be legitimately paid to the temple for depriving the temple of the possession of its properties in question. It was then considered whether the commutation for the amount should be in land or in money, and, as we have already pointed out, a recommendation was made that payment of commutation in the form of land would be more certain and permanent. Thus the perusal of this document leaves no doubt that the property was intended to be acquired permanently for the purpose of manufacturing salt. It is on that basis that calculations were made and the amount of compensation( 10. ) It appears that this proposal made by the Collector was not approved by the Government at Fort St. George. In the letter written by the Secretary to the Government on October 28, 1806, it was recommended that a payment should be made from the public treasury of a compensation for the loss which the pagoda had sustained by the introduction of salt monopoly in the Province of Tanjore not exceeding Star Pagodas 1848 per annum. The proposal thus made by the Government was accepted by the Board and its decision was communicated by the letter of November 17, 1806. It is in the background of this correspondence that we have to decide the effect of the terms contained in Ex. A. 1. Thus considered there can be little doubt that though the property was not purchased outright it was taken charge of on a permanent basis for the purpose of manufacturing salt and compensation was determined on the same basis. but made payable annually at the rate of 1848is true that in determining the additional assessment on excess area payable by the temple the whole of the property is assumed to belong to the temple; but that is not inconsistent with the temple continuing to be the lessor of the suit property at all. There is no doubt that if the Company had become the; lessee of the said suit property by a document duly executed in that behalf entries made in the inam register cannot change or affect the character of the said right. Therefore, in our opinion, there is nothing in Ex. A. 18 which militates against the case set up by respondent 1.(13. ) It appears that from 1806 when the Company took possession of the property until 1941 the appellant has allowed the Company and its successors to be in quiet enjoyment of the property on receipt of an annual compensation paid from year to year. In 1941 the factory .officer wrote to the trustee of the appellant to let him know the name or the names of the revenue villages to which the area covered by the salt factory was originally attached prior to the acquisition, and he enquired whether any compensation amount had been paid to the temple for the said acquisition. It is this letter which presumably started the appellants present claim. Soon after receiving this letter the appellant wrote to the factory officer on April 8, 1941 alleging that the property had been leased out to Government; for the manufacture of salt for a monthly lease of Rs. 350 or annually Rs. 4,200. The appellant thus set up a relationship of lessor and lessee between itself and respondent 1. Then the appellant moved the relevant authorities for appropriate relief on one ground or another. All its efforts" to obtain possession of the property or even to have the amount of compensation enhanced failed and that led to the present dispute.(16. ) Besides, it is common ground that under the relevant provisions of Regulation 1 of 1805 the manufacture and sale of salt was made subject to the immediate direction and control of the general agent appointed by the Government, and the said manufacture and sale as well as transit, export and import of salt, whether by sea or by land in the territory subject to the Presidency of Fort St. George was prohibited except on account of Government or with their express sanction. It was also provided that all salt manufactured, sold, conveyed, exported or imported, directly on indirectly, otherwise than is provided for in the said Regulation, shall be liable to seizure and confiscation. In other words, part of this property belonging to the temple on which salt was being manufactured became absolutely useless for that purpose as the temple could no longer manufacture, or permit the manufacture of, salt. Faced with this situation it is not at all unlikely that the manager of the temple was compelled to enter into an arrangement with the Company and secure for the benefit of the temple a substantial permanent income accruing from year to year.( 17. ) It is common ground that the whole of the property was marshy and the only use to which it could be profitably put was for the manufacture of salt, and that could no longer be done after Regulation 1 of 1805 was passed. That is why we think that even the test of the rule of construction on which Mr. Sastri relies can be said to be satisfied in the present case. Circumstances as he was the then manager or trustee had no option but to enter into an agreement like the one which was evidenced by Ex. A. .1; thereby the manager provided for a recurring income to the temple and thus arranged for the upkeep of the temple, the worship of the idol and discharge his duties as trustee.( 18. ) We have already seen how the previous correspondence which preceded the execution of the document unambiguously shows that the intention of the Company was to take possession of the property on a permanent footing, and realising the limitations imposed by the Regulation the manager of the temple would also have wanted to give the property to the Company permanently and thereby create a permanent source of income for the temple. The subsequent conduct of the temple for over a century is consistent with the view that the temple knew that the property has been permanently given to the Company and is inconsistent with the present case that the lease is an annual lease. The payment and acceptance of the same uniform rent for over a century when so many political and other changes took place also support the same conclusion. The pleas set up by the appellant from, stage to stage in respect of its relationship with respondent 1 in regard to the possession of this land have changed from time to time and that shows that the appellant was at pains to put forward a basis on which it could claim either possession or enhanced rent. The fact that respondent 1 is making large profits out of this property may explain, the appellants desire to get some more share in the said income but that cannot assist the appellant if it has parted with the property permanently as early as 1805 on the terms and conditions specified in Ex. A. 1. In our opinion, the High Court was right in coming to the conclusion that the transaction evidenced by Ex. A. 1 is a permanent lease and that respondent 1 is entitled to retain possession of the whole of the property on the terms and conditions specified in the said document. | 0 | 3,575 | 1,493 | ### 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 manager of the temple at the relevant time. Mr. Sastri has relied on the fact that the manager of a temple could not have entered into a transaction of permanent lease unless there was a compelling necessity so to do. A permanent lease amounts to an alienation of the property and would have to be justified as such. An annual lease, on the order hand, can be executed by the manager in his capacity as the manager and the same is treated as an act of prudent management. That, however, is not true about a permanent lease, and so in construing the document we should attribute to the manager the desire and intention to act within his powers and not without them. In support of this argument Mr. Sastri has referred us to the decisions of the Privy Council in Maharanee Shibessouree Debia v. Mothooranath Acharjo (1), Nainapillai Marakayar v. Ramanathan Chettiar (2), and Palaniappa Chetty v. Deivasikamony Pandara (3). The argument is that a fair and reasonable rule of construction would be to treat the document as executed in pursuance of the legitimate authority available to the manager of the temple and not as one which is executed in breach of the said authority. This position cannot be and is not disputed.( 15. ) In the application of this rule to the present case, however, two relevant facts cannot be ignored. The first important fact is that after the execution of the document more than a century has elapsed; and so, as observed by the Privy Council in Bawa Magniram Sitaram v. Kasturbai Manibhai (4), "where the validity of a permanent lease granted by a shebait comes in question a long time (in the present case nearly 100 years) after the grant, so that it is not possible to ascertain what were the circumstances in which it was made, the Court should, assume that the grant was made for necessity so as to be valid beyond the life of the grantor". In the present case more than a century has elapsed after the grant was made, and so the principle laid down by the Privy Council in that case can well be invoked by respondent 1.( 16. ) Besides, it is common ground that under the relevant provisions of Regulation 1 of 1805 the manufacture and sale of salt was made subject to the immediate direction and control of the general agent appointed by the Government, and the said manufacture and sale as well as transit, export and import of salt, whether by sea or by land in the territory subject to the Presidency of Fort St. George was prohibited except on account of Government or with their express sanction. It was also provided that all salt manufactured, sold, conveyed, exported or imported, directly on indirectly, otherwise than is provided for in the said Regulation, shall be liable to seizure and confiscation. In other words, part of this property belonging to the temple on which salt was being manufactured became absolutely useless for that purpose as the temple could no longer manufacture, or permit the manufacture of, salt. Faced with this situation it is not at all unlikely that the manager of the temple was compelled to enter into an arrangement with the Company and secure for the benefit of the temple a substantial permanent income accruing from year to year.( 17. ) It is common ground that the whole of the property was marshy and the only use to which it could be profitably put was for the manufacture of salt, and that could no longer be done after Regulation 1 of 1805 was passed. That is why we think that even the test of the rule of construction on which Mr. Sastri relies can be said to be satisfied in the present case. Circumstances as he was the then manager or trustee had no option but to enter into an agreement like the one which was evidenced by Ex. A. .1; thereby the manager provided for a recurring income to the temple and thus arranged for the upkeep of the temple, the worship of the idol and discharge his duties as trustee.( 18. ) We have already seen how the previous correspondence which preceded the execution of the document unambiguously shows that the intention of the Company was to take possession of the property on a permanent footing, and realising the limitations imposed by the Regulation the manager of the temple would also have wanted to give the property to the Company permanently and thereby create a permanent source of income for the temple. The subsequent conduct of the temple for over a century is consistent with the view that the temple knew that the property has been permanently given to the Company and is inconsistent with the present case that the lease is an annual lease. The payment and acceptance of the same uniform rent for over a century when so many political and other changes took place also support the same conclusion. The pleas set up by the appellant from, stage to stage in respect of its relationship with respondent 1 in regard to the possession of this land have changed from time to time and that shows that the appellant was at pains to put forward a basis on which it could claim either possession or enhanced rent. The fact that respondent 1 is making large profits out of this property may explain, the appellants desire to get some more share in the said income but that cannot assist the appellant if it has parted with the property permanently as early as 1805 on the terms and conditions specified in Ex. A. 1. In our opinion, the High Court was right in coming to the conclusion that the transaction evidenced by Ex. A. 1 is a permanent lease and that respondent 1 is entitled to retain possession of the whole of the property on the terms and conditions specified in the said document.
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Ex. A. 1. Thus considered there can be little doubt that though the property was not purchased outright it was taken charge of on a permanent basis for the purpose of manufacturing salt and compensation was determined on the same basis. but made payable annually at the rate of 1848is true that in determining the additional assessment on excess area payable by the temple the whole of the property is assumed to belong to the temple; but that is not inconsistent with the temple continuing to be the lessor of the suit property at all. There is no doubt that if the Company had become the; lessee of the said suit property by a document duly executed in that behalf entries made in the inam register cannot change or affect the character of the said right. Therefore, in our opinion, there is nothing in Ex. A. 18 which militates against the case set up by respondent 1.(13. ) It appears that from 1806 when the Company took possession of the property until 1941 the appellant has allowed the Company and its successors to be in quiet enjoyment of the property on receipt of an annual compensation paid from year to year. In 1941 the factory .officer wrote to the trustee of the appellant to let him know the name or the names of the revenue villages to which the area covered by the salt factory was originally attached prior to the acquisition, and he enquired whether any compensation amount had been paid to the temple for the said acquisition. It is this letter which presumably started the appellants present claim. Soon after receiving this letter the appellant wrote to the factory officer on April 8, 1941 alleging that the property had been leased out to Government; for the manufacture of salt for a monthly lease of Rs. 350 or annually Rs. 4,200. The appellant thus set up a relationship of lessor and lessee between itself and respondent 1. Then the appellant moved the relevant authorities for appropriate relief on one ground or another. All its efforts" to obtain possession of the property or even to have the amount of compensation enhanced failed and that led to the present dispute.(16. ) Besides, it is common ground that under the relevant provisions of Regulation 1 of 1805 the manufacture and sale of salt was made subject to the immediate direction and control of the general agent appointed by the Government, and the said manufacture and sale as well as transit, export and import of salt, whether by sea or by land in the territory subject to the Presidency of Fort St. George was prohibited except on account of Government or with their express sanction. It was also provided that all salt manufactured, sold, conveyed, exported or imported, directly on indirectly, otherwise than is provided for in the said Regulation, shall be liable to seizure and confiscation. In other words, part of this property belonging to the temple on which salt was being manufactured became absolutely useless for that purpose as the temple could no longer manufacture, or permit the manufacture of, salt. Faced with this situation it is not at all unlikely that the manager of the temple was compelled to enter into an arrangement with the Company and secure for the benefit of the temple a substantial permanent income accruing from year to year.( 17. ) It is common ground that the whole of the property was marshy and the only use to which it could be profitably put was for the manufacture of salt, and that could no longer be done after Regulation 1 of 1805 was passed. That is why we think that even the test of the rule of construction on which Mr. Sastri relies can be said to be satisfied in the present case. Circumstances as he was the then manager or trustee had no option but to enter into an agreement like the one which was evidenced by Ex. A. .1; thereby the manager provided for a recurring income to the temple and thus arranged for the upkeep of the temple, the worship of the idol and discharge his duties as trustee.( 18. ) We have already seen how the previous correspondence which preceded the execution of the document unambiguously shows that the intention of the Company was to take possession of the property on a permanent footing, and realising the limitations imposed by the Regulation the manager of the temple would also have wanted to give the property to the Company permanently and thereby create a permanent source of income for the temple. The subsequent conduct of the temple for over a century is consistent with the view that the temple knew that the property has been permanently given to the Company and is inconsistent with the present case that the lease is an annual lease. The payment and acceptance of the same uniform rent for over a century when so many political and other changes took place also support the same conclusion. The pleas set up by the appellant from, stage to stage in respect of its relationship with respondent 1 in regard to the possession of this land have changed from time to time and that shows that the appellant was at pains to put forward a basis on which it could claim either possession or enhanced rent. The fact that respondent 1 is making large profits out of this property may explain, the appellants desire to get some more share in the said income but that cannot assist the appellant if it has parted with the property permanently as early as 1805 on the terms and conditions specified in Ex. A. 1. In our opinion, the High Court was right in coming to the conclusion that the transaction evidenced by Ex. A. 1 is a permanent lease and that respondent 1 is entitled to retain possession of the whole of the property on the terms and conditions specified in the said document.
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M/S Sbec Sugar Limited Vs. Union Of India | Rayon (supra)] 20. Section 68 deals with the clearance of warehoused goods for home consumption and provides that an importer of any warehoused goods may clear the goods for home consumption if : (i) a bill of entry for home consumption of the said goods has been presented in the prescribed form, (ii) the import duty leviable on such goods, all penalties, rent, interest and other charges payable in respect of such goods have been paid, and (iii) the proper officer has made an order for the clearance of such goods. In relation to goods cleared under Section 68, Section 15(1)(b) of the Act provides that the rate of duty shall be computed according to the rate and valuation applicable on the date on which goods are actually removed from the warehouse. (See: D.C.M & Anr. Vs. Union of India & Anr. (1995 Supp (3) SCC 223). 21. Section 72 of the Act, which is relevant for our purpose, provides for the consequences for improper removal of goods from warehouse. It reads thus: 72. Goods improperly removed from warehouse, etc.--(1) In any of the following cases, that is to say,-- (a) where any warehoused goods are removed from a warehouse in contravention of Section 71; (b) where any warehoused goods have not been removed from a warehouse at the expiration of the period during which such goods are permitted under Section 61 to remain in a warehouse; (c) where any warehoused goods have been taken under Section 64 as samples without payment of duty; (d) where any goods in respect of which a bond has been executed under Section 59 and which have not been cleared for home consumption or exportation are not duly accounted for to the satisfaction of the proper officer, the proper officer may demand, and the owner of such goods shall forthwith pay, the full amount of duty chargeable on account of such goods together with all penalties, rent, interest and other charges payable in respect of such goods. (2) If any owner fails to pay any amount demanded under sub- section (1), the proper officer may, without prejudice to any other remedy, cause to be detained and sold, after notice to the owner (any transfer of the goods notwithstanding) such sufficient portion of his goods, if any, in the warehouse, as the said officer may select. 22. The scope and purport of Section 72 was examined by this Court in Kesoram Rayon (supra). It was held that: 13. Goods which are not removed from a warehouse within the permissible period are treated as goods improperly removed from the warehouse. Such improper removal takes place when the goods remain in the warehouse beyond the permitted period or its permitted extension. The importer of the goods may be called upon to pay customs duty on them and, necessarily, it would be payable at the rate applicable on the date of their deemed removal from the warehouse, that is, the date on which the permitted period or its permitted extension came to an end. 14. Section 15(1)(b) applies to the case of goods cleared under Section 68 from a warehouse upon presentation of a bill of entry for home consumption; payment of duty, interest, penalty, rent and other charges; and an order for home clearance. The provisions of Section 68 and, consequently, of Section 15(1)(b) apply only when goods have been cleared from the warehouse within the permitted period or its permitted extension and not when, by reason of their remaining in the warehouse beyond the permitted period or its permitted extension, the goods have been deemed to have been improperly removed from the warehouse under Section 72. 23. We respectfully concur with the enunciation of law on the point. It is plain that Section 15(1)(b) would be applicable only when the goods are cleared from the warehouse under Section 68 of the Act, i.e., within the initially permitted period or during the permitted extended period. It is trite to say that when the goods are cleared from the warehouse after the expiry of the permitted period or its permitted extension, the goods are deemed to have been improperly removed under Section 72(1)(b) of the Act, with the consequence that the rate of duty has to be computed according to the rate applicable on the date of expiry of the permitted period under Section 61. 24. While it is true that Condition 6 of the licence granted under the EPCG Scheme was valid against goods which had already been shipped but not cleared, but, we have no hesitation in holding that the benefit of exemption granted under the Scheme to the already imported goods would be available only in respect of those goods which are cleared under Section 68 of the Act. In our opinion, any other interpretation of the said clause would render Section 72 of the Act otiose, and would result in the said Scheme operating as an amnesty scheme, granting an unintended and undue advantage to the importer, which is ordinarily to be avoided. (See: State of Maharashtra & Ors. Vs. Swanstone Multiplex Cinema Private Limited) ((2009) 8 SCC 235 ). It is also a cardinal principle of construction that the provisions of a notification have to be harmoniously construed as to prevent any conflict with the provisions of the Statute. (See: Gudur Kishan Rao & Ors. Vs. Sutirtha Bhattachaarya & Ors. ((1998) 4 SCC 189.) 25. We are, therefore, of the opinion that the decision in Pratibha Processors (supra) on which heavy reliance is placed by learned counsel for the appellants, is clearly distinguishable on facts inasmuch as apart from the fact that in that case the clearance of goods was under Section 68 of the Act, the import of Section 72(1)(b) of the Act was not considered. On the contrary, the dictum laid down in Kesoram Rayon (supra) is on all fours on facts at hand, and therefore, the decision of the High Court cannot be faulted with. 26. For the fore-going reasons, | 0[ds]It is plain that Section 15(1)(b) would be applicable only when the goods are cleared from the warehouse under Section 68 of the Act, i.e., within the initially permitted period or during the permitted extended period. It is trite to say that when the goods are cleared from the warehouse after the expiry of the permitted period or its permitted extension, the goods are deemed to have been improperly removed under Section 72(1)(b) of the Act, with the consequence that the rate of duty has to be computed according to the rate applicable on the date of expiry of the permitted period under Section 6124. While it is true that Condition 6 of the licence granted under the EPCG Scheme was valid against goods which had already been shipped but not cleared, but, we have no hesitation in holding that the benefit of exemption granted under the Scheme to the already imported goods would be available only in respect of those goods which are cleared under Section 68 of the Act. In our opinion, any other interpretation of the said clause would render Section 72 of the Act otiose, and would result in the said Scheme operating as an amnesty scheme, granting an unintended and undue advantage to the importer, which is ordinarily to be avoided. (See: State of Maharashtra & Ors. Vs. Swanstone Multiplex Cinema Private Limited) ((2009) 8 SCC 235 ). It is also a cardinal principle of construction that the provisions of a notification have to be harmoniously construed as to prevent any conflict with the provisions of the Statutethat the decision in Pratibha Processors (supra) on which heavy reliance is placed by learned counsel for the appellants, is clearly distinguishable on facts inasmuch as apart from the fact that in that case the clearance of goods was under Section 68 of the Act, the import of Section 72(1)(b) of the Act was not considered. On the contrary, the dictum laid down in Kesoram Rayon (supra) is on all fours on facts at hand, and therefore, the decision of the High Court cannot be faulted with | 0 | 4,223 | 404 | ### 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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Rayon (supra)] 20. Section 68 deals with the clearance of warehoused goods for home consumption and provides that an importer of any warehoused goods may clear the goods for home consumption if : (i) a bill of entry for home consumption of the said goods has been presented in the prescribed form, (ii) the import duty leviable on such goods, all penalties, rent, interest and other charges payable in respect of such goods have been paid, and (iii) the proper officer has made an order for the clearance of such goods. In relation to goods cleared under Section 68, Section 15(1)(b) of the Act provides that the rate of duty shall be computed according to the rate and valuation applicable on the date on which goods are actually removed from the warehouse. (See: D.C.M & Anr. Vs. Union of India & Anr. (1995 Supp (3) SCC 223). 21. Section 72 of the Act, which is relevant for our purpose, provides for the consequences for improper removal of goods from warehouse. It reads thus: 72. Goods improperly removed from warehouse, etc.--(1) In any of the following cases, that is to say,-- (a) where any warehoused goods are removed from a warehouse in contravention of Section 71; (b) where any warehoused goods have not been removed from a warehouse at the expiration of the period during which such goods are permitted under Section 61 to remain in a warehouse; (c) where any warehoused goods have been taken under Section 64 as samples without payment of duty; (d) where any goods in respect of which a bond has been executed under Section 59 and which have not been cleared for home consumption or exportation are not duly accounted for to the satisfaction of the proper officer, the proper officer may demand, and the owner of such goods shall forthwith pay, the full amount of duty chargeable on account of such goods together with all penalties, rent, interest and other charges payable in respect of such goods. (2) If any owner fails to pay any amount demanded under sub- section (1), the proper officer may, without prejudice to any other remedy, cause to be detained and sold, after notice to the owner (any transfer of the goods notwithstanding) such sufficient portion of his goods, if any, in the warehouse, as the said officer may select. 22. The scope and purport of Section 72 was examined by this Court in Kesoram Rayon (supra). It was held that: 13. Goods which are not removed from a warehouse within the permissible period are treated as goods improperly removed from the warehouse. Such improper removal takes place when the goods remain in the warehouse beyond the permitted period or its permitted extension. The importer of the goods may be called upon to pay customs duty on them and, necessarily, it would be payable at the rate applicable on the date of their deemed removal from the warehouse, that is, the date on which the permitted period or its permitted extension came to an end. 14. Section 15(1)(b) applies to the case of goods cleared under Section 68 from a warehouse upon presentation of a bill of entry for home consumption; payment of duty, interest, penalty, rent and other charges; and an order for home clearance. The provisions of Section 68 and, consequently, of Section 15(1)(b) apply only when goods have been cleared from the warehouse within the permitted period or its permitted extension and not when, by reason of their remaining in the warehouse beyond the permitted period or its permitted extension, the goods have been deemed to have been improperly removed from the warehouse under Section 72. 23. We respectfully concur with the enunciation of law on the point. It is plain that Section 15(1)(b) would be applicable only when the goods are cleared from the warehouse under Section 68 of the Act, i.e., within the initially permitted period or during the permitted extended period. It is trite to say that when the goods are cleared from the warehouse after the expiry of the permitted period or its permitted extension, the goods are deemed to have been improperly removed under Section 72(1)(b) of the Act, with the consequence that the rate of duty has to be computed according to the rate applicable on the date of expiry of the permitted period under Section 61. 24. While it is true that Condition 6 of the licence granted under the EPCG Scheme was valid against goods which had already been shipped but not cleared, but, we have no hesitation in holding that the benefit of exemption granted under the Scheme to the already imported goods would be available only in respect of those goods which are cleared under Section 68 of the Act. In our opinion, any other interpretation of the said clause would render Section 72 of the Act otiose, and would result in the said Scheme operating as an amnesty scheme, granting an unintended and undue advantage to the importer, which is ordinarily to be avoided. (See: State of Maharashtra & Ors. Vs. Swanstone Multiplex Cinema Private Limited) ((2009) 8 SCC 235 ). It is also a cardinal principle of construction that the provisions of a notification have to be harmoniously construed as to prevent any conflict with the provisions of the Statute. (See: Gudur Kishan Rao & Ors. Vs. Sutirtha Bhattachaarya & Ors. ((1998) 4 SCC 189.) 25. We are, therefore, of the opinion that the decision in Pratibha Processors (supra) on which heavy reliance is placed by learned counsel for the appellants, is clearly distinguishable on facts inasmuch as apart from the fact that in that case the clearance of goods was under Section 68 of the Act, the import of Section 72(1)(b) of the Act was not considered. On the contrary, the dictum laid down in Kesoram Rayon (supra) is on all fours on facts at hand, and therefore, the decision of the High Court cannot be faulted with. 26. For the fore-going reasons,
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It is plain that Section 15(1)(b) would be applicable only when the goods are cleared from the warehouse under Section 68 of the Act, i.e., within the initially permitted period or during the permitted extended period. It is trite to say that when the goods are cleared from the warehouse after the expiry of the permitted period or its permitted extension, the goods are deemed to have been improperly removed under Section 72(1)(b) of the Act, with the consequence that the rate of duty has to be computed according to the rate applicable on the date of expiry of the permitted period under Section 6124. While it is true that Condition 6 of the licence granted under the EPCG Scheme was valid against goods which had already been shipped but not cleared, but, we have no hesitation in holding that the benefit of exemption granted under the Scheme to the already imported goods would be available only in respect of those goods which are cleared under Section 68 of the Act. In our opinion, any other interpretation of the said clause would render Section 72 of the Act otiose, and would result in the said Scheme operating as an amnesty scheme, granting an unintended and undue advantage to the importer, which is ordinarily to be avoided. (See: State of Maharashtra & Ors. Vs. Swanstone Multiplex Cinema Private Limited) ((2009) 8 SCC 235 ). It is also a cardinal principle of construction that the provisions of a notification have to be harmoniously construed as to prevent any conflict with the provisions of the Statutethat the decision in Pratibha Processors (supra) on which heavy reliance is placed by learned counsel for the appellants, is clearly distinguishable on facts inasmuch as apart from the fact that in that case the clearance of goods was under Section 68 of the Act, the import of Section 72(1)(b) of the Act was not considered. On the contrary, the dictum laid down in Kesoram Rayon (supra) is on all fours on facts at hand, and therefore, the decision of the High Court cannot be faulted with
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Mrs. Hem Nolini Judah (Since Deceased) And After Her Leg Vs. Mrs. Isolyne Sarojbashini Boseand Others | the claim is made by a person directly claiming as a legatee. The section does not say that no person can claim as a legatee or as an executor unless he obtains probate or letters of administration of the will under which he claims. What it says is that no right as an executor or legatee can be established in any Court of justice, unless probate or letters of administration have been obtained of the will under which the right is claimed and therefore it is immaterial who wishes to establish the right as a legatee or an executor. Whosoever wishes to establish that right whether it be a legatee or an executor himself or somebody else who might find it necessary in order to establish his right to establish the right of some legatee or executor from whom he might have derived title, he cannot do so unless the will under which the right as a legatee or executor is claimed has resulted in the grant of a probate or letters of administration. Therefore, as soon as the appellant wanted to establish that Mrs. Mitter was the legatee of Dr. Miss Mitter and was therefore entitled to the whole house she could only do so if the will of Dr. Miss Mitter in favour of Mrs. Mitter had resulted in the grant of probate or letters of administration. Admittedly that did not happen and therefore S. 213(1) would be a bar to the appellant showing that her mother was the full owner of the property by virtue of the will made in her favour by Dr. Miss Mitter. The difference between a right claimed as a legatee under a will and a right which might arise otherwise is clear in this very case. The right under the will which was claimed was that Mrs. Mitter became the owner of the entire house. Of course, without the will Mrs. Mitter was an equal heir with her daughters of the property left by Dr. Miss Mitter, as the latter would be taken to have died intestate, and would thus be entitled to one-fourth. It will be seen from the judgment of the High Court that it has held that the appellant is entitled to the one-fourth share to which Mrs. Mitter was entitled as an heir to Dr. Miss Mitter and granted the plaintiff-respondent a declaration with respect to only half the house. Therefore the High Court was right in holding that S. 213 would bar the appellant from establishing the right of her mother as a legatee from Dr. Miss Mitter as no probate or letters of administration had been obtained of the alleged will of Dr. Miss Mitter in favour of Mrs. Mitter. The contention of the appellant on this head must therefore fail.8. Re. (ii).Turning now to the question of res judicata, learned counsel for the appellant has been unable to point out a judgment inter parties in which the question of title to this house has been decided and which would bar the plaintiff-respondent from raising the question of title which she has raised in the present suit.As we have already said questions of title are not decided in proceedings for the grant of probate or letters of administration. Whatever therefore might have happened in those proceedings would not establish the title to the house either of the appellant or of Mrs. Mitter. In particular, learned counsel for the appellant relied on the order of the High Court dated December 17, 1943, by which the application of the plaintiff-respondent for letters of administration of the will of Dr. Miss Mitter was dismissed. In that case certain preliminary issues were framed one of which related to estoppel with respect to Mrs. Mitters right to this property. What happened in that case was that Mrs. Bose who had made the application did not appear and thereupon her application was dismissed for that reason obviously under O. XVII, R. 2 of the Code of Civil Procedure, In these. circumstances there can be no question of res judicata as to the title to the property in dispute. The contention on this head must therefore be rejected.9. Re. (iii).As to estopel, reliance is mainly placed on the applications of Mrs. Bose herself for the grant of letters of administration of a will alleged to have been made in her favour by Mrs. Mitter. In that application Mrs. Bose had shown the house as if it belonged to Mrs. Mitter. Her application was as we have already noted dismissed. It may be that Mrs. Bose in her application for letters of administration showed this house as the property of her mother Mrs. Mitter; but as we have already said, proceedings leading to the grant of probate or letters of administration have nothing to do with titles. Further estoppel can only arise as is clear from S, 115 of the Indian Evidence Act, when one person has by his declaration, act or omission, intentionally caused or permitted another person to believe a thing to be true and to act upon such belief. Therefore before Mrs. Bose call be estopped from pleading that Mrs. Mitter was not the owner of the entire property it must be shown that by her showing the house as the property of Mrs. Mitter in her application for letters of administration, she intentionally caused or permitted the appellant to believe that thing to be true and to act on that belief. It is obvious that the appellant cannot be said to have acted in her turn with respect to this house simply because Mrs. Bose said in her application for letters of administration that the house belonged to Mrs. Mitter. It appears that after the death of Mrs. Mitter the three sisters put forward three separate wills each in her favour and there was no question of one sister acting on any representation made by another. We are therefore of opinion that no question of estoppel arises in this case | 0[ds]7. Re. (i).We have already pointed out that though it was said that Dr. Miss Mitter had executed a will in favour of her mother Mrs. Mitter in June, 1925 bequeathing the house in dispute to her, no probate or letters of administration were ever obtained by Mrs. Mitter. It is true that Mrs. Mitter in her turn made a will in favour of the appellant and she obtained letters of administration of that will. In that will the house in dispute was mentioned as the property of Mrs. Mitter and was bequeathed to the appellant and in the letters of administration granted to her this property was mentioned as one of the properties coming to her by the will of hersection clearly creates a bar to the establishment of any right under will by an executor or a legatee unless probate or letters of administration of the will have been obtained. It is now well-settled that it is immaterial whether the right under the will is claimed as a plaintiff or as a defendant; in either case S. 213 will be a bar to any right being claimed by a person under a will whether as a plaintiff or as a defendant unless probate or letters of administration of the will have beenit is not in dispute that the grant of probate or letters of administration does not establish that the person making the will was the owner of the property which he may have given away by the will, and any person interested in the property included in the will can always file a suit to establish his right to the property to the exclusion of the testator in spite of the grant of probate or letters of administration to the legatee or the executor, the reason being that proceedings for probate or letters o administration are not concerned with titles to property but are only concerned with the due execution of theIt is true that so far as the will of Mrs. Mitter in favour of the appellant is concerned, she has obtained letters of administration of that and she can maintain her right as a legatee under that will; but that will in her favour only gives her those properties which really and truly belonged to Mrs. Mitter, that will however does not create title in the appellant in properties which did not really and truly belong to Mrs. Mitter but which Mrs. Mitter might have thought it fit to include in theTherefore, as soon as the appellant wanted to establish that Mrs. Mitter was the legatee of Dr. Miss Mitter and was therefore entitled to the whole house she could only do so if the will of Dr. Miss Mitter in favour of Mrs. Mitter had resulted in the grant of probate or letters of administration. Admittedly that did not happen and therefore S. 213(1) would be a bar to the appellant showing that her mother was the full owner of the property by virtue of the will made in her favour by Dr. Miss Mitter. The difference between a right claimed as a legatee under a will and a right which might arise otherwise is clear in this very case. The right under the will which was claimed was that Mrs. Mitter became the owner of the entire house. Of course, without the will Mrs. Mitter was an equal heir with her daughters of the property left by Dr. Miss Mitter, as the latter would be taken to have died intestate, and would thus be entitled to one-fourth. It will be seen from the judgment of the High Court that it has held that the appellant is entitled to the one-fourth share to which Mrs. Mitter was entitled as an heir to Dr. Miss Mitter and granted the plaintiff-respondent a declaration with respect to only half the house. Therefore the High Court was right in holding that S. 213 would bar the appellant from establishing the right of her mother as a legatee from Dr. Miss Mitter as no probate or letters of administration had been obtained of the alleged will of Dr. Miss Mitter in favour of Mrs. Mitter. The contention of the appellant on this head must therefore fail.8. Re. (ii).Turning now to the question of res judicata, learned counsel for the appellant has been unable to point out a judgment inter parties in which the question of title to this house has been decided and which would bar the plaintiff-respondent from raising the question of title which she has raised in the present suit.As we have already said questions of title are not decided in proceedings for the grant of probate or letters of administration. Whatever therefore might have happened in those proceedings would not establish the title to the house either of the appellant or of Mrs.that case certain preliminary issues were framed one of which related to estoppel with respect to Mrs. Mitters right to this property. What happened in that case was that Mrs. Bose who had made the application did not appear and thereupon her application was dismissed for that reason obviously under O. XVII, R. 2 of the Code of Civil Procedure, In these. circumstances there can be no question of res judicata as to the title to the property in dispute. The contention on this head must therefore be rejected.9. Re.that application Mrs. Bose had shown the house as if it belonged to Mrs. Mitter. Her application was as we have already noted dismissed. It may be that Mrs. Bose in her application for letters of administration showed this house as the property of her mother Mrs. Mitter; but as we have already said, proceedings leading to the grant of probate or letters of administration have nothing to do with titles. Further estoppel can only arise as is clear from S, 115 of the Indian Evidence Act, when one person has by his declaration, act or omission, intentionally caused or permitted another person to believe a thing to be true and to act upon such belief. Therefore before Mrs. Bose call be estopped from pleading that Mrs. Mitter was not the owner of the entire property it must be shown that by her showing the house as the property of Mrs. Mitter in her application for letters of administration, she intentionally caused or permitted the appellant to believe that thing to be true and to act on that belief. It is obvious that the appellant cannot be said to have acted in her turn with respect to this house simply because Mrs. Bose said in her application for letters of administration that the house belonged to Mrs. Mitter. It appears that after the death of Mrs. Mitter the three sisters put forward three separate wills each in her favour and there was no question of one sister acting on any representation made by another. We are therefore of opinion that no question of estoppel arises in thisright under the will which was claimed was that Mrs. Mitter became the owner of the entire house. Of course, without the will Mrs. Mitter was an equal heir with her daughters of the property left by Dr. Miss Mitter, as the latter would be taken to have died intestate, and would thus be entitled toIt will be seen from the judgment of the High Court that it has held that the appellant is entitled to theshare to which Mrs. Mitter was entitled as an heir to Dr. Miss Mitter and granted thea declaration with respect to only half the house. Therefore the High Court was right in holding that S. 213 would bar the appellant from establishing the right of her mother as a legatee from Dr. Miss Mitter as no probate or letters of administration had been obtained of the alleged will of Dr. Miss Mitter in favour of Mrs. Mitter. The contention of the appellant on this head must thereforenow to the question of res judicata, learned counsel for the appellant has been unable to point out a judgment inter parties in which the question of title to this house has been decided and which would bar thefrom raising the question of title which she has raised in the present suit.As we have already said questions of title are not decided in proceedings for the grant of probate or letters of administration. Whatever therefore might have happened in those proceedings would not establish the title to the house either of the appellant or of Mrs.r, learned counsel for the appellant relied on the order of the High Court dated December 17, 1943, by which the application of thefor letters of administration of the will of Dr. Miss Mitter was dismissed.that case certain preliminary issues were framed one of which related to estoppel with respect to Mrs. Mitters right to this property. What happened in that case was that Mrs. Bose who had made the application did not appear and thereupon her application was dismissed for that reason obviously under O. XVII, R. 2 of the Code of Civil Procedure, In these. circumstances there can be no question of res judicata as to the title to the property in dispute. The contention on this head must therefore beto estopel, reliance is mainly placed on the applications of Mrs. Bose herself for the grant of letters of administration of a will alleged to have been made in her favour by Mrs. Mitter. Inthat application Mrs. Bose had shown the house as if it belonged to Mrs. Mitter. Her application was as we have already noted dismissed. It may be that Mrs. Bose in her application for letters of administration showed this house as the property of her mother Mrs. Mitter; but as we have already said, proceedings leading to the grant of probate or letters of administration have nothing to do with titles. Further estoppel can only arise as is clear from S, 115 of the Indian Evidence Act, when one person has by his declaration, act or omission, intentionally caused or permitted another person to believe a thing to be true and to act upon such belief. Therefore before Mrs. Bose call be estopped from pleading that Mrs. Mitter was not the owner of the entire property it must be shown that by her showing the house as the property of Mrs. Mitter in her application for letters of administration, she intentionally caused or permitted the appellant to believe that thing to be true and to act on that belief. It is obvious that the appellant cannot be said to have acted in her turn with respect to this house simply because Mrs. Bose said in her application for letters of administration that the house belonged to Mrs. Mitter. It appears that after the death of Mrs. Mitter the three sisters put forward three separate wills each in her favour and there was no question of one sister acting on any representation made by another. We are therefore of opinion that no question of estoppel arises in this | 0 | 3,569 | 1,936 | ### Instruction:
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the claim is made by a person directly claiming as a legatee. The section does not say that no person can claim as a legatee or as an executor unless he obtains probate or letters of administration of the will under which he claims. What it says is that no right as an executor or legatee can be established in any Court of justice, unless probate or letters of administration have been obtained of the will under which the right is claimed and therefore it is immaterial who wishes to establish the right as a legatee or an executor. Whosoever wishes to establish that right whether it be a legatee or an executor himself or somebody else who might find it necessary in order to establish his right to establish the right of some legatee or executor from whom he might have derived title, he cannot do so unless the will under which the right as a legatee or executor is claimed has resulted in the grant of a probate or letters of administration. Therefore, as soon as the appellant wanted to establish that Mrs. Mitter was the legatee of Dr. Miss Mitter and was therefore entitled to the whole house she could only do so if the will of Dr. Miss Mitter in favour of Mrs. Mitter had resulted in the grant of probate or letters of administration. Admittedly that did not happen and therefore S. 213(1) would be a bar to the appellant showing that her mother was the full owner of the property by virtue of the will made in her favour by Dr. Miss Mitter. The difference between a right claimed as a legatee under a will and a right which might arise otherwise is clear in this very case. The right under the will which was claimed was that Mrs. Mitter became the owner of the entire house. Of course, without the will Mrs. Mitter was an equal heir with her daughters of the property left by Dr. Miss Mitter, as the latter would be taken to have died intestate, and would thus be entitled to one-fourth. It will be seen from the judgment of the High Court that it has held that the appellant is entitled to the one-fourth share to which Mrs. Mitter was entitled as an heir to Dr. Miss Mitter and granted the plaintiff-respondent a declaration with respect to only half the house. Therefore the High Court was right in holding that S. 213 would bar the appellant from establishing the right of her mother as a legatee from Dr. Miss Mitter as no probate or letters of administration had been obtained of the alleged will of Dr. Miss Mitter in favour of Mrs. Mitter. The contention of the appellant on this head must therefore fail.8. Re. (ii).Turning now to the question of res judicata, learned counsel for the appellant has been unable to point out a judgment inter parties in which the question of title to this house has been decided and which would bar the plaintiff-respondent from raising the question of title which she has raised in the present suit.As we have already said questions of title are not decided in proceedings for the grant of probate or letters of administration. Whatever therefore might have happened in those proceedings would not establish the title to the house either of the appellant or of Mrs. Mitter. In particular, learned counsel for the appellant relied on the order of the High Court dated December 17, 1943, by which the application of the plaintiff-respondent for letters of administration of the will of Dr. Miss Mitter was dismissed. In that case certain preliminary issues were framed one of which related to estoppel with respect to Mrs. Mitters right to this property. What happened in that case was that Mrs. Bose who had made the application did not appear and thereupon her application was dismissed for that reason obviously under O. XVII, R. 2 of the Code of Civil Procedure, In these. circumstances there can be no question of res judicata as to the title to the property in dispute. The contention on this head must therefore be rejected.9. Re. (iii).As to estopel, reliance is mainly placed on the applications of Mrs. Bose herself for the grant of letters of administration of a will alleged to have been made in her favour by Mrs. Mitter. In that application Mrs. Bose had shown the house as if it belonged to Mrs. Mitter. Her application was as we have already noted dismissed. It may be that Mrs. Bose in her application for letters of administration showed this house as the property of her mother Mrs. Mitter; but as we have already said, proceedings leading to the grant of probate or letters of administration have nothing to do with titles. Further estoppel can only arise as is clear from S, 115 of the Indian Evidence Act, when one person has by his declaration, act or omission, intentionally caused or permitted another person to believe a thing to be true and to act upon such belief. Therefore before Mrs. Bose call be estopped from pleading that Mrs. Mitter was not the owner of the entire property it must be shown that by her showing the house as the property of Mrs. Mitter in her application for letters of administration, she intentionally caused or permitted the appellant to believe that thing to be true and to act on that belief. It is obvious that the appellant cannot be said to have acted in her turn with respect to this house simply because Mrs. Bose said in her application for letters of administration that the house belonged to Mrs. Mitter. It appears that after the death of Mrs. Mitter the three sisters put forward three separate wills each in her favour and there was no question of one sister acting on any representation made by another. We are therefore of opinion that no question of estoppel arises in this case
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application did not appear and thereupon her application was dismissed for that reason obviously under O. XVII, R. 2 of the Code of Civil Procedure, In these. circumstances there can be no question of res judicata as to the title to the property in dispute. The contention on this head must therefore be rejected.9. Re.that application Mrs. Bose had shown the house as if it belonged to Mrs. Mitter. Her application was as we have already noted dismissed. It may be that Mrs. Bose in her application for letters of administration showed this house as the property of her mother Mrs. Mitter; but as we have already said, proceedings leading to the grant of probate or letters of administration have nothing to do with titles. Further estoppel can only arise as is clear from S, 115 of the Indian Evidence Act, when one person has by his declaration, act or omission, intentionally caused or permitted another person to believe a thing to be true and to act upon such belief. Therefore before Mrs. Bose call be estopped from pleading that Mrs. Mitter was not the owner of the entire property it must be shown that by her showing the house as the property of Mrs. Mitter in her application for letters of administration, she intentionally caused or permitted the appellant to believe that thing to be true and to act on that belief. It is obvious that the appellant cannot be said to have acted in her turn with respect to this house simply because Mrs. Bose said in her application for letters of administration that the house belonged to Mrs. Mitter. It appears that after the death of Mrs. Mitter the three sisters put forward three separate wills each in her favour and there was no question of one sister acting on any representation made by another. We are therefore of opinion that no question of estoppel arises in thisright under the will which was claimed was that Mrs. Mitter became the owner of the entire house. Of course, without the will Mrs. Mitter was an equal heir with her daughters of the property left by Dr. Miss Mitter, as the latter would be taken to have died intestate, and would thus be entitled toIt will be seen from the judgment of the High Court that it has held that the appellant is entitled to theshare to which Mrs. Mitter was entitled as an heir to Dr. Miss Mitter and granted thea declaration with respect to only half the house. Therefore the High Court was right in holding that S. 213 would bar the appellant from establishing the right of her mother as a legatee from Dr. Miss Mitter as no probate or letters of administration had been obtained of the alleged will of Dr. Miss Mitter in favour of Mrs. Mitter. The contention of the appellant on this head must thereforenow to the question of res judicata, learned counsel for the appellant has been unable to point out a judgment inter parties in which the question of title to this house has been decided and which would bar thefrom raising the question of title which she has raised in the present suit.As we have already said questions of title are not decided in proceedings for the grant of probate or letters of administration. Whatever therefore might have happened in those proceedings would not establish the title to the house either of the appellant or of Mrs.r, learned counsel for the appellant relied on the order of the High Court dated December 17, 1943, by which the application of thefor letters of administration of the will of Dr. Miss Mitter was dismissed.that case certain preliminary issues were framed one of which related to estoppel with respect to Mrs. Mitters right to this property. What happened in that case was that Mrs. Bose who had made the application did not appear and thereupon her application was dismissed for that reason obviously under O. XVII, R. 2 of the Code of Civil Procedure, In these. circumstances there can be no question of res judicata as to the title to the property in dispute. The contention on this head must therefore beto estopel, reliance is mainly placed on the applications of Mrs. Bose herself for the grant of letters of administration of a will alleged to have been made in her favour by Mrs. Mitter. Inthat application Mrs. Bose had shown the house as if it belonged to Mrs. Mitter. Her application was as we have already noted dismissed. It may be that Mrs. Bose in her application for letters of administration showed this house as the property of her mother Mrs. Mitter; but as we have already said, proceedings leading to the grant of probate or letters of administration have nothing to do with titles. Further estoppel can only arise as is clear from S, 115 of the Indian Evidence Act, when one person has by his declaration, act or omission, intentionally caused or permitted another person to believe a thing to be true and to act upon such belief. Therefore before Mrs. Bose call be estopped from pleading that Mrs. Mitter was not the owner of the entire property it must be shown that by her showing the house as the property of Mrs. Mitter in her application for letters of administration, she intentionally caused or permitted the appellant to believe that thing to be true and to act on that belief. It is obvious that the appellant cannot be said to have acted in her turn with respect to this house simply because Mrs. Bose said in her application for letters of administration that the house belonged to Mrs. Mitter. It appears that after the death of Mrs. Mitter the three sisters put forward three separate wills each in her favour and there was no question of one sister acting on any representation made by another. We are therefore of opinion that no question of estoppel arises in this
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Phaltan Sugar Works Ltd. Sakharwadi Vs. Employees of the Phaltan Sugar Works Ltd., Represented by Phaltan Taluka Sakhar Kamgar Union, Sakharwadi | to be for the office boy and the laboratory boy who start with 15 annas per day and can rise to Rs. 1-9-0, the rate of increment being one anna per year. The next higher rates are for Centrifugal Operator, Assistant Evaporator Man and Juice Heater Man, their starting rates of pay being Rs. 1-9-0 with an annual increment of one anna per year. It is clear, therefore, that these different scales were fixed after adding differentials on the minimum rates fixed for the office boy and the laboratory boy. The minimum rate of 15 annas per day was just higher than Rs. 23 per month for 26 days work which was the minimum basic wage fixed for sugar mills in Deccan, by the Naik Award of 1953. It seems to us that if the total emolument theory that the wage should be fixed at such a figure that taken along with dearness allowance already existing a reasonable wage packet should be received by the workmen at the end of the week had been considered by the employers and workmen at the time of agreement on wage rates to be fixed by the Wage Board, the rates would have been fixed higher. This examination wage scales agreed upon in 1957 fortifies us in the conclusion that in fact the question of keeping the clearness allowance at the same rate as before did not enter the minds of either the employer or the workmen at that time. The first contention raised on behalf of the appellant, therefore, fails.6. This brings us to the question of the propriety of the actual dearness allowance awarded. In fixing these rates the Tribunal has taken into consideration: (l) the extent of the rise in the cost of living since 1939, on the basis of which year Mr. Naik had fixed the minimum; (2) the financial capacity of the company; and (3) the rates of dearness allowance which other sugar factories in the same region had paid. It was urged on behalf of the appellant that the Tribunal has erred in law in accepting the affidavit of one Mr. Fauzdar for the purpose of showing prices at Sakharwadi, that it had not taken into consideration the fact that prices in the Nira Canal Division and the Nagar Division are not the same and that in any case, there was no justification for fixing dearness allowance higher than what the Belapur factory alleged by the appellant to be the most prosperous concern in the neighbourhood, was paying. As regards this last contention, it is pertinent to point out that shortly after the award under appeal was published, the Belapur Sugar Factory has increased the dearness allowance to its workmen and there is hardly any difference between the new rates being paid by the Belapur factory and the rates awarded by the Tribunal. Nor is there anything to show that Belapur is more prosperous than the appellant company. As regards the contention that the cost of living in the Nira Canal Division where the appellants factory is situated is lower than the cost of living in the Nagar Division, where other sugar factories are situated, we find no material on the record to support it. The appellants contention that Fauzdars affidavit as regards Sakharwadi prices should not have been accepted is based on the ground that Fauzdar was not produced for cross-examination. We notice, however, that no prayer appears to have been made before the Tribunal on behalf of the appellant that Fauzdar should be produced for cross-examination. It is too late for the appellant to make a grievance now of the fact that Fauzdar was not produced. It is worth mentioning that the main feature of the cost of living which impressed the Tribunal was that it had risen four times since 1939. It is not seriously contended that in this estimate the Tribunal was wrong.7. Fixation of these rates of dearness allowance is always a delicate operation and when the Tribunal after a fair consideration of the available material has fixed certain rates as reasonable, these should not be disturbed except on clear proof of error or unfairness. Far from there being any such proof here, the fact that Belapur factory within a short time after this award, has been paying almost similar rates of dearness allowance is good reason to think that what the Tribunal has awarded is reasonable.8. Objection is lastly taken to the direction of the Tribunal that these new rates would be payable with effect from March 1, 1958. It has to be noticed that the reference itself was made on November 7, 1957. It was open to the Tribunal to give effect to the new rate with effect from that very day, i.e., November 7, 1957; but when making the award on November 28, 1958, the Tribunal thought it fair to make the new rates effective not form November 7, but from much later date of March 1, 1958. There is absolutely no ground for interfering with the Tribunals exercise of its discretion in the matter. Reference need only be made in this connection to the very satisfactory financial position of the company during the last few years. As the Tribunal has pointed out the latest balance-sheet for 1956-57 shows that on a paid up capital of Rs. 50 lacs of which Rs. 40 lacs comprise bonus shares, the reserve fund is over Rs. 69 lacs and that on fixed assets costing 116 lacs depreciation has been written off to the extent of Rs. 67 lacs. Dividend for the year 1955-56 has been paid at the rate of 10 per cent and for 1956-57, 24 per cent, in both cases free of income-tax. With this back-ground of the companys prosperity the Tribunal could have very well made these new rates effective from the very date of reference, viz., November 7, 1957. Instead it made them effective from March 1, 1958. The company can have no reasonable basis of grievance against this. | 0[ds]4. It is not even pleaded here that the workmen did or said anything which gave any ground for the employers presumption that there would be no agitation for revision of the existing scales of dearness allowance the absence of even a suggestion in the written statement of any understanding between the parties that the dearness allowance would remain the same or that the workmen gave the employer any ground for presuming that they would not agitate for a revision of dearness allowance, the appellant cannot be allowed to plead any such understanding or to say that it was misled into thinking that there would be no agitation for higher dearness allowance. If the appellant did presume that there would be no such agitation, the appellant has to thank itself for the same. It is interesting to note in this connection that nobody has given evidence on behalf of the appellant to satisfy the Court that in fact any such presumption was made by the appellant. If it was a fact that in agreeing to the higher wage scale the appellant had presumed that the workmen would not agitate for a revision of the dearness allowance it should have been possible to establish this by examination of its General Manager or some other responsible official. No such evidence has been given. It will not be unreasonable to think, therefore, that in fact there had been no such presumption.5. An examination of the scales of wages that were agreed upon fortifies us in this conclusion. The agreed scheme provided for different time scales of wages for different categories of employees with different starting pay and different rates of increments. The lowest rate appears to be for the office boy and the laboratory boy who start with 15 annas per day and can rise to Rs.the rate of increment being one anna per year. The next higher rates are for Centrifugal Operator, Assistant Evaporator Man and Juice Heater Man, their starting rates of pay being Rs.with an annual increment of one anna per year. It is clear, therefore, that these different scales were fixed after adding differentials on the minimum rates fixed for the office boy and the laboratory boy. The minimum rate of 15 annas per day was just higher than Rs. 23 per month for 26 days work which was the minimum basic wage fixed for sugar mills in Deccan, by the Naik Award of 1953. It seems to us that if the total emolument theory that the wage should be fixed at such a figure that taken along with dearness allowance already existing a reasonable wage packet should be received by the workmen at the end of the week had been considered by the employers and workmen at the time of agreement on wage rates to be fixed by the Wage Board, the rates would have been fixed higher. This examination wage scales agreed upon in 1957 fortifies us in the conclusion that in fact the question of keeping the clearness allowance at the same rate as before did not enter the minds of either the employer or the workmen at that time. The first contention raised on behalf of the appellant, therefore, fails.6. This brings us to the question of the propriety of the actual dearness allowance awarded. In fixing these rates the Tribunal has taken into consideration: (l) the extent of the rise in the cost of living since 1939, on the basis of which year Mr. Naik had fixed the minimum; (2) the financial capacity of the company; and (3) the rates of dearness allowance which other sugar factories in the same region had paid. It was urged on behalf of the appellant that the Tribunal has erred in law in accepting the affidavit of one Mr. Fauzdar for the purpose of showing prices at Sakharwadi, that it had not taken into consideration the fact that prices in the Nira Canal Division and the Nagar Division are not the same and that in any case, there was no justification for fixing dearness allowance higher than what the Belapur factory alleged by the appellant to be the most prosperous concern in the neighbourhood, was paying. As regards this last contention, it is pertinent to point out that shortly after the award under appeal was published, the Belapur Sugar Factory has increased the dearness allowance to its workmen and there is hardly any difference between the new rates being paid by the Belapur factory and the rates awarded by the Tribunal. Nor is there anything to show that Belapur is more prosperous than the appellant company. As regards the contention that the cost of living in the Nira Canal Division where the appellants factory is situated is lower than the cost of living in the Nagar Division, where other sugar factories are situated, we find no material on the record to support it. The appellants contention that Fauzdars affidavit as regards Sakharwadi prices should not have been accepted is based on the ground that Fauzdar was not produced forWe notice, however, that no prayer appears to have been made before the Tribunal on behalf of the appellant that Fauzdar should be produced forIt is too late for the appellant to make a grievance now of the fact that Fauzdar was not produced. It is worth mentioning that the main feature of the cost of living which impressed the Tribunal was that it had risen four times since 1939. It is not seriously contended that in this estimate the Tribunal was wrong.7. Fixation of these rates of dearness allowance is always a delicate operation and when the Tribunal after a fair consideration of the available material has fixed certain rates as reasonable, these should not be disturbed except on clear proof of error or unfairness. Far from there being any such proof here, the fact that Belapur factory within a short time after this award, has been paying almost similar rates of dearness allowance is good reason to think that what the Tribunal has awarded is reasonable.8. Objection is lastly taken to the direction of the Tribunal that these new rates would be payable with effect from March 1, 1958. It has to be noticed that the reference itself was made on November 7, 1957. It was open to the Tribunal to give effect to the new rate with effect from that very day, i.e., November 7, 1957; but when making the award on November 28, 1958, the Tribunal thought it fair to make the new rates effective not form November 7, but from much later date of March 1, 1958. There is absolutely no ground for interfering with the Tribunals exercise of its discretion in the matter. Reference need only be made in this connection to the very satisfactory financial position of the company during the last few years. As the Tribunal has pointed out the latest57 shows that on a paid up capital of Rs. 50 lacs of which Rs. 40 lacs comprise bonus shares, the reserve fund is over Rs. 69 lacs and that on fixed assets costing 116 lacs depreciation has been written off to the extent of Rs. 67 lacs. Dividend for the yearhas been paid at the rate of 10 per cent and for24 per cent, in both cases free ofund of the companys prosperity the Tribunal could have very well made these new rates effective from the very date of reference, viz., November 7, 1957. Instead it made them effective from March 1, 1958. The company can have no reasonable basis of grievance against this. | 0 | 2,330 | 1,359 | ### Instruction:
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to be for the office boy and the laboratory boy who start with 15 annas per day and can rise to Rs. 1-9-0, the rate of increment being one anna per year. The next higher rates are for Centrifugal Operator, Assistant Evaporator Man and Juice Heater Man, their starting rates of pay being Rs. 1-9-0 with an annual increment of one anna per year. It is clear, therefore, that these different scales were fixed after adding differentials on the minimum rates fixed for the office boy and the laboratory boy. The minimum rate of 15 annas per day was just higher than Rs. 23 per month for 26 days work which was the minimum basic wage fixed for sugar mills in Deccan, by the Naik Award of 1953. It seems to us that if the total emolument theory that the wage should be fixed at such a figure that taken along with dearness allowance already existing a reasonable wage packet should be received by the workmen at the end of the week had been considered by the employers and workmen at the time of agreement on wage rates to be fixed by the Wage Board, the rates would have been fixed higher. This examination wage scales agreed upon in 1957 fortifies us in the conclusion that in fact the question of keeping the clearness allowance at the same rate as before did not enter the minds of either the employer or the workmen at that time. The first contention raised on behalf of the appellant, therefore, fails.6. This brings us to the question of the propriety of the actual dearness allowance awarded. In fixing these rates the Tribunal has taken into consideration: (l) the extent of the rise in the cost of living since 1939, on the basis of which year Mr. Naik had fixed the minimum; (2) the financial capacity of the company; and (3) the rates of dearness allowance which other sugar factories in the same region had paid. It was urged on behalf of the appellant that the Tribunal has erred in law in accepting the affidavit of one Mr. Fauzdar for the purpose of showing prices at Sakharwadi, that it had not taken into consideration the fact that prices in the Nira Canal Division and the Nagar Division are not the same and that in any case, there was no justification for fixing dearness allowance higher than what the Belapur factory alleged by the appellant to be the most prosperous concern in the neighbourhood, was paying. As regards this last contention, it is pertinent to point out that shortly after the award under appeal was published, the Belapur Sugar Factory has increased the dearness allowance to its workmen and there is hardly any difference between the new rates being paid by the Belapur factory and the rates awarded by the Tribunal. Nor is there anything to show that Belapur is more prosperous than the appellant company. As regards the contention that the cost of living in the Nira Canal Division where the appellants factory is situated is lower than the cost of living in the Nagar Division, where other sugar factories are situated, we find no material on the record to support it. The appellants contention that Fauzdars affidavit as regards Sakharwadi prices should not have been accepted is based on the ground that Fauzdar was not produced for cross-examination. We notice, however, that no prayer appears to have been made before the Tribunal on behalf of the appellant that Fauzdar should be produced for cross-examination. It is too late for the appellant to make a grievance now of the fact that Fauzdar was not produced. It is worth mentioning that the main feature of the cost of living which impressed the Tribunal was that it had risen four times since 1939. It is not seriously contended that in this estimate the Tribunal was wrong.7. Fixation of these rates of dearness allowance is always a delicate operation and when the Tribunal after a fair consideration of the available material has fixed certain rates as reasonable, these should not be disturbed except on clear proof of error or unfairness. Far from there being any such proof here, the fact that Belapur factory within a short time after this award, has been paying almost similar rates of dearness allowance is good reason to think that what the Tribunal has awarded is reasonable.8. Objection is lastly taken to the direction of the Tribunal that these new rates would be payable with effect from March 1, 1958. It has to be noticed that the reference itself was made on November 7, 1957. It was open to the Tribunal to give effect to the new rate with effect from that very day, i.e., November 7, 1957; but when making the award on November 28, 1958, the Tribunal thought it fair to make the new rates effective not form November 7, but from much later date of March 1, 1958. There is absolutely no ground for interfering with the Tribunals exercise of its discretion in the matter. Reference need only be made in this connection to the very satisfactory financial position of the company during the last few years. As the Tribunal has pointed out the latest balance-sheet for 1956-57 shows that on a paid up capital of Rs. 50 lacs of which Rs. 40 lacs comprise bonus shares, the reserve fund is over Rs. 69 lacs and that on fixed assets costing 116 lacs depreciation has been written off to the extent of Rs. 67 lacs. Dividend for the year 1955-56 has been paid at the rate of 10 per cent and for 1956-57, 24 per cent, in both cases free of income-tax. With this back-ground of the companys prosperity the Tribunal could have very well made these new rates effective from the very date of reference, viz., November 7, 1957. Instead it made them effective from March 1, 1958. The company can have no reasonable basis of grievance against this.
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wages for different categories of employees with different starting pay and different rates of increments. The lowest rate appears to be for the office boy and the laboratory boy who start with 15 annas per day and can rise to Rs.the rate of increment being one anna per year. The next higher rates are for Centrifugal Operator, Assistant Evaporator Man and Juice Heater Man, their starting rates of pay being Rs.with an annual increment of one anna per year. It is clear, therefore, that these different scales were fixed after adding differentials on the minimum rates fixed for the office boy and the laboratory boy. The minimum rate of 15 annas per day was just higher than Rs. 23 per month for 26 days work which was the minimum basic wage fixed for sugar mills in Deccan, by the Naik Award of 1953. It seems to us that if the total emolument theory that the wage should be fixed at such a figure that taken along with dearness allowance already existing a reasonable wage packet should be received by the workmen at the end of the week had been considered by the employers and workmen at the time of agreement on wage rates to be fixed by the Wage Board, the rates would have been fixed higher. This examination wage scales agreed upon in 1957 fortifies us in the conclusion that in fact the question of keeping the clearness allowance at the same rate as before did not enter the minds of either the employer or the workmen at that time. The first contention raised on behalf of the appellant, therefore, fails.6. This brings us to the question of the propriety of the actual dearness allowance awarded. In fixing these rates the Tribunal has taken into consideration: (l) the extent of the rise in the cost of living since 1939, on the basis of which year Mr. Naik had fixed the minimum; (2) the financial capacity of the company; and (3) the rates of dearness allowance which other sugar factories in the same region had paid. It was urged on behalf of the appellant that the Tribunal has erred in law in accepting the affidavit of one Mr. Fauzdar for the purpose of showing prices at Sakharwadi, that it had not taken into consideration the fact that prices in the Nira Canal Division and the Nagar Division are not the same and that in any case, there was no justification for fixing dearness allowance higher than what the Belapur factory alleged by the appellant to be the most prosperous concern in the neighbourhood, was paying. As regards this last contention, it is pertinent to point out that shortly after the award under appeal was published, the Belapur Sugar Factory has increased the dearness allowance to its workmen and there is hardly any difference between the new rates being paid by the Belapur factory and the rates awarded by the Tribunal. Nor is there anything to show that Belapur is more prosperous than the appellant company. As regards the contention that the cost of living in the Nira Canal Division where the appellants factory is situated is lower than the cost of living in the Nagar Division, where other sugar factories are situated, we find no material on the record to support it. The appellants contention that Fauzdars affidavit as regards Sakharwadi prices should not have been accepted is based on the ground that Fauzdar was not produced forWe notice, however, that no prayer appears to have been made before the Tribunal on behalf of the appellant that Fauzdar should be produced forIt is too late for the appellant to make a grievance now of the fact that Fauzdar was not produced. It is worth mentioning that the main feature of the cost of living which impressed the Tribunal was that it had risen four times since 1939. It is not seriously contended that in this estimate the Tribunal was wrong.7. Fixation of these rates of dearness allowance is always a delicate operation and when the Tribunal after a fair consideration of the available material has fixed certain rates as reasonable, these should not be disturbed except on clear proof of error or unfairness. Far from there being any such proof here, the fact that Belapur factory within a short time after this award, has been paying almost similar rates of dearness allowance is good reason to think that what the Tribunal has awarded is reasonable.8. Objection is lastly taken to the direction of the Tribunal that these new rates would be payable with effect from March 1, 1958. It has to be noticed that the reference itself was made on November 7, 1957. It was open to the Tribunal to give effect to the new rate with effect from that very day, i.e., November 7, 1957; but when making the award on November 28, 1958, the Tribunal thought it fair to make the new rates effective not form November 7, but from much later date of March 1, 1958. There is absolutely no ground for interfering with the Tribunals exercise of its discretion in the matter. Reference need only be made in this connection to the very satisfactory financial position of the company during the last few years. As the Tribunal has pointed out the latest57 shows that on a paid up capital of Rs. 50 lacs of which Rs. 40 lacs comprise bonus shares, the reserve fund is over Rs. 69 lacs and that on fixed assets costing 116 lacs depreciation has been written off to the extent of Rs. 67 lacs. Dividend for the yearhas been paid at the rate of 10 per cent and for24 per cent, in both cases free ofund of the companys prosperity the Tribunal could have very well made these new rates effective from the very date of reference, viz., November 7, 1957. Instead it made them effective from March 1, 1958. The company can have no reasonable basis of grievance against this.
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Union Of India Vs. City Municipal Council, Bellary | the commencement of the Constitution is affected to the extent it contravenes or is repugnant to the said provision. The Act of 1941 creating the liability of the Railways to taxation by local authorities was passed by the then Central Legislature which was a Federal Legislature of India. The present Central Legislature, namely, the Parliament has not enacted any law after coming into force of the Constitution making any provision affecting the exemption of the property of the Union from all taxes imposed by a State or by any authority within a State. The 1941 Act is repugnant to clause (1) of Article 285. It is neither a law made by Parliament nor a law made by the Central Legislature after the advent of the Constitution. # In either view of the matter it is not a law covered by the phrase save in so far as Parliament may by law otherwise provide occurring in clause (1) of Article 285. There is an additional reason for rejecting the argument of Mr. Ramamurthi in this regard. If the contention as made were to hold good it will make clause (2) of Art. 285 almost nugatory. We, therefore, hold that the property in question is exempt from all taxes claimed by the Bellary Municipal Council under clause (1) of Article 285 unless the claim can be supported and sustained within the four corners of clause (2). 12. We respectfully agree with the High Court that some variation in the amounts of the tax as payable by the Railway in the pre-Constitution and post-Constitution periods will nott rob the tax of being the same tax within the meaning of the expression that tax occurring in clause (2) of Article 285. In support of this view, reliance was rightly placed upon the decision of the Calcutta High Court in Governor-General of India in Council v. Corporation of Calcutta, AIR 1948 Cal 116 (2) and that of the Allahabad High Court in Union of India through General Manager E.I. Rly. v. Municipal Board, Lucknow, AIR 1957 All 452 . The decision of this Court in the Town Municipal Committee, Amravati v. Ramchandra Vasudeo Chimote, (1964) 6 SCR 947 : (AIR 1964 SC 1166 ) was rightly distinguished. A question for consideration before this Court was with reference to Article 277 of the Constitution. The Amravati Municipality claimed to impose and levy new terminal taxes on silver jewellery, gold and gold jewellery and precious stones which it was not levying in the pre-Constitution days. Article 277 is a saying provision empowering, besides others, any Municipality in a State to continue to levy the tax in the post-Constitution era under certain circumstances until provision to the contrary was made by Parliament by law. It was held by this Court that article 277 was not intended to confer an unlimited legislative power to impose what in effect were new taxes though of the same type or nature as existed before the Constitution. 13. In our opinion the High Court is also right in saying that the mere fact that the tax was being levie and claimed previously under the Madras Act of 1920 and now the claim is founded upon the Mysore Act of 1933 will not make it a tax different from that tax within the meaning of clause (2) of Article 285. As rightly pointed out by Mr. Ramamurthi taking aid from S. 55 of the Andhra State Act, 1953 or even without it the reference to the Madras District Municipalities Act, 1920 in the Explanation appended to the notification dated the 18th June, 1945 issued under sub-section (1) of Sec. 3 of the Central Act of 1941 can by a rule of construction be read as referring to the Mysore Act of 1933 in the changed circumstances of the case. 14. But that is not all. The real difficulty in the way of the Municipal Council is presented by the expression that State occurring at the end of cl. (2) of Article 285. The plain and simple meaning which must be culled out from the said expression in the context of the other phraseology in clause (2) is that the local authority can claim protection under clause (2) if it is a local authority in the same State in which it was before the advent of the Constitution. There does not seem to be any ambiguity in this matter and there is, therefore, no. escape from the position that the Bellary Municipal Council in the city of Bellary which was a local authority within the State of Madras cannot take the advantage of clause (2) as at the time when it was making the claim for realization of the tax it was a part of the Mysore State. It is neither necessary nor advisable for us to speculate or hazard a surmise to find out a reason for making this distinction between the right of a local authority continuing to be a local authority in the same State and being part of the different States in the pre-Constitution and post-Constitution eras. As we have said above the ultimate authority lies with the Parliament either under Cl. (1) or Cl. (2). If it thinks that the distinction so made was without a difference it can by enacting a suitable law employer the Bellary Municipal Council to claim the municipal taxes retrospectively or prospectively from the Railway concerned in respect of its property situated within the limits of the Municipal Council. The amount of tax which the Municipal Council was getting from the Railway in respect of such property was quite considerable and was, perhaps, necessary for the funds of the Municipality. Such considerations are foreign and not germane for our purposes for deciding the constitutional point at issue. We are regretfully constrained to decide it against the Municipal Councol on a plain reading of the constitutional provision engrafted in Art. 285 (2). We accordingly hold that the respondents suit cannot be decreed against the appellant. 15. | 1[ds]The Act of 1941 creating the liability of the Railways to taxation by local authorities was passed by the then Central Legislature which was a Federal Legislature of India. The present Central Legislature, namely, the Parliament has not enacted any law after coming into force of the Constitution making any provision affecting the exemption of the property of the Union from all taxes imposed by a State or by any authority within a State. The 1941 Act is repugnant to clause (1) of Article285.It is neithera law made by Parliament nor a law made by the Central Legislature after the advent of the Constitution. # In either view of the matter it is not a law covered by the phrase save in so far as Parliament may by law otherwise provide occurring in clause (1) of Article285.There is an additional reason for rejecting the argument of Mr. Ramamurthi in this regard. If the contention as made were to hold good it will make clause (2) of Art. 285 almost nugatory. We, therefore, hold that the property in question is exempt from all taxes claimed by the Bellary Municipal Council under clause (1) of Article 285 unless the claim can be supported and sustained within the four corners of clause (2)We respectfully agree with the High Court that some variation in the amounts of the tax as payable by the Railway in the pre-Constitution and post-Constitution periods will nott rob the tax of being the same tax within the meaning of the expression that tax occurring in clause (2) of Article285.In support of this view, reliance was rightly placed upon the decision of the Calcutta High Court in Governor-General of India in Council v. Corporation of Calcutta, AIR 1948 Cal 116 (2) and that of the Allahabad High Court in Union of India through General Manager E.I. Rly. v. Municipal Board, Lucknow, AIR 1957 All 452 . The decision of this Court in the Town Municipal Committee, Amravati v. Ramchandra Vasudeo Chimote, (1964) 6 SCR 947 : (AIR 1964 SC 1166 ) was rightly distinguished. A question for consideration before this Court was with reference to Article 277 of the Constitution. The Amravati Municipality claimed to impose and levy new terminal taxes on silver jewellery, gold and gold jewellery and precious stones which it was not levying in the pre-Constitution days. Article 277 is a saying provision empowering, besides others, any Municipality in a State to continue to levy the tax in the post-Constitution era under certain circumstances until provision to the contrary was made by Parliament by law. It was held by this Court that article 277 was not intended to confer an unlimited legislative power to impose what in effect were new taxes though of the same type or nature as existed before the ConstitutionIn our opinion the High Court is also right in saying that the mere fact that the tax was being levie and claimed previously under the Madras Act of 1920 and now the claim is founded upon the Mysore Act of 1933 will not make it a tax different from that tax within the meaning of clause (2) of Article285.As rightly pointed out by Mr. Ramamurthi taking aid from S. 55 of the Andhra State Act, 1953 or even without it the reference to the Madras District Municipalities Act, 1920 in the Explanation appended to the notification dated the 18th June, 1945 issued under sub-section (1) of Sec. 3 of the Central Act of 1941 can by a rule of construction be read as referring to the Mysore Act of 1933 in the changed circumstances of the caseAs we have said above the ultimate authority lies with the Parliament either under Cl. (1) or Cl. (2). If it thinks that the distinction so made was without a difference it can by enacting a suitable law employer the Bellary Municipal Council to claim the municipal taxes retrospectively or prospectively from the Railway concerned in respect of its property situated within the limits of the Municipal Council. The amount of tax which the Municipal Council was getting from the Railway in respect of such property was quite considerable and was, perhaps, necessary for the funds of the Municipality. Such considerations are foreign and not germane for our purposes for deciding the constitutional point at issue. We are regretfully constrained to decide it against the Municipal Councol on a plain reading of the constitutional provision engrafted in Art. 285 (2). We accordingly hold that the respondents suit cannot be decreed against the appellant. | 1 | 3,326 | 828 | ### Instruction:
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the commencement of the Constitution is affected to the extent it contravenes or is repugnant to the said provision. The Act of 1941 creating the liability of the Railways to taxation by local authorities was passed by the then Central Legislature which was a Federal Legislature of India. The present Central Legislature, namely, the Parliament has not enacted any law after coming into force of the Constitution making any provision affecting the exemption of the property of the Union from all taxes imposed by a State or by any authority within a State. The 1941 Act is repugnant to clause (1) of Article 285. It is neither a law made by Parliament nor a law made by the Central Legislature after the advent of the Constitution. # In either view of the matter it is not a law covered by the phrase save in so far as Parliament may by law otherwise provide occurring in clause (1) of Article 285. There is an additional reason for rejecting the argument of Mr. Ramamurthi in this regard. If the contention as made were to hold good it will make clause (2) of Art. 285 almost nugatory. We, therefore, hold that the property in question is exempt from all taxes claimed by the Bellary Municipal Council under clause (1) of Article 285 unless the claim can be supported and sustained within the four corners of clause (2). 12. We respectfully agree with the High Court that some variation in the amounts of the tax as payable by the Railway in the pre-Constitution and post-Constitution periods will nott rob the tax of being the same tax within the meaning of the expression that tax occurring in clause (2) of Article 285. In support of this view, reliance was rightly placed upon the decision of the Calcutta High Court in Governor-General of India in Council v. Corporation of Calcutta, AIR 1948 Cal 116 (2) and that of the Allahabad High Court in Union of India through General Manager E.I. Rly. v. Municipal Board, Lucknow, AIR 1957 All 452 . The decision of this Court in the Town Municipal Committee, Amravati v. Ramchandra Vasudeo Chimote, (1964) 6 SCR 947 : (AIR 1964 SC 1166 ) was rightly distinguished. A question for consideration before this Court was with reference to Article 277 of the Constitution. The Amravati Municipality claimed to impose and levy new terminal taxes on silver jewellery, gold and gold jewellery and precious stones which it was not levying in the pre-Constitution days. Article 277 is a saying provision empowering, besides others, any Municipality in a State to continue to levy the tax in the post-Constitution era under certain circumstances until provision to the contrary was made by Parliament by law. It was held by this Court that article 277 was not intended to confer an unlimited legislative power to impose what in effect were new taxes though of the same type or nature as existed before the Constitution. 13. In our opinion the High Court is also right in saying that the mere fact that the tax was being levie and claimed previously under the Madras Act of 1920 and now the claim is founded upon the Mysore Act of 1933 will not make it a tax different from that tax within the meaning of clause (2) of Article 285. As rightly pointed out by Mr. Ramamurthi taking aid from S. 55 of the Andhra State Act, 1953 or even without it the reference to the Madras District Municipalities Act, 1920 in the Explanation appended to the notification dated the 18th June, 1945 issued under sub-section (1) of Sec. 3 of the Central Act of 1941 can by a rule of construction be read as referring to the Mysore Act of 1933 in the changed circumstances of the case. 14. But that is not all. The real difficulty in the way of the Municipal Council is presented by the expression that State occurring at the end of cl. (2) of Article 285. The plain and simple meaning which must be culled out from the said expression in the context of the other phraseology in clause (2) is that the local authority can claim protection under clause (2) if it is a local authority in the same State in which it was before the advent of the Constitution. There does not seem to be any ambiguity in this matter and there is, therefore, no. escape from the position that the Bellary Municipal Council in the city of Bellary which was a local authority within the State of Madras cannot take the advantage of clause (2) as at the time when it was making the claim for realization of the tax it was a part of the Mysore State. It is neither necessary nor advisable for us to speculate or hazard a surmise to find out a reason for making this distinction between the right of a local authority continuing to be a local authority in the same State and being part of the different States in the pre-Constitution and post-Constitution eras. As we have said above the ultimate authority lies with the Parliament either under Cl. (1) or Cl. (2). If it thinks that the distinction so made was without a difference it can by enacting a suitable law employer the Bellary Municipal Council to claim the municipal taxes retrospectively or prospectively from the Railway concerned in respect of its property situated within the limits of the Municipal Council. The amount of tax which the Municipal Council was getting from the Railway in respect of such property was quite considerable and was, perhaps, necessary for the funds of the Municipality. Such considerations are foreign and not germane for our purposes for deciding the constitutional point at issue. We are regretfully constrained to decide it against the Municipal Councol on a plain reading of the constitutional provision engrafted in Art. 285 (2). We accordingly hold that the respondents suit cannot be decreed against the appellant. 15.
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### Explanation:
The Act of 1941 creating the liability of the Railways to taxation by local authorities was passed by the then Central Legislature which was a Federal Legislature of India. The present Central Legislature, namely, the Parliament has not enacted any law after coming into force of the Constitution making any provision affecting the exemption of the property of the Union from all taxes imposed by a State or by any authority within a State. The 1941 Act is repugnant to clause (1) of Article285.It is neithera law made by Parliament nor a law made by the Central Legislature after the advent of the Constitution. # In either view of the matter it is not a law covered by the phrase save in so far as Parliament may by law otherwise provide occurring in clause (1) of Article285.There is an additional reason for rejecting the argument of Mr. Ramamurthi in this regard. If the contention as made were to hold good it will make clause (2) of Art. 285 almost nugatory. We, therefore, hold that the property in question is exempt from all taxes claimed by the Bellary Municipal Council under clause (1) of Article 285 unless the claim can be supported and sustained within the four corners of clause (2)We respectfully agree with the High Court that some variation in the amounts of the tax as payable by the Railway in the pre-Constitution and post-Constitution periods will nott rob the tax of being the same tax within the meaning of the expression that tax occurring in clause (2) of Article285.In support of this view, reliance was rightly placed upon the decision of the Calcutta High Court in Governor-General of India in Council v. Corporation of Calcutta, AIR 1948 Cal 116 (2) and that of the Allahabad High Court in Union of India through General Manager E.I. Rly. v. Municipal Board, Lucknow, AIR 1957 All 452 . The decision of this Court in the Town Municipal Committee, Amravati v. Ramchandra Vasudeo Chimote, (1964) 6 SCR 947 : (AIR 1964 SC 1166 ) was rightly distinguished. A question for consideration before this Court was with reference to Article 277 of the Constitution. The Amravati Municipality claimed to impose and levy new terminal taxes on silver jewellery, gold and gold jewellery and precious stones which it was not levying in the pre-Constitution days. Article 277 is a saying provision empowering, besides others, any Municipality in a State to continue to levy the tax in the post-Constitution era under certain circumstances until provision to the contrary was made by Parliament by law. It was held by this Court that article 277 was not intended to confer an unlimited legislative power to impose what in effect were new taxes though of the same type or nature as existed before the ConstitutionIn our opinion the High Court is also right in saying that the mere fact that the tax was being levie and claimed previously under the Madras Act of 1920 and now the claim is founded upon the Mysore Act of 1933 will not make it a tax different from that tax within the meaning of clause (2) of Article285.As rightly pointed out by Mr. Ramamurthi taking aid from S. 55 of the Andhra State Act, 1953 or even without it the reference to the Madras District Municipalities Act, 1920 in the Explanation appended to the notification dated the 18th June, 1945 issued under sub-section (1) of Sec. 3 of the Central Act of 1941 can by a rule of construction be read as referring to the Mysore Act of 1933 in the changed circumstances of the caseAs we have said above the ultimate authority lies with the Parliament either under Cl. (1) or Cl. (2). If it thinks that the distinction so made was without a difference it can by enacting a suitable law employer the Bellary Municipal Council to claim the municipal taxes retrospectively or prospectively from the Railway concerned in respect of its property situated within the limits of the Municipal Council. The amount of tax which the Municipal Council was getting from the Railway in respect of such property was quite considerable and was, perhaps, necessary for the funds of the Municipality. Such considerations are foreign and not germane for our purposes for deciding the constitutional point at issue. We are regretfully constrained to decide it against the Municipal Councol on a plain reading of the constitutional provision engrafted in Art. 285 (2). We accordingly hold that the respondents suit cannot be decreed against the appellant.
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New Standard Engineering Company Limited Vs. N.L. Abhyankar & Others | arrived at by agreement between the employer and the workmen otherwise than in the course of concilation proceedings shall be binding on the parties to the agreement. In fact it has clearly been he ld by this Court in Sirsilk, Ltd., and another v. Government of Andhra Pradesh and another ([1963] II L.L.J. 647.) that as soon as an agreement is signed in the prescribed manner and a copy of it is sent to the officers concerned, it becomes binding on the parties and comes into operation on the date at is signed, or on the date mentioned in it for its coming into operation. We have therefore to examine the arguments of counsel for the parties with due regard to these provisions of the law.It is not in dispute before us that under the settlement the workmen have received the same wages and dearness allowance which were awarded to them by the Tribunal. They therefore lost nothing on that account. M r. Chitaley has however argued that while under the award the increased rates were admissible from January 1, 1968, the settlement put that off to January 1, 1973 and was therefore unjust and unfair. It is in this connection that the Tribunals find ing about the incapacity of the Company to shoulder the financial burden of paying all the arrears has been challenged before us. Mr. Kaka has, on the other hand, taken us through the balance sheets of the Company for the purpose of showing t hat the Company had, as a fact, paid all its tax and other liabilities, which were beyond recall, and that during the period from 1968 to 1972 it had only a net surplus of Rs. 5.11 lakhs. It has been pointed out that, even so, the Company has a greed to pay about Rs. 11.56 lakhs, in addition to the difference in the dearness allowance amounting to Rs. 3.64 lakhs which has already been paid to the workmen. It has also been brought to notice that the Company has exceeded its borrowing limit and is not in a position to pay more than what it has agreed , to pay under the settlement. As regards the stipulation that the , workmen will improve their efficiency and productivity so as to increase production at the rate of at least 1 0 per cent per annum, nothing worthwhile has been urged before us against the Tribunals view that ground alone it is equally well settled that when once a prosecu-1, 1973 for which the arrears were claimed and were agreed to be paid in part. Moreover counsel for respondent No. 2 has not found it possible to refer to any condition in the settlement according to which its benefits were to be forfeited in case the workmen did not carry out the stipulation.The question of justness and fairness of a settlement should, in a case like this, be examined with reference to the situation as it stood on the date on which it was arrived at i.e. on July 31, 1973. As has been stated, the award was made on November 29, 1972 but it was under challenge in the High Court on the Company"s petition under articles 226 and 227 of the Constitution. It has been pointed out by Mr. Kaka, and has not been disputed by Mr. Chitaley, that one of the grounds of challenge w as the contention that the Tribunal had not made a proper comparison of the wages and the dearness allowance on "industry-cum-region basis" even though it was enunciated by this Court in Greaves Cotton &Company., Ltd, and others v. Their Workmen. ([1964] 5 S.C.R. 362.) It cannot therefore be said that the award was not at all in jeopardy at the time of the settlement. 6. It is well known that the possibility of an adverse decision by the , Court operates as a positive force in favour of deli berate and careful effort by both parties to settle their dispute through direct negotiations. And we have no doubt that it is that force which has brought about the settlement under consideration. Then there is the further fact that, as has been stated by the Tribunal, the workmen were liable, in the event of the success of the Company, to a refund of the amounts which had already been paid to them on that understanding. 7. Moreover, as has bee n found by the Tribunal, out of 1328 workmen who were in the Companys service on July 31, 1973, 995 workmen have signed the settlement and have also accepted their dues thereunder, and 242 workmen have accepted their dues under the settlement by actually signing the receipts though they have not signed the settlement. It will also be recalled that 910 workmen who left the Company between January 1, 1968 and July 31, 1973 have also accepted their dues under the settlement. As has been stated, the settlement was made with the Bhartiya Kamgar Sena (respondent No. 3) which represented a very large majority of the workmen of the Company. It is a significant fact that the bona fides of that Union have not been challenged before us. There is therefore no reason why the Tribunals finding that the settlement is just and fair should not be accepted.it has to be remembered that the settlement was entered into on the morning of July 31, 1973, while the High Court delivered its judgment on August 1, 1973. It is therefore difficult to ignore the argument of Mr. Deshmukh that it was only when the workmen came to know that the award had been confirmed by the High Court, that they thought hey had nothing to lose by challenging the settlement as unfair and unjust. It is that feeling which appears to have been exploited. by respondent No. 2, because of inter-union rivalry. As it is, we are satisfied that the Tribunals finding on issue No. ( e) is also correct and does not call for interference. 8. | 1[ds]Settlement of labour disputes by direct negotiation or settlement through collective bargaining is always to be preferred for, as is obvious, it is the best guarantee of industrial peace which is the aim of all legislation for the settlement of labour disputes. In order to bring about such a settlement more easily, and to make it more workable and effective, it is no longer necessary, under the law, that the settlement should be confined to that arrived at in the course of a conciliation proceeding, but now includes, by virtue of the definition in section 2(p) of the Act, a written agreement between the employer and the workmen arrived at otherwise than in the course of a conciliation proceeding where such agreement has been signed by the parties in the prescribed manner and a copy thereof has been sent to the authorised officers. Rule 58(2) of the Industrial Disputes (Central) Rules, 1957, prescribes the manner of signing the settlement and it is not in dispute = us that this requirement has been complied with. The other relevant provision is that contained in section 18(1) of the Act which specifically states that a settlement arrived at by agreement between the employer and the workmen otherwise than in the course of concilation proceedings shall be binding on the parties to the agreement. In fact it has clearly been he ld by this Court in Sirsilk, Ltd., and another v. Government of Andhra Pradesh and another ([1963] II L.L.J. 647.) that as soon as an agreement is signed in the prescribed manner and a copy of it is sent to the officers concerned, it becomes binding on the parties and comes into operation on the date at is signed, or on the date mentioned in it for its coming into operation. We have therefore to examine the arguments of counsel for the parties with due regard to these provisions of the law.It is not in dispute before us that under the settlement the workmen have received the same wages and dearness allowance which were awarded to them by the Tribunal. They therefore lost nothing on that accountIt has been pointed out that, even so, the Company has a greed to pay about Rs. 11.56 lakhs, in addition to the difference in the dearness allowance amounting to Rs. 3.64 lakhs which has already been paid to the workmen. It has also been brought to notice that the Company has exceeded its borrowing limit and is not in a position to pay more than what it has agreed , to pay under the settlement. As regards the stipulation that the , workmen will improve their efficiency and productivity so as to increase production at the rate of at least 1 0 per cent per annum, nothing worthwhile has been urged before us against the Tribunals view that ground alone it is equally well settled that when once a prosecu-1, 1973 for which the arrears were claimed and were agreed to be paid in partMoreover counsel for respondent No. 2 has not found it possible to refer to any condition in the settlement according to which its benefits were to be forfeited in case the workmen did not carry out the stipulation.The question of justness and fairness of a settlement should, in a case like this, be examined with reference to the situation as it stood on the date on which it was arrived at i.e. on July 31, 1973. As has been stated, the award was made on November 29, 1972 but it was under challenge in the High Court on the Company"s petition under articles 226 and 227 of the Constitution. It has been pointed out by Mr. Kaka, and has not been disputed by Mr. Chitaley, that one of the grounds of challenge w as the contention that the Tribunal had not made a proper comparison of the wages and the dearness allowance on "industry-cum-region basis" even though it was enunciated by this Court in Greaves Cotton &Company., Ltd, and others v. Their Workmen. ([1964] 5 S.C.R. 362.) It cannot therefore be said that the award was not at all in jeopardy at the time of the settlementIt is well known that the possibility of an adverse decision by the , Court operates as a positive force in favour of deli berate and careful effort by both parties to settle their dispute through direct negotiations. And we have no doubt that it is that force which has brought about the settlement under consideration. Then there is the further fact that, as has been stated by the Tribunal, the workmen were liable, in the event of the success of the Company, to a refund of the amounts which had already been paid to them on that understandingMoreover, as has bee n found by the Tribunal, out of 1328 workmen who were in the Companys service on July 31, 1973, 995 workmen have signed the settlement and have also accepted their dues thereunder, and 242 workmen have accepted their dues under the settlement by actually signing the receipts though they have not signed the settlement. It will also be recalled that 910 workmen who left the Company between January 1, 1968 and July 31, 1973 have also accepted their dues under the settlement. As has been stated, the settlement was made with the Bhartiya Kamgar Sena (respondent No. 3) which represented a very large majority of the workmen of the Company. It is a significant fact that the bona fides of that Union have not been challenged before us. There is therefore no reason why the Tribunals finding that the settlement is just and fair should not be accepted.it has to be remembered that the settlement was entered into on the morning of July 31, 1973, while the High Court delivered its judgment on August 1, 1973. It is therefore difficult to ignore the argument of Mr. Deshmukh that it was only when the workmen came to know that the award had been confirmed by the High Court, that they thought hey had nothing to lose by challenging the settlement as unfair and unjust. It is that feeling which appears to have been exploited. by respondent No. 2, because of inter-union rivalry. As it is, we are satisfied that the Tribunals finding on issue No. ( e) is also correct and does not call for interference. | 1 | 2,829 | 1,173 | ### Instruction:
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arrived at by agreement between the employer and the workmen otherwise than in the course of concilation proceedings shall be binding on the parties to the agreement. In fact it has clearly been he ld by this Court in Sirsilk, Ltd., and another v. Government of Andhra Pradesh and another ([1963] II L.L.J. 647.) that as soon as an agreement is signed in the prescribed manner and a copy of it is sent to the officers concerned, it becomes binding on the parties and comes into operation on the date at is signed, or on the date mentioned in it for its coming into operation. We have therefore to examine the arguments of counsel for the parties with due regard to these provisions of the law.It is not in dispute before us that under the settlement the workmen have received the same wages and dearness allowance which were awarded to them by the Tribunal. They therefore lost nothing on that account. M r. Chitaley has however argued that while under the award the increased rates were admissible from January 1, 1968, the settlement put that off to January 1, 1973 and was therefore unjust and unfair. It is in this connection that the Tribunals find ing about the incapacity of the Company to shoulder the financial burden of paying all the arrears has been challenged before us. Mr. Kaka has, on the other hand, taken us through the balance sheets of the Company for the purpose of showing t hat the Company had, as a fact, paid all its tax and other liabilities, which were beyond recall, and that during the period from 1968 to 1972 it had only a net surplus of Rs. 5.11 lakhs. It has been pointed out that, even so, the Company has a greed to pay about Rs. 11.56 lakhs, in addition to the difference in the dearness allowance amounting to Rs. 3.64 lakhs which has already been paid to the workmen. It has also been brought to notice that the Company has exceeded its borrowing limit and is not in a position to pay more than what it has agreed , to pay under the settlement. As regards the stipulation that the , workmen will improve their efficiency and productivity so as to increase production at the rate of at least 1 0 per cent per annum, nothing worthwhile has been urged before us against the Tribunals view that ground alone it is equally well settled that when once a prosecu-1, 1973 for which the arrears were claimed and were agreed to be paid in part. Moreover counsel for respondent No. 2 has not found it possible to refer to any condition in the settlement according to which its benefits were to be forfeited in case the workmen did not carry out the stipulation.The question of justness and fairness of a settlement should, in a case like this, be examined with reference to the situation as it stood on the date on which it was arrived at i.e. on July 31, 1973. As has been stated, the award was made on November 29, 1972 but it was under challenge in the High Court on the Company"s petition under articles 226 and 227 of the Constitution. It has been pointed out by Mr. Kaka, and has not been disputed by Mr. Chitaley, that one of the grounds of challenge w as the contention that the Tribunal had not made a proper comparison of the wages and the dearness allowance on "industry-cum-region basis" even though it was enunciated by this Court in Greaves Cotton &Company., Ltd, and others v. Their Workmen. ([1964] 5 S.C.R. 362.) It cannot therefore be said that the award was not at all in jeopardy at the time of the settlement. 6. It is well known that the possibility of an adverse decision by the , Court operates as a positive force in favour of deli berate and careful effort by both parties to settle their dispute through direct negotiations. And we have no doubt that it is that force which has brought about the settlement under consideration. Then there is the further fact that, as has been stated by the Tribunal, the workmen were liable, in the event of the success of the Company, to a refund of the amounts which had already been paid to them on that understanding. 7. Moreover, as has bee n found by the Tribunal, out of 1328 workmen who were in the Companys service on July 31, 1973, 995 workmen have signed the settlement and have also accepted their dues thereunder, and 242 workmen have accepted their dues under the settlement by actually signing the receipts though they have not signed the settlement. It will also be recalled that 910 workmen who left the Company between January 1, 1968 and July 31, 1973 have also accepted their dues under the settlement. As has been stated, the settlement was made with the Bhartiya Kamgar Sena (respondent No. 3) which represented a very large majority of the workmen of the Company. It is a significant fact that the bona fides of that Union have not been challenged before us. There is therefore no reason why the Tribunals finding that the settlement is just and fair should not be accepted.it has to be remembered that the settlement was entered into on the morning of July 31, 1973, while the High Court delivered its judgment on August 1, 1973. It is therefore difficult to ignore the argument of Mr. Deshmukh that it was only when the workmen came to know that the award had been confirmed by the High Court, that they thought hey had nothing to lose by challenging the settlement as unfair and unjust. It is that feeling which appears to have been exploited. by respondent No. 2, because of inter-union rivalry. As it is, we are satisfied that the Tribunals finding on issue No. ( e) is also correct and does not call for interference. 8.
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is no longer necessary, under the law, that the settlement should be confined to that arrived at in the course of a conciliation proceeding, but now includes, by virtue of the definition in section 2(p) of the Act, a written agreement between the employer and the workmen arrived at otherwise than in the course of a conciliation proceeding where such agreement has been signed by the parties in the prescribed manner and a copy thereof has been sent to the authorised officers. Rule 58(2) of the Industrial Disputes (Central) Rules, 1957, prescribes the manner of signing the settlement and it is not in dispute = us that this requirement has been complied with. The other relevant provision is that contained in section 18(1) of the Act which specifically states that a settlement arrived at by agreement between the employer and the workmen otherwise than in the course of concilation proceedings shall be binding on the parties to the agreement. In fact it has clearly been he ld by this Court in Sirsilk, Ltd., and another v. Government of Andhra Pradesh and another ([1963] II L.L.J. 647.) that as soon as an agreement is signed in the prescribed manner and a copy of it is sent to the officers concerned, it becomes binding on the parties and comes into operation on the date at is signed, or on the date mentioned in it for its coming into operation. We have therefore to examine the arguments of counsel for the parties with due regard to these provisions of the law.It is not in dispute before us that under the settlement the workmen have received the same wages and dearness allowance which were awarded to them by the Tribunal. They therefore lost nothing on that accountIt has been pointed out that, even so, the Company has a greed to pay about Rs. 11.56 lakhs, in addition to the difference in the dearness allowance amounting to Rs. 3.64 lakhs which has already been paid to the workmen. It has also been brought to notice that the Company has exceeded its borrowing limit and is not in a position to pay more than what it has agreed , to pay under the settlement. As regards the stipulation that the , workmen will improve their efficiency and productivity so as to increase production at the rate of at least 1 0 per cent per annum, nothing worthwhile has been urged before us against the Tribunals view that ground alone it is equally well settled that when once a prosecu-1, 1973 for which the arrears were claimed and were agreed to be paid in partMoreover counsel for respondent No. 2 has not found it possible to refer to any condition in the settlement according to which its benefits were to be forfeited in case the workmen did not carry out the stipulation.The question of justness and fairness of a settlement should, in a case like this, be examined with reference to the situation as it stood on the date on which it was arrived at i.e. on July 31, 1973. As has been stated, the award was made on November 29, 1972 but it was under challenge in the High Court on the Company"s petition under articles 226 and 227 of the Constitution. It has been pointed out by Mr. Kaka, and has not been disputed by Mr. Chitaley, that one of the grounds of challenge w as the contention that the Tribunal had not made a proper comparison of the wages and the dearness allowance on "industry-cum-region basis" even though it was enunciated by this Court in Greaves Cotton &Company., Ltd, and others v. Their Workmen. ([1964] 5 S.C.R. 362.) It cannot therefore be said that the award was not at all in jeopardy at the time of the settlementIt is well known that the possibility of an adverse decision by the , Court operates as a positive force in favour of deli berate and careful effort by both parties to settle their dispute through direct negotiations. And we have no doubt that it is that force which has brought about the settlement under consideration. Then there is the further fact that, as has been stated by the Tribunal, the workmen were liable, in the event of the success of the Company, to a refund of the amounts which had already been paid to them on that understandingMoreover, as has bee n found by the Tribunal, out of 1328 workmen who were in the Companys service on July 31, 1973, 995 workmen have signed the settlement and have also accepted their dues thereunder, and 242 workmen have accepted their dues under the settlement by actually signing the receipts though they have not signed the settlement. It will also be recalled that 910 workmen who left the Company between January 1, 1968 and July 31, 1973 have also accepted their dues under the settlement. As has been stated, the settlement was made with the Bhartiya Kamgar Sena (respondent No. 3) which represented a very large majority of the workmen of the Company. It is a significant fact that the bona fides of that Union have not been challenged before us. There is therefore no reason why the Tribunals finding that the settlement is just and fair should not be accepted.it has to be remembered that the settlement was entered into on the morning of July 31, 1973, while the High Court delivered its judgment on August 1, 1973. It is therefore difficult to ignore the argument of Mr. Deshmukh that it was only when the workmen came to know that the award had been confirmed by the High Court, that they thought hey had nothing to lose by challenging the settlement as unfair and unjust. It is that feeling which appears to have been exploited. by respondent No. 2, because of inter-union rivalry. As it is, we are satisfied that the Tribunals finding on issue No. ( e) is also correct and does not call for interference.
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Commissioner of Cental Excise, Belapur, Mumbai Vs. RDC Concrete (India) P. Ltd | earlier order dated 4th November, 2008 and order dated 23rd November, 2009 passed in pursuance of the rectification application, we are of the view that the CESTAT exceeded its powers given to it under the provisions of Section 35C(2) of the Act. This Court has already laid down law in the case of T.S. Balram v. M/s.Volkart Brothers, 82 ITR 50 to the effect that a “mistake apparent from the record” cannot be something which can be established by a long drawn process of reasoning on points on which there may conceivably be two opinions. It has been also held that a decision on a debatable point of law cannot be a mistake apparent from the record. If one looks at the subsequent order passed by the CESTAT in pursuance of the rectification application, it is very clear that the CESTAT re-appreciated the evidence and came to a different conclusion than the earlier one. At an earlier point of time, the CESTAT came to a conclusion that the company to which the respondent-assessee sold its goods was an inter- connected company. In the circumstances, according to the CESTAT, the decision of the department to appoint a Cost Accountant to ascertain value of the goods manufactured by the asessee was considered to be just and proper. However, after considering the submissions made in pursuance of the rectification application, the CESTAT came to a different conclusion to the effect that the asessee company and the buyer of the goods were not inter-connected companies. Different conclusions were arrived at by the CESTAT because it reappreciated the evidence in relation to common directors among the companies and inter se holding of shares by the companies. Re-appreciation of evidence on a debatable point cannot be said to be rectification of mistake apparent on record. 17. Similarly, in pursuance of the rectifying application, the CESTAT came to the conclusion that an officer of the department, who was working as Assistant Director (Cost) and who was also a Member of an Institute of Cost and Works Accountants was not competent as a Cost Accountant to ascertain value of the goods. It is strange as to why the CESTAT came to the conclusion that it was necessary that the person appointed as a Cost Accountant should be in practice. We do not see any reason as to how the CESTAT came to the conclusion that the Cost Accountant, whose services were availed by the department should not have been engaged because he was an employee of the department and he was not in practice. The aforestated facts clearly show that the CESTAT took a different view in pursuance of the rectification application. The submissions which were made before the CESTAT by the respondent-assessee while arguing the rectification application were also advanced before the CESTAT when the appeal was heard at an earlier stage. The arguments not accepted at an earlier point of time were accepted by the CESTAT after hearing the rectification application. It is strange as to how a particular decision taken by the CESTAT after considering all the relevant facts and submissions made on behalf of the parties was changed by the CESTAT. There was no mistake apparent on record when the CESTAT did not accept a submission of the respondent-assessee to the effect that the officer appointed to value the goods manufactured by asessee should not have been engaged as a cost accountant. 18. We are not impressed by the judgments cited by the learned counsel for the respondent. So far as the judgment delivered in the matter of Saci Allied Products Ltd. v. Commissioner of C. Ex., Meerut, 2005(183) E.L.T 225 (S.C.) is concerned, it pertains to sale of goods by an asessee to an independent and unrelated dealers and its effect on valuation. The said judgment pertains to a transaction with a related person in the State of U.P., at lower price and as such deals with the facts of that particular case. In our opinion, the said judgment would not help the respondent so far as the matter pertaining to rectification is concerned. 19. So far as the judgment delivered in Commissioner of Central Excise, Mumbai v. Bharat Bijlee Limited, (supra) is concerned, this Court held therein that when the Tribunal had totally failed to take into consideration something which was on record, the Tribunal had committed a mistake apparent on the face of the record. In the instant case, the evidence which was on record was duly appreciated by the Tribunal at the first instance but the Tribunal made an effort to re-appreciate the evidence and re-appreciation can never be considered as rectification of a mistake. We are, therefore, of the view that the aforementioned judgment would not help the respondent-assessee.20. So far as judgment delivered in the case of Honda Siel Power Products Ltd. v. Commissioner of Income Tax, Delhi, 2008(221) E.L.T 11 (S.C.), is concerned, there also the Tribunal had not considered certain material which was very much on record and thereby it committed a mistake which was subsequently rectified by considering and appreciating the evidence which had not been considered earlier. As stated hereinabove, in the instant case, the position is absolutely different. 21. This Court has decided in several cases that a mistake apparent on record must be an obvious and patent mistake and the mistake should not be such which can be established by a long drawn process of reasoning. In the case of T.S. Balram v. M/s. Volkart Brothers (supra), this Court has already decided that power to rectify a mistake should be exercised when the mistake is a patent one and should be quite obvious. As stated hereinabove, the mistake cannot be such which can be ascertained by a long drawn process of reasoning. Similarly, this Court has decided in ITO v. Ashok Textiles, 41 ITR 732 that while rectifying a mistake, an erroneous view of law or a debatable point cannot be decided. Moreover, incorrect application of law can also not be corrected. | 1[ds]17. Similarly, in pursuance of the rectifying application, the CESTAT came to the conclusion that an officer of the department, who was working as Assistant Director (Cost) and who was also a Member of an Institute of Cost and Works Accountants was not competent as a Cost Accountant to ascertain value of the goods. It is strange as to why the CESTAT came to the conclusion that it was necessary that the person appointed as a Cost Accountant should be in practice. We do not see any reason as to how the CESTAT came to the conclusion that the Cost Accountant, whose services were availed by the department should not have been engaged because he was an employee of the department and he was not in practice. The aforestated facts clearly show that the CESTAT took a different view in pursuance of the rectification application. The submissions which were made before the CESTAT by the respondent-assessee while arguing the rectification application were also advanced before the CESTAT when the appeal was heard at an earlier stage. The arguments not accepted at an earlier point of time were accepted by the CESTAT after hearing the rectification application. It is strange as to how a particular decision taken by the CESTAT after considering all the relevant facts and submissions made on behalf of the parties was changed by the CESTAT. There was no mistake apparent on record when the CESTAT did not accept a submission of the respondent-assessee to the effect that the officer appointed to value the goods manufactured by asessee should not have been engaged as a cost accountant.So far as the judgment delivered in Commissioner of Central Excise, Mumbai v. Bharat Bijlee Limited, (supra) is concerned, this Court held therein that when the Tribunal had totally failed to take into consideration something which was on record, the Tribunal had committed a mistake apparent on the face of the record. In the instant case, the evidence which was on record was duly appreciated by the Tribunal at the first instance but the Tribunal made an effort to re-appreciate the evidence and re-appreciation can never be considered as rectification of a mistake. We are, therefore, of the view that the aforementioned judgment would not help the respondent-assessee.20. So far as judgment delivered in the case of Honda Siel Power Products Ltd. v. Commissioner of Income Tax, Delhi, 2008(221) E.L.T 11 (S.C.), is concerned, there also the Tribunal had not considered certain material which was very much on record and thereby it committed a mistake which was subsequently rectified by considering and appreciating the evidence which had not been considered earlier. As stated hereinabove, in the instant case, the position is absolutely different. | 1 | 2,963 | 494 | ### 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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earlier order dated 4th November, 2008 and order dated 23rd November, 2009 passed in pursuance of the rectification application, we are of the view that the CESTAT exceeded its powers given to it under the provisions of Section 35C(2) of the Act. This Court has already laid down law in the case of T.S. Balram v. M/s.Volkart Brothers, 82 ITR 50 to the effect that a “mistake apparent from the record” cannot be something which can be established by a long drawn process of reasoning on points on which there may conceivably be two opinions. It has been also held that a decision on a debatable point of law cannot be a mistake apparent from the record. If one looks at the subsequent order passed by the CESTAT in pursuance of the rectification application, it is very clear that the CESTAT re-appreciated the evidence and came to a different conclusion than the earlier one. At an earlier point of time, the CESTAT came to a conclusion that the company to which the respondent-assessee sold its goods was an inter- connected company. In the circumstances, according to the CESTAT, the decision of the department to appoint a Cost Accountant to ascertain value of the goods manufactured by the asessee was considered to be just and proper. However, after considering the submissions made in pursuance of the rectification application, the CESTAT came to a different conclusion to the effect that the asessee company and the buyer of the goods were not inter-connected companies. Different conclusions were arrived at by the CESTAT because it reappreciated the evidence in relation to common directors among the companies and inter se holding of shares by the companies. Re-appreciation of evidence on a debatable point cannot be said to be rectification of mistake apparent on record. 17. Similarly, in pursuance of the rectifying application, the CESTAT came to the conclusion that an officer of the department, who was working as Assistant Director (Cost) and who was also a Member of an Institute of Cost and Works Accountants was not competent as a Cost Accountant to ascertain value of the goods. It is strange as to why the CESTAT came to the conclusion that it was necessary that the person appointed as a Cost Accountant should be in practice. We do not see any reason as to how the CESTAT came to the conclusion that the Cost Accountant, whose services were availed by the department should not have been engaged because he was an employee of the department and he was not in practice. The aforestated facts clearly show that the CESTAT took a different view in pursuance of the rectification application. The submissions which were made before the CESTAT by the respondent-assessee while arguing the rectification application were also advanced before the CESTAT when the appeal was heard at an earlier stage. The arguments not accepted at an earlier point of time were accepted by the CESTAT after hearing the rectification application. It is strange as to how a particular decision taken by the CESTAT after considering all the relevant facts and submissions made on behalf of the parties was changed by the CESTAT. There was no mistake apparent on record when the CESTAT did not accept a submission of the respondent-assessee to the effect that the officer appointed to value the goods manufactured by asessee should not have been engaged as a cost accountant. 18. We are not impressed by the judgments cited by the learned counsel for the respondent. So far as the judgment delivered in the matter of Saci Allied Products Ltd. v. Commissioner of C. Ex., Meerut, 2005(183) E.L.T 225 (S.C.) is concerned, it pertains to sale of goods by an asessee to an independent and unrelated dealers and its effect on valuation. The said judgment pertains to a transaction with a related person in the State of U.P., at lower price and as such deals with the facts of that particular case. In our opinion, the said judgment would not help the respondent so far as the matter pertaining to rectification is concerned. 19. So far as the judgment delivered in Commissioner of Central Excise, Mumbai v. Bharat Bijlee Limited, (supra) is concerned, this Court held therein that when the Tribunal had totally failed to take into consideration something which was on record, the Tribunal had committed a mistake apparent on the face of the record. In the instant case, the evidence which was on record was duly appreciated by the Tribunal at the first instance but the Tribunal made an effort to re-appreciate the evidence and re-appreciation can never be considered as rectification of a mistake. We are, therefore, of the view that the aforementioned judgment would not help the respondent-assessee.20. So far as judgment delivered in the case of Honda Siel Power Products Ltd. v. Commissioner of Income Tax, Delhi, 2008(221) E.L.T 11 (S.C.), is concerned, there also the Tribunal had not considered certain material which was very much on record and thereby it committed a mistake which was subsequently rectified by considering and appreciating the evidence which had not been considered earlier. As stated hereinabove, in the instant case, the position is absolutely different. 21. This Court has decided in several cases that a mistake apparent on record must be an obvious and patent mistake and the mistake should not be such which can be established by a long drawn process of reasoning. In the case of T.S. Balram v. M/s. Volkart Brothers (supra), this Court has already decided that power to rectify a mistake should be exercised when the mistake is a patent one and should be quite obvious. As stated hereinabove, the mistake cannot be such which can be ascertained by a long drawn process of reasoning. Similarly, this Court has decided in ITO v. Ashok Textiles, 41 ITR 732 that while rectifying a mistake, an erroneous view of law or a debatable point cannot be decided. Moreover, incorrect application of law can also not be corrected.
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17. Similarly, in pursuance of the rectifying application, the CESTAT came to the conclusion that an officer of the department, who was working as Assistant Director (Cost) and who was also a Member of an Institute of Cost and Works Accountants was not competent as a Cost Accountant to ascertain value of the goods. It is strange as to why the CESTAT came to the conclusion that it was necessary that the person appointed as a Cost Accountant should be in practice. We do not see any reason as to how the CESTAT came to the conclusion that the Cost Accountant, whose services were availed by the department should not have been engaged because he was an employee of the department and he was not in practice. The aforestated facts clearly show that the CESTAT took a different view in pursuance of the rectification application. The submissions which were made before the CESTAT by the respondent-assessee while arguing the rectification application were also advanced before the CESTAT when the appeal was heard at an earlier stage. The arguments not accepted at an earlier point of time were accepted by the CESTAT after hearing the rectification application. It is strange as to how a particular decision taken by the CESTAT after considering all the relevant facts and submissions made on behalf of the parties was changed by the CESTAT. There was no mistake apparent on record when the CESTAT did not accept a submission of the respondent-assessee to the effect that the officer appointed to value the goods manufactured by asessee should not have been engaged as a cost accountant.So far as the judgment delivered in Commissioner of Central Excise, Mumbai v. Bharat Bijlee Limited, (supra) is concerned, this Court held therein that when the Tribunal had totally failed to take into consideration something which was on record, the Tribunal had committed a mistake apparent on the face of the record. In the instant case, the evidence which was on record was duly appreciated by the Tribunal at the first instance but the Tribunal made an effort to re-appreciate the evidence and re-appreciation can never be considered as rectification of a mistake. We are, therefore, of the view that the aforementioned judgment would not help the respondent-assessee.20. So far as judgment delivered in the case of Honda Siel Power Products Ltd. v. Commissioner of Income Tax, Delhi, 2008(221) E.L.T 11 (S.C.), is concerned, there also the Tribunal had not considered certain material which was very much on record and thereby it committed a mistake which was subsequently rectified by considering and appreciating the evidence which had not been considered earlier. As stated hereinabove, in the instant case, the position is absolutely different.
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Pushpaben & Anr Vs. Narandas V. Badiani & Anr | Fazal Ali, J.1. This is an appeal under Section 19 of the Contempt of Courts Act (hereinafter called the Act) against an order of the High Court of Bombay convicting the appellants for a Civil Contempt and sentencing them to one month’s simple imprisonment. It appears that Respondent No. 1 had given a loan of Rs. 50,000/- to the appellants on certain conditions. Somehow or other, the loan could not be paid by the appellants as a result of which respondent No. 1 filed a complaint under Sce. 420, I.P.C. against the appellants. While the complaint was pending before the Court of the Magistrate, the parties entered into a compromise on 22.7.71 under which the appellants undertook to pay the loan of Rs. 50,000/- with simple interest at the rate of 12% per annum on or before 21.7.1972. An application was filed before the Court for allowing the parties to compound the case and acquit the accused. The Court after hearing the parties, passed the following order:“The accused has given an undertaking to Court that he shall repay the sum of Rs. 50,000/- to the complainant on or before 21.7.1972 with interest as mentioned on the reverse. In view of the undertaking, I permit the compromise and acquit the accused."2. It is obvious, therefore, that the Court permitted the parties to compound the case only because of the undertaking given by the appellants.3. Thereafter, it appears, that the undertaking was violated and the amount of loan was not paid to the respondent No. 1 at all. The respondent, therefore, moved the High Court for taking action for contempt of Court against the appellants as a result of which the present proceedings were taken against them. The High Court came to the conclusion that the appellants had committed a wilful disobedience of the undertaking given to the Court and were, therefore, guilty of civil contempt as defined in Section 2(b) of the Act. Hence, this appeal before us.4. Mr. V.S. Desai appearing in support of the appeal has raised two short points before us. he has submitted that there is no doubt that the appellants had violated the undertaking but in the circumstances it cannot be said that the appellants had committed a wilful disobedience of the orders of the Court. So far as this point is concerned, we fully agree with the High Court. In the circumstances, the appellants undoubtedly committed wilful disobedience of the order of the Court by committing a serious breach of the undertaking given to the Court on the basis of which alone, the apellants had been acquitted. For these reasons, the first contention put forward by Mr. Desai, is overruled.5. It is, then, contended that under Sce. 12(3), normally the sentence that should be given to an offender who is found guilty of civil contempt, is fine and not imprisonment, which should be given only where the Court is satisfied that ends of justice require the imposition of such a sentence. In our opinion, this contention of learned counsel for the appellants is well founded and must prevail. Sub-section (3) of Section 12 reads thus.“Notwithstanding anything contained in this section, where a person is found guilty of a civil contempt, the Court, if it considers that a fine will not meet the ends of justice and that a sentence of imprisonment is necessary shall, instead of sentencing him to simple imprisonment, direct that he be detained in a civil prison for such period not exceeding six months as it may think fit.”6. A close and careful interpretation of the extracted Section leaves no room for doubt that the Legislature intended that a sentence of fine alone should be imposed in normal circumstances. The statute, however, confers special power on the Court to pass a sentence of imprisonment, if it thinks that ends of justice so require. Thus before a Court passes the extreme sentence of imprisonment. it must give special reasons after a proper application of its mind that a sentence of imprisonment alone is called for in a particular situation. Thus, the sentence of imprisonment is an exception while sentence of fine is the rule.7. Having regard to the peculiar facts and circumstances of this case, we do not find any special reasons why the appellants should be sent to jail by sentencing them to imprisonment. Furthermore, respondent No. 1 before us despite service, has not appeared to support the sentence given by the High Court. Having regard to these circumstances, therefore, we are satisfied that the present case, squarely falls in the first part of Sce. 12(3) and a sentence of fine alone should have been given by the High Court. | 1[ds]So far as this point is concerned, we fully agree with the High Court. In the circumstances, the appellants undoubtedly committed wilful disobedience of the order of the Court by committing a serious breach of the undertaking given to the Court on the basis of which alone, the apellants had been acquitted. For these reasons, the first contention put forward by Mr. Desai, is overruled.A close and careful interpretation of the extracted Section leaves no room for doubt that the Legislature intended that a sentence of fine alone should be imposed in normal circumstances. The statute, however, confers special power on the Court to pass a sentence of imprisonment, if it thinks that ends of justice so require. Thus before a Court passes the extreme sentence of imprisonment. it must give special reasons after a proper application of its mind that a sentence of imprisonment alone is called for in a particular situation. Thus, the sentence of imprisonment is an exception while sentence of fine is the rule.7. Having regard to the peculiar facts and circumstances of this case, we do not find any special reasons why the appellants should be sent to jail by sentencing them to imprisonment. Furthermore, respondent No. 1 before us despite service, has not appeared to support the sentence given by the High Court. Having regard to these circumstances, therefore, we are satisfied that the present case, squarely falls in the first part of Sce. 12(3) and a sentence of fine alone should have been given by the High Court. | 1 | 886 | 289 | ### 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:
Fazal Ali, J.1. This is an appeal under Section 19 of the Contempt of Courts Act (hereinafter called the Act) against an order of the High Court of Bombay convicting the appellants for a Civil Contempt and sentencing them to one month’s simple imprisonment. It appears that Respondent No. 1 had given a loan of Rs. 50,000/- to the appellants on certain conditions. Somehow or other, the loan could not be paid by the appellants as a result of which respondent No. 1 filed a complaint under Sce. 420, I.P.C. against the appellants. While the complaint was pending before the Court of the Magistrate, the parties entered into a compromise on 22.7.71 under which the appellants undertook to pay the loan of Rs. 50,000/- with simple interest at the rate of 12% per annum on or before 21.7.1972. An application was filed before the Court for allowing the parties to compound the case and acquit the accused. The Court after hearing the parties, passed the following order:“The accused has given an undertaking to Court that he shall repay the sum of Rs. 50,000/- to the complainant on or before 21.7.1972 with interest as mentioned on the reverse. In view of the undertaking, I permit the compromise and acquit the accused."2. It is obvious, therefore, that the Court permitted the parties to compound the case only because of the undertaking given by the appellants.3. Thereafter, it appears, that the undertaking was violated and the amount of loan was not paid to the respondent No. 1 at all. The respondent, therefore, moved the High Court for taking action for contempt of Court against the appellants as a result of which the present proceedings were taken against them. The High Court came to the conclusion that the appellants had committed a wilful disobedience of the undertaking given to the Court and were, therefore, guilty of civil contempt as defined in Section 2(b) of the Act. Hence, this appeal before us.4. Mr. V.S. Desai appearing in support of the appeal has raised two short points before us. he has submitted that there is no doubt that the appellants had violated the undertaking but in the circumstances it cannot be said that the appellants had committed a wilful disobedience of the orders of the Court. So far as this point is concerned, we fully agree with the High Court. In the circumstances, the appellants undoubtedly committed wilful disobedience of the order of the Court by committing a serious breach of the undertaking given to the Court on the basis of which alone, the apellants had been acquitted. For these reasons, the first contention put forward by Mr. Desai, is overruled.5. It is, then, contended that under Sce. 12(3), normally the sentence that should be given to an offender who is found guilty of civil contempt, is fine and not imprisonment, which should be given only where the Court is satisfied that ends of justice require the imposition of such a sentence. In our opinion, this contention of learned counsel for the appellants is well founded and must prevail. Sub-section (3) of Section 12 reads thus.“Notwithstanding anything contained in this section, where a person is found guilty of a civil contempt, the Court, if it considers that a fine will not meet the ends of justice and that a sentence of imprisonment is necessary shall, instead of sentencing him to simple imprisonment, direct that he be detained in a civil prison for such period not exceeding six months as it may think fit.”6. A close and careful interpretation of the extracted Section leaves no room for doubt that the Legislature intended that a sentence of fine alone should be imposed in normal circumstances. The statute, however, confers special power on the Court to pass a sentence of imprisonment, if it thinks that ends of justice so require. Thus before a Court passes the extreme sentence of imprisonment. it must give special reasons after a proper application of its mind that a sentence of imprisonment alone is called for in a particular situation. Thus, the sentence of imprisonment is an exception while sentence of fine is the rule.7. Having regard to the peculiar facts and circumstances of this case, we do not find any special reasons why the appellants should be sent to jail by sentencing them to imprisonment. Furthermore, respondent No. 1 before us despite service, has not appeared to support the sentence given by the High Court. Having regard to these circumstances, therefore, we are satisfied that the present case, squarely falls in the first part of Sce. 12(3) and a sentence of fine alone should have been given by the High Court.
### Response:
1
### Explanation:
So far as this point is concerned, we fully agree with the High Court. In the circumstances, the appellants undoubtedly committed wilful disobedience of the order of the Court by committing a serious breach of the undertaking given to the Court on the basis of which alone, the apellants had been acquitted. For these reasons, the first contention put forward by Mr. Desai, is overruled.A close and careful interpretation of the extracted Section leaves no room for doubt that the Legislature intended that a sentence of fine alone should be imposed in normal circumstances. The statute, however, confers special power on the Court to pass a sentence of imprisonment, if it thinks that ends of justice so require. Thus before a Court passes the extreme sentence of imprisonment. it must give special reasons after a proper application of its mind that a sentence of imprisonment alone is called for in a particular situation. Thus, the sentence of imprisonment is an exception while sentence of fine is the rule.7. Having regard to the peculiar facts and circumstances of this case, we do not find any special reasons why the appellants should be sent to jail by sentencing them to imprisonment. Furthermore, respondent No. 1 before us despite service, has not appeared to support the sentence given by the High Court. Having regard to these circumstances, therefore, we are satisfied that the present case, squarely falls in the first part of Sce. 12(3) and a sentence of fine alone should have been given by the High Court.
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Dhanvant Singh Vs. Union Territory, Chandigarh | 1. Heard learned Counsel for the parties. 2. The appellant along with accused Khushwant Kaur, was convicted by the Trial Court under Section 120B of the Indian Penal Code [for short, ‘the I.P.C.?] and sentenced to undergo imprisonment for life and to pay fine of Rs. 1,000/-; in default to undergo rigorous imprisonment for two months. They were further convicted under Section 364, I.P.C. and sentenced to undergo rigorous imprisonment for a period of seven years and to pay fine of Rs. 500/-; in default to undergo rigorous imprisonment for one month. The appellant was also convicted under Section 302, I.P.C. and sentenced to undergo imprisonment for life and to pay fine of Rs. 1,000/-; in default to undergo rigorous imprisonment for two months. The appellant was then convicted under Section 201, I.P.C. and sentenced to undergo rigorous imprisonment for a period of three years and to pay fine of Rs. 500/-; in default to undergo rigorous imprisonment for one month. All the sentences were ordered to run concurrently. On appeals being preferred, the High Court acquitted accused-Khushwant Kaur whereas confirmed the conviction of the appellant. Hence, this appeal by special leave. From the perusal of the impugned judgment, it would be clear that conviction of the appellant is based upon only two circumstances, namely, one that the deceased was last seen in the company of the appellant and secondly, upon disclosure statement said to have been made by the appellant dead body of the deceased was recovered. 3. So far as the disclosure statement is concerned, according to the prosecution case, the same was recorded in the presence of Sohan Singh - P.W.12 and Constable Bahadur Singh. Out of these two witnesses, Constable Bahadur Singh has not been examined for the reasons best known to the prosecution. So far as Sohan Singh is concerned, we have been taken through his evidence and we are satisfied that he is a mere chance witness, as such it is not possible to place reliance upon his evidence. In view of the fact that Sohan Singh is a chance witness and another witness Constable Bahadur Singh has not been examined by the prosecution, it is not safe to place reliance upon the evidence of P.W.15. This being the position, we are of the view that prosecution has failed to prove the disclosure statement by credible evidence. 4. Now remains the only circumstance against the accused that he was last seen in the company of the deceased on 11.10.94 and the dead body was recovered on 23.10.94. This being the solitary circumstance, it is not possible to convict the accused on the same as it is well settled that in a case of circumstantial evidence, there must be a complete chain. In our view, the High Court was not justified in upholding conviction of the appellant. | 1[ds]3. So far as the disclosure statement is concerned, according to the prosecution case, the same was recorded in the presence of Sohan SinghP.W.12 and Constable Bahadur Singh. Out of these two witnesses, Constable Bahadur Singh has not been examined for the reasons best known to the prosecution. So far as Sohan Singh is concerned, we have been taken through his evidence and we are satisfied that he is a mere chance witness, as such it is not possible to place reliance upon his evidence. In view of the fact that Sohan Singh is a chance witness and another witness Constable Bahadur Singh has not been examined by the prosecution, it is not safe to place reliance upon the evidence of P.W.15. This being the position, we are of the view that prosecution has failed to prove the disclosure statement by credible evidence4. Now remains the only circumstance against the accused that he was last seen in the company of the deceased on 11.10.94 and the dead body was recovered on 23.10.94. This being the solitary circumstance, it is not possible to convict the accused on the same as it is well settled that in a case of circumstantial evidence, there must be a complete chain. In our view, the High Court was not justified in upholding conviction of the appellant. | 1 | 529 | 244 | ### Instruction:
Speculate on the likely judgment (yes (1) or no (0) to the appeal) and then delve into the case proceeding to elucidate your prediction, focusing on critical sentences.
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1. Heard learned Counsel for the parties. 2. The appellant along with accused Khushwant Kaur, was convicted by the Trial Court under Section 120B of the Indian Penal Code [for short, ‘the I.P.C.?] and sentenced to undergo imprisonment for life and to pay fine of Rs. 1,000/-; in default to undergo rigorous imprisonment for two months. They were further convicted under Section 364, I.P.C. and sentenced to undergo rigorous imprisonment for a period of seven years and to pay fine of Rs. 500/-; in default to undergo rigorous imprisonment for one month. The appellant was also convicted under Section 302, I.P.C. and sentenced to undergo imprisonment for life and to pay fine of Rs. 1,000/-; in default to undergo rigorous imprisonment for two months. The appellant was then convicted under Section 201, I.P.C. and sentenced to undergo rigorous imprisonment for a period of three years and to pay fine of Rs. 500/-; in default to undergo rigorous imprisonment for one month. All the sentences were ordered to run concurrently. On appeals being preferred, the High Court acquitted accused-Khushwant Kaur whereas confirmed the conviction of the appellant. Hence, this appeal by special leave. From the perusal of the impugned judgment, it would be clear that conviction of the appellant is based upon only two circumstances, namely, one that the deceased was last seen in the company of the appellant and secondly, upon disclosure statement said to have been made by the appellant dead body of the deceased was recovered. 3. So far as the disclosure statement is concerned, according to the prosecution case, the same was recorded in the presence of Sohan Singh - P.W.12 and Constable Bahadur Singh. Out of these two witnesses, Constable Bahadur Singh has not been examined for the reasons best known to the prosecution. So far as Sohan Singh is concerned, we have been taken through his evidence and we are satisfied that he is a mere chance witness, as such it is not possible to place reliance upon his evidence. In view of the fact that Sohan Singh is a chance witness and another witness Constable Bahadur Singh has not been examined by the prosecution, it is not safe to place reliance upon the evidence of P.W.15. This being the position, we are of the view that prosecution has failed to prove the disclosure statement by credible evidence. 4. Now remains the only circumstance against the accused that he was last seen in the company of the deceased on 11.10.94 and the dead body was recovered on 23.10.94. This being the solitary circumstance, it is not possible to convict the accused on the same as it is well settled that in a case of circumstantial evidence, there must be a complete chain. In our view, the High Court was not justified in upholding conviction of the appellant.
### Response:
1
### Explanation:
3. So far as the disclosure statement is concerned, according to the prosecution case, the same was recorded in the presence of Sohan SinghP.W.12 and Constable Bahadur Singh. Out of these two witnesses, Constable Bahadur Singh has not been examined for the reasons best known to the prosecution. So far as Sohan Singh is concerned, we have been taken through his evidence and we are satisfied that he is a mere chance witness, as such it is not possible to place reliance upon his evidence. In view of the fact that Sohan Singh is a chance witness and another witness Constable Bahadur Singh has not been examined by the prosecution, it is not safe to place reliance upon the evidence of P.W.15. This being the position, we are of the view that prosecution has failed to prove the disclosure statement by credible evidence4. Now remains the only circumstance against the accused that he was last seen in the company of the deceased on 11.10.94 and the dead body was recovered on 23.10.94. This being the solitary circumstance, it is not possible to convict the accused on the same as it is well settled that in a case of circumstantial evidence, there must be a complete chain. In our view, the High Court was not justified in upholding conviction of the appellant.
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SRI CHANAPPA NAGAPPA MUCHALAGODA Vs. DIVISIONAL MANAGER NEW INDIA INSURANCE COMPANY LIMITED | legs. As a consequence, the Appellant has got permanently incapacitated to pursue his vocation as a driver. This Court in Raj Kumar v. Ajay Kumar and Ors., (2011) 1 SCC 343. held that: 10. Ascertainment of the effect of the permanent disability on the actual earning capacity involves three steps. The Tribunal has to first ascertain what activities the claimant could carry on in spite of the permanent disability and what he could not do as a result of the permanent ability (this is also relevant for awarding compensation under the head of loss of amenities of life). The second step is to ascertain his avocation, profession and nature of work before the accident, as also his age. The third step is to find out whether (i) the claimant is totally disabled from earning any kind of livelihood, or (ii) whether in spite of the permanent disability, the claimant could still effectively carry on the activities and functions, which he was earlier carrying on, or (iii) whether he was prevented or restricted from discharging his previous activities and functions, but could carry on some other or lesser scale of activities and functions so that he continues to earn or can continue to earn his livelihood. For example, if the left hand of a claimant is amputated, the permanent physical or functional disablement may be assessed around 60%. If the claimant was a driver or a carpenter, the actual loss of earning capacity may virtually be hundred percent, if he is neither able to drive or do carpentry. On the other hand, if the claimant was a clerk in government service, the loss of his left hand may not result in loss of employment and he may still be continued as a clerk as he could perform his clerical functions; and in that event the loss of earning capacity will not be 100% as in the case of a driver or carpenter, nor 60% which is the actual physical disability, but far less. In fact, there may not be any need to award any compensation under the head of loss of future earnings, if the claimant continues in government service, though he may be awarded compensation under the head of loss of amenities as a consequence of losing his hand. Sometimes the injured claimant may be continued in service, but may not found suitable for discharging the duties attached to the post or job which he was earlier holding, on account of his disability, and may therefore be shifted to some other suitable but lesser post with lesser emoluments, in which case there should be a limited award under the head of loss of future earning capacity, taking note of the reduced earning capacity. It may be noted that when compensation is awarded by treating the loss of future earning capacity as 100% (or even anything more than 50%), the need to award compensation separately under the head of loss of amenities or loss of expectation of life may disappear and as a result, only a token or nominal amount may have to be awarded under the head of loss of amenities or loss of expectation of life, as otherwise there may be a duplication in the award of compensation. Be that as it may. (emphasis supplied) 10. In K. Janardhan v. United India Insurance Co. Ltd., (2008) 8 SCC 518 this Court examined the loss of earning capacity in the case of a tanker driver who had met with an accident, and lost one of his legs due to amputation. The Commissioner for Workmens Compensation assessed the functional disability of the tanker driver as 100% and awarded compensation on that basis. The High Court however, referred to Schedule I to the Workmens Compensation Act, 1923, and held that loss of a leg on amputation resulted in only 60% loss of earning capacity. This Court set aside the judgment of the High Court, and held that since the workman could no longer earn his living as a tanker driver due to loss of one leg, the functional disability had to be assessed as 100%. In S. Suresh v. Oriental Insurance Co. Ltd. & Anr., (2010) 13 SCC 777 this Court held that : 8. … We are of the opinion that on account of amputation of his right leg below knee, he is rendered unfit for the work of a driver, which he was performing at the time of the accident resulting in the said disablement. Therefore, he has lost 100% of his earning capacity as a lorry driver, more so, when he is disqualified from even getting a driving license under the Motor Vehicles Act. (emphasis supplied) The aforesaid judgments are instructive for assessing the compensation payable to the Appellant in the present case. As a consequence of the accident, the Appellant has been incapacitated for life, since he can walk only with the help of a walking stick. He has lost the ability to work as a driver, as he would be disqualified from even getting a driving license. The prospect of securing any other manual labour job is not possible, since he would require the assistance of a person to ensure his mobility and manage his discomfort. As a consequence, the functional disability suffered by the Appellant must be assessed as 100%. 11. We affirm the judgment of the High Court on assessing the income of the Appellant at Rs. 4,000/- p.m. as per the evidence of his employer. The functional disability of the Appellant is assessed as 100%, and the relevant factor would be 201.66 as per Schedule IV to the Act. Consequently, the compensation payable to the Appellant would work out to Rs. 4,83,984/- under Section 4 of the Act. 12. We find that the Appellant has not been awarded any amount towards reimbursement of the medical expenses incurred by him, either by the Commissioner, or by the High Court. The Appellant underwent hospitalization for a period of 65 days for medical treatment and surgical operations. | 1[ds]It is the admitted position that the Appellant can no longer pursue his vocation as a driver of heavy vehicles. The medical evidence on record has corroborated his inability to stand for a long period of time, or even fold his legs. As a consequence, the Appellant has got permanently incapacitated to pursue his vocation as a driverThe aforesaid judgments are instructive for assessing the compensation payable to the Appellant in the present case. As a consequence of the accident, the Appellant has been incapacitated for life, since he can walk only with the help of a walking stick. He has lost the ability to work as a driver, as he would be disqualified from even getting a driving license. The prospect of securing any other manual labour job is not possible, since he would require the assistance of a person to ensure his mobility and manage his discomfort. As a consequence, the functional disability suffered by the Appellant must be assessed as 100%11. We affirm the judgment of the High Court on assessing the income of the Appellant at Rs. 4,000/- p.m. as per the evidence of his employer. The functional disability of the Appellant is assessed as 100%, and the relevant factor would be 201.66 as per Schedule IV to the Act. Consequently, the compensation payable to the Appellant would work out to Rs. 4,83,984/- under Section 4 of the Act12. We find that the Appellant has not been awarded any amount towards reimbursement of the medical expenses incurred by him, either by the Commissioner, or by the High Court. The Appellant underwent hospitalization for a period of 65 days for medical treatment and surgical operations. | 1 | 1,849 | 310 | ### 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:
legs. As a consequence, the Appellant has got permanently incapacitated to pursue his vocation as a driver. This Court in Raj Kumar v. Ajay Kumar and Ors., (2011) 1 SCC 343. held that: 10. Ascertainment of the effect of the permanent disability on the actual earning capacity involves three steps. The Tribunal has to first ascertain what activities the claimant could carry on in spite of the permanent disability and what he could not do as a result of the permanent ability (this is also relevant for awarding compensation under the head of loss of amenities of life). The second step is to ascertain his avocation, profession and nature of work before the accident, as also his age. The third step is to find out whether (i) the claimant is totally disabled from earning any kind of livelihood, or (ii) whether in spite of the permanent disability, the claimant could still effectively carry on the activities and functions, which he was earlier carrying on, or (iii) whether he was prevented or restricted from discharging his previous activities and functions, but could carry on some other or lesser scale of activities and functions so that he continues to earn or can continue to earn his livelihood. For example, if the left hand of a claimant is amputated, the permanent physical or functional disablement may be assessed around 60%. If the claimant was a driver or a carpenter, the actual loss of earning capacity may virtually be hundred percent, if he is neither able to drive or do carpentry. On the other hand, if the claimant was a clerk in government service, the loss of his left hand may not result in loss of employment and he may still be continued as a clerk as he could perform his clerical functions; and in that event the loss of earning capacity will not be 100% as in the case of a driver or carpenter, nor 60% which is the actual physical disability, but far less. In fact, there may not be any need to award any compensation under the head of loss of future earnings, if the claimant continues in government service, though he may be awarded compensation under the head of loss of amenities as a consequence of losing his hand. Sometimes the injured claimant may be continued in service, but may not found suitable for discharging the duties attached to the post or job which he was earlier holding, on account of his disability, and may therefore be shifted to some other suitable but lesser post with lesser emoluments, in which case there should be a limited award under the head of loss of future earning capacity, taking note of the reduced earning capacity. It may be noted that when compensation is awarded by treating the loss of future earning capacity as 100% (or even anything more than 50%), the need to award compensation separately under the head of loss of amenities or loss of expectation of life may disappear and as a result, only a token or nominal amount may have to be awarded under the head of loss of amenities or loss of expectation of life, as otherwise there may be a duplication in the award of compensation. Be that as it may. (emphasis supplied) 10. In K. Janardhan v. United India Insurance Co. Ltd., (2008) 8 SCC 518 this Court examined the loss of earning capacity in the case of a tanker driver who had met with an accident, and lost one of his legs due to amputation. The Commissioner for Workmens Compensation assessed the functional disability of the tanker driver as 100% and awarded compensation on that basis. The High Court however, referred to Schedule I to the Workmens Compensation Act, 1923, and held that loss of a leg on amputation resulted in only 60% loss of earning capacity. This Court set aside the judgment of the High Court, and held that since the workman could no longer earn his living as a tanker driver due to loss of one leg, the functional disability had to be assessed as 100%. In S. Suresh v. Oriental Insurance Co. Ltd. & Anr., (2010) 13 SCC 777 this Court held that : 8. … We are of the opinion that on account of amputation of his right leg below knee, he is rendered unfit for the work of a driver, which he was performing at the time of the accident resulting in the said disablement. Therefore, he has lost 100% of his earning capacity as a lorry driver, more so, when he is disqualified from even getting a driving license under the Motor Vehicles Act. (emphasis supplied) The aforesaid judgments are instructive for assessing the compensation payable to the Appellant in the present case. As a consequence of the accident, the Appellant has been incapacitated for life, since he can walk only with the help of a walking stick. He has lost the ability to work as a driver, as he would be disqualified from even getting a driving license. The prospect of securing any other manual labour job is not possible, since he would require the assistance of a person to ensure his mobility and manage his discomfort. As a consequence, the functional disability suffered by the Appellant must be assessed as 100%. 11. We affirm the judgment of the High Court on assessing the income of the Appellant at Rs. 4,000/- p.m. as per the evidence of his employer. The functional disability of the Appellant is assessed as 100%, and the relevant factor would be 201.66 as per Schedule IV to the Act. Consequently, the compensation payable to the Appellant would work out to Rs. 4,83,984/- under Section 4 of the Act. 12. We find that the Appellant has not been awarded any amount towards reimbursement of the medical expenses incurred by him, either by the Commissioner, or by the High Court. The Appellant underwent hospitalization for a period of 65 days for medical treatment and surgical operations.
### Response:
1
### Explanation:
It is the admitted position that the Appellant can no longer pursue his vocation as a driver of heavy vehicles. The medical evidence on record has corroborated his inability to stand for a long period of time, or even fold his legs. As a consequence, the Appellant has got permanently incapacitated to pursue his vocation as a driverThe aforesaid judgments are instructive for assessing the compensation payable to the Appellant in the present case. As a consequence of the accident, the Appellant has been incapacitated for life, since he can walk only with the help of a walking stick. He has lost the ability to work as a driver, as he would be disqualified from even getting a driving license. The prospect of securing any other manual labour job is not possible, since he would require the assistance of a person to ensure his mobility and manage his discomfort. As a consequence, the functional disability suffered by the Appellant must be assessed as 100%11. We affirm the judgment of the High Court on assessing the income of the Appellant at Rs. 4,000/- p.m. as per the evidence of his employer. The functional disability of the Appellant is assessed as 100%, and the relevant factor would be 201.66 as per Schedule IV to the Act. Consequently, the compensation payable to the Appellant would work out to Rs. 4,83,984/- under Section 4 of the Act12. We find that the Appellant has not been awarded any amount towards reimbursement of the medical expenses incurred by him, either by the Commissioner, or by the High Court. The Appellant underwent hospitalization for a period of 65 days for medical treatment and surgical operations.
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Bharmal Medical Store and Ors Vs. State of Madhya Pradesh and Ors | Navin Sinha, J.1. Leave granted.2. The questions involved in these appeals being common, there being a minor variation in facts, they have been heard together and are being disposed by a common order. Suffice to observe, that in the limited nature of the controversy, we propose to take notice of the facts only to the extent necessary for purposes of the present order.3. Both the Appellants are lessees of the State Government for the shop premises situated within the compound of the District Hospital, Ujjain, Civil Hospital, Nagda, Khachrod, Mahidpur, Badnagar etc. They have been asked in 2013 to vacate the shop premises and shift from the Civil Hospital compound. The justification is the formulation of a Government Scheme i.e. Sardar Vallabh Bhai Patel Nishulka Aushadhi Vitaran Yojna for supply of free essential drugs to all classes of patients by the Government. It is not in dispute that the shop premises was constructed by the authorities and does not fall in the category of an unauthorized construction. It was settled with the Appellants by open bid in 2000/2001. The lease period has long since expired and the lease has not been renewed.4. Learned Counsel for the Appellants submits that the notice to vacate the shops in the hospital premises is arbitrary. No show cause notice with an opportunity to convince the authorities not to order removal was provided. Closure of the shop will infringe the fundamental rights of the Appellants Under Article 19(1)(g) of the Constitution. The supply of generic medicines by the State Government will not be disturbed by the medicine shops being operated by the Appellants. The presence of the shops would only aid availability of medicines to the patients.5. Learned Counsel for the State submitted that the medicine shops were permitted at a time when patients had to procure medicines on their own. With the advent of the new scheme for supplies of medicines by the Government, there exists no need for medicine shops within the hospital premises. In fact, the shop premises can be better utilized to facilitate supply of free medicines by the Government itself to the patients. The lease has long expired and no steps have been taken for renewal by the Appellants.6. We have considered the submissions. The laudable objective of the Government to ensure availability of free medicines to the patients in the civil hospital premises will have to be balanced with the competing interests of the Appellants to earn their livelihood. If peaceful coexistence is possible, there is no reason why the shop premises should be shut down and the Appellants be asked to vacate. The Respondents in their counter affidavit have acknowledged the existence of a large number of medicine shops immediately outside the premises of the government hospital, to contend that it was sufficient to take care of the needs of patients. It is but a tacit admission by the Respondents, for the need to have private medical shops in the vicinity for the convenience of the patients. Without further speculation, it would naturally be so for myriad reasons such as availability of timely supplies, logistics, nature of medicines required, etc. There can also be times when availability of a particular brand medicine may be a compelling necessity without awaiting government supply to be replenished. If for such eventualities a private medical shop is countenanced by the Respondents at the gate of the hospital it is difficult to appreciate their insistence for removal of the Appellants. We are, therefore, unable to sustain the notice directing the Appellants to vacate, and which in any event, has been ordered without an opportunity to the Appellants for presenting their case and convincing the authorities not to remove them.7. The shop premises, as observed above, are not unauthorized structures, but leases have long expired and no steps have been taken by the Appellants for renewal of their leases. The rent was Rs. 300-400/-. At the time of initial settlement also, it was done with the Appellants on the basis of open bid. | 1[ds]6. We have considered the submissions. The laudable objective of the Government to ensure availability of free medicines to the patients in the civil hospital premises will have to be balanced with the competing interests of the Appellants to earn their livelihood. If peaceful coexistence is possible, there is no reason why the shop premises should be shut down and the Appellants be asked to vacate. The Respondents in their counter affidavit have acknowledged the existence of a large number of medicine shops immediately outside the premises of the government hospital, to contend that it was sufficient to take care of the needs of patients. It is but a tacit admission by the Respondents, for the need to have private medical shops in the vicinity for the convenience of the patients. Without further speculation, it would naturally be so for myriad reasons such as availability of timely supplies, logistics, nature of medicines required, etc. There can also be times when availability of a particular brand medicine may be a compelling necessity without awaiting government supply to be replenished. If for such eventualities a private medical shop is countenanced by the Respondents at the gate of the hospital it is difficult to appreciate their insistence for removal of the Appellants. We are, therefore, unable to sustain the notice directing the Appellants to vacate, and which in any event, has been ordered without an opportunity to the Appellants for presenting their case and convincing the authorities not to remove them7. The shop premises, as observed above, are not unauthorized structures, but leases have long expired and no steps have been taken by the Appellants for renewal of their leases. The rent was Rs. 300-400/-. At the time of initial settlement also, it was done with the Appellants on the basis of open bid. | 1 | 736 | 334 | ### Instruction:
Determine the likely decision of the case (acceptance (1) or rejection (0)) and follow up with an explanation highlighting key sentences that support this prediction.
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Navin Sinha, J.1. Leave granted.2. The questions involved in these appeals being common, there being a minor variation in facts, they have been heard together and are being disposed by a common order. Suffice to observe, that in the limited nature of the controversy, we propose to take notice of the facts only to the extent necessary for purposes of the present order.3. Both the Appellants are lessees of the State Government for the shop premises situated within the compound of the District Hospital, Ujjain, Civil Hospital, Nagda, Khachrod, Mahidpur, Badnagar etc. They have been asked in 2013 to vacate the shop premises and shift from the Civil Hospital compound. The justification is the formulation of a Government Scheme i.e. Sardar Vallabh Bhai Patel Nishulka Aushadhi Vitaran Yojna for supply of free essential drugs to all classes of patients by the Government. It is not in dispute that the shop premises was constructed by the authorities and does not fall in the category of an unauthorized construction. It was settled with the Appellants by open bid in 2000/2001. The lease period has long since expired and the lease has not been renewed.4. Learned Counsel for the Appellants submits that the notice to vacate the shops in the hospital premises is arbitrary. No show cause notice with an opportunity to convince the authorities not to order removal was provided. Closure of the shop will infringe the fundamental rights of the Appellants Under Article 19(1)(g) of the Constitution. The supply of generic medicines by the State Government will not be disturbed by the medicine shops being operated by the Appellants. The presence of the shops would only aid availability of medicines to the patients.5. Learned Counsel for the State submitted that the medicine shops were permitted at a time when patients had to procure medicines on their own. With the advent of the new scheme for supplies of medicines by the Government, there exists no need for medicine shops within the hospital premises. In fact, the shop premises can be better utilized to facilitate supply of free medicines by the Government itself to the patients. The lease has long expired and no steps have been taken for renewal by the Appellants.6. We have considered the submissions. The laudable objective of the Government to ensure availability of free medicines to the patients in the civil hospital premises will have to be balanced with the competing interests of the Appellants to earn their livelihood. If peaceful coexistence is possible, there is no reason why the shop premises should be shut down and the Appellants be asked to vacate. The Respondents in their counter affidavit have acknowledged the existence of a large number of medicine shops immediately outside the premises of the government hospital, to contend that it was sufficient to take care of the needs of patients. It is but a tacit admission by the Respondents, for the need to have private medical shops in the vicinity for the convenience of the patients. Without further speculation, it would naturally be so for myriad reasons such as availability of timely supplies, logistics, nature of medicines required, etc. There can also be times when availability of a particular brand medicine may be a compelling necessity without awaiting government supply to be replenished. If for such eventualities a private medical shop is countenanced by the Respondents at the gate of the hospital it is difficult to appreciate their insistence for removal of the Appellants. We are, therefore, unable to sustain the notice directing the Appellants to vacate, and which in any event, has been ordered without an opportunity to the Appellants for presenting their case and convincing the authorities not to remove them.7. The shop premises, as observed above, are not unauthorized structures, but leases have long expired and no steps have been taken by the Appellants for renewal of their leases. The rent was Rs. 300-400/-. At the time of initial settlement also, it was done with the Appellants on the basis of open bid.
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6. We have considered the submissions. The laudable objective of the Government to ensure availability of free medicines to the patients in the civil hospital premises will have to be balanced with the competing interests of the Appellants to earn their livelihood. If peaceful coexistence is possible, there is no reason why the shop premises should be shut down and the Appellants be asked to vacate. The Respondents in their counter affidavit have acknowledged the existence of a large number of medicine shops immediately outside the premises of the government hospital, to contend that it was sufficient to take care of the needs of patients. It is but a tacit admission by the Respondents, for the need to have private medical shops in the vicinity for the convenience of the patients. Without further speculation, it would naturally be so for myriad reasons such as availability of timely supplies, logistics, nature of medicines required, etc. There can also be times when availability of a particular brand medicine may be a compelling necessity without awaiting government supply to be replenished. If for such eventualities a private medical shop is countenanced by the Respondents at the gate of the hospital it is difficult to appreciate their insistence for removal of the Appellants. We are, therefore, unable to sustain the notice directing the Appellants to vacate, and which in any event, has been ordered without an opportunity to the Appellants for presenting their case and convincing the authorities not to remove them7. The shop premises, as observed above, are not unauthorized structures, but leases have long expired and no steps have been taken by the Appellants for renewal of their leases. The rent was Rs. 300-400/-. At the time of initial settlement also, it was done with the Appellants on the basis of open bid.
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Chandrakant Uttam Chodankar Vs. Shri Dayanand Rayu Mandrakar and Others | - "Election petition shall be signed by the petitioner and verify in the manner laid down in the Code of Civil Procedure, 1908 for the verification of the pleading." 41. On a careful reading of this provision, we are of the view that the said provision is not mandatory in nature. That is to say, the verification in the election petition although was defective but that cannot be said to be fatal to the maintainability of the petition. In view of our discussions made hereinafter above to the extent that the election petitions were in order even if it was not so at the time of presenting the election petitions at the preliminary stage on such a technical ground. The High Court held that Exhibit F which was a document filed alongwith election petition must be taken to be an integral part of the petition. The affidavit which was filed alongwith the election petition was sworn on 15th July, 2002 and the election petition was filed on 16th July 2002 which was admittedly the last date for filing the election petitions. Exhibit F is a zerox copy of the affidavit which was received by the election petitioner. In the verification portion of this affidavit it was stated that the petitioners solemnly affirmed and verified that paragraphs 1 to 11 were true to their knowledge. Due to this defect it was held that the election petition was liable to be rejected for non compliance of section 83(1)(c) of the Act. From the record it appears that the election petitioner applied for copy on 11th July, 2002 and the same was ready for delivery on 16th July, 2002. According to High Court, Exhibit F could not be in possession of the election petitioner when the election petition was signed and verified and affidavit affirmed. According to Mr. Thali, learned counsel for the Respondent No.1, since election petition itself was filed on 16th July, 2002, Exhibit F could not come into possession of the Election Petitioners on 16th July, 2002. We are unable to accept this submission of Mr. Thali. It is not impossible that when on 16th July, 2002 the election petition was filed, it could be filed alongwith Exhibit F which came into possession of the election petitioner on the same day i.e. on 16th July, 2002. That apart, assuming that the Exhibit that the Exhibit F was defective, even then mere defect in the verification as held herein earlier was not fatal for which the High Court was justified in rejecting the election petitions for non-compliance of section 83(1)(c) of the Act. In F.A. Sapa & others vs. Singora & others (1991(3) SCC 375) this Court expressed this view also. For the reasons aforesaid, we therefore, hold that the question No.3 which was found in favour of Respondent No.1 by the High Court must be answered in favour of the appellants and against the Respondent No.1. 42. Before parting with this judgment, we may recall the decisions of this Court on which strong reliance was placed by the learned counsel for the respondent No.1. Relying on the decision in the case of Satya Narain vs. Dhuja Ram and others (1974(3) SCC 20), a 3-Judge Bench of this Court held that when the period of limitation for filing an election petition was over, it was not open for the appellant to file documents or other materials for compliance of Sections 81(3) and 83(1)(c) of the Act. In that decision, this Court was considering whether first part of Section 81(3) of the Act was a pre-empty provision and for total non-compliance of it would entail dismissal of the election petitions under section 86 of the Act. Relying on this decision of this Court, Mr. Thali argued that the High Court was fully justified in rejecting the election petitions on the ground that subsequent compliance would not entail the High Court to dismiss the election petitions. The Supreme Court held in the facts situation of the said decision that there was non-compliance of section 81(3) of the Act by not filing as many copies of the election petitions as there were respondents. In that factual situation, the Supreme Court has held that total non-compliance of the first part of section 81(3) of the Act entails dismissal of the election petitions under section 81(3) of the Act. The present case, however, stands on a different factual situation. In this case, it is not in dispute that election petitions were filed along with requisite number of copies thereof, but in the copies some defects as mentioned hereinafter, were alleged. It is not a case of total non-compliance of section 81 of the Act as the requisite number of copies of election petitions were filed along with election petitions. The other decision on which Mr. Thali appearing for Respondent No.1 also placed strong reliance was a decision of this Court in the case of J.P. Goyal vs. Raj Narain & others (1984 (3) SCC 339). This decision is also distinguishable on facts. We have already held that the copies which were alleged to have been supplied to the Learned Counsel for Respondent No.1 could not, at all, be relied on by the High Court. Therefore, in the facts and circumstances of this case, the principles laid down by this Court in the case of J.P. Goyal vs. Raj Narain & Others, cannot, at all, be applied. In view of our findings made hereinabove that the copies of the election petitions, which were alleged to have been served upon the Learned counsel for the Respondent No.1 by the Registry of the High Court, could not, at all, be relied on and in view of the admitted fact that the Bailiff of the High Court had subsequently served true copies of the election petitions on the Learned counsel for the Respondent No.1, the High Court committed an error in rejecting the election petitions for non compliance of the provisions of Sections 81(3) and 83(1)(c) of the Act. 43. | 1[ds]A bare perusal of section 116A of the Act, it is clear that an appeal shall lie from an order made by the High Court to the Supreme Court on any question of law and fact. Therefore, under section 116A of the Act the Supreme Court is conferred with power not only to decide an appeal filed under this section on a question of law but it would also be open to the Supreme Court to decide the appeal on facts assupport of the prayer for dismissal of the election petitions, the Respondent No.1 examined one witness who was the junior of the Learned Counsel for Respondent No.1. In her affidavit - evidence she had stated that the election petitions were listed on 2nd of August, 2002 and her senior Sri Vilas Thali on that date i.e. on 2nd of August, 2002 filed vakalatnamas on behalf of Respondent No.1. She also stated that the copies of the election petitions were served on the learned counsel for the respondent No.1 by the Registry of the High Court in her presence. She respondent No.1 by the Registry of the High Court in her presence. She admitted that on 19th of August, 2002 the bailiff of the Court also served two copies of the election petitions and a notice of the High Court on the Learned Counsel for Respondent No.1. She further stated in her deposition that one copy of the election petitions was returned to the Assistant Registrar of the High Court while retaining the notice issued by the Court which accompanied a copy of the election petition. In cross-examination, she admitted that she had personal knowledge that her senior Mr. Thali had filed his vakalatnama on 2nd of August, 2002 on behalf of Respondent No.1 in both the Election Petitions. However, it appears from the record that the vakalatnamas were signed by the Respondent No.1 on 4th of August, 2002 and the signed vakalatnamas were received by the Registry of the High Court on 6th of September, 2002. She also admitted that her-senior Mr. Thali, did not make any endorsement of having received copies of the election petitions on behalf of Respondent No.1 in the order-sheet of the election petitions. The High Court, relying on these copies in its judgment inter alia held that the election petitions were liable to be rejected on the ground that the copies which were served on the learned counsel for the Respondent No.1 were not true copies of the election petitions. Keeping these facts in mind, let us now examine whether the copies which were alleged to have been supplied by the Registry of the High Court to the learned counsel for the Respondent No.1 could at all the relied on by the High Court. The copies of the election petitions which were alleged to have been supplied by the Registry of the High Court on the Learned Counsel for the Respondent No.1 were exhibited.18. For the reasons mentioned hereinafter, we are of the view that no reliance could be placed by the High Court on the copies of the Election Petitions alleged to have been supplied by the Registry of the High Court to the learned counsel for the Respondent No.1.Even otherwise, from the facts narrated earlier, it is clear that on 2nd of August, 2002 the Learned Counsel for the Respondent No.1 in both the election petitions had appeared before the High Court on behalf of Respondent No.1 without filing any vakalatnama. As said hereinafter, from the records, it also appears that the vakalatnamas were signed by the Respondent No.1 on 4th of August, 2002 and received by the Registry on 6th of September, 2002. On 19th of August, 2002, Court Bailiff served two true copies of election petitions on the Learned Counsel for the Respondent No.1. From the above, it is therefore, clear that the Learned Counsel for the Respondent No.1 had no authority to collect copies of the Election Petitions from the Registry of the High Court before 6th of September 2002 nor was it open to the Registry of the High Court to supply copies of the election petitions to the Learned Counsel for the Respondent No.1 before the vakalatnamas were filed on behalf of the respondent No.1 i.e. not before 6th of September 2002. Such being the admitted position, it is difficult to believe that such copies relied on by the learned counsel for the respondent No.1 were at all supplied by the Registry of the High Court to the learned counsel for the respondent No.1. For the reasons, aforesaid, we are unable to hold that in fact the copies alleged to have been served or supplied to the learned counsel for the respondent No.1 were all served or supplied by the Registry of the High Court. That apart, from the records, it does not appear that there was any endorsement from the side of the learned counsel for the respondent No.1 to show that he had received copies from the Registry on which they made out the case for rejection of election petitions. For the reasons aforesaid, we are therefore, of the view that the High Court was not justified in rejecting the election petitions relying on the copies alleged to have been served or supplied to the learned counsel for the Respondent No.1 without there being any direction to file vakalatnamas from the HighIt is an admitted position that true copies of the election petitions were served upon the Respondent No.1 by the Court Bailiff. In the absence of any material to show that the true copies of the election petitions were not filed with the election petitions at the time of their presentation and in view of our discussions herein earlier that no reliance could be placed on the copies relied on by the High Court, we are unable to sustain the orders of the High Court. We are also unable to agree with Mr. Thali that no reliance could be placed on the true copies served by the Court Bailiff because they were served after the expiry of the period of limitation. It is difficult to understand that the period of limitation shall start from the date of serving the copies and not from the filing of copies of the election petitions. From the records it does not appear that such copies were filed after the period of limitation.23. For the reasons aforesaid, we may safely conclude that the election petitions were not liable to be rejected relying on the copies of the elections petitions alleged to have been served upon the Respondent No.1 especially when true copies of the same were duly supplied to the Respondent No.1. However, when two questions were framed by the High Court and answered in favour of the Respondent No.1, we feel it appropriate to decide the appeals also on question Nos. 1 and 2.From the aforesaid endorsement of the Assistant Registrar and in view of the answer given to question No.3 of the Examination Form which was duly examined by the Registry of the High Court and after such examination the note was appended saying that since election petitions were in order and therefore the Registry be directed to register the election petitions and further in view of the fact that from the order of the High Court dated 2nd August, 2002, it is evident, when the election petitions were taken up for preliminary hearing, the High Court noted appearance of the Learned Counsel for Respondent No.1 who appeared and waived service on behalf of Respondent No.1 in both the election petitions but did not say that vakalatnamas were filed nor from the said order it would be evident that any direction was made to file vakalatnamas, we are unable to hold that at the time of presentation of election petitions, true copies of the same were not filed which were subsequently served upon the Respondent No. 1 by the Bailiff of the High Court. The High Court in its judgment held that the onus to prove supply of the copies was on the election petitioners and had drawn an adverse inference against, the appellants for not examining the Assistant Registrar of the High Court. We are unable to accept this view of the High Court. It is no longer res integra that the onus to prove that a copy of the election petition is not served on him, must be on the person who alleges such fact. We are therefore of the view that in presence of the endorsement of the Assistant Registrar of the High Court dated 19th of July, 2002 that the election petitions were in order which would raise a presumption, it would be for the successful candidate/ Respondent No.1 to rebut such presumption and discharge his initial burden. In this case, the Respondent No.1 having failed to discharge such onus, it is not open for the Respondent No.1 to say that true copies of the election petitions were not filed at the time of presentation of election petitions. It is not in dispute that rue copies of the election petitions were duly served upon the Learned Counsel for the Respondent No.1 before the preliminary hearing of the Election Petitions. According to Mr. Thali, that could not cure the defect in supplying to the Respondent No. 1 a true copy of the election petition as such petitions were served on the Respondent No.1 at a time when the elections petitions becameIn view of our discussion made above and in the absence of any material to show that true copies of the election petitions were also not filed at the presentation of election petitions, we are unable to hold that there was non compliance of Section 81(3) of the Act inasmuch as the copies alleged to have been supplied to the returned candidate were not true copies of theHigh Court found that after the prayer clause at internal page 10 of the election petition above the petitioner and beneath the verification there was no signature of the election petitioner above the word petitioner and held that the copy of the election petition would show that the election petition was neither signed and verified nor was it attested before any authority. The High Court also found that there was no endorsement of the officer before whom the election petitioner had signed. It was also found that there was absence of signature of the Advocate who had identified the election petition. The High Court further found that although an affidavit was filed by the appellants but the copy of the election petition however did not show that the affidavit was affirmed by the election petitioner and, there was also no signature of the election petitioner above the word deponent. Accordingly the High Court held that the copies of the election petitions on which reliance was placed by the Respondent No.1 were found to be not true copies of the election petitions that were filed. In our view, the defects as shown above would not entail the High Court to dismiss the election petition under section 86 of the Act. Section 81(3) has two parts- the first part relates to filing of as many as copies of the election petitions as that of number of respondents in the same. The second part is that copy shall be attested by the petitioner under his own signature to be a true copy of the petition. In our view, the second part of section 81(3) of the Act requires that every such copy should be attested by the election petitioners under their own signature to be true copies. Second part of section 81(3) of the Act, in our view, is satisfied if the copy is attested by the election petitioner to be true copies of the election petitions under their own signature. In our view, the defects as noted above cannot lead us to hold that election petitions should be rejected for non-compliance of section 81(3) of the Act as copies served on the respondent No.1 cannot be treated to be true copies within the meaning of the second part of section 81(3).30. The High Court held that the election petitions were liable to be rejected on a finding that the above noted defects were vital in nature and therefore there was total non-compliance of section 81(3) of the Act. In our view, even the defects alleged as aforesaid, in the election petitions could not be held to be vital in nature and thereby did not entail the High Court to dismiss the election petitions at the preliminary stage for non-compliance of section 81(3) of the Act.principles laid down as aforesaid were also followed in Anil R. Deshmukh vs. Onkar Nath Singh (1999 (2) SCC 205 ). So far as the 2nd defect namely the stamp in respect of the swearing of the affidavit was absent on the copy of the petition is concerned, we are of the view that mere omission to stamp in respect of the swearing of the affidavit would not at all the material; when each and every copy of the petition was attested by the election petitioners. Reliance in this connection may be placed on the decision of this Court in the case of Ram Prasad Sarma vs. Mani Kumar Subba (2003(1) SCC 289). Similar is the position in respect of defect No.3. From the record it appears that on each and every page a handwritten attestation in ink under the signature of the election petitioner was made by the election petitioners. Therefore, mere omission to sign by the election petitioners in the affidavit accompanying the petition would not also be material. From the above, we can only conclude that such defects in the copies of the election petitions cannot lead us to reject the election petitions.It is not in dispute that copies of the election petitions were duly served on the learned counsel for the respondent No.1 in both the appeals on 19th August, 2002.We have already held that the copies of the election petitions alleged to have been served / supplied to the learned counsel for the respondent No.1 on 2nd of August, 2002 could not be relied on. We have already seen earlier that in absence of any material to show that the election petitions were not presented with the requisite number of copies of the same and the admitted fact was that the Bailiff of the Court had served true copies of the election petitions on the Respondent No.1 in our view, the High Court had committed an error by placing the onus on the election petitioners to prove that the requisite number of true copies were filed. As said herein earlier, the onus to prove that a true copy is not served on the person, will be on the person alleging such a fact. In presence of a certificate of the Registry of the High Court that there was no defect in the writ petition which would certainly raise a presumption, it would be for the respondent to rebut that presumption and discharge his initial burden. In this case admittedly note of the Registry of the High Court clearly says that requisite number of copies had been duly filed and the election petition was in order. That being the position, we are unable to agree with Mr. Thali as well as the High Court that the onus was on the election petitioners to prove that true copies of the election petitions were duly filed by him. Furthermore, in view of our discussions herein earlier, the true copies have been duly filed as admitted by the Respondent No.1, even subsequent to the filing of the election petitions and in view of the decision of this Court in Anil R Deshmukh vs. Onkar N. Wagh, we are also of the view that since true copies were duly filed before the preliminary hearing of the Election Petitions the defects even if there by any, were thus removed the election petitions could not be rejected on these grounds.39. For the reasons aforesaid, we are unable to sustain the judgment of the High Court in rejecting the election petitions for non filing of requisite number of copies thereof as well as the copies alleged to have been served on the Learned counsel for the respondents were not true copies. Accordingly, the two common questions as framed herein earlier and decided by the High Court in favour of the Respondent No.1, arComing now to answer the question nos. 3 as posed herein earlier, we find in the appeal of Chandrakant Uttam Chodankar vs. Shri Dayanand Rayu Mandrakar and other (Election Petition No.1 of 2002 which gave rise to Civil Appeal No. 6622 of 2003), the question no.3 was not pressed before the High Court and the High Court and the Learned counsel appearing for the Respondent No.1 also did not advance any argument in support of such finding before us. However, in the other appeal, namely, in the appeal of Jose Philips Domingo DSouza (Election Petition No.2 of 2003 which gave rise to Civil Appeal No. 6750 of 2003), this question was pressed before the High Court and the High Court answered this question in favour of the Respondent No.1. Although, in Election Petition No.2 of 2002 which gave rise to CA No. 6750 of 2003 High Court found this question in favour of the Respondent No.1, it may be kept on record that the learned counsel for the Respondent No.1 did not also advance any argument in support of the aforesaid finding of the High Court before us in this appeal. Since this question was decided in favour of Respondent No.1, we feel it appropriate to take up and decide this question as well. As noted herein earlier, the High Court on question No.3 held that the Election Petition No.2 of 2002 was liable to be rejected for non-compliance of section 83(1)(c) of the Act. We are however, unable to sustain this finding arrived at by the High Court. Before we take up the question, we may consider Section 83(1) of the Act. Section 83 of the Act deals with the contents of the petition. Since in this case we are concerned with section 83(1)(c) of the Act, we at the risk of repetition refer to this section which is asOn a careful reading of this provision, we are of the view that the said provision is not mandatory in nature. That is to say, the verification in the election petition although was defective but that cannot be said to be fatal to the maintainability of the petition. In view of our discussions made hereinafter above to the extent that the election petitions were in order even if it was not so at the time of presenting the election petitions at the preliminary stage on such a technical ground. The High Court held that Exhibit F which was a document filed alongwith election petition must be taken to be an integral part of the petition. The affidavit which was filed alongwith the election petition was sworn on 15th July, 2002 and the election petition was filed on 16th July 2002 which was admittedly the last date for filing the election petitions. Exhibit F is a zerox copy of the affidavit which was received by the election petitioner. In the verification portion of this affidavit it was stated that the petitioners solemnly affirmed and verified that paragraphs 1 to 11 were true to their knowledge. Due to this defect it was held that the election petition was liable to be rejected for non compliance of section 83(1)(c) of the Act. From the record it appears that the election petitioner applied for copy on 11th July, 2002 and the same was ready for delivery on 16th July, 2002. According to High Court, Exhibit F could not be in possession of the election petitioner when the election petition was signed and verified and affidavit affirmed. According to Mr. Thali, learned counsel for the Respondent No.1, since election petition itself was filed on 16th July, 2002, Exhibit F could not come into possession of the Election Petitioners on 16th July, 2002. We are unable to accept this submission of Mr. Thali. It is not impossible that when on 16th July, 2002 the election petition was filed, it could be filed alongwith Exhibit F which came into possession of the election petitioner on the same day i.e. on 16th July, 2002. That apart, assuming that the Exhibit that the Exhibit F was defective, even then mere defect in the verification as held herein earlier was not fatal for which the High Court was justified in rejecting the election petitions for non-compliance of section 83(1)(c) of the Act. In F.A. Sapa & others vs. Singora & others (1991(3) SCC 375) this Court expressed this view also. For the reasons aforesaid, we therefore, hold that the question No.3 which was found in favour of Respondent No.1 by the High Court must be answered in favour of the appellants and against the Respondent No.1.. Keeping the power conferred on this Court under section 116A of the Act that is to say this Court is also conferred with power to decide an appeal on facts, let us first examine whether the High Court was justified in relying on the copies of the election petitions which were alleged to have been served on the Learned Counsel for the Respondent No.1 in dealing with the questions in hand.As said hereinabove, it is not in dispute that two true copies of the election petitions were duly served upon the Learned Counsel for Respondent No.1 by the bailiff of the High Court after the period of limitation for filing an election petition under section 86 of the Act was over. We have carefully examined the copies of the election petitions alleged to have been supplied to the learned counsel for the Respondent No.1. From the facts stated hereinafter, it would be difficult for us to hold that reliance could at all be placed by the High Court on such copies.20. The first reason is that the High Court ought to have drawn an adverse inference against the respondent No.1 for not filing the applications under Order VII Rule 11 of the Code of Civil Procedure immediately after receiving those copies from the Registry of the High Court as, according to us, the Respondent No.1 ought not to have waited for more than a month to file the applications under Order VII Rule 11 of the Code of Civil Procedure for rejection of election of election petitions when true copies were already served on the Respondent No.1. That apart, a perusal of the copies alleged to have been served on the Respondent No.1 indicates that copies of the election petitions which the petitioners did not submit for service were produced by the Respondent No.1 as having been served on the Respondent No.1.Let us now turn to question No.1 first. In our view, the question No.1 needs to be decided in favour of the appellants for the reasons mentioned hereinbelow. As noted herein earlier, record shows that the election petitions as well as the question forms and answers were examined by the Registry of the HighRW7 was the Examination Form which was duly filled in by the appellants. In this Examination Form Question No.3 was asWhether copies of the Petition and accompanying papers are also supplied for being made available to the Respondents and, if the sets of these copies are duly attested by the Petitioner under his own signature as trueThe answer to this question No.3 from the appellants was Yes. In the Examination Form (RW7), the Assistant Registrar at the end made an endorsement on 19th of July, 2002 to the followingpetition is in order. We may direct the petition to be registered as election petition." (Emphasis supplied).Even if the copies of the election petitions which were alleged to have been served on the Respondent No.1 could be accepted and relied upon then also, in our view, the High Court had committed an error in holding that the election petitions must be rejected for non-compliance of Section 81(3) of the Act on the ground that true copies of the Election Petitions were not served upon the respondent No.1. As noted herein earlier, the successful candidates / respondent No.1 in both the Election Petitions sought rejection of the election petitions inter alia on the followingInternal page 10 of Exhibit RW-1 which is the copy of the election petition after the prayer clause and verification there is no signature of the election petitioner.2) The stamp in respect of the swearing of the affidavit was also absent on the copy of the election petition.(3) The affidavit accompanying the petition also does not bear the signature of the election petitioners.Even otherwise, the elections ought not to have been rejected by the High Court for non compliance of section 81(3) of the Act. What should be the meaning of true copy in section 81(3) of the Act was considered by this Court in Dr. Shipra (Smt.) & others vs. Shanti Lal Khoiwal & others (1996) (5) SCC 181 ) in which it was held that the defects of the aforesaid nature were not curable, and therefore, the election petition was liable to be dismissed on that ground. That decision of the Supreme Court, namely, Dr. Shipras case was doubted in a latter decision in the case of T.M. Jacob vs. C. Poulose and others (1999(4) SCC 274) and the matter was referred to the Constitution Bench of this Court. The Constitution Bench in T.M. Jacobs caseis not every minor variation in form but only a vital defect in substance which can lead to a finding of non-compliance with the provisions of Section 81(3) of the Act with the consequences under Section 86(1) to follow. The weight of authority clearly indicates that a certain amount of flexibility is envisaged. While an impermissible deviation from the original may entail the dismissal of an election petition under Section 86(1) of the Act, an insignificant variation in the true copy cannot be construed as a fatal defect. It is, however, neither desirable nor possible to catalogue the defect which may be classified as of a vital nature or those which are not so. It would depend upon the facts and circumstances of each case and no hard and fast formula can be prescribed. The tests suggested in Murarka Radhey Shyam case are sound tests and are now well settled. We agree with the same and need not repeat those tests. Considered in this background, we are of the opinion that the alleged defect in the true copy of the affidavit in the present case did not attract the provisions of Section 86(1) of the Act for alleged non-compliance with the last part of Section 81(3) of the Act and that there had been substantial compliance with the requirements of Section 81(3) of the Act in supplying true copy of the affidavit to the appellant by the respondent.The difference of opinion was settled by the Constitution Bench in Jacobs case by enunciating the principles as noted hereinabove. We have carefully examined the defects as noted hereinafter and on a careful examination of the defects we cannot be persuaded to the view that the defects in the present case also are material or it was vital in nature or the absence of stamp of attestation could be treated to be a ground for rejection of the Election Petitions under Section 81(3) of the Act. It may be mentioned herein that the decision of this Court in Anil R. Deshmukh case was approved by the Constitution Bench and in which it already distinguished the case of Dr. Shipra. It must not be forgotten that in the Constitution Bench decision of this Court, it was evident that (a) the expression copy in Section 81(3) of the Act means a copy which is substantially the same as the original, variation if any from the original should not be vital in nature or should not be such that can possibly mislead a reasonable person in meeting the allegation; (b) if the copy differs in material particulars from the original the same cannot be cured after the period of limitation". The same principle was enunciated following the Constitution Bench decision of this Court in T. Phunyzatha vs. H.K. and others (2001 (8) SCC 358 ). In this decision also it was held that the defects indicated in these cases for which dismissal of the election petition was sought for did not attract Section 86(1) of the Act for dismissal of the election petitions for non-compliance of Section 81(3) of the Act. For the reasons aforesaid and applying the principles laid down in the aforesaid decisions of this Court, we are of the view that the High Court ought not to have rejected the election petitions for non-compliance of the provisions of Section 81(3) of the Act as the defects shown by the Respondent No.1 cannot be said to be fatal and the copies which were alleged to have been served or supplied to the Respondent No.1 were wholly and substantially the same as the original. That apart, it is an admitted position, as noted hereinearlier, true copies of the election petitions were duly served or supplied to the Respondent No.1. The question that was raised by the learned counsel for the Respondent No.1 before us was whether subsequent supply of such true copies on the Respondent No.1 could be treated to be a sufficient compliance of Section 81(3) of the Act. Apart from the conclusions made hereinbefore, we are also of the view that in view of the decision of this Court in Anil R. Deshmukh vs. Onkar N. Wagh (1999(2) SCC 205) this question needs to be decided in favour of the appellant and against the Respondent No.1. In paragraph 17 of the aforesaid decision this Court observed ashave already referred to the fact that even before arguments were heard on the preliminary objection by the High Court in this case, the true copies of the affidavits had been served on the first respondent and his counsel. In the facts and circumstances of this case, we have no doubt that there was sufficient compliance with the provisions of Section 81(3) read with Section 83(1)(c) of the Act even if it could be said that the copies served in the first instance on the first respondent were not in conformity with the provisions of the Act." (Emphasis supplied).Such being the position, we hold that the High Court was not justified in rejecting the election petitions for non-compliance of Section 81(3) of thepresent case, however, stands on a different factual situation. In this case, it is not in dispute that election petitions were filed along with requisite number of copies thereof, but in the copies some defects as mentioned hereinafter, were alleged. It is not a case of total non-compliance of section 81 of the Act as the requisite number of copies of election petitions were filed along with electiondecision is also distinguishable on facts. We have already held that the copies which were alleged to have been supplied to the Learned Counsel for Respondent No.1 could not, at all, be relied on by the High Court. Therefore, in the facts and circumstances of this case, the principles laid down by this Court in the case of J.P. Goyal vs. Raj Narain & Others, cannot, at all, be applied. In view of our findings made hereinabove that the copies of the election petitions, which were alleged to have been served upon the Learned counsel for the Respondent No.1 by the Registry of the High Court, could not, at all, be relied on and in view of the admitted fact that the Bailiff of the High Court had subsequently served true copies of the election petitions on the Learned counsel for the Respondent No.1, the High Court committed an error in rejecting the election petitions for non compliance of the provisions of Sections 81(3) and 83(1)(c) of theour view, the question No.1 needs to be decided in favour of the appellants for the reasons mentioned hereinbelow. As noted herein earlier, record shows that the election petitions as well as the question forms and answers were examined by the Registry of the HighW7 was the Examination Form which was duly filled in by the appellants. In this Examination Form Question No.3 was asr copies of the Petition and accompanying papers are also supplied for being made available to the Respondents and, if the sets of these copies are duly attested by the Petitioner under his own signature as truee answer to this question No.3 from the appellants was Yes. In the Examination Form (RW7), the Assistant Registrar at the end made an endorsement on 19th of July, 2002 to the followingpetition is in order. We may direct the petition to be registered as election petition." (Emphasis supplied).In view of our discussion made above and in the absence of any material to show that true copies of the election petitions were also not filed at the presentation of election petitions, we are unable to hold that there was non compliance of Section 81(3) of the Act inasmuch as the copies alleged to have been supplied to the returned candidate were not true copies of the | 1 | 8,362 | 6,069 | ### 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:
- "Election petition shall be signed by the petitioner and verify in the manner laid down in the Code of Civil Procedure, 1908 for the verification of the pleading." 41. On a careful reading of this provision, we are of the view that the said provision is not mandatory in nature. That is to say, the verification in the election petition although was defective but that cannot be said to be fatal to the maintainability of the petition. In view of our discussions made hereinafter above to the extent that the election petitions were in order even if it was not so at the time of presenting the election petitions at the preliminary stage on such a technical ground. The High Court held that Exhibit F which was a document filed alongwith election petition must be taken to be an integral part of the petition. The affidavit which was filed alongwith the election petition was sworn on 15th July, 2002 and the election petition was filed on 16th July 2002 which was admittedly the last date for filing the election petitions. Exhibit F is a zerox copy of the affidavit which was received by the election petitioner. In the verification portion of this affidavit it was stated that the petitioners solemnly affirmed and verified that paragraphs 1 to 11 were true to their knowledge. Due to this defect it was held that the election petition was liable to be rejected for non compliance of section 83(1)(c) of the Act. From the record it appears that the election petitioner applied for copy on 11th July, 2002 and the same was ready for delivery on 16th July, 2002. According to High Court, Exhibit F could not be in possession of the election petitioner when the election petition was signed and verified and affidavit affirmed. According to Mr. Thali, learned counsel for the Respondent No.1, since election petition itself was filed on 16th July, 2002, Exhibit F could not come into possession of the Election Petitioners on 16th July, 2002. We are unable to accept this submission of Mr. Thali. It is not impossible that when on 16th July, 2002 the election petition was filed, it could be filed alongwith Exhibit F which came into possession of the election petitioner on the same day i.e. on 16th July, 2002. That apart, assuming that the Exhibit that the Exhibit F was defective, even then mere defect in the verification as held herein earlier was not fatal for which the High Court was justified in rejecting the election petitions for non-compliance of section 83(1)(c) of the Act. In F.A. Sapa & others vs. Singora & others (1991(3) SCC 375) this Court expressed this view also. For the reasons aforesaid, we therefore, hold that the question No.3 which was found in favour of Respondent No.1 by the High Court must be answered in favour of the appellants and against the Respondent No.1. 42. Before parting with this judgment, we may recall the decisions of this Court on which strong reliance was placed by the learned counsel for the respondent No.1. Relying on the decision in the case of Satya Narain vs. Dhuja Ram and others (1974(3) SCC 20), a 3-Judge Bench of this Court held that when the period of limitation for filing an election petition was over, it was not open for the appellant to file documents or other materials for compliance of Sections 81(3) and 83(1)(c) of the Act. In that decision, this Court was considering whether first part of Section 81(3) of the Act was a pre-empty provision and for total non-compliance of it would entail dismissal of the election petitions under section 86 of the Act. Relying on this decision of this Court, Mr. Thali argued that the High Court was fully justified in rejecting the election petitions on the ground that subsequent compliance would not entail the High Court to dismiss the election petitions. The Supreme Court held in the facts situation of the said decision that there was non-compliance of section 81(3) of the Act by not filing as many copies of the election petitions as there were respondents. In that factual situation, the Supreme Court has held that total non-compliance of the first part of section 81(3) of the Act entails dismissal of the election petitions under section 81(3) of the Act. The present case, however, stands on a different factual situation. In this case, it is not in dispute that election petitions were filed along with requisite number of copies thereof, but in the copies some defects as mentioned hereinafter, were alleged. It is not a case of total non-compliance of section 81 of the Act as the requisite number of copies of election petitions were filed along with election petitions. The other decision on which Mr. Thali appearing for Respondent No.1 also placed strong reliance was a decision of this Court in the case of J.P. Goyal vs. Raj Narain & others (1984 (3) SCC 339). This decision is also distinguishable on facts. We have already held that the copies which were alleged to have been supplied to the Learned Counsel for Respondent No.1 could not, at all, be relied on by the High Court. Therefore, in the facts and circumstances of this case, the principles laid down by this Court in the case of J.P. Goyal vs. Raj Narain & Others, cannot, at all, be applied. In view of our findings made hereinabove that the copies of the election petitions, which were alleged to have been served upon the Learned counsel for the Respondent No.1 by the Registry of the High Court, could not, at all, be relied on and in view of the admitted fact that the Bailiff of the High Court had subsequently served true copies of the election petitions on the Learned counsel for the Respondent No.1, the High Court committed an error in rejecting the election petitions for non compliance of the provisions of Sections 81(3) and 83(1)(c) of the Act. 43.
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in nature or the absence of stamp of attestation could be treated to be a ground for rejection of the Election Petitions under Section 81(3) of the Act. It may be mentioned herein that the decision of this Court in Anil R. Deshmukh case was approved by the Constitution Bench and in which it already distinguished the case of Dr. Shipra. It must not be forgotten that in the Constitution Bench decision of this Court, it was evident that (a) the expression copy in Section 81(3) of the Act means a copy which is substantially the same as the original, variation if any from the original should not be vital in nature or should not be such that can possibly mislead a reasonable person in meeting the allegation; (b) if the copy differs in material particulars from the original the same cannot be cured after the period of limitation". The same principle was enunciated following the Constitution Bench decision of this Court in T. Phunyzatha vs. H.K. and others (2001 (8) SCC 358 ). In this decision also it was held that the defects indicated in these cases for which dismissal of the election petition was sought for did not attract Section 86(1) of the Act for dismissal of the election petitions for non-compliance of Section 81(3) of the Act. For the reasons aforesaid and applying the principles laid down in the aforesaid decisions of this Court, we are of the view that the High Court ought not to have rejected the election petitions for non-compliance of the provisions of Section 81(3) of the Act as the defects shown by the Respondent No.1 cannot be said to be fatal and the copies which were alleged to have been served or supplied to the Respondent No.1 were wholly and substantially the same as the original. That apart, it is an admitted position, as noted hereinearlier, true copies of the election petitions were duly served or supplied to the Respondent No.1. The question that was raised by the learned counsel for the Respondent No.1 before us was whether subsequent supply of such true copies on the Respondent No.1 could be treated to be a sufficient compliance of Section 81(3) of the Act. Apart from the conclusions made hereinbefore, we are also of the view that in view of the decision of this Court in Anil R. Deshmukh vs. Onkar N. Wagh (1999(2) SCC 205) this question needs to be decided in favour of the appellant and against the Respondent No.1. In paragraph 17 of the aforesaid decision this Court observed ashave already referred to the fact that even before arguments were heard on the preliminary objection by the High Court in this case, the true copies of the affidavits had been served on the first respondent and his counsel. In the facts and circumstances of this case, we have no doubt that there was sufficient compliance with the provisions of Section 81(3) read with Section 83(1)(c) of the Act even if it could be said that the copies served in the first instance on the first respondent were not in conformity with the provisions of the Act." (Emphasis supplied).Such being the position, we hold that the High Court was not justified in rejecting the election petitions for non-compliance of Section 81(3) of thepresent case, however, stands on a different factual situation. In this case, it is not in dispute that election petitions were filed along with requisite number of copies thereof, but in the copies some defects as mentioned hereinafter, were alleged. It is not a case of total non-compliance of section 81 of the Act as the requisite number of copies of election petitions were filed along with electiondecision is also distinguishable on facts. We have already held that the copies which were alleged to have been supplied to the Learned Counsel for Respondent No.1 could not, at all, be relied on by the High Court. Therefore, in the facts and circumstances of this case, the principles laid down by this Court in the case of J.P. Goyal vs. Raj Narain & Others, cannot, at all, be applied. In view of our findings made hereinabove that the copies of the election petitions, which were alleged to have been served upon the Learned counsel for the Respondent No.1 by the Registry of the High Court, could not, at all, be relied on and in view of the admitted fact that the Bailiff of the High Court had subsequently served true copies of the election petitions on the Learned counsel for the Respondent No.1, the High Court committed an error in rejecting the election petitions for non compliance of the provisions of Sections 81(3) and 83(1)(c) of theour view, the question No.1 needs to be decided in favour of the appellants for the reasons mentioned hereinbelow. As noted herein earlier, record shows that the election petitions as well as the question forms and answers were examined by the Registry of the HighW7 was the Examination Form which was duly filled in by the appellants. In this Examination Form Question No.3 was asr copies of the Petition and accompanying papers are also supplied for being made available to the Respondents and, if the sets of these copies are duly attested by the Petitioner under his own signature as truee answer to this question No.3 from the appellants was Yes. In the Examination Form (RW7), the Assistant Registrar at the end made an endorsement on 19th of July, 2002 to the followingpetition is in order. We may direct the petition to be registered as election petition." (Emphasis supplied).In view of our discussion made above and in the absence of any material to show that true copies of the election petitions were also not filed at the presentation of election petitions, we are unable to hold that there was non compliance of Section 81(3) of the Act inasmuch as the copies alleged to have been supplied to the returned candidate were not true copies of the
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The State of Maharashtra & Anr Vs. Bhagwan & Ors | autonomous bodies having some nexus with the Government by itself would not bring them within the sweep of the expression State and each case must be determined on its own merits. Thus, the plea of the employees of NWDA to be treated on a par with their counterparts in the Central Government under sub-rule (6)(iv) of Rule 209 of the General Financial Rules, merely on the basis of funding is not applicable. 17. Even if it is presumed that NWDA is State under Article 12 of the Constitution, the appellants have failed to prove that they are on a par with their counterparts, with whom they claim parity. As held by this Court in UT, Chandigarh v. Krishan Bhandari [(1996) 11 SCC 348] , the claim to equality can be claimed when there is discrimination by the State between two persons who are similarly situated. The said discrimination cannot be invoked in cases where discrimination sought to be shown is between acts of two different authorities functioning as State under Article 12. Thus, the employees of NWDA cannot be said to be Central Government employees as stated in the OM for its applicability. As per the law laid down by this Court in a catena of decisions, the employees of the autonomous bodies cannot claim, as a matter of right, the same service benefits on par with the Government employees. Merely because such autonomous bodies might have adopted the Government Service Rules and/or in the Governing Council there may be a representative of the Government and/or merely because such institution is funded by the State/Central Government, employees of such autonomous bodies cannot, as a matter of right, claim parity with the State/Central Government employees. This is more particularly, when the employees of such autonomous bodies are governed by their own Service Rules and service conditions. The State Government and the Autonomous Board/Body cannot be put on par. 10.3 In the case of Punjab State Cooperative Milk Producers Federation Limited and Anr. Vs. Balbir Kumar Walia and Ors., (2021) 8 SCC 784, in paragraph 32, it is observed as under:- 32. The Central or State Government is empowered to levy taxes to meet out the expenses of the State. It is always a conscious decision of the Government as to how much taxes have to be levied so as to not cause excessive burden on the citizens. But the Boards and Corporations have to depend on either their own resources or seek grant from the Central/ State Government, as the case may be, for their expenditures. Therefore, the grant of benefits of higher pay scale to the Central/State Government employees stand on different footing than grant of pay scale by an instrumentality of the State. 10.4 As per the settled proposition of law, the Court should refrain from interfering with the policy decision, which might have a cascading effect and having financial implications. Whether to grant certain benefits to the employees or not should be left to the expert body and undertakings and the Court cannot interfere lightly. Granting of certain benefits may result in a cascading effect having adverse financial consequences. 10.5 In the present case, WALMI being an autonomous body, registered under the Societies Registration Act, the employees of WALMI are governed by their own Service Rules and conditions, which specifically do not provide for any pensionary benefits; the Governing Council of WALMI has adopted the Maharashtra Civil Services Rules except the Pension Rules. Therefore, as such a conscious policy decision has been taken not to adopt the Pension Rules applicable to the State Government employees; that the State Government has taken such a policy decision in the year 2005 not to extend the pensionary benefits to the employees of the aided institutes, boards, corporations etc.; and the proposal of the then Director of WALMI to extend the pensionary benefits to the employees of WALMI has been specifically turned down by the State Government. Considering the aforesaid facts and circumstances, the High Court is not justified in directing the State to extend the pensionary benefits to the employees of WALMI, which is an independent autonomous entity. 10.6 The observations made by the High court that as the salary and allowances payable to the employees of WALMI are being paid out of the Consolidated Fund of the State and/or that the WALMI is getting grant from the Government are all irrelevant considerations, so far as extending the pensionary benefits to its employees is concerned. WALMI has to run its administration from its own financial resources. WALMI has no financial powers of imposing any tax like a State and/or the Central Government and WALMI has to depend upon the grants to be made by the State Government. 10.7 Now, so far as the observations made by the High Court that the amount available with WALMI and deposited with E.P.F. towards the employees contribution itself is sufficient to meet the financial liability of the pensionary benefits to the employees and, therefore, there is no justification and/or reasonable basis for the State Government to refuse to extend the benefit of pension to the retired employees of WALMI is concerned, it is to be noted that merely because WALMI has a fund with itself, it cannot be a ground to extend the pensionary benefits. Grant of pensionary benefits is not a one-time payment. Grant of pensionary benefits is a recurring monthly expenditure and there is a continuous liability in future towards the pensionary benefits. Therefore, merely because at one point of time, WALMI might have certain funds does not mean that for all times to come, it can bear such burden of paying pension to all its employees. In any case, it is ultimately for the State Government and the Society (WALMI) to take their own policy decision whether to extend the pensionary benefits to its employees or not. The interference by the Judiciary in such a policy decision having financial implications and/or having a cascading effect is not at all warranted and justified. | 1[ds]8. By the impugned common judgment and order, the High Court has directed the State to extend the retirement benefits to the employees of WALMI mainly on the following grounds:-(i) that the primary functions of WALMI are educational, the purpose of establishing the Institute is to impart training to engineers and farmers of Maharashtra State and to provide expert advice to the Water Resources Department, Government of Maharashtra relating irrigation management;(ii) that the Institute receives 100% grant from the Government since 1993;(iii) that the posts created on the establishment are computed amongst the sanctioned posts of the Water Resources Department; the control in respect of the management and the governance rest with high-ranking officers, i.e., Secretaries of the Government Department;(iv) the Regulations applicable to the Government employees relating to disciplinary matters as well as withdrawal of allowances like medical allowance, leave travel allowance, regulations relating to grant of leave so also regulations relating to disciplinary matters are uniform as in case of Government employees;(v) the Maharashtra Civil Services Rules are applicable to the Government employees;(vi) that the employees of WALMI have been extended the benefit of time bound promotional scale as in case of Government employees;(vii) that the employees of WALMI have also received the benefit of wage, pay scale revision made applicable to the Government employees;(viii) that for all practicable purposes, the employees of WALMI are treated on par with the Government employees; the salary and allowances payable to the employees of WALMI are being paid out of the Consolidated Fund of the State; and(ix) the amount available with WALMI and deposited with E.P.F. towards the employees contribution itself is sufficient to meet the financial liability of the pensionary benefits to employees.8.1 On the aforesaid grounds, the High Court has ultimately observed and held that there does not appear to be any reasonable basis for the State to refuse to extend the benefit of pension to the retired employees of WALMI.9. Having heard the learned counsel appearing for the respective parties, we are of the opinion that none of the aforesaid grounds justify extension of the pensionary benefits to the employees of WALMI.9.2 It is required to be noted that as such the Government vide G.R. dated 08.11.2005 specifically took a policy decision that the employees of aided institutes, boards, corporations, who are not governed by Maharashtra Civil Services (Pension) Rules, 1982, shall not be made applicable to such institutions. Even the proposal made by the then Director of WALMI to extend the pensionary benefits to the employees of WALMI came to be rejected by the State Government. Neither the G.R. dated 08.11.2005 nor the decision of the State Government refusing to extend the pensionary benefits to the employees of WALMI are challenged.10.2 In the case of T.M. Sampath and Ors. Vs. Secretary, Ministry of Water Resources and Ors. (supra), the employees of National Water Development Agency (NWDA), an autonomous body under the aegis and control of Ministry of Water Resources claimed the pensionary benefits on par with the Central Government employees. Refusing to allow such pensionary benefits to the employees of NWDA on par with the Central Government employees, in paragraphs 16 and 17, it was observed and held as under:-16. On the issue of parity between the employees of NWDA and Central Government employees, even if it is assumed that the 1982 Rules did not exist or were not applicable on the date of the OM i.e. 1-5-1987, the relevant date of parity, the principle of parity cannot be applicable to the employees of NWDA. NWDA cannot be treated as an instrumentality of the State under Article 12 of the Constitution merely on the basis that its funds are granted by the Central Government. In Zee Telefilms Ltd. v. Union of India [(2005) 4 SCC 649] , it was held by this Court that the autonomous bodies having some nexus with the Government by itself would not bring them within the sweep of the expression State and each case must be determined on its own merits. Thus, the plea of the employees of NWDA to be treated on a par with their counterparts in the Central Government under sub-rule (6)(iv) of Rule 209 of the General Financial Rules, merely on the basis of funding is not applicable.17. Even if it is presumed that NWDA is State under Article 12 of the Constitution, the appellants have failed to prove that they are on a par with their counterparts, with whom they claim parity. As held by this Court in UT, Chandigarh v. Krishan Bhandari [(1996) 11 SCC 348] , the claim to equality can be claimed when there is discrimination by the State between two persons who are similarly situated. The said discrimination cannot be invoked in cases where discrimination sought to be shown is between acts of two different authorities functioning as State under Article 12. Thus, the employees of NWDA cannot be said to be Central Government employees as stated in the OM for its applicability.As per the law laid down by this Court in a catena of decisions, the employees of the autonomous bodies cannot claim, as a matter of right, the same service benefits on par with the Government employees. Merely because such autonomous bodies might have adopted the Government Service Rules and/or in the Governing Council there may be a representative of the Government and/or merely because such institution is funded by the State/Central Government, employees of such autonomous bodies cannot, as a matter of right, claim parity with the State/Central Government employees. This is more particularly, when the employees of such autonomous bodies are governed by their own Service Rules and service conditions. The State Government and the Autonomous Board/Body cannot be put on par.10.4 As per the settled proposition of law, the Court should refrain from interfering with the policy decision, which might have a cascading effect and having financial implications. Whether to grant certain benefits to the employees or not should be left to the expert body and undertakings and the Court cannot interfere lightly. Granting of certain benefits may result in a cascading effect having adverse financial consequences.10.5 In the present case, WALMI being an autonomous body, registered under the Societies Registration Act, the employees of WALMI are governed by their own Service Rules and conditions, which specifically do not provide for any pensionary benefits; the Governing Council of WALMI has adopted the Maharashtra Civil Services Rules except the Pension Rules. Therefore, as such a conscious policy decision has been taken not to adopt the Pension Rules applicable to the State Government employees; that the State Government has taken such a policy decision in the year 2005 not to extend the pensionary benefits to the employees of the aided institutes, boards, corporations etc.; and the proposal of the then Director of WALMI to extend the pensionary benefits to the employees of WALMI has been specifically turned down by the State Government. Considering the aforesaid facts and circumstances, the High Court is not justified in directing the State to extend the pensionary benefits to the employees of WALMI, which is an independent autonomous entity.10.6 The observations made by the High court that as the salary and allowances payable to the employees of WALMI are being paid out of the Consolidated Fund of the State and/or that the WALMI is getting grant from the Government are all irrelevant considerations, so far as extending the pensionary benefits to its employees is concerned. WALMI has to run its administration from its own financial resources. WALMI has no financial powers of imposing any tax like a State and/or the Central Government and WALMI has to depend upon the grants to be made by the State Government.10.7 Now, so far as the observations made by the High Court that the amount available with WALMI and deposited with E.P.F. towards the employees contribution itself is sufficient to meet the financial liability of the pensionary benefits to the employees and, therefore, there is no justification and/or reasonable basis for the State Government to refuse to extend the benefit of pension to the retired employees of WALMI is concerned, it is to be noted that merely because WALMI has a fund with itself, it cannot be a ground to extend the pensionary benefits. Grant of pensionary benefits is not a one-time payment. Grant of pensionary benefits is a recurring monthly expenditure and there is a continuous liability in future towards the pensionary benefits. Therefore, merely because at one point of time, WALMI might have certain funds does not mean that for all times to come, it can bear such burden of paying pension to all its employees. In any case, it is ultimately for the State Government and the Society (WALMI) to take their own policy decision whether to extend the pensionary benefits to its employees or not. The interference by the Judiciary in such a policy decision having financial implications and/or having a cascading effect is not at all warranted and justified. | 1 | 5,476 | 1,669 | ### 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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autonomous bodies having some nexus with the Government by itself would not bring them within the sweep of the expression State and each case must be determined on its own merits. Thus, the plea of the employees of NWDA to be treated on a par with their counterparts in the Central Government under sub-rule (6)(iv) of Rule 209 of the General Financial Rules, merely on the basis of funding is not applicable. 17. Even if it is presumed that NWDA is State under Article 12 of the Constitution, the appellants have failed to prove that they are on a par with their counterparts, with whom they claim parity. As held by this Court in UT, Chandigarh v. Krishan Bhandari [(1996) 11 SCC 348] , the claim to equality can be claimed when there is discrimination by the State between two persons who are similarly situated. The said discrimination cannot be invoked in cases where discrimination sought to be shown is between acts of two different authorities functioning as State under Article 12. Thus, the employees of NWDA cannot be said to be Central Government employees as stated in the OM for its applicability. As per the law laid down by this Court in a catena of decisions, the employees of the autonomous bodies cannot claim, as a matter of right, the same service benefits on par with the Government employees. Merely because such autonomous bodies might have adopted the Government Service Rules and/or in the Governing Council there may be a representative of the Government and/or merely because such institution is funded by the State/Central Government, employees of such autonomous bodies cannot, as a matter of right, claim parity with the State/Central Government employees. This is more particularly, when the employees of such autonomous bodies are governed by their own Service Rules and service conditions. The State Government and the Autonomous Board/Body cannot be put on par. 10.3 In the case of Punjab State Cooperative Milk Producers Federation Limited and Anr. Vs. Balbir Kumar Walia and Ors., (2021) 8 SCC 784, in paragraph 32, it is observed as under:- 32. The Central or State Government is empowered to levy taxes to meet out the expenses of the State. It is always a conscious decision of the Government as to how much taxes have to be levied so as to not cause excessive burden on the citizens. But the Boards and Corporations have to depend on either their own resources or seek grant from the Central/ State Government, as the case may be, for their expenditures. Therefore, the grant of benefits of higher pay scale to the Central/State Government employees stand on different footing than grant of pay scale by an instrumentality of the State. 10.4 As per the settled proposition of law, the Court should refrain from interfering with the policy decision, which might have a cascading effect and having financial implications. Whether to grant certain benefits to the employees or not should be left to the expert body and undertakings and the Court cannot interfere lightly. Granting of certain benefits may result in a cascading effect having adverse financial consequences. 10.5 In the present case, WALMI being an autonomous body, registered under the Societies Registration Act, the employees of WALMI are governed by their own Service Rules and conditions, which specifically do not provide for any pensionary benefits; the Governing Council of WALMI has adopted the Maharashtra Civil Services Rules except the Pension Rules. Therefore, as such a conscious policy decision has been taken not to adopt the Pension Rules applicable to the State Government employees; that the State Government has taken such a policy decision in the year 2005 not to extend the pensionary benefits to the employees of the aided institutes, boards, corporations etc.; and the proposal of the then Director of WALMI to extend the pensionary benefits to the employees of WALMI has been specifically turned down by the State Government. Considering the aforesaid facts and circumstances, the High Court is not justified in directing the State to extend the pensionary benefits to the employees of WALMI, which is an independent autonomous entity. 10.6 The observations made by the High court that as the salary and allowances payable to the employees of WALMI are being paid out of the Consolidated Fund of the State and/or that the WALMI is getting grant from the Government are all irrelevant considerations, so far as extending the pensionary benefits to its employees is concerned. WALMI has to run its administration from its own financial resources. WALMI has no financial powers of imposing any tax like a State and/or the Central Government and WALMI has to depend upon the grants to be made by the State Government. 10.7 Now, so far as the observations made by the High Court that the amount available with WALMI and deposited with E.P.F. towards the employees contribution itself is sufficient to meet the financial liability of the pensionary benefits to the employees and, therefore, there is no justification and/or reasonable basis for the State Government to refuse to extend the benefit of pension to the retired employees of WALMI is concerned, it is to be noted that merely because WALMI has a fund with itself, it cannot be a ground to extend the pensionary benefits. Grant of pensionary benefits is not a one-time payment. Grant of pensionary benefits is a recurring monthly expenditure and there is a continuous liability in future towards the pensionary benefits. Therefore, merely because at one point of time, WALMI might have certain funds does not mean that for all times to come, it can bear such burden of paying pension to all its employees. In any case, it is ultimately for the State Government and the Society (WALMI) to take their own policy decision whether to extend the pensionary benefits to its employees or not. The interference by the Judiciary in such a policy decision having financial implications and/or having a cascading effect is not at all warranted and justified.
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benefits on par with the Central Government employees. Refusing to allow such pensionary benefits to the employees of NWDA on par with the Central Government employees, in paragraphs 16 and 17, it was observed and held as under:-16. On the issue of parity between the employees of NWDA and Central Government employees, even if it is assumed that the 1982 Rules did not exist or were not applicable on the date of the OM i.e. 1-5-1987, the relevant date of parity, the principle of parity cannot be applicable to the employees of NWDA. NWDA cannot be treated as an instrumentality of the State under Article 12 of the Constitution merely on the basis that its funds are granted by the Central Government. In Zee Telefilms Ltd. v. Union of India [(2005) 4 SCC 649] , it was held by this Court that the autonomous bodies having some nexus with the Government by itself would not bring them within the sweep of the expression State and each case must be determined on its own merits. Thus, the plea of the employees of NWDA to be treated on a par with their counterparts in the Central Government under sub-rule (6)(iv) of Rule 209 of the General Financial Rules, merely on the basis of funding is not applicable.17. Even if it is presumed that NWDA is State under Article 12 of the Constitution, the appellants have failed to prove that they are on a par with their counterparts, with whom they claim parity. As held by this Court in UT, Chandigarh v. Krishan Bhandari [(1996) 11 SCC 348] , the claim to equality can be claimed when there is discrimination by the State between two persons who are similarly situated. The said discrimination cannot be invoked in cases where discrimination sought to be shown is between acts of two different authorities functioning as State under Article 12. Thus, the employees of NWDA cannot be said to be Central Government employees as stated in the OM for its applicability.As per the law laid down by this Court in a catena of decisions, the employees of the autonomous bodies cannot claim, as a matter of right, the same service benefits on par with the Government employees. Merely because such autonomous bodies might have adopted the Government Service Rules and/or in the Governing Council there may be a representative of the Government and/or merely because such institution is funded by the State/Central Government, employees of such autonomous bodies cannot, as a matter of right, claim parity with the State/Central Government employees. This is more particularly, when the employees of such autonomous bodies are governed by their own Service Rules and service conditions. The State Government and the Autonomous Board/Body cannot be put on par.10.4 As per the settled proposition of law, the Court should refrain from interfering with the policy decision, which might have a cascading effect and having financial implications. Whether to grant certain benefits to the employees or not should be left to the expert body and undertakings and the Court cannot interfere lightly. Granting of certain benefits may result in a cascading effect having adverse financial consequences.10.5 In the present case, WALMI being an autonomous body, registered under the Societies Registration Act, the employees of WALMI are governed by their own Service Rules and conditions, which specifically do not provide for any pensionary benefits; the Governing Council of WALMI has adopted the Maharashtra Civil Services Rules except the Pension Rules. Therefore, as such a conscious policy decision has been taken not to adopt the Pension Rules applicable to the State Government employees; that the State Government has taken such a policy decision in the year 2005 not to extend the pensionary benefits to the employees of the aided institutes, boards, corporations etc.; and the proposal of the then Director of WALMI to extend the pensionary benefits to the employees of WALMI has been specifically turned down by the State Government. Considering the aforesaid facts and circumstances, the High Court is not justified in directing the State to extend the pensionary benefits to the employees of WALMI, which is an independent autonomous entity.10.6 The observations made by the High court that as the salary and allowances payable to the employees of WALMI are being paid out of the Consolidated Fund of the State and/or that the WALMI is getting grant from the Government are all irrelevant considerations, so far as extending the pensionary benefits to its employees is concerned. WALMI has to run its administration from its own financial resources. WALMI has no financial powers of imposing any tax like a State and/or the Central Government and WALMI has to depend upon the grants to be made by the State Government.10.7 Now, so far as the observations made by the High Court that the amount available with WALMI and deposited with E.P.F. towards the employees contribution itself is sufficient to meet the financial liability of the pensionary benefits to the employees and, therefore, there is no justification and/or reasonable basis for the State Government to refuse to extend the benefit of pension to the retired employees of WALMI is concerned, it is to be noted that merely because WALMI has a fund with itself, it cannot be a ground to extend the pensionary benefits. Grant of pensionary benefits is not a one-time payment. Grant of pensionary benefits is a recurring monthly expenditure and there is a continuous liability in future towards the pensionary benefits. Therefore, merely because at one point of time, WALMI might have certain funds does not mean that for all times to come, it can bear such burden of paying pension to all its employees. In any case, it is ultimately for the State Government and the Society (WALMI) to take their own policy decision whether to extend the pensionary benefits to its employees or not. The interference by the Judiciary in such a policy decision having financial implications and/or having a cascading effect is not at all warranted and justified.
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Tata Iron & Steel Company, Limited Vs. State of Bihar | of sale. He relies on the observations of Chief Justice Gwyer in 1942 FCR 90: (AIR 1942 FC 33) (b), atp. 102 of FCR): (at p. 35 of AIR), namely, that "a sale had no necessary connection with manufacture or production." That observation was made by the learned Chief Justice in order to emphasise the fact that the tax levied on the first sale by the manufacturer or producer was a tax imposed on him qua seller and not qua manufacturer or producer. The question whether the fact of production or manufacture of goods may legitimately form a nexus between the transaction of sale and the taxing State was not in issue in that case at all. It is unnecessary in this case to lay down any hard and fast test as to the sufficiency of nexus which will enable a State to impose a tax or to enumerate the instances of such connection.For the purpose of the present case it is sufficient to state that in a sale of goods the goods must of necessity play an important part, for it is the goods in which, as a result of the sale, the property will pass. In our view the presence of the goods at the date of the agreement for sale in the taxing State or the production or manufacture in that State of goods the property wherein eventually passed as a result of the sale wherever that might have taken place, constituted a sufficient nexus between the taxing State and the sale. In the first case the goods are actually within the State at the date of the agreement for sale and the property in those goods will generally pass within the State when they are ascertained by appropriation by the seller with the assent of the purchaser and delivered to the purchaser or his agent. Even if the property in those goods passes outside the State the ultimate sale relates to those very goods. In the second case the goods, wherein the title passes eventually outside the State, are produced or manufactured in Bihar and the sale wherever that takes place is by the same person who produced or manufactured in Bihar and the sale wherever that takes place is by the same person who produced or manufactured the same in Bihar. The producer or manufacturer gets his sale price in respect of goods which were in Bihar at the date when the important event of agreement for sale was made or which were produced or manufactured in Bihar. These are relevant facts on which the State could well fasten its tax.If the facts in 1944 FCR 229: (AIR 1944 FC 51) (H), were sufficient nexus there is no reason why the facts mentioned in the proviso should not also be sufficient. Whatever else may or may not constitute a sufficient nexus, we are of opinion that the two cases with which we are concerned in this case are sufficient to do so.17. Re. point No. 5: The argument on this point is that sales tax is an indirect tax on the consumer. The idea is that the seller will pass it on to his purchaser and collect it from them. If that is the nature of the sales tax, then, urges the learned Attorney General, it cannot be imposed retrospectively after the sale transaction has been concluded by the passing of title from the seller to the buyer, for it cannot, at that stage, be passed on to the purchaser. According to him the seller collects the sales tax from the purchaser on the occasion of the sale. Once that time goes past, the seller loses the chance of realising it from the purchaser and if it cannot be realised from the purchaser, it cannot be called sales tax. In our judgment this argument is not sound.From the point of view of the economist and as an economic theory, sales tax may be an indirect tax on the consumers, but legally it need not be so. Under the 1947 Act the primary liability to pay the sales tax, so far as the State is concerned, is on the seller. Indeed before the amendment of the 1947 Act by the amending Act the sellers had no authority to collect the sales tax as such from the purchaser. The seller could undoubtedly have put up the price so as to include the sales tax, which he would have to pay but he could not realise any sales tax as such from the purchaser. That circumstance could not prevent the sales tax imposed on the seller to be any the less sales tax on the sale of goods. The circumstance that the 1947 Act, 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 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 Love v. Norman Wright (Builders) Ltd., 1944-1 KB 484 (N). If that be the true view of sales tax then the Bihar Legislature acting within its own legislature and could make its law prospectively as well as retrospectively.We do not think that there is any substance in this contention either. | 0[ds]For our present purpose no exception need be taken to the proposition thus formulated and indeed in, 1955-1 SCR 243 : (AIR 1954 SC 459 ) (A), this Court struck down that part of the definition of "sale" in S. 2(h) of the Uttar Pradesh Sales Tax act, 1948 which enlarged the definition of "sale" so as to include "forward contracts." But is the position the same here? We think not.It will be noticed that S. 4(1) imposed on the dealer the liability to pay a tax on "sale" as defined in S. 2(g). Both before and after the amendment of S. 2(g) the principal part of the definition meant the transfer of the property in goods. All that the second proviso did was not to extend the definition of "sale", but only to locate the "sale" in certain circumstances mentioned in that proviso in Bihar. The basis of liability under S. 4(1) remained as before, namely, to pay tax on "sale". The fact of the goods being in Bihar at the time of the contract of sale or the production or manufacture of goods in Bihar did not by itself constitute a "sale" and did not by itself attract the tax. The taxable event still remained the "sale" resulting in the transfer of ownership in the thing sold from the seller to the buyer. No tax liability actually accrued until there was a concluded sale in the sense of transfer of title. It was only when the property passed and the "sale" took place that the liability for paying sales tax under the 1947 Act arose. There was no enlargement of the meaning of "sale" but the proviso only raised a fiction on the strength of the facts mentioned therein and deemed the "sales" to have taken place in Bihar. Those facts did not by themselves constitute a "sale" but those facts were used for locating the situs of the sale in Bihar. It follows, therefore, that the provisions of S. 4 (1) read with S. 2(g), second proviso, were well within the legislative competency of the Legislature of the Province ofargument, however, overlooks the fact that under Cl. (ii) the producer or manufacturer became liable to pay the tax not because he produced or manufactured the goods, but because he sold the goods. In other words the tax was laid on the produced or manufacturer only qua seller and not qua manufacturer or producer, as pointed out in 1942 FCR 90 : (AIR 1942 FC 33) (B).In the words of their Lordships of the Judicial Committee in Governor-General in Council v. Province of Madras, 72 Ind App 91 at p. 103 : (AIR 1945 PC 98 at p. 101) (D),"a duty of excise is primarily a duty levied on a manufacturer or producer introspect of the commodity manufactured or produced. It is a tax on goods and not on sales or the proceeds of sale of goods." If the goods produced or manufactured in Bihar were destroyed by fire before sale the manufacturer or producer would not have been liable to pay any tax under S. 4 (1) read with S. 2 (g), second proviso.As Gwyer, C. J., said in 1942 FCR 90: (AIR 1942 FC 33) (B) at p. 102 (of FCR : (at p. 35 of AIR) the manufacturer or producer would be "liable, if at all, to a sales tax because he sells and not because he manufactures or produces; and he would be free from liability if he chose to give away everything which came from his factory." In our judgment both lines of the argument advanced by the learned Attorney General in support of points 1 and 4 are untenable and cannot bepassage, properly understood, can hardly be said to indicate that the theory of nexus does not apply to sales tax legislation at all. The drift of the meaning of the passage was that the sufficiency of the different nexi relied on by the different States had not been tested by thefrom the fact that the concluding words in the passage quoted above may be read as indicating that the observations were obiter, it appears to us to be too late in the day to contend that the theory of nexus does not apply to sales tax legislation at all. Indeed an examination of the decisions of this Court will clearly show that the applicability of the theory of nexus to sales tax legislation has been clearly recognised by thisis not necessary for us on this occasion to lay down any broad proposition as to whether the theory of nexus, as a principle of legislation, is applicable to all kinds of legislation.It will be enough, for disposing of the point under consideration, to say that this Court has found no apparent reason to confine its application to income-tax legislation but has extended it to sales tax and to tax on gambling and that we see no cogent reason why the nexus theory should not be applied to sales taxargument overlooks the fact that the provisions of the sales tax legislation we are considering limit its charging section to "sale". In order to attract the charging section there must be a completed sale involving the transfer of property in the goods sold from the seller to the buyer. The nexus theory does not impost the tax. It only indicates the circumstance in which a tax imposed by an act of the Legislature may be enforced in a particular case and unless eventually there is a concluded sale in the sense of passing of the property in the goods no tax liability attaches under the Act. One or more of the several ingredients constituting a sale only furnished the connection between the taxing State and theis no force in this argument, for Art. 286 (2) of the Constitution, as it stood originally, was a complete safeguard against such eventuality and after the amendment of that Article and the relevant entries in the Legislative List such contingency will not arise. In our opinion the arguments advanced by the learned Attorney General on this point cannot bethe purpose of the present case it is sufficient to state that in a sale of goods the goods must of necessity play an important part, for it is the goods in which, as a result of the sale, the property will pass. In our view the presence of the goods at the date of the agreement for sale in the taxing State or the production or manufacture in that State of goods the property wherein eventually passed as a result of the sale wherever that might have taken place, constituted a sufficient nexus between the taxing State and the sale. In the first case the goods are actually within the State at the date of the agreement for sale and the property in those goods will generally pass within the State when they are ascertained by appropriation by the seller with the assent of the purchaser and delivered to the purchaser or his agent. Even if the property in those goods passes outside the State the ultimate sale relates to those very goods. In the second case the goods, wherein the title passes eventually outside the State, are produced or manufactured in Bihar and the sale wherever that takes place is by the same person who produced or manufactured in Bihar and the sale wherever that takes place is by the same person who produced or manufactured the same in Bihar. The producer or manufacturer gets his sale price in respect of goods which were in Bihar at the date when the important event of agreement for sale was made or which were produced or manufactured in Bihar. These are relevant facts on which the State could well fasten its tax.If the facts in 1944 FCR 229: (AIR 1944 FC 51) (H), were sufficient nexus there is no reason why the facts mentioned in the proviso should not also be sufficient. Whatever else may or may not constitute a sufficient nexus, we are of opinion that the two cases with which we are concerned in this case are sufficient to doour judgment this argument is not sound.From the point of view of the economist and as an economic theory, sales tax may be an indirect tax on the consumers, but legally it need not be so. Under the 1947 Act the primary liability to pay the sales tax, so far as the State is concerned, is on the seller. Indeed before the amendment of the 1947 Act by the amending Act the sellers had no authority to collect the sales tax as such from the purchaser. The seller could undoubtedly have put up the price so as to include the sales tax, which he would have to pay but he could not realise any sales tax as such from the purchaser. That circumstance could not prevent the sales tax imposed on the seller to be any the less sales tax on the sale of goods. The circumstance that the 1947 Act, 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 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 Love v. Norman Wright (Builders) Ltd., 1944-1 KB 484 (N). If that be the true view of sales tax then the Bihar Legislature acting within its own legislature and could make its law prospectively as well as retrospectively.We do not think that there is any substance in this contention either. | 0 | 8,850 | 1,917 | ### Instruction:
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of sale. He relies on the observations of Chief Justice Gwyer in 1942 FCR 90: (AIR 1942 FC 33) (b), atp. 102 of FCR): (at p. 35 of AIR), namely, that "a sale had no necessary connection with manufacture or production." That observation was made by the learned Chief Justice in order to emphasise the fact that the tax levied on the first sale by the manufacturer or producer was a tax imposed on him qua seller and not qua manufacturer or producer. The question whether the fact of production or manufacture of goods may legitimately form a nexus between the transaction of sale and the taxing State was not in issue in that case at all. It is unnecessary in this case to lay down any hard and fast test as to the sufficiency of nexus which will enable a State to impose a tax or to enumerate the instances of such connection.For the purpose of the present case it is sufficient to state that in a sale of goods the goods must of necessity play an important part, for it is the goods in which, as a result of the sale, the property will pass. In our view the presence of the goods at the date of the agreement for sale in the taxing State or the production or manufacture in that State of goods the property wherein eventually passed as a result of the sale wherever that might have taken place, constituted a sufficient nexus between the taxing State and the sale. In the first case the goods are actually within the State at the date of the agreement for sale and the property in those goods will generally pass within the State when they are ascertained by appropriation by the seller with the assent of the purchaser and delivered to the purchaser or his agent. Even if the property in those goods passes outside the State the ultimate sale relates to those very goods. In the second case the goods, wherein the title passes eventually outside the State, are produced or manufactured in Bihar and the sale wherever that takes place is by the same person who produced or manufactured in Bihar and the sale wherever that takes place is by the same person who produced or manufactured the same in Bihar. The producer or manufacturer gets his sale price in respect of goods which were in Bihar at the date when the important event of agreement for sale was made or which were produced or manufactured in Bihar. These are relevant facts on which the State could well fasten its tax.If the facts in 1944 FCR 229: (AIR 1944 FC 51) (H), were sufficient nexus there is no reason why the facts mentioned in the proviso should not also be sufficient. Whatever else may or may not constitute a sufficient nexus, we are of opinion that the two cases with which we are concerned in this case are sufficient to do so.17. Re. point No. 5: The argument on this point is that sales tax is an indirect tax on the consumer. The idea is that the seller will pass it on to his purchaser and collect it from them. If that is the nature of the sales tax, then, urges the learned Attorney General, it cannot be imposed retrospectively after the sale transaction has been concluded by the passing of title from the seller to the buyer, for it cannot, at that stage, be passed on to the purchaser. According to him the seller collects the sales tax from the purchaser on the occasion of the sale. Once that time goes past, the seller loses the chance of realising it from the purchaser and if it cannot be realised from the purchaser, it cannot be called sales tax. In our judgment this argument is not sound.From the point of view of the economist and as an economic theory, sales tax may be an indirect tax on the consumers, but legally it need not be so. Under the 1947 Act the primary liability to pay the sales tax, so far as the State is concerned, is on the seller. Indeed before the amendment of the 1947 Act by the amending Act the sellers had no authority to collect the sales tax as such from the purchaser. The seller could undoubtedly have put up the price so as to include the sales tax, which he would have to pay but he could not realise any sales tax as such from the purchaser. That circumstance could not prevent the sales tax imposed on the seller to be any the less sales tax on the sale of goods. The circumstance that the 1947 Act, 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 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 Love v. Norman Wright (Builders) Ltd., 1944-1 KB 484 (N). If that be the true view of sales tax then the Bihar Legislature acting within its own legislature and could make its law prospectively as well as retrospectively.We do not think that there is any substance in this contention either.
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Court will clearly show that the applicability of the theory of nexus to sales tax legislation has been clearly recognised by thisis not necessary for us on this occasion to lay down any broad proposition as to whether the theory of nexus, as a principle of legislation, is applicable to all kinds of legislation.It will be enough, for disposing of the point under consideration, to say that this Court has found no apparent reason to confine its application to income-tax legislation but has extended it to sales tax and to tax on gambling and that we see no cogent reason why the nexus theory should not be applied to sales taxargument overlooks the fact that the provisions of the sales tax legislation we are considering limit its charging section to "sale". In order to attract the charging section there must be a completed sale involving the transfer of property in the goods sold from the seller to the buyer. The nexus theory does not impost the tax. It only indicates the circumstance in which a tax imposed by an act of the Legislature may be enforced in a particular case and unless eventually there is a concluded sale in the sense of passing of the property in the goods no tax liability attaches under the Act. One or more of the several ingredients constituting a sale only furnished the connection between the taxing State and theis no force in this argument, for Art. 286 (2) of the Constitution, as it stood originally, was a complete safeguard against such eventuality and after the amendment of that Article and the relevant entries in the Legislative List such contingency will not arise. In our opinion the arguments advanced by the learned Attorney General on this point cannot bethe purpose of the present case it is sufficient to state that in a sale of goods the goods must of necessity play an important part, for it is the goods in which, as a result of the sale, the property will pass. In our view the presence of the goods at the date of the agreement for sale in the taxing State or the production or manufacture in that State of goods the property wherein eventually passed as a result of the sale wherever that might have taken place, constituted a sufficient nexus between the taxing State and the sale. In the first case the goods are actually within the State at the date of the agreement for sale and the property in those goods will generally pass within the State when they are ascertained by appropriation by the seller with the assent of the purchaser and delivered to the purchaser or his agent. Even if the property in those goods passes outside the State the ultimate sale relates to those very goods. In the second case the goods, wherein the title passes eventually outside the State, are produced or manufactured in Bihar and the sale wherever that takes place is by the same person who produced or manufactured in Bihar and the sale wherever that takes place is by the same person who produced or manufactured the same in Bihar. The producer or manufacturer gets his sale price in respect of goods which were in Bihar at the date when the important event of agreement for sale was made or which were produced or manufactured in Bihar. These are relevant facts on which the State could well fasten its tax.If the facts in 1944 FCR 229: (AIR 1944 FC 51) (H), were sufficient nexus there is no reason why the facts mentioned in the proviso should not also be sufficient. Whatever else may or may not constitute a sufficient nexus, we are of opinion that the two cases with which we are concerned in this case are sufficient to doour judgment this argument is not sound.From the point of view of the economist and as an economic theory, sales tax may be an indirect tax on the consumers, but legally it need not be so. Under the 1947 Act the primary liability to pay the sales tax, so far as the State is concerned, is on the seller. Indeed before the amendment of the 1947 Act by the amending Act the sellers had no authority to collect the sales tax as such from the purchaser. The seller could undoubtedly have put up the price so as to include the sales tax, which he would have to pay but he could not realise any sales tax as such from the purchaser. That circumstance could not prevent the sales tax imposed on the seller to be any the less sales tax on the sale of goods. The circumstance that the 1947 Act, 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 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 Love v. Norman Wright (Builders) Ltd., 1944-1 KB 484 (N). If that be the true view of sales tax then the Bihar Legislature acting within its own legislature and could make its law prospectively as well as retrospectively.We do not think that there is any substance in this contention either.
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Commissioner of Income Tax, West Bengal II, Calcutta Vs. M/s. Birla Gwalior Private Limited | on the sale of cloth and yarn for the two years. The total amounts, including the office allowance which the assessee was entitled to receive were Rs. 50,719 and Rs. 13,963 for the two years. Under clause 2 (e) of the managing agency agreement the commission was due to the assessee on December 31, 1954 and December 31, 1955, respectively, and it was payable immediately after the annual accounts of the managed company was passed in general meetings, which were held on November 24, 1955, and July 21, 1956, respectively. By resolutions of its board of directors dated, respectively April 4, 1955, and June 19, 1956 (i.e., after the commission had become due but before it had become payable in terms of clause 2 (2) ), the assessee relinquished its commission on sales and office allowance because the managed company had been suffering heavy losses in the past years. The Tribunal held that the relinquishment by the assessee of its remuneration after it had become due was of no effect; and also rejected its claim that the amounts relinquished were allowable under Section 10 (2) (xv) of the Income-tax Act, 1922, because, as a result of the relinquishment, the financial position of the managed company did not become stronger while that of the assessee company became weaker and, therefore, the relinquishment was not for the benefit of the assessee. On a reference the High Court agreed with the view taken by the Tribunal. On appeal this court affirmed the decision of the High Court. 10. As seen from the facts of that case the commission given up had accrued on the 31st December, 1954 and 31st December, 1955, respectively, and the assessee purported to give up that commission several months thereafter. Further, the Tribunal in that case had come to the conclusion that the assessee did not give up the amounts in question for commercial expediency. This court came to the conclusion that the amounts in question were due on the 31st December, 1955 and 1956, though payable at a later date. Consequently those amounts had accrued long before they were given up and the giving up of the same did not come within the scope of Section 10 (1). It is true that in the course of the judgment emphasis was also placed on the fact that the assessee was maintaining its accounts on the basis of mercantile system, but it was not on that basis alone that this court came to the conclusion that the income in question accrued on 31st December, 1955 and 31st December, 1956. In arriving at the conclusion that the income in question accrued on the 31st December, 1955 and 31st December, 1956, this court primarily took into consideration the terms of the agreement. In the course of the judgment delivered by one of us, Khanna, J., a passage from the judgment of this court in Commr. of Income Tax Bombay City I v. Shoorji Vallabhdas and Co. (1962) 46 ITR 144 (SC) was quoted in support of the conclusion reached by this court. That passage reads thus:"Income-tax is a levy on income. Though the Income-tax Act takes into account two points of time at which the liability to tax is attracted, viz, the accrual of the income or its receipt, yet the substance of the matter is the income. If income does not result at all, there cannot be a tax, even though in book-keeping an entry is made about a hypothetical income, which does not materialist. Where income has, in fact, been received and is subsequently given up in such circumstances that it remains the income of the recipient, even though given up, the tax may be payable. Where, however, the income can be said not to have resulted at all, there is obvious1y neither accrual nor receipt of income, even though an entry to that effect might, in certain circumstances, have been made in the books of account." (emphasis supplied).Hence it is clear that this court in Morvi Industries case, 82 ITR 835 = (AIR 1971 SC 2396 ) did emphasise the fact that the real question for decision was whether the income had really accrued or not.It is not a hypothetical accrual of income that has got to be taken into consideration but the real accrual of the income. 11. In addition to the contentions taken earlier, Mr. Desai also took objection to the way in which the High Court disposed of these cases. It may be noted that the High Court came to the conclusion that the findings reached by the Tribunal were findings of fact and, therefore, it would not be proper for the High Court to interfere with the same but strangely enough, at an earlier stage the High Court called for the questions referred to earlier, under Section 66 (2). If the questions raised are concluded by the facts found by the Tribunal the High Court was not justified in calling for these questions. Further when the High Court issued the rule on the applications made by the Revenue, the assessee not only objected to the prayer made by the Revenue, but also submitted that in case the court was pleased to direct the Tribunal to state a case, it may also be pleased to direct the Tribunal to submit the question "whether the commission given up can be considered as real income coming within the scope of Section 10 (1)?" But, the High Court rejected the prayer but merely called upon the Tribunal to submit the questions set out earlier. The High Court has now come to the conclusion that the commission given up by the assessee cannot be considered as its real income It is undoubtedly true that there are certain incongruities in the procedure adopted by the High Court but the final conclusion reached by the High Court is, in our opinion, correct in law. Therefore, the High Court was justified in refusing to answer the first question in all the three cases. | 0[ds]According to the finding of the Tribunal the assessee company gave up the office allowance on the ground of commercial expediency. It opined that the managed companys financial position was not sound during the relevant accounting years and it was necessary for the assessee company to give up the office allowance in order to stabilise the finances of the managed company. The Tribunal further came to the conclusion that because of the sacrifices made by the assessee company, the finances of the managed company improved subsequently, as a result of which the assessee company was able to earn more profits in the late years. This is a finding of fact. That finding was binding on the High Court. On the basis of that finding the Tribunal was fully justified in coming to the conclusion that the expenditure incurred came within the scope of Section 10 (2) (xv). That conclusion is supported by the decision of this court in Chandulals case, 38 ITR 601 =(AIR 1960 SC 738 ) (supra)We do not know whether the office allowance was paid solely for that purpose or whether it was partly as remuneration and parly to meet the expenditure incurred. In either case it makes no difference in law. The ratio of the decision of this court in Chandulals case completely covers the point under considerationWe are unable to accept this contention as correct. As mentioned earlier no due date was fixed for the payment of the commission under the managing agency agreements. The commission receivable could have been ascertained only after the managed company made up its accounts. The assessee had given up the commission even before the managed company made up its accounts. Hence the mere fact that the assessee company was maintaining its accounts on the basis of mercantile system cannot lead to the conclusion that the commission had accrued to it by the end of the relevant accounting yearHence it is clear that this court in Morvi Industries case, 82 ITR 835 = (AIR 1971 SC 2396 ) did emphasise the fact that the real question for decision was whether the income had really accrued or not.It is not a hypothetical accrual of income that has got to be taken into consideration but the real accrual of the incomeIt may be noted that the High Court came to the conclusion that the findings reached by the Tribunal were findings of fact and, therefore, it would not be proper for the High Court to interfere with the same but strangely enough, at an earlier stage the High Court called for the questions referred to earlier, under Section 66 (2). If the questions raised are concluded by the facts found by the Tribunal the High Court was not justified in calling for these questions. Further when the High Court issued the rule on the applications made by the Revenue, the assessee not only objected to the prayer made by the Revenue, but also submitted that in case the court was pleased to direct the Tribunal to state a case, it may also be pleased to direct the Tribunal to submit the question "whether the commission given up can be considered as real income coming within the scope of Section 10 (1)?" But, the High Court rejected the prayer but merely called upon the Tribunal to submit the questions set out earlier. The High Court has now come to the conclusion that the commission given up by the assessee cannot be considered as its real income It is undoubtedly true that there are certain incongruities in the procedure adopted by the High Court but the final conclusion reached by the High Court is, in our opinion, correct in law. Therefore, the High Court was justified in refusing to answer the first question in all the three cases. | 0 | 3,537 | 689 | ### Instruction:
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on the sale of cloth and yarn for the two years. The total amounts, including the office allowance which the assessee was entitled to receive were Rs. 50,719 and Rs. 13,963 for the two years. Under clause 2 (e) of the managing agency agreement the commission was due to the assessee on December 31, 1954 and December 31, 1955, respectively, and it was payable immediately after the annual accounts of the managed company was passed in general meetings, which were held on November 24, 1955, and July 21, 1956, respectively. By resolutions of its board of directors dated, respectively April 4, 1955, and June 19, 1956 (i.e., after the commission had become due but before it had become payable in terms of clause 2 (2) ), the assessee relinquished its commission on sales and office allowance because the managed company had been suffering heavy losses in the past years. The Tribunal held that the relinquishment by the assessee of its remuneration after it had become due was of no effect; and also rejected its claim that the amounts relinquished were allowable under Section 10 (2) (xv) of the Income-tax Act, 1922, because, as a result of the relinquishment, the financial position of the managed company did not become stronger while that of the assessee company became weaker and, therefore, the relinquishment was not for the benefit of the assessee. On a reference the High Court agreed with the view taken by the Tribunal. On appeal this court affirmed the decision of the High Court. 10. As seen from the facts of that case the commission given up had accrued on the 31st December, 1954 and 31st December, 1955, respectively, and the assessee purported to give up that commission several months thereafter. Further, the Tribunal in that case had come to the conclusion that the assessee did not give up the amounts in question for commercial expediency. This court came to the conclusion that the amounts in question were due on the 31st December, 1955 and 1956, though payable at a later date. Consequently those amounts had accrued long before they were given up and the giving up of the same did not come within the scope of Section 10 (1). It is true that in the course of the judgment emphasis was also placed on the fact that the assessee was maintaining its accounts on the basis of mercantile system, but it was not on that basis alone that this court came to the conclusion that the income in question accrued on 31st December, 1955 and 31st December, 1956. In arriving at the conclusion that the income in question accrued on the 31st December, 1955 and 31st December, 1956, this court primarily took into consideration the terms of the agreement. In the course of the judgment delivered by one of us, Khanna, J., a passage from the judgment of this court in Commr. of Income Tax Bombay City I v. Shoorji Vallabhdas and Co. (1962) 46 ITR 144 (SC) was quoted in support of the conclusion reached by this court. That passage reads thus:"Income-tax is a levy on income. Though the Income-tax Act takes into account two points of time at which the liability to tax is attracted, viz, the accrual of the income or its receipt, yet the substance of the matter is the income. If income does not result at all, there cannot be a tax, even though in book-keeping an entry is made about a hypothetical income, which does not materialist. Where income has, in fact, been received and is subsequently given up in such circumstances that it remains the income of the recipient, even though given up, the tax may be payable. Where, however, the income can be said not to have resulted at all, there is obvious1y neither accrual nor receipt of income, even though an entry to that effect might, in certain circumstances, have been made in the books of account." (emphasis supplied).Hence it is clear that this court in Morvi Industries case, 82 ITR 835 = (AIR 1971 SC 2396 ) did emphasise the fact that the real question for decision was whether the income had really accrued or not.It is not a hypothetical accrual of income that has got to be taken into consideration but the real accrual of the income. 11. In addition to the contentions taken earlier, Mr. Desai also took objection to the way in which the High Court disposed of these cases. It may be noted that the High Court came to the conclusion that the findings reached by the Tribunal were findings of fact and, therefore, it would not be proper for the High Court to interfere with the same but strangely enough, at an earlier stage the High Court called for the questions referred to earlier, under Section 66 (2). If the questions raised are concluded by the facts found by the Tribunal the High Court was not justified in calling for these questions. Further when the High Court issued the rule on the applications made by the Revenue, the assessee not only objected to the prayer made by the Revenue, but also submitted that in case the court was pleased to direct the Tribunal to state a case, it may also be pleased to direct the Tribunal to submit the question "whether the commission given up can be considered as real income coming within the scope of Section 10 (1)?" But, the High Court rejected the prayer but merely called upon the Tribunal to submit the questions set out earlier. The High Court has now come to the conclusion that the commission given up by the assessee cannot be considered as its real income It is undoubtedly true that there are certain incongruities in the procedure adopted by the High Court but the final conclusion reached by the High Court is, in our opinion, correct in law. Therefore, the High Court was justified in refusing to answer the first question in all the three cases.
### Response:
0
### Explanation:
According to the finding of the Tribunal the assessee company gave up the office allowance on the ground of commercial expediency. It opined that the managed companys financial position was not sound during the relevant accounting years and it was necessary for the assessee company to give up the office allowance in order to stabilise the finances of the managed company. The Tribunal further came to the conclusion that because of the sacrifices made by the assessee company, the finances of the managed company improved subsequently, as a result of which the assessee company was able to earn more profits in the late years. This is a finding of fact. That finding was binding on the High Court. On the basis of that finding the Tribunal was fully justified in coming to the conclusion that the expenditure incurred came within the scope of Section 10 (2) (xv). That conclusion is supported by the decision of this court in Chandulals case, 38 ITR 601 =(AIR 1960 SC 738 ) (supra)We do not know whether the office allowance was paid solely for that purpose or whether it was partly as remuneration and parly to meet the expenditure incurred. In either case it makes no difference in law. The ratio of the decision of this court in Chandulals case completely covers the point under considerationWe are unable to accept this contention as correct. As mentioned earlier no due date was fixed for the payment of the commission under the managing agency agreements. The commission receivable could have been ascertained only after the managed company made up its accounts. The assessee had given up the commission even before the managed company made up its accounts. Hence the mere fact that the assessee company was maintaining its accounts on the basis of mercantile system cannot lead to the conclusion that the commission had accrued to it by the end of the relevant accounting yearHence it is clear that this court in Morvi Industries case, 82 ITR 835 = (AIR 1971 SC 2396 ) did emphasise the fact that the real question for decision was whether the income had really accrued or not.It is not a hypothetical accrual of income that has got to be taken into consideration but the real accrual of the incomeIt may be noted that the High Court came to the conclusion that the findings reached by the Tribunal were findings of fact and, therefore, it would not be proper for the High Court to interfere with the same but strangely enough, at an earlier stage the High Court called for the questions referred to earlier, under Section 66 (2). If the questions raised are concluded by the facts found by the Tribunal the High Court was not justified in calling for these questions. Further when the High Court issued the rule on the applications made by the Revenue, the assessee not only objected to the prayer made by the Revenue, but also submitted that in case the court was pleased to direct the Tribunal to state a case, it may also be pleased to direct the Tribunal to submit the question "whether the commission given up can be considered as real income coming within the scope of Section 10 (1)?" But, the High Court rejected the prayer but merely called upon the Tribunal to submit the questions set out earlier. The High Court has now come to the conclusion that the commission given up by the assessee cannot be considered as its real income It is undoubtedly true that there are certain incongruities in the procedure adopted by the High Court but the final conclusion reached by the High Court is, in our opinion, correct in law. Therefore, the High Court was justified in refusing to answer the first question in all the three cases.
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Commissioner of Trade Tax, U.P Vs. Bhushan Steel And Strips Ltd | transformers for running of the factory are concerned. 12. In the case of Kajaria Ceramics Ltd. (supra), this Court specifically dealt with the issue whether preoperative expenses in the form of payment of interest to the financial institution would form preoperative expenses as part of the "fixed capital investment". The Court, after noticing the meaning of the expression "fixed capital investment", has come to the conclusion that the legislature has consciously used the expression "means" immediately after the expression "fixed capital investment" to imply and ensure that the definition is exhaustive. Further, the Court has observed that the language employed by the legislature while defining the meaning of the expression "fixed capital investment" is unambiguous and therefore, no inclusion can be made in the definition by means of interpretation. In the words of the Court: "61. The respondent had claimed preoperative expenses as part of the fixed capital investment which included interest to financial institutions, rights shares issue expenses, foreign technician expenses and foreign travel expenses. The Tribunal allowed the claim relying on Challapalli Sugars Ltd. v. Commissioner Income Tax (1975) 98 ITR 167 , Commissioner of Income Tax v. Motor Industries Co. Ltd., (1988) 173 ITR 374 and Commissioner Income Tax v. Polychem Ltd. : 1975 98 ITR 574 on the ground that the expenses were necessary to undertake the expansion scheme. The view was affirmed by the High Court, in our opinion, wrongly.62. We have already noted in connection with Issue I that Explanation 4 to section 4A has defined fixed capital investment saying that it "means "investment in land and building and such plant, machinery, equipment apparatus, components, moulds, dyes, jigs and fixtures as have not been used or acquired for use in any other factory or workshop in India".63. The language of the definition of the phrase in Explanation (4) to Section 4A is sufficiently clear and unambiguous. This coupled with the use of the word "means" in the Explanation shows that the definition is exhaustive. As has been observed in Feroze N. Dotiwala v. P. M. Wadhwani (2003) 1 SCC 433 , 442 (SCC paras 13- 14:"Generally, when the definition of a word begins with "means" it is indicative of the fact that the meaning of the word has been restricted; that is to say, it would not mean anything else but what has been indicated in the definition itself.* * *Therefore, unless there is any vagueness of ambiguity, no occasion will arise to interpret the term in a manner which may add something to the meaning of the word which ordinarily does not so mean by the definition itself, more particularly, where it is a restrictive definition."64. According to the Constitution Bench in PLD Corporation Ltd., v. Presiding Officer, Labour Court [1990] 3 SCR 111 ,(SCR at p. 150) when the statute says that a word or phrase shall mean certain things it is a "....hard and fast definition, and no other meaning can be assigned to the expression than is put down.... A definition is an explicit statement of the full connotation of a term". (SCC p.717, para 72)65. Therefore apart from the actual investment in or cost of the specific items of land, building, plant, machinery, equipment apparatus, components moulds dyes, jigs and fixtures, no other item of expense is includible under the head of fixed capital investment for the purposes of section 4A of the Act." 13. After carefully considering the submissions made by both the learned counsel, we are of the considered view that insofar as the first legal issue raised and canvassed before us by the Revenue is squarely covered by the observations made by this Court in Kajaria Ceramics Ltd.(supra) and therefore, the first question of law requires to be answered in favour of the revenue and against the assessee. Accordingly, that portion of the order wherein the High Court had granted relief to the assessee requires to be set aside.14. Insofar as the second issue is concerned, we have to notice the proviso to explanation (4) of Section 4-A of the Act. Explanation (4) speaks of "fixed capital investment" to mean "investment in land and building and such plant, machinery, equipment apparatus, components, moulds, dyes, jigs and fixtures as have not been used or acquired for use in any other factory or workshop in India". The said proviso need not be noticed by us for the purpose of disposal of this appeal. 15. Sub-clause (b) of explanation (4) of Section 4-A, is as under: "for the purposes of determining value of plants including captive power plant, machinery, equipment, apparatus, components, moulds, dyes, jigs and fixtures only the following shall be taken into account:(i) investment, whether by means of purchase, hire or lease in such plant, equipment, apparatus, components and machinery as is necessary for the establishment or running of the factory or workshop;"(emphasis supplied) 16. In the present case, it is the stand of the assessee that in order to control the fluctuation of the electrical energy for running the factory the assessee has purchased the transformer and therefore, the transformer would certainly fall within the meaning of the expression "plant and equipment" essential for effective functioning of the factory.17. It is not in dispute that the appellant has purchased the aforesaid machinery. The said machinery is used by the respondent for the purpose of controlling the fluctuation in the supply of electrical energy to the machinery/equipment installed in the factory premises. Sub-clause (i) of explanation 4(b) of Section 4-A speaks of investment made on machinery/apparatus, components etc. for establishment or running of the factory would fall within the meaning of the expression "fixed capital investment". If that is so, the investment that is made by the assessee would certainly fall within sub-clause(i) of explanation (4)(b) of Section 4-A of the Act. In that view of the matter, we cannot take exception to the judgment and order passed by the High Court where the High Court has appropriately considered the issue and granted relief to the assessee/respondent. | 1[ds]13. After carefully considering the submissions made by both the learned counsel, we are of the considered view that insofar as the first legal issue raised and canvassed before us by the Revenue is squarely covered by the observations made by this Court in Kajaria Ceramics Ltd.(supra) and therefore, the first question of law requires to be answered in favour of the revenue and against the assessee. Accordingly, that portion of the order wherein the High Court had granted relief to the assessee requires to be set aside.14. Insofar as the second issue is concerned, we have to notice the proviso to explanation (4) of Section 4-A of the Act. Explanation (4) speaks of "fixed capital investment" to mean "investment in land and building and such plant, machinery, equipment apparatus, components, moulds, dyes, jigs and fixtures as have not been used or acquired for use in any other factory or workshop in India". The said proviso need not be noticed by us for the purpose of disposal of this appeal.In the present case, it is the stand of the assessee that in order to control the fluctuation of the electrical energy for running the factory the assessee has purchased the transformer and therefore, the transformer would certainly fall within the meaning of the expression "plant and equipment" essential for effective functioning of the factory.17. It is not in dispute that the appellant has purchased the aforesaid machinery. The said machinery is used by the respondent for the purpose of controlling the fluctuation in the supply of electrical energy to the machinery/equipment installed in the factory premises. Sub-clause (i) of explanation 4(b) of Section 4-A speaks of investment made on machinery/apparatus, components etc. for establishment or running of the factory would fall within the meaning of the expression "fixed capital investment". If that is so, the investment that is made by the assessee would certainly fall within sub-clause(i) of explanation (4)(b) of Section 4-A of the Act. In that view of the matter, we cannot take exception to the judgment and order passed by the High Court where the High Court has appropriately considered the issue and granted relief to the assessee/respondent. | 1 | 2,196 | 421 | ### Instruction:
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transformers for running of the factory are concerned. 12. In the case of Kajaria Ceramics Ltd. (supra), this Court specifically dealt with the issue whether preoperative expenses in the form of payment of interest to the financial institution would form preoperative expenses as part of the "fixed capital investment". The Court, after noticing the meaning of the expression "fixed capital investment", has come to the conclusion that the legislature has consciously used the expression "means" immediately after the expression "fixed capital investment" to imply and ensure that the definition is exhaustive. Further, the Court has observed that the language employed by the legislature while defining the meaning of the expression "fixed capital investment" is unambiguous and therefore, no inclusion can be made in the definition by means of interpretation. In the words of the Court: "61. The respondent had claimed preoperative expenses as part of the fixed capital investment which included interest to financial institutions, rights shares issue expenses, foreign technician expenses and foreign travel expenses. The Tribunal allowed the claim relying on Challapalli Sugars Ltd. v. Commissioner Income Tax (1975) 98 ITR 167 , Commissioner of Income Tax v. Motor Industries Co. Ltd., (1988) 173 ITR 374 and Commissioner Income Tax v. Polychem Ltd. : 1975 98 ITR 574 on the ground that the expenses were necessary to undertake the expansion scheme. The view was affirmed by the High Court, in our opinion, wrongly.62. We have already noted in connection with Issue I that Explanation 4 to section 4A has defined fixed capital investment saying that it "means "investment in land and building and such plant, machinery, equipment apparatus, components, moulds, dyes, jigs and fixtures as have not been used or acquired for use in any other factory or workshop in India".63. The language of the definition of the phrase in Explanation (4) to Section 4A is sufficiently clear and unambiguous. This coupled with the use of the word "means" in the Explanation shows that the definition is exhaustive. As has been observed in Feroze N. Dotiwala v. P. M. Wadhwani (2003) 1 SCC 433 , 442 (SCC paras 13- 14:"Generally, when the definition of a word begins with "means" it is indicative of the fact that the meaning of the word has been restricted; that is to say, it would not mean anything else but what has been indicated in the definition itself.* * *Therefore, unless there is any vagueness of ambiguity, no occasion will arise to interpret the term in a manner which may add something to the meaning of the word which ordinarily does not so mean by the definition itself, more particularly, where it is a restrictive definition."64. According to the Constitution Bench in PLD Corporation Ltd., v. Presiding Officer, Labour Court [1990] 3 SCR 111 ,(SCR at p. 150) when the statute says that a word or phrase shall mean certain things it is a "....hard and fast definition, and no other meaning can be assigned to the expression than is put down.... A definition is an explicit statement of the full connotation of a term". (SCC p.717, para 72)65. Therefore apart from the actual investment in or cost of the specific items of land, building, plant, machinery, equipment apparatus, components moulds dyes, jigs and fixtures, no other item of expense is includible under the head of fixed capital investment for the purposes of section 4A of the Act." 13. After carefully considering the submissions made by both the learned counsel, we are of the considered view that insofar as the first legal issue raised and canvassed before us by the Revenue is squarely covered by the observations made by this Court in Kajaria Ceramics Ltd.(supra) and therefore, the first question of law requires to be answered in favour of the revenue and against the assessee. Accordingly, that portion of the order wherein the High Court had granted relief to the assessee requires to be set aside.14. Insofar as the second issue is concerned, we have to notice the proviso to explanation (4) of Section 4-A of the Act. Explanation (4) speaks of "fixed capital investment" to mean "investment in land and building and such plant, machinery, equipment apparatus, components, moulds, dyes, jigs and fixtures as have not been used or acquired for use in any other factory or workshop in India". The said proviso need not be noticed by us for the purpose of disposal of this appeal. 15. Sub-clause (b) of explanation (4) of Section 4-A, is as under: "for the purposes of determining value of plants including captive power plant, machinery, equipment, apparatus, components, moulds, dyes, jigs and fixtures only the following shall be taken into account:(i) investment, whether by means of purchase, hire or lease in such plant, equipment, apparatus, components and machinery as is necessary for the establishment or running of the factory or workshop;"(emphasis supplied) 16. In the present case, it is the stand of the assessee that in order to control the fluctuation of the electrical energy for running the factory the assessee has purchased the transformer and therefore, the transformer would certainly fall within the meaning of the expression "plant and equipment" essential for effective functioning of the factory.17. It is not in dispute that the appellant has purchased the aforesaid machinery. The said machinery is used by the respondent for the purpose of controlling the fluctuation in the supply of electrical energy to the machinery/equipment installed in the factory premises. Sub-clause (i) of explanation 4(b) of Section 4-A speaks of investment made on machinery/apparatus, components etc. for establishment or running of the factory would fall within the meaning of the expression "fixed capital investment". If that is so, the investment that is made by the assessee would certainly fall within sub-clause(i) of explanation (4)(b) of Section 4-A of the Act. In that view of the matter, we cannot take exception to the judgment and order passed by the High Court where the High Court has appropriately considered the issue and granted relief to the assessee/respondent.
### Response:
1
### Explanation:
13. After carefully considering the submissions made by both the learned counsel, we are of the considered view that insofar as the first legal issue raised and canvassed before us by the Revenue is squarely covered by the observations made by this Court in Kajaria Ceramics Ltd.(supra) and therefore, the first question of law requires to be answered in favour of the revenue and against the assessee. Accordingly, that portion of the order wherein the High Court had granted relief to the assessee requires to be set aside.14. Insofar as the second issue is concerned, we have to notice the proviso to explanation (4) of Section 4-A of the Act. Explanation (4) speaks of "fixed capital investment" to mean "investment in land and building and such plant, machinery, equipment apparatus, components, moulds, dyes, jigs and fixtures as have not been used or acquired for use in any other factory or workshop in India". The said proviso need not be noticed by us for the purpose of disposal of this appeal.In the present case, it is the stand of the assessee that in order to control the fluctuation of the electrical energy for running the factory the assessee has purchased the transformer and therefore, the transformer would certainly fall within the meaning of the expression "plant and equipment" essential for effective functioning of the factory.17. It is not in dispute that the appellant has purchased the aforesaid machinery. The said machinery is used by the respondent for the purpose of controlling the fluctuation in the supply of electrical energy to the machinery/equipment installed in the factory premises. Sub-clause (i) of explanation 4(b) of Section 4-A speaks of investment made on machinery/apparatus, components etc. for establishment or running of the factory would fall within the meaning of the expression "fixed capital investment". If that is so, the investment that is made by the assessee would certainly fall within sub-clause(i) of explanation (4)(b) of Section 4-A of the Act. In that view of the matter, we cannot take exception to the judgment and order passed by the High Court where the High Court has appropriately considered the issue and granted relief to the assessee/respondent.
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Commissioner Of Income-Tax U.P. Lucknow Vs. The Maheshwari Devi Jute Mills Ltd. Kanpur | or by letting it out to others, consideration received for allowing the transferee to use that asset is income received from business and chargeable to income-tax. In support of his contention counsel relied upon the Judgment of this court in Commissioner of Excess Profits Tax Bombay City v. Shri Lakshmi Silk Mills Ltd., 1951-20 ITR 451 : (AIR 1951 SC 454 ). In Shri Lakshmi Silk Mills Ltd. case, 1951-20 ITR 451 : (AIR 1951 SC 454 ) the assessee Company was a manufacturing concern and had for the purpose of its business installed a plant for dyeing silk yarn. For a part of the chargeable period the Company could not secure silk yarn and its plant remained idle. The Company then let out the plant and the question arose whether rent received by the Company was chargeable to excess profits tax as profit of the business or was income from other sources and therefore not chargeable to excess profits tax. It was held by this Court that if a commercial asset is incapable of being used as such, rent received by letting it out to others is not income of the business. But an asset acquired and used for the purpose of the business does not cease to be a commercial asset of that business as soon as it is temporarily put out of use or is let out to another person for use in his business or trade. Receipt by the exploitation of a commercial asset is the profit of the business, irrespective of the manner in which the asset is exploited by the owner of the business, for the owner is entitled to exploit it to his best advantage either by using it himself personally or by letting it out to somebody else. What was let out in Lakshmi Silk Millscase, 1951 20 ITR 451 : (AIR 1951 SC 454 ) was the dyeing plant which continued to remain the property of the Company and it was temporarily let out when the assessee was unable to use it. Receipt from a commercial asset when it is capable of being used by the assessee but is not so used because of circumstances which necessitate cesser of its use would undoubtedly be income, where the asset remains the property of the assessee and user of the asset is given to another person. If in the present case, for the hours which the respondent was unable to use its looms the respondent had permitted some other person to work the looms, profits received for permitting such user would be income. But the distinction between that case and the present case arises from the peculiar nature of the transaction in "loom-hours". "Loom-hours" cannot from their very nature be let out while retaining property in them, for there can be no grant of a temporary right to use "loom-hours"."Loom-hours" are the asset of the respondent, but temporary user of the "loom-hours" cannot be granted. The transaction in this case is of sale of "loom, hours". There is no doubt that when a businessman disposes of his capital for whatever reason, unless it is a part of his circulating capital, the receipt is capital and not income which is taxable. 6. Distinction between revenue and capital in the law of income-tax is fundamental. Tax is ordinarily not levied on capital profits; it is levied on income. It is well settled that sale of stock-in-trade or circulating capital or rendering service in the course of trading results in a trading receipt; sale of assets which the assessee uses as fixed capital to enable him to carry on his business results in capital receipt. 7. Our attention was invited to a judgment of the Allahabad High Court in Maheshwari Devi Jute Mills v. Commissioner of Income-tax, U. P. Lucknow, I.T. Misc. Case No. 177 of 1960 dated 13-9-1962 (All) in which a Division Bench of the Allahabad High Court answered a similar question relating to taxability of payments received for sale of "loom-hours" by the respondent in an assessment year with which we are not concerned in these appeals. The Court in that case ignoring the view in the judgments under appeal held that "loom hours" did not form the fixed profit-making structure of the respondent and it was not correct to say that the capital structure of the business was 220 looms multiplied by the number of hours per week for which the machinery was entitled to work. The "loom-hours" had in the view of the Court nothing to do with the capital structure of the business and there was nothing to show that the defect in the preparatory section which rendered the "loom hours" unutilisable was permanent. It was always open to the respondent to acquire the necessary yarn from outside and thereby utilise the remaining quota of "loom-hours" in manufacturing jute, and if the respondent preferred not to procure yarn and chose to sell the surplus "loomhours" and thus ensure profit for itself without incuring any risk, the receipt by disposal of a commercial asset was profit of the business irrespective of the manner in which that asset was exploited by the owner of the business. In the view of the High Court the respondent was entitled to exploit the asset to its best advantage; it may do so either by utilising it personally or by letting it out to somebody else, and the sale of a part of its quota of "loom-hours" amounted to exploitation of its capital asset and the receipt obtained therefrom was income. The surplus "loom-hours" were disposed of and no interest remained therein with the respondent there was no exploitation of the "loom-hours" by permitting user while retaining ownership. Receipt by sale of "loom-hours" must therefore be regarded in this case as a capital receipt and not income. 8. in our judgment the High Court was right in holding that the receipts from sale of "loomhours" were in the nature of capital receipts and were not taxable. | 0[ds]6. Distinction between revenue and capital in the law of income-tax is fundamental. Tax is ordinarily not levied on capital profits; it is levied on income. It is well settled that sale of stock-in-trade or circulating capital or rendering service in the course of trading results in a trading receipt; sale of assets which the assessee uses as fixed capital to enable him to carry on his business results in capital receipt7. Our attention was invited to a judgment of the Allahabad High Court in Maheshwari Devi Jute Mills v. Commissioner of Income-tax, U. P. Lucknow, I.T. Misc. Case No. 177 of 1960 dated 13-9-1962 (All) in which a Division Bench of the Allahabad High Court answered a similar question relating to taxability of payments received for sale of "loom-hours" by the respondent in an assessment year with which we are not concerned in these appeals. The Court in that case ignoring the view in the judgments under appeal held that "loom hours" did not form the fixed profit-making structure of the respondent and it was not correct to say that the capital structure of the business was 220 looms multiplied by the number of hours per week for which the machinery was entitled to work. The "loom-hours" had in the view of the Court nothing to do with the capital structure of the business and there was nothing to show that the defect in the preparatory section which rendered the "loom hours" unutilisable was permanent. It was always open to the respondent to acquire the necessary yarn from outside and thereby utilise the remaining quota of "loom-hours" in manufacturing jute, and if the respondent preferred not to procure yarn and chose to sell the surplus "loomhours" and thus ensure profit for itself without incuring any risk, the receipt by disposal of a commercial asset was profit of the business irrespective of the manner in which that asset was exploited by the owner of the business. In the view of the High Court the respondent was entitled to exploit the asset to its best advantage; it may do so either by utilising it personally or by letting it out to somebody else, and the sale of a part of its quota of "loom-hours" amounted to exploitation of its capital asset and the receipt obtained therefrom was income. The surplus "loom-hours" were disposed of and no interest remained therein with the respondent there was no exploitation of the "loom-hours" by permitting user while retaining ownership. Receipt by sale of "loom-hours" must therefore be regarded in this case as a capital receipt and not income8. in our judgment the High Court was right in holding that the receipts from sale of "loomhours" were in the nature of capital receipts and were not taxable. | 0 | 2,407 | 512 | ### 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:
or by letting it out to others, consideration received for allowing the transferee to use that asset is income received from business and chargeable to income-tax. In support of his contention counsel relied upon the Judgment of this court in Commissioner of Excess Profits Tax Bombay City v. Shri Lakshmi Silk Mills Ltd., 1951-20 ITR 451 : (AIR 1951 SC 454 ). In Shri Lakshmi Silk Mills Ltd. case, 1951-20 ITR 451 : (AIR 1951 SC 454 ) the assessee Company was a manufacturing concern and had for the purpose of its business installed a plant for dyeing silk yarn. For a part of the chargeable period the Company could not secure silk yarn and its plant remained idle. The Company then let out the plant and the question arose whether rent received by the Company was chargeable to excess profits tax as profit of the business or was income from other sources and therefore not chargeable to excess profits tax. It was held by this Court that if a commercial asset is incapable of being used as such, rent received by letting it out to others is not income of the business. But an asset acquired and used for the purpose of the business does not cease to be a commercial asset of that business as soon as it is temporarily put out of use or is let out to another person for use in his business or trade. Receipt by the exploitation of a commercial asset is the profit of the business, irrespective of the manner in which the asset is exploited by the owner of the business, for the owner is entitled to exploit it to his best advantage either by using it himself personally or by letting it out to somebody else. What was let out in Lakshmi Silk Millscase, 1951 20 ITR 451 : (AIR 1951 SC 454 ) was the dyeing plant which continued to remain the property of the Company and it was temporarily let out when the assessee was unable to use it. Receipt from a commercial asset when it is capable of being used by the assessee but is not so used because of circumstances which necessitate cesser of its use would undoubtedly be income, where the asset remains the property of the assessee and user of the asset is given to another person. If in the present case, for the hours which the respondent was unable to use its looms the respondent had permitted some other person to work the looms, profits received for permitting such user would be income. But the distinction between that case and the present case arises from the peculiar nature of the transaction in "loom-hours". "Loom-hours" cannot from their very nature be let out while retaining property in them, for there can be no grant of a temporary right to use "loom-hours"."Loom-hours" are the asset of the respondent, but temporary user of the "loom-hours" cannot be granted. The transaction in this case is of sale of "loom, hours". There is no doubt that when a businessman disposes of his capital for whatever reason, unless it is a part of his circulating capital, the receipt is capital and not income which is taxable. 6. Distinction between revenue and capital in the law of income-tax is fundamental. Tax is ordinarily not levied on capital profits; it is levied on income. It is well settled that sale of stock-in-trade or circulating capital or rendering service in the course of trading results in a trading receipt; sale of assets which the assessee uses as fixed capital to enable him to carry on his business results in capital receipt. 7. Our attention was invited to a judgment of the Allahabad High Court in Maheshwari Devi Jute Mills v. Commissioner of Income-tax, U. P. Lucknow, I.T. Misc. Case No. 177 of 1960 dated 13-9-1962 (All) in which a Division Bench of the Allahabad High Court answered a similar question relating to taxability of payments received for sale of "loom-hours" by the respondent in an assessment year with which we are not concerned in these appeals. The Court in that case ignoring the view in the judgments under appeal held that "loom hours" did not form the fixed profit-making structure of the respondent and it was not correct to say that the capital structure of the business was 220 looms multiplied by the number of hours per week for which the machinery was entitled to work. The "loom-hours" had in the view of the Court nothing to do with the capital structure of the business and there was nothing to show that the defect in the preparatory section which rendered the "loom hours" unutilisable was permanent. It was always open to the respondent to acquire the necessary yarn from outside and thereby utilise the remaining quota of "loom-hours" in manufacturing jute, and if the respondent preferred not to procure yarn and chose to sell the surplus "loomhours" and thus ensure profit for itself without incuring any risk, the receipt by disposal of a commercial asset was profit of the business irrespective of the manner in which that asset was exploited by the owner of the business. In the view of the High Court the respondent was entitled to exploit the asset to its best advantage; it may do so either by utilising it personally or by letting it out to somebody else, and the sale of a part of its quota of "loom-hours" amounted to exploitation of its capital asset and the receipt obtained therefrom was income. The surplus "loom-hours" were disposed of and no interest remained therein with the respondent there was no exploitation of the "loom-hours" by permitting user while retaining ownership. Receipt by sale of "loom-hours" must therefore be regarded in this case as a capital receipt and not income. 8. in our judgment the High Court was right in holding that the receipts from sale of "loomhours" were in the nature of capital receipts and were not taxable.
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0
### Explanation:
6. Distinction between revenue and capital in the law of income-tax is fundamental. Tax is ordinarily not levied on capital profits; it is levied on income. It is well settled that sale of stock-in-trade or circulating capital or rendering service in the course of trading results in a trading receipt; sale of assets which the assessee uses as fixed capital to enable him to carry on his business results in capital receipt7. Our attention was invited to a judgment of the Allahabad High Court in Maheshwari Devi Jute Mills v. Commissioner of Income-tax, U. P. Lucknow, I.T. Misc. Case No. 177 of 1960 dated 13-9-1962 (All) in which a Division Bench of the Allahabad High Court answered a similar question relating to taxability of payments received for sale of "loom-hours" by the respondent in an assessment year with which we are not concerned in these appeals. The Court in that case ignoring the view in the judgments under appeal held that "loom hours" did not form the fixed profit-making structure of the respondent and it was not correct to say that the capital structure of the business was 220 looms multiplied by the number of hours per week for which the machinery was entitled to work. The "loom-hours" had in the view of the Court nothing to do with the capital structure of the business and there was nothing to show that the defect in the preparatory section which rendered the "loom hours" unutilisable was permanent. It was always open to the respondent to acquire the necessary yarn from outside and thereby utilise the remaining quota of "loom-hours" in manufacturing jute, and if the respondent preferred not to procure yarn and chose to sell the surplus "loomhours" and thus ensure profit for itself without incuring any risk, the receipt by disposal of a commercial asset was profit of the business irrespective of the manner in which that asset was exploited by the owner of the business. In the view of the High Court the respondent was entitled to exploit the asset to its best advantage; it may do so either by utilising it personally or by letting it out to somebody else, and the sale of a part of its quota of "loom-hours" amounted to exploitation of its capital asset and the receipt obtained therefrom was income. The surplus "loom-hours" were disposed of and no interest remained therein with the respondent there was no exploitation of the "loom-hours" by permitting user while retaining ownership. Receipt by sale of "loom-hours" must therefore be regarded in this case as a capital receipt and not income8. in our judgment the High Court was right in holding that the receipts from sale of "loomhours" were in the nature of capital receipts and were not taxable.
|
Shyam Behari And Others Vs. State Of Madhya Pradesh And Others | or for a company, a declaration shall be made to that effect. Further the proviso to S. 6 (1) provides that no such declaration shall be made unless the compensation to be awarded for such property is to be paid by a company, or wholly or partly out of public revenues or some fund controlled or managed by a local authority. This clearly contemplates two kinds of declarations. In the first place, a declaration may be made that land is required for a public purpose, in which case in view of the proviso, the compensation to be awarded for the property to be acquired must come wholly or partly out of public revenues or some fund controlled or managed by a local authority. No declaration under S. 6 for acquisition of land for a public purpose can be made unless either the whole or part of the compensation for the property to be acquired is to come out of public revenues or some fund controlled or managed by a local authority; see Jhandu Lal v. State of Punjab, 1961-2 SCR 459 (AIR 1961 SC 343 ). In the second place, the declaration under S. 6 may be made that land is needed for a company in which case the entire compensation has to be paid by the company. It is clear therefore that where the entire compensation is to be paid by a company, the notification under S. 6 must contain a declaration that the land is needed for a company. No notification under S. 6 can be made where the entire compensation is to be paid by a company declaring that the acquisition is for a public purpose, for such a declaration requires that either wholly or in part compensation must come out of public revenues or some fund controlled or managed by a local authority. In the present case it is not in dispute that no part of the compensation is to come out of public revenues or some fund controlled or managed by a local authority; on the other hand the whole compensation was to be paid by the company. Therefore the notification under S. 6 if it was to be valid in the circumstances of the present case had to declare that the land was needed for a company. No valid notification under S. 6 could be made in the circumstances of this case declaring that the land was needed for a public purpose, for no part of compensation was to be paid out of public revenues or some fund controlled or managed by a local authority. That is why the High Court felt that the notification under S. 6 declaring that the land was needed for a public purpose would in the circumstances of this case be ineffective. But the High Court went on to hold that the notifications under S. 6 must in substance and in law be deemed to be for acquisition of land for a company in the present case. We are of opinion that this view of the High Court is incorrect. There is nothing in either of the two notifications dated December 3, 1960 and April 19, 1961 to show that the land was needed for a company. The notification of December 3, 1960 says in so many words that it was required for a public purpose, namely, for the construction of buildings for godowns and administrative office. No one reading this notification can possibly think that the land was needed for a company. Similarly the notification of April 19, 1961 says that the land was needed for a public purpose, namely, for the Premier Refractory Factory and work connected therewith. Now the company for which the land in this case was in fact required is the Premier Refractories of India Private Limited, Katni. There is nothing in the notification of April 19, 1961 to show that the land was needed for this company or any other company. All that the notification of April 19, 1961 says is that the land was needed for a public purpose, and the public purpose mentioned there was that the land was required for the Premier Refractory Factory and work connected therewith. The High Court thought that in substance this purpose showed that the land was required for the company mentioned above. But we do not see how, because the purpose specified was for the Primier Refractory factory and work connected therewith, it can be said that the notification declared that the land was needed for the company. It is not impossible for the Government or for a local body to own such a factory and construct works in connection therewith. The mere fact that the public purpose mentioned was for the Premier Refractory Factory and work connected therewith, therefore, cannot mean that the land was needed for a company; as one reads the notification of April 19, 1961 one can only come to the conclusion that the land was needed for a public purpose, namely, for the construction of some work for a factory. There is no mention of any company anywhere in this notification and it cannot necessarily be concluded that the Premier Refractory Factory was a company, for a "factory" is something very different from a "company" and may belong to a company or to Government or to a local body or even to an individual. The mere fact that the public purpose declared in the notification was for the Premier Refractory Factory and work connected therewith cannot therefore lead to the inference that the acquisition was for a company. It follows that when the two notifications declared that the land was needed for a public purpose in a case where no part of the compensation was to come out of public revenues or some fund controlled or managed by a local authority, they were invalid in view of the proviso to S. 6(1) of the Act. All proceedings following on such notifications would be of no effect under the Act. | 1[ds]Section 6 (1) of the Act requires that whenever any land is needed for a public purpose or for a company, a declaration shall be made to that effect. Further the proviso to S. 6 (1) provides that no such declaration shall be made unless the compensation to be awarded for such property is to be paid by a company, or wholly or partly out of public revenues or some fund controlled or managed by a local authority. This clearly contemplates two kinds of declarations. In the first place, a declaration may be made that land is required for a public purpose, in which case in view of the proviso, the compensation to be awarded for the property to be acquired must come wholly or partly out of public revenues or some fund controlled or managed by a local authority. No declaration under S. 6 for acquisition of land for a public purpose can be made unless either the whole or part of the compensation for the property to be acquired is to come out of public revenues or some fund controlled or managed by a local authority; see Jhandu Lal v. State of Punjab, 1961-2 SCR 459 (AIR 1961 SC 343 ). In the second place, the declaration under S. 6 may be made that land is needed for a company in which case the entire compensation has to be paid by the company. It is clear therefore that where the entire compensation is to be paid by a company, the notification under S. 6 must contain a declaration that the land is needed for a company. No notification under S. 6 can be made where the entire compensation is to be paid by a company declaring that the acquisition is for a public purpose, for such a declaration requires that either wholly or in part compensation must come out of public revenues or some fund controlled or managed by a local authority. In the present case it is not in dispute that no part of the compensation is to come out of public revenues or some fund controlled or managed by a local authority; on the other hand the whole compensation was to be paid by the company. Therefore the notification under S. 6 if it was to be valid in the circumstances of the present case had to declare that the land was needed for a company. No valid notification under S. 6 could be made in the circumstances of this case declaring that the land was needed for a public purpose, for no part of compensation was to be paid out of public revenues or some fund controlled or managed by a local authority. That is why the High Court felt that the notification under S. 6 declaring that the land was needed for a public purpose would in the circumstances of this case be ineffective. But the High Court went on to hold that the notifications under S. 6 must in substance and in law be deemed to be for acquisition of land for a company in the present case. We are of opinion that this view of the High Court is incorrect. There is nothing in either of the two notifications dated December 3, 1960 and April 19, 1961 to show that the land was needed for a company. The notification of December 3, 1960 says in so many words that it was required for a public purpose, namely, for the construction of buildings for godowns and administrative office. No one reading this notification can possibly think that the land was needed for a company. Similarly the notification of April 19, 1961 says that the land was needed for a public purpose, namely, for the Premier Refractory Factory and work connected therewith. Now the company for which the land in this case was in fact required is the Premier Refractories of India Private Limited, Katni. There is nothing in the notification of April 19, 1961 to show that the land was needed for this company or any other company. All that the notification of April 19, 1961 says is that the land was needed for a public purpose, and the public purpose mentioned there was that the land was required for the Premier Refractory Factory and work connected therewith. The High Court thought that in substance this purpose showed that the land was required for the company mentioned above. But we do not see how, because the purpose specified was for the Primier Refractory factory and work connected therewith, it can be said that the notification declared that the land was needed for the company. It is not impossible for the Government or for a local body to own such a factory and construct works in connection therewith. The mere fact that the public purpose mentioned was for the Premier Refractory Factory and work connected therewith, therefore, cannot mean that the land was needed for a company; as one reads the notification of April 19, 1961 one can only come to the conclusion that the land was needed for a public purpose, namely, for the construction of some work for a factory. There is no mention of any company anywhere in this notification and it cannot necessarily be concluded that the Premier Refractory Factory was a company, for a "factory" is something very different from a "company" and may belong to a company or to Government or to a local body or even to an individual. The mere fact that the public purpose declared in the notification was for the Premier Refractory Factory and work connected therewith cannot therefore lead to the inference that the acquisition was for a company. It follows that when the two notifications declared that the land was needed for a public purpose in a case where no part of the compensation was to come out of public revenues or some fund controlled or managed by a local authority, they were invalid in view of the proviso to S. 6(1) of the Act. All proceedings following on such notifications would be of no effect under the Act. | 1 | 2,054 | 1,099 | ### 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:
or for a company, a declaration shall be made to that effect. Further the proviso to S. 6 (1) provides that no such declaration shall be made unless the compensation to be awarded for such property is to be paid by a company, or wholly or partly out of public revenues or some fund controlled or managed by a local authority. This clearly contemplates two kinds of declarations. In the first place, a declaration may be made that land is required for a public purpose, in which case in view of the proviso, the compensation to be awarded for the property to be acquired must come wholly or partly out of public revenues or some fund controlled or managed by a local authority. No declaration under S. 6 for acquisition of land for a public purpose can be made unless either the whole or part of the compensation for the property to be acquired is to come out of public revenues or some fund controlled or managed by a local authority; see Jhandu Lal v. State of Punjab, 1961-2 SCR 459 (AIR 1961 SC 343 ). In the second place, the declaration under S. 6 may be made that land is needed for a company in which case the entire compensation has to be paid by the company. It is clear therefore that where the entire compensation is to be paid by a company, the notification under S. 6 must contain a declaration that the land is needed for a company. No notification under S. 6 can be made where the entire compensation is to be paid by a company declaring that the acquisition is for a public purpose, for such a declaration requires that either wholly or in part compensation must come out of public revenues or some fund controlled or managed by a local authority. In the present case it is not in dispute that no part of the compensation is to come out of public revenues or some fund controlled or managed by a local authority; on the other hand the whole compensation was to be paid by the company. Therefore the notification under S. 6 if it was to be valid in the circumstances of the present case had to declare that the land was needed for a company. No valid notification under S. 6 could be made in the circumstances of this case declaring that the land was needed for a public purpose, for no part of compensation was to be paid out of public revenues or some fund controlled or managed by a local authority. That is why the High Court felt that the notification under S. 6 declaring that the land was needed for a public purpose would in the circumstances of this case be ineffective. But the High Court went on to hold that the notifications under S. 6 must in substance and in law be deemed to be for acquisition of land for a company in the present case. We are of opinion that this view of the High Court is incorrect. There is nothing in either of the two notifications dated December 3, 1960 and April 19, 1961 to show that the land was needed for a company. The notification of December 3, 1960 says in so many words that it was required for a public purpose, namely, for the construction of buildings for godowns and administrative office. No one reading this notification can possibly think that the land was needed for a company. Similarly the notification of April 19, 1961 says that the land was needed for a public purpose, namely, for the Premier Refractory Factory and work connected therewith. Now the company for which the land in this case was in fact required is the Premier Refractories of India Private Limited, Katni. There is nothing in the notification of April 19, 1961 to show that the land was needed for this company or any other company. All that the notification of April 19, 1961 says is that the land was needed for a public purpose, and the public purpose mentioned there was that the land was required for the Premier Refractory Factory and work connected therewith. The High Court thought that in substance this purpose showed that the land was required for the company mentioned above. But we do not see how, because the purpose specified was for the Primier Refractory factory and work connected therewith, it can be said that the notification declared that the land was needed for the company. It is not impossible for the Government or for a local body to own such a factory and construct works in connection therewith. The mere fact that the public purpose mentioned was for the Premier Refractory Factory and work connected therewith, therefore, cannot mean that the land was needed for a company; as one reads the notification of April 19, 1961 one can only come to the conclusion that the land was needed for a public purpose, namely, for the construction of some work for a factory. There is no mention of any company anywhere in this notification and it cannot necessarily be concluded that the Premier Refractory Factory was a company, for a "factory" is something very different from a "company" and may belong to a company or to Government or to a local body or even to an individual. The mere fact that the public purpose declared in the notification was for the Premier Refractory Factory and work connected therewith cannot therefore lead to the inference that the acquisition was for a company. It follows that when the two notifications declared that the land was needed for a public purpose in a case where no part of the compensation was to come out of public revenues or some fund controlled or managed by a local authority, they were invalid in view of the proviso to S. 6(1) of the Act. All proceedings following on such notifications would be of no effect under the Act.
### Response:
1
### Explanation:
for a company, a declaration shall be made to that effect. Further the proviso to S. 6 (1) provides that no such declaration shall be made unless the compensation to be awarded for such property is to be paid by a company, or wholly or partly out of public revenues or some fund controlled or managed by a local authority. This clearly contemplates two kinds of declarations. In the first place, a declaration may be made that land is required for a public purpose, in which case in view of the proviso, the compensation to be awarded for the property to be acquired must come wholly or partly out of public revenues or some fund controlled or managed by a local authority. No declaration under S. 6 for acquisition of land for a public purpose can be made unless either the whole or part of the compensation for the property to be acquired is to come out of public revenues or some fund controlled or managed by a local authority; see Jhandu Lal v. State of Punjab, 1961-2 SCR 459 (AIR 1961 SC 343 ). In the second place, the declaration under S. 6 may be made that land is needed for a company in which case the entire compensation has to be paid by the company. It is clear therefore that where the entire compensation is to be paid by a company, the notification under S. 6 must contain a declaration that the land is needed for a company. No notification under S. 6 can be made where the entire compensation is to be paid by a company declaring that the acquisition is for a public purpose, for such a declaration requires that either wholly or in part compensation must come out of public revenues or some fund controlled or managed by a local authority. In the present case it is not in dispute that no part of the compensation is to come out of public revenues or some fund controlled or managed by a local authority; on the other hand the whole compensation was to be paid by the company. Therefore the notification under S. 6 if it was to be valid in the circumstances of the present case had to declare that the land was needed for a company. No valid notification under S. 6 could be made in the circumstances of this case declaring that the land was needed for a public purpose, for no part of compensation was to be paid out of public revenues or some fund controlled or managed by a local authority. That is why the High Court felt that the notification under S. 6 declaring that the land was needed for a public purpose would in the circumstances of this case be ineffective. But the High Court went on to hold that the notifications under S. 6 must in substance and in law be deemed to be for acquisition of land for a company in the present case. We are of opinion that this view of the High Court is incorrect. There is nothing in either of the two notifications dated December 3, 1960 and April 19, 1961 to show that the land was needed for a company. The notification of December 3, 1960 says in so many words that it was required for a public purpose, namely, for the construction of buildings for godowns and administrative office. No one reading this notification can possibly think that the land was needed for a company. Similarly the notification of April 19, 1961 says that the land was needed for a public purpose, namely, for the Premier Refractory Factory and work connected therewith. Now the company for which the land in this case was in fact required is the Premier Refractories of India Private Limited, Katni. There is nothing in the notification of April 19, 1961 to show that the land was needed for this company or any other company. All that the notification of April 19, 1961 says is that the land was needed for a public purpose, and the public purpose mentioned there was that the land was required for the Premier Refractory Factory and work connected therewith. The High Court thought that in substance this purpose showed that the land was required for the company mentioned above. But we do not see how, because the purpose specified was for the Primier Refractory factory and work connected therewith, it can be said that the notification declared that the land was needed for the company. It is not impossible for the Government or for a local body to own such a factory and construct works in connection therewith. The mere fact that the public purpose mentioned was for the Premier Refractory Factory and work connected therewith, therefore, cannot mean that the land was needed for a company; as one reads the notification of April 19, 1961 one can only come to the conclusion that the land was needed for a public purpose, namely, for the construction of some work for a factory. There is no mention of any company anywhere in this notification and it cannot necessarily be concluded that the Premier Refractory Factory was a company, for a "factory" is something very different from a "company" and may belong to a company or to Government or to a local body or even to an individual. The mere fact that the public purpose declared in the notification was for the Premier Refractory Factory and work connected therewith cannot therefore lead to the inference that the acquisition was for a company. It follows that when the two notifications declared that the land was needed for a public purpose in a case where no part of the compensation was to come out of public revenues or some fund controlled or managed by a local authority, they were invalid in view of the proviso to S. 6(1) of the Act. All proceedings following on such notifications would be of no effect under the Act.
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M/s India Meters Limited Vs. State of Tamil Nadu | goods manufactured by him, he always passes on the excise duty to the purchaser. Ordinarily it is not shown as a separate item in the bill, but it is included in the price charged by him. The sale price in such a case could be the entire price inclusive of excise duty because that would be the consideration payable by the purchaser for the sale of the goods. True, the excise duty component of the price would not be an addition to the coffers of the dealer, as it would go to reimburse him in respect of the excise duty already paid by him on the manufacture of the goods. But even so, it would be part of the sale price because it forms a component of the consideration payable by the purchaser to the dealer. It is only as part of the consideration for the sale of the goods that the amount representing excise duty would be payable by the purchaser. There is no other manner of liability, statutory or otherwise, under which the purchases would be liable to pay the amount of excise duty to the dealer. And, on this reasoning, it would make no difference whether the amount of excise duty is included in the price charged by the dealer or is shown as a separate item in the bill. In either case, it would be part of the sale price. So also, the amount of sales tax payable by a dealer, whether included in the price or added to it as a separate item as is usually the case, forms part of the sale price. It is payable by the purchaser to the dealer as part of the consideration for the sale of the goods and hence falls within the first part of the definition." 33. This judgment has been followed in a large number of subsequent judgments in other cases by this Court. 34. In Cement Marketing Co. of India Ltd. v. Assistant Commissioner of Sales Tax, Indore & Others (1980) 1 SCC 71 similar question arose for consideration. In this case, while following the case of Hindustan Sugar Mills (supra) this court came to the clear conclusion that the amount of freight formed part of the sale price within the meaning of the first part of the definition of the term contained in Section 2 (p) of the Rajasthan Sales Tax Act, 1954. 35. In Cement Marketing Co. of India Ltd. v. Commissioner of Commercial Taxes, Karnataka 1980 (Supp) SCC 373 this court observed as under: "This question is no longer res integra and it stands concluded by a recent decision given by this Court in Hindustan Sugar Mills v. State of Rajasthan (1978) 4 SCC 271. It has been held by this Court in that case that by reason of the provisions of the Cement Control Order which governed the transactions of sale of cement entered into by the assessee with the purchasers, the amount of freight formed part of the "sale price" within the meaning of the first part of the definition of that term in Section 2(h) of the Central Sales Tax Act, 1956 and was includible in the turnover of the assessee. This decision completely covers the present case and hence we must hold that the High Court was right in taking the view that the amount of freight formed part of the sale price and was rightly included in the taxable turnover of the appellant." 36. In TVL Ramco Cement Distribution Co. (P) Ltd. etc. etc. v. State of Tamil Nadu etc. etc. (1993) 1 SCC 192 this court while following the ratio in the case of Hindustan Sugar Mills (supra) observed as under: "(i) that the freight charges should be included in arriving at the taxable turnover for purposes of Central Sales Tax and Tamil Nadu Sales Tax; and (ii) that packing charges and excise duty thereon should also be included in arriving at the taxable turnover for purposes of both Central Sales Tax and Tamil Nadu Sales Tax." 37. In Bihar State Electricity Board & Another v. Usha Martin Industries & Another (1997) 5 SCC 289 this court relied on the judgment of this Court in the case of Hindustan Sugar Mills (supra) and reiterated legal position that sale price would be the entire price inclusive of excise duty because that would be the consideration payable by the purchaser for the sale of goods. 38. In the case of Black Diamond Beverages and Anr. v. Commercial Tax Officer, Central Section, Assessment Wingh, Calcutta & Others (1998) 1 SCC 458 this court observed that freight and handling charges would be included in the sale price. 39. In Commissioner of Central Excise, Delhi v. Maruti Udyog Ltd. (2002) 3 SCC 547 this court observed as under: "... ... ...The sale price realised by the respondent has to be regarded as the entire price inclusive of excise duty because it is the respondent who has, by necessary implication, taken on the liability to pay all taxes on the goods sold and has not sought to realise any sum in addition to the price obtained by it from the purchaser. The purchaser was under no obligation to pay any amount in excess of what had already been paid as the price of the scrap." 40. In State of A.P. v. A.P. Paper Mills Ltd. (2005) 1 SCC 719 the short question arose for consideration was whether the transportation charges and agents commission paid by the respondent - M/s. A.P. Paper Mills Ltd. to the agent together with the cost of raw material constitute "turnover" under Section 2(s) and is liable to sales tax under Section 6-A of the Andhra Pradesh General Sales Tax Act, 1957. This court relied on Hindustan Sugar Mills (supra) and came to the conclusion that the transportation charges and agents commission would be inclusive in "turnover" under Section 2(s) and is liable to Sales Tax under Section 6(a) of the Andhra Pradesh General Sales Tax Act, 1957. | 0[ds]26. According to the facts of this case, Dyer Meakin Breweries Ltd. is registered as a dealer in "Indian made foreign liquor" under the Kerala General Sales Tax Act, 1963. The company has a place of business at Ernakulam, Kerala. The liquor sold by the company is manufactured or produced in distilleries or breweries at different places in the State of U.P. and Haryana. Liquor is transported for sale by the company from its breweries and distilleries to its place of business at Ernakulam. It is the practice of the company to maintain a uniformprice" in respect of each brand of liquor sold at different centers after adding to theprice the appropriate amount attributable to freight and other charges.27. In proceedings for assessment of sales tax forthe company claimed under Rule 9(f) of the Kerala General Sales Tax Rules, 1963, Rs.59,188.99 as an admissible deduction in respect of charges for "freight and handling charges" collected from the customers, in the computation of the taxable turnover. The Sales Tax Officer rejected the claim, and the order was confirmed by the Appellate Assistant Commissioner and by the Sales Tax Tribunal. A revision application filed before the High Court of Kerala was summarily dismissed. The company has appealed to this Court with special leave.The company claims that the amount spent by it for freight and for "handling charges" of goods from the factories to the warehouse at Ernakulam is liable to be excluded from the taxable turnover and the taxing authorities and the High Court were in error in refusing to allow the deduction.30. This court while interpreting Rule 9 (f) of the Kerala General Sales Tax Rules, 1963 observed that it is not intended to exclude from the taxable turnover any component of the price, expenditure, incurred by the dealer which he had to incur before sale and to make the goods available to the intending customer at the place of sale.31. This court had an occasion to deal with identical issues in the case of Hindustan Sugar Mills (supra). P.N. Bhagwati, J. (as His Lordship then was), clearly held that by reason of the provisions of the Control Order which governed the transactions of sale of cement entered into by the assessee with the purchasers in both the appeals before us, the amount of freight formed part of the `sale price.In State of A.P. v. A.P. Paper Mills Ltd. (2005) 1 SCC 719 the short question arose for consideration was whether the transportation charges and agents commission paid by the respondentM/s. A.P. Paper Mills Ltd. to the agent together with the cost of raw material constitute "turnover" under Section 2(s) and is liable to sales tax under Sectionof the Andhra Pradesh General Sales Tax Act, 1957. This court relied on Hindustan Sugar Mills (supra) and came to the conclusion that the transportation charges and agents commission would be inclusive in "turnover" under Section 2(s) and is liable to Sales Tax under Section 6(a) of the Andhra Pradesh General Sales Tax Act, 1957.41. When we apply the ratio of the judgments of the English Courts and of our Courts, the conclusion becomes obvious that the amount of freight and insurance charges incurred by the dealer forms part of the sale price. | 0 | 4,398 | 615 | ### Instruction:
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goods manufactured by him, he always passes on the excise duty to the purchaser. Ordinarily it is not shown as a separate item in the bill, but it is included in the price charged by him. The sale price in such a case could be the entire price inclusive of excise duty because that would be the consideration payable by the purchaser for the sale of the goods. True, the excise duty component of the price would not be an addition to the coffers of the dealer, as it would go to reimburse him in respect of the excise duty already paid by him on the manufacture of the goods. But even so, it would be part of the sale price because it forms a component of the consideration payable by the purchaser to the dealer. It is only as part of the consideration for the sale of the goods that the amount representing excise duty would be payable by the purchaser. There is no other manner of liability, statutory or otherwise, under which the purchases would be liable to pay the amount of excise duty to the dealer. And, on this reasoning, it would make no difference whether the amount of excise duty is included in the price charged by the dealer or is shown as a separate item in the bill. In either case, it would be part of the sale price. So also, the amount of sales tax payable by a dealer, whether included in the price or added to it as a separate item as is usually the case, forms part of the sale price. It is payable by the purchaser to the dealer as part of the consideration for the sale of the goods and hence falls within the first part of the definition." 33. This judgment has been followed in a large number of subsequent judgments in other cases by this Court. 34. In Cement Marketing Co. of India Ltd. v. Assistant Commissioner of Sales Tax, Indore & Others (1980) 1 SCC 71 similar question arose for consideration. In this case, while following the case of Hindustan Sugar Mills (supra) this court came to the clear conclusion that the amount of freight formed part of the sale price within the meaning of the first part of the definition of the term contained in Section 2 (p) of the Rajasthan Sales Tax Act, 1954. 35. In Cement Marketing Co. of India Ltd. v. Commissioner of Commercial Taxes, Karnataka 1980 (Supp) SCC 373 this court observed as under: "This question is no longer res integra and it stands concluded by a recent decision given by this Court in Hindustan Sugar Mills v. State of Rajasthan (1978) 4 SCC 271. It has been held by this Court in that case that by reason of the provisions of the Cement Control Order which governed the transactions of sale of cement entered into by the assessee with the purchasers, the amount of freight formed part of the "sale price" within the meaning of the first part of the definition of that term in Section 2(h) of the Central Sales Tax Act, 1956 and was includible in the turnover of the assessee. This decision completely covers the present case and hence we must hold that the High Court was right in taking the view that the amount of freight formed part of the sale price and was rightly included in the taxable turnover of the appellant." 36. In TVL Ramco Cement Distribution Co. (P) Ltd. etc. etc. v. State of Tamil Nadu etc. etc. (1993) 1 SCC 192 this court while following the ratio in the case of Hindustan Sugar Mills (supra) observed as under: "(i) that the freight charges should be included in arriving at the taxable turnover for purposes of Central Sales Tax and Tamil Nadu Sales Tax; and (ii) that packing charges and excise duty thereon should also be included in arriving at the taxable turnover for purposes of both Central Sales Tax and Tamil Nadu Sales Tax." 37. In Bihar State Electricity Board & Another v. Usha Martin Industries & Another (1997) 5 SCC 289 this court relied on the judgment of this Court in the case of Hindustan Sugar Mills (supra) and reiterated legal position that sale price would be the entire price inclusive of excise duty because that would be the consideration payable by the purchaser for the sale of goods. 38. In the case of Black Diamond Beverages and Anr. v. Commercial Tax Officer, Central Section, Assessment Wingh, Calcutta & Others (1998) 1 SCC 458 this court observed that freight and handling charges would be included in the sale price. 39. In Commissioner of Central Excise, Delhi v. Maruti Udyog Ltd. (2002) 3 SCC 547 this court observed as under: "... ... ...The sale price realised by the respondent has to be regarded as the entire price inclusive of excise duty because it is the respondent who has, by necessary implication, taken on the liability to pay all taxes on the goods sold and has not sought to realise any sum in addition to the price obtained by it from the purchaser. The purchaser was under no obligation to pay any amount in excess of what had already been paid as the price of the scrap." 40. In State of A.P. v. A.P. Paper Mills Ltd. (2005) 1 SCC 719 the short question arose for consideration was whether the transportation charges and agents commission paid by the respondent - M/s. A.P. Paper Mills Ltd. to the agent together with the cost of raw material constitute "turnover" under Section 2(s) and is liable to sales tax under Section 6-A of the Andhra Pradesh General Sales Tax Act, 1957. This court relied on Hindustan Sugar Mills (supra) and came to the conclusion that the transportation charges and agents commission would be inclusive in "turnover" under Section 2(s) and is liable to Sales Tax under Section 6(a) of the Andhra Pradesh General Sales Tax Act, 1957.
### Response:
0
### Explanation:
26. According to the facts of this case, Dyer Meakin Breweries Ltd. is registered as a dealer in "Indian made foreign liquor" under the Kerala General Sales Tax Act, 1963. The company has a place of business at Ernakulam, Kerala. The liquor sold by the company is manufactured or produced in distilleries or breweries at different places in the State of U.P. and Haryana. Liquor is transported for sale by the company from its breweries and distilleries to its place of business at Ernakulam. It is the practice of the company to maintain a uniformprice" in respect of each brand of liquor sold at different centers after adding to theprice the appropriate amount attributable to freight and other charges.27. In proceedings for assessment of sales tax forthe company claimed under Rule 9(f) of the Kerala General Sales Tax Rules, 1963, Rs.59,188.99 as an admissible deduction in respect of charges for "freight and handling charges" collected from the customers, in the computation of the taxable turnover. The Sales Tax Officer rejected the claim, and the order was confirmed by the Appellate Assistant Commissioner and by the Sales Tax Tribunal. A revision application filed before the High Court of Kerala was summarily dismissed. The company has appealed to this Court with special leave.The company claims that the amount spent by it for freight and for "handling charges" of goods from the factories to the warehouse at Ernakulam is liable to be excluded from the taxable turnover and the taxing authorities and the High Court were in error in refusing to allow the deduction.30. This court while interpreting Rule 9 (f) of the Kerala General Sales Tax Rules, 1963 observed that it is not intended to exclude from the taxable turnover any component of the price, expenditure, incurred by the dealer which he had to incur before sale and to make the goods available to the intending customer at the place of sale.31. This court had an occasion to deal with identical issues in the case of Hindustan Sugar Mills (supra). P.N. Bhagwati, J. (as His Lordship then was), clearly held that by reason of the provisions of the Control Order which governed the transactions of sale of cement entered into by the assessee with the purchasers in both the appeals before us, the amount of freight formed part of the `sale price.In State of A.P. v. A.P. Paper Mills Ltd. (2005) 1 SCC 719 the short question arose for consideration was whether the transportation charges and agents commission paid by the respondentM/s. A.P. Paper Mills Ltd. to the agent together with the cost of raw material constitute "turnover" under Section 2(s) and is liable to sales tax under Sectionof the Andhra Pradesh General Sales Tax Act, 1957. This court relied on Hindustan Sugar Mills (supra) and came to the conclusion that the transportation charges and agents commission would be inclusive in "turnover" under Section 2(s) and is liable to Sales Tax under Section 6(a) of the Andhra Pradesh General Sales Tax Act, 1957.41. When we apply the ratio of the judgments of the English Courts and of our Courts, the conclusion becomes obvious that the amount of freight and insurance charges incurred by the dealer forms part of the sale price.
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Makhan Singh Tarsikka Vs. The State Of Punjab | Patanjali Sastri, CJ. 1. This is petition under article 32 of the Constitution praying for the release of the petitioner from his alleged unlawful detention. We accepted the petition and, at the conclusion of the hearing, ordered the petitioner to be released. We now proceed to give the reasons for our order. 2. The petitioner was arrested and detained under an order dated 1st March, 1950, made by the District Magistrate, Amritsar, under section 3 (10 of the Preventive Detention Act, 1950 (hereinafter referred to as "the Act") and the grounds of detention were communicated to the petitioner as required by section 7 of the Act on 15th March, 1950. The petitioner challenged the validity of the order on various grounds, but, while the petition was pending after this Court issued a rule nisi to the respondent, the petitioner was served on 6th August with another detention order dated 30th July, 1951, purporting to be made by the Governor of Punjab under sub-section (1) of section 3 and section 4 of the Act as amended by the Preventive Detention (Amendment) Act, 1951, and he was served with fresh grounds of detention on 16th August, 1951. Thereupon the petitioner filed a supplementary petition impugning the validity of the said order on the ground, inter alia, that it directed the detention of the petitioner up to 31st March, 1952, the date on which the Act itself was to expire and that this was contrary to the provisions of the Act as amended. On behalf of the respondent, the Advocate-General of Punjab urged that the said order was not intended to be a fresh order of detention, but was passed only with a view to limiting the period of detention till 31st March, 1952, as it had been held in some cases that an order of detention for an indefinite period was bad. The order runs as follows:-"Whereas the Governor of Punjab is satisfied with respect to the person known as Makhan Singh Tarsikka, son of Gujjar Singh, Jat. of Tarsikka. Police Station Jandiala Amritsar District, that with a view to preventing him from acting in a manner prejudicial to the security of the State, it is necessary to make the following order : Now, therefore, in exercise of the powers conferred by sub-section (1) of section 3 and section 4 of the Preventive Detention Act, 1950 (Act IV of 1950), as amended by the Preventive Detention (Amendment) Act, 1951 (Act IV of 1951), the Governor of Punjab hereby directs that the said Makhan Singh Tarsikka be committed to the custody of the Inspector-General of Prisons, Punjab and detained in any jail of the State till 31st March, 1952, subject to such conditions as to maintenance, discipline and punishment for breaches of discipline and punishment for breaches of discipline as have been specified by a general order or as contained in the Punjab Communist Detenu Rules, 1950." 3. It will be seen that the terms of the order make it clear that it was intended to operate as a fresh order for the detention of the petitioner and this view is strengthened by the fact that the order was followed by the service of a fresh set of grounds on the petitioner as required by section 7 of the Act; a proceeding which would be wholly unnecessary if no fresh order of detention was intended. Indeed, it was suggested on behalf of the petitioner that the said order followed by service of fresh grounds only four days before the date fixed for the hearing of the petition by this Court was deliberate move by the respondent to circumvent the objections raised by the petitioner to the validity of the earlier order of 1st March, 1950, and thus render the proceeding infructuous. However, that may, be, we are clearly of opinion that the order dated 30th July, 1951, must be regarded as a fresh order made for the petitioners detention in supersession of the earlier order and the question is whether it was illegal in that it straightway directed that the petitioner be detained till 31st March, 1952, which was the date of the expiry of the Act. 4. Whatever might be the position under the Act before its amendment in February, 1951, it is clear that the Act as amended requires that every case of detention, should be placed before an Advisory Board constituted under the Act (section 9) and provides that of the Board reports that there is sufficient case for the detention "the appropriate Government may confirm the detention order and continue the detention of the person concerned for such period as it thinks fit" (section 11). It is therefore, plain that it is only after the Advisory Board, to which the case has been referred, reports that the detention is justified, the Government should determine what the period of detention should be and not before, The fixing of the period of detention in the initial order itself in the present case was, therefore, contrary to the scheme of the Act and cannot be supported. The learned Advocate-General, however, urged that in view of the provision in section 11 (2) that if the Advisory Board reports that there is no sufficient cause for the detention the person concerned would be released forthwith, the direction in the order dated 30th July, 1951, that the petitioner should be detained till 31st March, 1952, could be ignored as mere surplusage. We cannot accept that view. It is obvious that such a direction would tend to prejudice a fair consideration of the petitioners case when it is placed before the Advisory Board. It cannot be too often emphasised that before a person is deprived of his personal liberty the procedure established by law must be strictly followed and must not be departed from the disadvantage of the person affected. | 1[ds]3. It will be seen that the terms of the order make it clear that it was intended to operate as a fresh order for the detention of the petitioner and this view is strengthened by the fact that the order was followed by the service of a fresh set of grounds on the petitioner as required by section 7 of the Act; a proceeding which would be wholly unnecessary if no fresh order of detention was intended. Indeed, it was suggested on behalf of the petitioner that the said order followed by service of fresh grounds only four days before the date fixed for the hearing of the petition by this Court was deliberate move by the respondent to circumvent the objections raised by the petitioner to the validity of the earlier order of 1st March, 1950, and thus render the proceeding infructuous. However, that may, be, we are clearly of opinion that the order dated 30th July, 1951, must be regarded as a fresh order made for the petitioners detention in supersession of the earlier order and the question is whether it was illegal in that it straightway directed that the petitioner be detained till 31st March, 1952, which was the date of the expiry of the Act4. Whatever might be the position under the Act before its amendment in February, 1951, it is clear that the Act as amended requires that every case of detention, should be placed before an Advisory Board constituted under the Act (section 9) and provides that of the Board reports that there is sufficient case for the detention "the appropriate Government may confirm the detention order and continue the detention of the person concerned for such period as it thinks fit" (section 11). It is therefore, plain that it is only after the Advisory Board, to which the case has been referred, reports that the detention is justified, the Government should determine what the period of detention should be and not before, The fixing of the period of detention in the initial order itself in the present case was, therefore, contrary to the scheme of the Act and cannot be supported. The learned, however, urged that in view of the provision in section 11 (2) that if the Advisory Board reports that there is no sufficient cause for the detention the person concerned would be released forthwith, the direction in the order dated 30th July, 1951, that the petitioner should be detained till 31st March, 1952, could be ignored as mere surplusage. We cannot accept that view. It is obvious that such a direction would tend to prejudice a fair consideration of the petitioners case when it is placed before the Advisory Board. It cannot be too often emphasised that before a person is deprived of his personal liberty the procedure established by law must be strictly followed and must not be departed from the disadvantage of the person affected. | 1 | 1,099 | 541 | ### Instruction:
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Patanjali Sastri, CJ. 1. This is petition under article 32 of the Constitution praying for the release of the petitioner from his alleged unlawful detention. We accepted the petition and, at the conclusion of the hearing, ordered the petitioner to be released. We now proceed to give the reasons for our order. 2. The petitioner was arrested and detained under an order dated 1st March, 1950, made by the District Magistrate, Amritsar, under section 3 (10 of the Preventive Detention Act, 1950 (hereinafter referred to as "the Act") and the grounds of detention were communicated to the petitioner as required by section 7 of the Act on 15th March, 1950. The petitioner challenged the validity of the order on various grounds, but, while the petition was pending after this Court issued a rule nisi to the respondent, the petitioner was served on 6th August with another detention order dated 30th July, 1951, purporting to be made by the Governor of Punjab under sub-section (1) of section 3 and section 4 of the Act as amended by the Preventive Detention (Amendment) Act, 1951, and he was served with fresh grounds of detention on 16th August, 1951. Thereupon the petitioner filed a supplementary petition impugning the validity of the said order on the ground, inter alia, that it directed the detention of the petitioner up to 31st March, 1952, the date on which the Act itself was to expire and that this was contrary to the provisions of the Act as amended. On behalf of the respondent, the Advocate-General of Punjab urged that the said order was not intended to be a fresh order of detention, but was passed only with a view to limiting the period of detention till 31st March, 1952, as it had been held in some cases that an order of detention for an indefinite period was bad. The order runs as follows:-"Whereas the Governor of Punjab is satisfied with respect to the person known as Makhan Singh Tarsikka, son of Gujjar Singh, Jat. of Tarsikka. Police Station Jandiala Amritsar District, that with a view to preventing him from acting in a manner prejudicial to the security of the State, it is necessary to make the following order : Now, therefore, in exercise of the powers conferred by sub-section (1) of section 3 and section 4 of the Preventive Detention Act, 1950 (Act IV of 1950), as amended by the Preventive Detention (Amendment) Act, 1951 (Act IV of 1951), the Governor of Punjab hereby directs that the said Makhan Singh Tarsikka be committed to the custody of the Inspector-General of Prisons, Punjab and detained in any jail of the State till 31st March, 1952, subject to such conditions as to maintenance, discipline and punishment for breaches of discipline and punishment for breaches of discipline as have been specified by a general order or as contained in the Punjab Communist Detenu Rules, 1950." 3. It will be seen that the terms of the order make it clear that it was intended to operate as a fresh order for the detention of the petitioner and this view is strengthened by the fact that the order was followed by the service of a fresh set of grounds on the petitioner as required by section 7 of the Act; a proceeding which would be wholly unnecessary if no fresh order of detention was intended. Indeed, it was suggested on behalf of the petitioner that the said order followed by service of fresh grounds only four days before the date fixed for the hearing of the petition by this Court was deliberate move by the respondent to circumvent the objections raised by the petitioner to the validity of the earlier order of 1st March, 1950, and thus render the proceeding infructuous. However, that may, be, we are clearly of opinion that the order dated 30th July, 1951, must be regarded as a fresh order made for the petitioners detention in supersession of the earlier order and the question is whether it was illegal in that it straightway directed that the petitioner be detained till 31st March, 1952, which was the date of the expiry of the Act. 4. Whatever might be the position under the Act before its amendment in February, 1951, it is clear that the Act as amended requires that every case of detention, should be placed before an Advisory Board constituted under the Act (section 9) and provides that of the Board reports that there is sufficient case for the detention "the appropriate Government may confirm the detention order and continue the detention of the person concerned for such period as it thinks fit" (section 11). It is therefore, plain that it is only after the Advisory Board, to which the case has been referred, reports that the detention is justified, the Government should determine what the period of detention should be and not before, The fixing of the period of detention in the initial order itself in the present case was, therefore, contrary to the scheme of the Act and cannot be supported. The learned Advocate-General, however, urged that in view of the provision in section 11 (2) that if the Advisory Board reports that there is no sufficient cause for the detention the person concerned would be released forthwith, the direction in the order dated 30th July, 1951, that the petitioner should be detained till 31st March, 1952, could be ignored as mere surplusage. We cannot accept that view. It is obvious that such a direction would tend to prejudice a fair consideration of the petitioners case when it is placed before the Advisory Board. It cannot be too often emphasised that before a person is deprived of his personal liberty the procedure established by law must be strictly followed and must not be departed from the disadvantage of the person affected.
### Response:
1
### Explanation:
3. It will be seen that the terms of the order make it clear that it was intended to operate as a fresh order for the detention of the petitioner and this view is strengthened by the fact that the order was followed by the service of a fresh set of grounds on the petitioner as required by section 7 of the Act; a proceeding which would be wholly unnecessary if no fresh order of detention was intended. Indeed, it was suggested on behalf of the petitioner that the said order followed by service of fresh grounds only four days before the date fixed for the hearing of the petition by this Court was deliberate move by the respondent to circumvent the objections raised by the petitioner to the validity of the earlier order of 1st March, 1950, and thus render the proceeding infructuous. However, that may, be, we are clearly of opinion that the order dated 30th July, 1951, must be regarded as a fresh order made for the petitioners detention in supersession of the earlier order and the question is whether it was illegal in that it straightway directed that the petitioner be detained till 31st March, 1952, which was the date of the expiry of the Act4. Whatever might be the position under the Act before its amendment in February, 1951, it is clear that the Act as amended requires that every case of detention, should be placed before an Advisory Board constituted under the Act (section 9) and provides that of the Board reports that there is sufficient case for the detention "the appropriate Government may confirm the detention order and continue the detention of the person concerned for such period as it thinks fit" (section 11). It is therefore, plain that it is only after the Advisory Board, to which the case has been referred, reports that the detention is justified, the Government should determine what the period of detention should be and not before, The fixing of the period of detention in the initial order itself in the present case was, therefore, contrary to the scheme of the Act and cannot be supported. The learned, however, urged that in view of the provision in section 11 (2) that if the Advisory Board reports that there is no sufficient cause for the detention the person concerned would be released forthwith, the direction in the order dated 30th July, 1951, that the petitioner should be detained till 31st March, 1952, could be ignored as mere surplusage. We cannot accept that view. It is obvious that such a direction would tend to prejudice a fair consideration of the petitioners case when it is placed before the Advisory Board. It cannot be too often emphasised that before a person is deprived of his personal liberty the procedure established by law must be strictly followed and must not be departed from the disadvantage of the person affected.
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Nagar Ayukt Nagar Nigam, Kanpur and Ors Vs. Mujib Ullah Khan and Ors | of definition of an ‘employee’ under Section 2 (e) of the Act. Therefore, the employees of the Municipalities are entitled to the gratuity in terms of the provisions of the Act.6. The appellant relies upon Section 3 of the U.P Dookan Aur Vanijya Adhishthan Adhiniyam, 1962 1962 Act which is to the effect that such Act will have no application to the office of Government or Local Bodies. Therefore, on the strength of such statutory provision, it was argued that the Act would not be applicable in respect of the Municipalities. The appellant is not a factory, mine, oilfield, plantation, port and railway company and that there is no notification as stipulated under Clause (c) of Section 1(3) of the Act. Therefore, the employees of the Municipalities are entitled to the gratuity in terms of the Regulations framed in exercise of powers of Section 548 of the 1959 Act and not under the Act.7. On the other hand, learned counsel for the respondent pointed out that the Central Government has published a notification in terms of Section 1(3)(c) of the Act on 08.01.1982 to extend the applicability of the Act to the Municipalities. Thus, the Act is applicable to the Municipalities. The relevant provisions of the Act read as under:“1. Short title, extent, application and commencement.- (1) This Act may be called the Payment of Gratuity Act, 1972.(2) It extends to the whole of India: Provided that in so far as it relates to plantations or ports, it shall not extend to the State of Jammu and Kashmir.(3) It shall apply to-(a) every factory, mine, oilfield, plantation, port and railway company;(b) every shop or establishment within the meaning of any law for the time being in force in relation to shops and establishments in a State, in which ten or more persons are employed, or were employed, on any day of the preceding twelve months;(c) such other establishments or class of establishments, in which ten or more employees are employed, or were employed, on any day of the preceding twelve months, as the Central Government may, by notification, specify in this behalf.”8. A perusal of the above provisions would show that the Act is applicable to (1) every factory, mine, oilfield, plantation, port and railway company; (2) every shop or establishment within the meaning of any law for the time being in force in relation to shops and establishments in a State, in which ten or more persons are employed, the said provision has two conditions, viz. (i) a shop or establishments within the meaning of a State law and (ii) in which ten or more persons are employed; and (3) the establishments or class of establishments which Central Government may notify.9. The appellant is not covered by clauses (a) and (b) of Section 1(3) of the Act. Clause (a) is not applicable on the face of the provisions, but even clause (b) is not applicable in view of Section 3 (c) of the 1962 Act as such Act is not applicable to the offices of the Government or local authorities. The Local Authorities means a municipal committee, district board etc or entrusted with the control or management of a municipal or local fund in terms of Section 3(31) of the General Clauses Act, 1897.10. In terms of the above said Section 1(3)(c) of the Act, the Central Government has published a notification on 08.01.1982 and specified Local Bodies in which ten or more persons are employed, or were employed, on any day of the preceding twelve months as a class of establishment to which this Act shall apply. The said notification dated 08.01.1982 reads as under:-“ New Delhi, the 8 th January, 1982NOTIFICATIONS.O. No. 239….-In exercise of the powers conferred by clause (c) of sub-section (3) of section 1 of the Payment of Gratuity Act, 1972 (39 of 1972), the Central Government hereby specified ‘local bodies’ in which ten or more persons are employed, or were employed, on any day preceding twelve months, as a class of establishments to which the said Act shall apply with effect from the date of publication of this notification in the Official Gazette.Sd/.(R. K. A. Subrahmanya) Additional Secretary(F . No. S-70020/16/77-FPG)11. We find that the notification dated 08.01.1982 was not referred to before the High Court. Such notification makes it abundantly clear that the Act is applicable to the local bodies i.e., the Municipalities. Section 14 of the Act has given an overriding effect over any other inconsistent provision in any other enactment. The said provision reads as under:“14. Act to override other enactments, etc. – The provisions of this Act or any rule made thereunder shall have effect notwithstanding anything inconsistent therewith contained in any enactment other than this Act or in any instrument or contract having effect by virtue of any enactment other than this Act.”12. In view of Section 14 of the Act, the provision in the State Act contemplating payment of Gratuity will be inapplicable in respect of the employees of the local bodies.13. Section 2(e) of the Act alone was referred to in the judgment reported as Municipal Corporation of Delhi (supra). The said judgment is in the context of CCS (Pension) Rules, 1972 1972 Rules which specifically provides for payment of Pension and Gratuity. The Act is applicable to the Municipalities, therefore, it is wholly inconsequential even if there is no reference to the notification dated 08.01.1982.14. The entire argument of the appellant is that the State Act confers restrictive benefit of gratuity than what is conferred under the Central Act. Such argument is not tenable in view of Section 14 of the Act and that liberal payment of gratuity is in fact in the interest of the employees. Thus, the gratuity would be payable under the Act. Such is the view taken by the Controlling Authority.15. In view of the aforesaid, we find that there is no error in the orders passed by the Controlling Authorities under the Act and as maintained by the High Court. | 0[ds]8. A perusal of the above provisions would show that the Act is applicable to (1) every factory, mine, oilfield, plantation, port and railway company; (2) every shop or establishment within the meaning of any law for the time being in force in relation to shops and establishments in a State, in which ten or more persons are employed, the said provision has two conditions, viz. (i) a shop or establishments within the meaning of a State law and (ii) in which ten or more persons are employed; and (3) the establishments or class of establishments which Central Government may notify.9. The appellant is not covered by clauses (a) and (b) of Section 1(3) of the Act. Clause (a) is not applicable on the face of the provisions, but even clause (b) is not applicable in view of Section 3 (c) of the 1962 Act as such Act is not applicable to the offices of the Government or local authorities. The Local Authorities means a municipal committee, district board etc or entrusted with the control or management of a municipal or local fund in terms of Section 3(31) of the General Clauses Act, 1897.10. In terms of the above said Section 1(3)(c) of the Act, the Central Government has published a notification on 08.01.1982 and specified Local Bodies in which ten or more persons are employed, or were employed, on any day of the preceding twelve months as a class of establishment to which this Act shall apply.We find that the notification dated 08.01.1982 was not referred to before the High Court. Such notification makes it abundantly clear that the Act is applicable to the local bodies i.e., the Municipalities. Section 14 of the Act has given an overriding effect over any other inconsistent provision in any other enactment.In view of Section 14 of the Act, the provision in the State Act contemplating payment of Gratuity will be inapplicable in respect of the employees of the local bodies.13. Section 2(e) of the Act alone was referred to in the judgment reported as Municipal Corporation of Delhi (supra). The said judgment is in the context of CCS (Pension) Rules, 1972 1972 Rules which specifically provides for payment of Pension and Gratuity. The Act is applicable to the Municipalities, therefore, it is wholly inconsequential even if there is no reference to the notification dated 08.01.1982.14.The entire argument of the appellant is that the State Act confers restrictive benefit of gratuity than what is conferred under the CentralAct. Such argument is not tenable in view of Section 14 of the Act and that liberal payment of gratuity is in fact in the interest of the employees. Thus, the gratuity would be payable under the Act. Such is the view taken by the Controlling Authority.15. In view of the aforesaid, we find that there is no error in the orders passed by the Controlling Authorities under the Act and as maintained by the High Court. | 0 | 1,637 | 572 | ### Instruction:
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of definition of an ‘employee’ under Section 2 (e) of the Act. Therefore, the employees of the Municipalities are entitled to the gratuity in terms of the provisions of the Act.6. The appellant relies upon Section 3 of the U.P Dookan Aur Vanijya Adhishthan Adhiniyam, 1962 1962 Act which is to the effect that such Act will have no application to the office of Government or Local Bodies. Therefore, on the strength of such statutory provision, it was argued that the Act would not be applicable in respect of the Municipalities. The appellant is not a factory, mine, oilfield, plantation, port and railway company and that there is no notification as stipulated under Clause (c) of Section 1(3) of the Act. Therefore, the employees of the Municipalities are entitled to the gratuity in terms of the Regulations framed in exercise of powers of Section 548 of the 1959 Act and not under the Act.7. On the other hand, learned counsel for the respondent pointed out that the Central Government has published a notification in terms of Section 1(3)(c) of the Act on 08.01.1982 to extend the applicability of the Act to the Municipalities. Thus, the Act is applicable to the Municipalities. The relevant provisions of the Act read as under:“1. Short title, extent, application and commencement.- (1) This Act may be called the Payment of Gratuity Act, 1972.(2) It extends to the whole of India: Provided that in so far as it relates to plantations or ports, it shall not extend to the State of Jammu and Kashmir.(3) It shall apply to-(a) every factory, mine, oilfield, plantation, port and railway company;(b) every shop or establishment within the meaning of any law for the time being in force in relation to shops and establishments in a State, in which ten or more persons are employed, or were employed, on any day of the preceding twelve months;(c) such other establishments or class of establishments, in which ten or more employees are employed, or were employed, on any day of the preceding twelve months, as the Central Government may, by notification, specify in this behalf.”8. A perusal of the above provisions would show that the Act is applicable to (1) every factory, mine, oilfield, plantation, port and railway company; (2) every shop or establishment within the meaning of any law for the time being in force in relation to shops and establishments in a State, in which ten or more persons are employed, the said provision has two conditions, viz. (i) a shop or establishments within the meaning of a State law and (ii) in which ten or more persons are employed; and (3) the establishments or class of establishments which Central Government may notify.9. The appellant is not covered by clauses (a) and (b) of Section 1(3) of the Act. Clause (a) is not applicable on the face of the provisions, but even clause (b) is not applicable in view of Section 3 (c) of the 1962 Act as such Act is not applicable to the offices of the Government or local authorities. The Local Authorities means a municipal committee, district board etc or entrusted with the control or management of a municipal or local fund in terms of Section 3(31) of the General Clauses Act, 1897.10. In terms of the above said Section 1(3)(c) of the Act, the Central Government has published a notification on 08.01.1982 and specified Local Bodies in which ten or more persons are employed, or were employed, on any day of the preceding twelve months as a class of establishment to which this Act shall apply. The said notification dated 08.01.1982 reads as under:-“ New Delhi, the 8 th January, 1982NOTIFICATIONS.O. No. 239….-In exercise of the powers conferred by clause (c) of sub-section (3) of section 1 of the Payment of Gratuity Act, 1972 (39 of 1972), the Central Government hereby specified ‘local bodies’ in which ten or more persons are employed, or were employed, on any day preceding twelve months, as a class of establishments to which the said Act shall apply with effect from the date of publication of this notification in the Official Gazette.Sd/.(R. K. A. Subrahmanya) Additional Secretary(F . No. S-70020/16/77-FPG)11. We find that the notification dated 08.01.1982 was not referred to before the High Court. Such notification makes it abundantly clear that the Act is applicable to the local bodies i.e., the Municipalities. Section 14 of the Act has given an overriding effect over any other inconsistent provision in any other enactment. The said provision reads as under:“14. Act to override other enactments, etc. – The provisions of this Act or any rule made thereunder shall have effect notwithstanding anything inconsistent therewith contained in any enactment other than this Act or in any instrument or contract having effect by virtue of any enactment other than this Act.”12. In view of Section 14 of the Act, the provision in the State Act contemplating payment of Gratuity will be inapplicable in respect of the employees of the local bodies.13. Section 2(e) of the Act alone was referred to in the judgment reported as Municipal Corporation of Delhi (supra). The said judgment is in the context of CCS (Pension) Rules, 1972 1972 Rules which specifically provides for payment of Pension and Gratuity. The Act is applicable to the Municipalities, therefore, it is wholly inconsequential even if there is no reference to the notification dated 08.01.1982.14. The entire argument of the appellant is that the State Act confers restrictive benefit of gratuity than what is conferred under the Central Act. Such argument is not tenable in view of Section 14 of the Act and that liberal payment of gratuity is in fact in the interest of the employees. Thus, the gratuity would be payable under the Act. Such is the view taken by the Controlling Authority.15. In view of the aforesaid, we find that there is no error in the orders passed by the Controlling Authorities under the Act and as maintained by the High Court.
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8. A perusal of the above provisions would show that the Act is applicable to (1) every factory, mine, oilfield, plantation, port and railway company; (2) every shop or establishment within the meaning of any law for the time being in force in relation to shops and establishments in a State, in which ten or more persons are employed, the said provision has two conditions, viz. (i) a shop or establishments within the meaning of a State law and (ii) in which ten or more persons are employed; and (3) the establishments or class of establishments which Central Government may notify.9. The appellant is not covered by clauses (a) and (b) of Section 1(3) of the Act. Clause (a) is not applicable on the face of the provisions, but even clause (b) is not applicable in view of Section 3 (c) of the 1962 Act as such Act is not applicable to the offices of the Government or local authorities. The Local Authorities means a municipal committee, district board etc or entrusted with the control or management of a municipal or local fund in terms of Section 3(31) of the General Clauses Act, 1897.10. In terms of the above said Section 1(3)(c) of the Act, the Central Government has published a notification on 08.01.1982 and specified Local Bodies in which ten or more persons are employed, or were employed, on any day of the preceding twelve months as a class of establishment to which this Act shall apply.We find that the notification dated 08.01.1982 was not referred to before the High Court. Such notification makes it abundantly clear that the Act is applicable to the local bodies i.e., the Municipalities. Section 14 of the Act has given an overriding effect over any other inconsistent provision in any other enactment.In view of Section 14 of the Act, the provision in the State Act contemplating payment of Gratuity will be inapplicable in respect of the employees of the local bodies.13. Section 2(e) of the Act alone was referred to in the judgment reported as Municipal Corporation of Delhi (supra). The said judgment is in the context of CCS (Pension) Rules, 1972 1972 Rules which specifically provides for payment of Pension and Gratuity. The Act is applicable to the Municipalities, therefore, it is wholly inconsequential even if there is no reference to the notification dated 08.01.1982.14.The entire argument of the appellant is that the State Act confers restrictive benefit of gratuity than what is conferred under the CentralAct. Such argument is not tenable in view of Section 14 of the Act and that liberal payment of gratuity is in fact in the interest of the employees. Thus, the gratuity would be payable under the Act. Such is the view taken by the Controlling Authority.15. In view of the aforesaid, we find that there is no error in the orders passed by the Controlling Authorities under the Act and as maintained by the High Court.
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M/S. Master Marine Services Pvt. Ltd Vs. Metcalfe & Hodgkinson Pvt. Ltd. | 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, a fairplay 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 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 reports). 10. In Sterling Computers Ltd. vs. M/s. M.N. Publications Ltd. AIR 1996 SC 51 it was held as under: While exercising the power of judicial review, in respect of contracts entered into on behalf of the State, the Court is concerned primarily as to whether there has been any infirmity in the decision making process. By way of judicial review the Court cannot examine the details of the terms of the contract which have been entered into by the public bodies or the State. Court have inherent limitations on the scope of any such enquiry. But at the same time the Courts can certainly examine whether decision making process was reasonable rational, not arbitrary and violative of Article 14 of the Constitution. If the contract has been entered into without ignoring the procedure which can be said to be basic in nature and after an objective consideration of different options available taking into account the interest of the State and the public, then Court cannot act as an appellate authority by substituting its opinion in respect of selection made for entering into such contract.... 11. In Raunaq International Ltd. vs. I.V.R. Construction Ltd. (1999) (1) SCC 492 it was observed that the award of a contract, whether it is by a private party or by a public body or the State, is essentially a commercial transaction. In arriving at a commercial decision, considerations which are of paramount importance are commercial considerations, which would include, inter alia, the price at which the party is willing to work, whether the goods or services offered are of the requisite specifications and whether the person tendering is of ability to deliver the goods or services as per specifications. 12. The law relating to award of contract by State and public sector corporations was reviewed in AIR India Ltd. vs. Cochin International Airport Ltd. 2000(2) SCC 617 and it was held that the award of a contract, whether by a private party or by a State, is essentially a commercial transaction. It can choose its own method to arrive at a decision and it is free to grant any relaxation for bona fide reasons, if the tender conditions permit such a relaxation. It was further held that the State, its corporations instrumentalities and agencies have the public duty to be fair to all concerned. Even when some defect is found in the decision making process, the Court must exercise its discretionary powers under Article 226 with great caution and should exercise it only in furtherance of public interest and not merely on the making out of a legal point. The Court should always keep the larger public interest in mind in order to decide whether its intervention is called for or not. Only when it comes to a conclusion that overwhelming public interest requires interference, the Court should interfere. 13. The only ground on which the High Court has quashed the decision of CONCOR awarding the contract to the appellant is that there was no license to act as surveyor/ loss assessor under the Insurance Act, 1938 in favour of the appellant which is a company. This question was considered by the TEC in its meeting held on 17.1.2004. The TEC also took notice of the fact that there were only two bidders (the appellant and the first respondent) in the tender and it would be desirable to prevent the tender from lapsing into a single bidder tender. After receipt of the reply from the appellant; the TEC again evaluated the tenders for pre-qualification bid and after noting that M/s. Master Marine Services Pvt. Ltd. is known to be an established surveyor doing work for a number of shipping lines at various CONCOR terminals and further that Capt. Percy Meher Master, who had the license, had been appointed the Chairman of the company, made a recommendation that both, the appellant and the first respondent may be qualified for their technical capability. It has to be borne in mind that para 11 of the Instructions clearly conferred a power upon the CONCOR to relax the tender conditions at any stage, if considered necessary, for the purpose of finalizing the contract in overall interest of the CONCOR and the trade. Therefore, having regard to the fact that the Chairman of the company had a license under the Insurance Act, the condition regarding the holding of such a license by the appellant itself, in the fact and circumstances of the case, could be relaxed. So far as commercial considerations are concerned, it is the specific case of the CONCOR, which has not been disputed by the first respondent, that ninety eight per cent of the work under the contract is of data entry of a container, for which the appellant had quoted Rs. 3.00 against Rs.3.75 as quoted by the first respondent and for this kind of work no license under IRDA is required. In such circumstances, no such public interest was involved which may warrant interference by the High Court in exercise of its extraordinary jurisdiction under Article 226 of the Constitution while undertaking judicial review of an administrative action relating to award of a contract. | 1[ds]The tender document shows that the CONCOR had adopted a two bid process for making selection and award of the contract. The first part consisting of pre-qualification bid required submission of documents to show proof of experience, deposit of earnest money, constitution of the firm/company, turn over for past three years, proof in support of having employed at least 20 persons including IICL certified supervisors for preceding three years. The second part related to financial bid and this was to be considered only for such tenderers who were short-listed in the pre-qualification bid. Para 2(g) which has been quoted above, only required a copy of license to act as surveyor/loss assessor under Insurance Act, 1938. It may be noted that the tender document does not say that in case where a company has made a bid, the license to act as surveyor/loss assessor under the Insurance Act must be in the name of the company itself or that a license personally in the name of the Chairman or a Director of a Company would not be treated as a valid compliance of the requirement of tender. Para 11 of the Instructions is important. The CONCOR reserved the right to amend the tender document, if considered necessary, with due intimation to the respective tenderers prior to the last date of tender submission. The CONCOR also reserved the right to relax the tender conditions at any stage,if considered necessary, for the purpose of finalizing the contract in the overall interest of the CONCOR and the trade9. The principles which have to be applied in judicial review of administrative decisions, especially those relating to acceptance of tender and award of contract, have been considered in great detail by a three Judge Bench in Tata Cellular vs. Union of India AIR 1996 SC 11 . It was observed 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. (See para 85 of the reports)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, a fairplay 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 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 reports)12. The law relating to award of contract by State and public sector corporations was reviewed in AIR India Ltd. vs. Cochin International Airport Ltd. 2000(2) SCC 617 and it was held that the award of a contract, whether by a private party or by a State, is essentially a commercial transaction. It can choose its own method to arrive at a decision and it is free to grant any relaxation for bona fide reasons, if the tender conditions permit such a relaxation. It was further held that the State, its corporations instrumentalities and agencies have the public duty to be fair to all concerned. Even when some defect is found in the decision making process, the Court must exercise its discretionary powers under Article 226 with great caution and should exercise it only in furtherance of public interest and not merely on the making out of a legal point. The Court should always keep the larger public interest in mind in order to decide whether its intervention is called for or not. Only when it comes to a conclusion that overwhelming public interest requires interference, the Court should interfere13. The only ground on which the High Court has quashed the decision of CONCOR awarding the contract to the appellant is that there was no license to act as surveyor/ loss assessor under the Insurance Act, 1938 in favour of the appellant which is a company. This question was considered by the TEC in its meeting held on 17.1.2004. The TEC also took notice of the fact that there were only two bidders (the appellant and the first respondent) in the tender and it would be desirable to prevent the tender from lapsing into a single bidder tender. After receipt of the reply from the appellant; the TEC again evaluated the tenders for pre-qualification bid and after noting that M/s. Master Marine Services Pvt. Ltd. is known to be an established surveyor doing work for a number of shipping lines at various CONCOR terminals and further that Capt. Percy Meher Master, who had the license, had been appointed the Chairman of the company, made a recommendation that both, the appellant and the first respondent may be qualified for their technical capability. It has to be borne in mind that para 11 of the Instructions clearly conferred a power upon the CONCOR to relax the tender conditions at any stage, if considered necessary, for the purpose of finalizing the contract in overall interest of the CONCOR and the trade. Therefore, having regard to the fact that the Chairman of the company had a license under the Insurance Act, the condition regarding the holding of such a license by the appellant itself, in the fact and circumstances of the case, could be relaxed. So far as commercial considerations are concerned, it is the specific case of the CONCOR, which has not been disputed by the first respondent, that ninety eight per cent of the work under the contract is of data entry of a container, for which the appellant had quoted Rs. 3.00 against Rs.3.75 as quoted by the first respondent and for this kind of work no license under IRDA is required. In such circumstances, no such public interest was involved which may warrant interference by the High Court in exercise of its extraordinary jurisdiction under Article 226 of the Constitution while undertaking judicial review of an administrative action relating to award of a contract | 1 | 4,782 | 1,329 | ### Instruction:
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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, a fairplay 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 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 reports). 10. In Sterling Computers Ltd. vs. M/s. M.N. Publications Ltd. AIR 1996 SC 51 it was held as under: While exercising the power of judicial review, in respect of contracts entered into on behalf of the State, the Court is concerned primarily as to whether there has been any infirmity in the decision making process. By way of judicial review the Court cannot examine the details of the terms of the contract which have been entered into by the public bodies or the State. Court have inherent limitations on the scope of any such enquiry. But at the same time the Courts can certainly examine whether decision making process was reasonable rational, not arbitrary and violative of Article 14 of the Constitution. If the contract has been entered into without ignoring the procedure which can be said to be basic in nature and after an objective consideration of different options available taking into account the interest of the State and the public, then Court cannot act as an appellate authority by substituting its opinion in respect of selection made for entering into such contract.... 11. In Raunaq International Ltd. vs. I.V.R. Construction Ltd. (1999) (1) SCC 492 it was observed that the award of a contract, whether it is by a private party or by a public body or the State, is essentially a commercial transaction. In arriving at a commercial decision, considerations which are of paramount importance are commercial considerations, which would include, inter alia, the price at which the party is willing to work, whether the goods or services offered are of the requisite specifications and whether the person tendering is of ability to deliver the goods or services as per specifications. 12. The law relating to award of contract by State and public sector corporations was reviewed in AIR India Ltd. vs. Cochin International Airport Ltd. 2000(2) SCC 617 and it was held that the award of a contract, whether by a private party or by a State, is essentially a commercial transaction. It can choose its own method to arrive at a decision and it is free to grant any relaxation for bona fide reasons, if the tender conditions permit such a relaxation. It was further held that the State, its corporations instrumentalities and agencies have the public duty to be fair to all concerned. Even when some defect is found in the decision making process, the Court must exercise its discretionary powers under Article 226 with great caution and should exercise it only in furtherance of public interest and not merely on the making out of a legal point. The Court should always keep the larger public interest in mind in order to decide whether its intervention is called for or not. Only when it comes to a conclusion that overwhelming public interest requires interference, the Court should interfere. 13. The only ground on which the High Court has quashed the decision of CONCOR awarding the contract to the appellant is that there was no license to act as surveyor/ loss assessor under the Insurance Act, 1938 in favour of the appellant which is a company. This question was considered by the TEC in its meeting held on 17.1.2004. The TEC also took notice of the fact that there were only two bidders (the appellant and the first respondent) in the tender and it would be desirable to prevent the tender from lapsing into a single bidder tender. After receipt of the reply from the appellant; the TEC again evaluated the tenders for pre-qualification bid and after noting that M/s. Master Marine Services Pvt. Ltd. is known to be an established surveyor doing work for a number of shipping lines at various CONCOR terminals and further that Capt. Percy Meher Master, who had the license, had been appointed the Chairman of the company, made a recommendation that both, the appellant and the first respondent may be qualified for their technical capability. It has to be borne in mind that para 11 of the Instructions clearly conferred a power upon the CONCOR to relax the tender conditions at any stage, if considered necessary, for the purpose of finalizing the contract in overall interest of the CONCOR and the trade. Therefore, having regard to the fact that the Chairman of the company had a license under the Insurance Act, the condition regarding the holding of such a license by the appellant itself, in the fact and circumstances of the case, could be relaxed. So far as commercial considerations are concerned, it is the specific case of the CONCOR, which has not been disputed by the first respondent, that ninety eight per cent of the work under the contract is of data entry of a container, for which the appellant had quoted Rs. 3.00 against Rs.3.75 as quoted by the first respondent and for this kind of work no license under IRDA is required. In such circumstances, no such public interest was involved which may warrant interference by the High Court in exercise of its extraordinary jurisdiction under Article 226 of the Constitution while undertaking judicial review of an administrative action relating to award of a contract.
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CONCOR also reserved the right to relax the tender conditions at any stage,if considered necessary, for the purpose of finalizing the contract in the overall interest of the CONCOR and the trade9. The principles which have to be applied in judicial review of administrative decisions, especially those relating to acceptance of tender and award of contract, have been considered in great detail by a three Judge Bench in Tata Cellular vs. Union of India AIR 1996 SC 11 . It was observed 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. (See para 85 of the reports)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, a fairplay 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 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 reports)12. The law relating to award of contract by State and public sector corporations was reviewed in AIR India Ltd. vs. Cochin International Airport Ltd. 2000(2) SCC 617 and it was held that the award of a contract, whether by a private party or by a State, is essentially a commercial transaction. It can choose its own method to arrive at a decision and it is free to grant any relaxation for bona fide reasons, if the tender conditions permit such a relaxation. It was further held that the State, its corporations instrumentalities and agencies have the public duty to be fair to all concerned. Even when some defect is found in the decision making process, the Court must exercise its discretionary powers under Article 226 with great caution and should exercise it only in furtherance of public interest and not merely on the making out of a legal point. The Court should always keep the larger public interest in mind in order to decide whether its intervention is called for or not. Only when it comes to a conclusion that overwhelming public interest requires interference, the Court should interfere13. The only ground on which the High Court has quashed the decision of CONCOR awarding the contract to the appellant is that there was no license to act as surveyor/ loss assessor under the Insurance Act, 1938 in favour of the appellant which is a company. This question was considered by the TEC in its meeting held on 17.1.2004. The TEC also took notice of the fact that there were only two bidders (the appellant and the first respondent) in the tender and it would be desirable to prevent the tender from lapsing into a single bidder tender. After receipt of the reply from the appellant; the TEC again evaluated the tenders for pre-qualification bid and after noting that M/s. Master Marine Services Pvt. Ltd. is known to be an established surveyor doing work for a number of shipping lines at various CONCOR terminals and further that Capt. Percy Meher Master, who had the license, had been appointed the Chairman of the company, made a recommendation that both, the appellant and the first respondent may be qualified for their technical capability. It has to be borne in mind that para 11 of the Instructions clearly conferred a power upon the CONCOR to relax the tender conditions at any stage, if considered necessary, for the purpose of finalizing the contract in overall interest of the CONCOR and the trade. Therefore, having regard to the fact that the Chairman of the company had a license under the Insurance Act, the condition regarding the holding of such a license by the appellant itself, in the fact and circumstances of the case, could be relaxed. So far as commercial considerations are concerned, it is the specific case of the CONCOR, which has not been disputed by the first respondent, that ninety eight per cent of the work under the contract is of data entry of a container, for which the appellant had quoted Rs. 3.00 against Rs.3.75 as quoted by the first respondent and for this kind of work no license under IRDA is required. In such circumstances, no such public interest was involved which may warrant interference by the High Court in exercise of its extraordinary jurisdiction under Article 226 of the Constitution while undertaking judicial review of an administrative action relating to award of a contract
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United India Insurance Co.Ltd Vs. Patricia Jean Mahajan | of the amount awarded which is on account of future expenditure yet to be incurred by the claimants. The interest is to be awarded on the amount which is payable on the date of the award. It is also to be noted that in some cases interest at the rate of 6% was awarded. This case however does not help the appellant Insurance Company. The next case which has been cited is reported in 2001 (2) S.C.C. 9 - Kaushnuma Begum (Smt.) and others versus New India Assurance Company Ltd. In this case interest at the rate of 9% was awarded. The reason indicated in Paragraph 24 of the Judgment, we quote hereunder: "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 enconomy and the policy of Reserve Bank of India the interest rate has been lowered. The nationalized banks are now granting interest at the rate of 9% on fixed deposit 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....." In our view the reason indicated in the case of Kaushnuma Begum (supra) is a valid reason and it may be noticed that the rate of interest is already on the decline. We therefore, reduce the rate of interest to 9% in place of 12% as awarded by the High Court.40. The next point which remains to be considered is in relation to the exchange rate of the Dollar in Rupee. The Motor Accident Claims Tribunal allowed the exchange rate of the Dollar at Rs.30. The learned Single Judge allowed it at the then current rate of Rs.47. The Division Bench restored the exchange rate at Rs. 30 observing that the matter was closed since the claimants had withdrawn the amount as awarded by the Tribunal and the matter was now on the second stage relating to enhanced amount of compensation. Shri P.P. Rao, learned senior counsel appearing for the appellants has vehemently urged that it is only the current rate which should be allowed since the value of the Rupee has fallen in exchange of Dollar after the application for claim was made and award was given. Therefore, the amount of Rupees as arrived at the exchange rate of Rs.47 should be allowed. In connection with his submission about rate of conversion, a reference to a case reported in 1984 Supp. SCC 263 - Oil and Natural Gas Commission versus Forasal has been made. This Court held that rate of conversion as on the date of passing of the decree should be taken on the basis of which conversion should be allowed. We however find that the facts in that case are different. According to the contract itself, a part of the payment was to be made in French currency. The question then arose as to what rate of conversion should be allowed. The Court was of the view that there would be three relevant dates of the purpose, namely, the date on which the amount became payable, the date of the filing of the suit and the date of the judgment and it was further held that it would be fairer to both the parties to take the latest of these dates, namely, the date of passing the decree as the relevant date for applying the conversion rate. In the present case since the deceased was an American citizen, settled there and income accrued to him in America in terms of Dollars, details of income etc, have been given in Dollars but so far the prayer for passing a decree is concerned, it was for a a sum indicated in Rupees which figure was arrived at by the claimants applying Rs.30 as the conversion rate. Therefore, in the present case there is no such dispute as to what rate of conversion was to be applied. As a matter of fact, whatever rate may have been applied by claimants, the fact remains that the decree in terms of Rupees specified for a sum of Rs.54 crores was prayed for. In terms of the prayer whatever amount in rupee was found to be payable to the claimants was decreed. In the present case the exchange rate of Dollar against Rupee was relevant for the purpose of arriving at a fair assessment of the loss of the dependency of the claimants at the relevant time. In such a situation we are of the view that no such question as in the case of Oil and Natural Gas Commission (supra) is involved. The decree was for a definite sum in terms of Rupees, a part of which was found admissible which amount was decreed. There is no occasion to convert the amount of decree in Rupees into Dollars applying Rs.30 as rate of conversion and then re-convert it in Rupees at the rate of Rs. 47. The claimants cannot ask for more than what was prayed for in the claim petition. We are therefore not inclined to accede to the request made for calculation of the amount of award at the conversion rate of Rs.47.41. Shri T.R. Rajagopalan, learned senior counsel appearing for the Insurance Company in SLP (c) 20874/2001 preferred on the question of rash and negligent driving against the driver of the Troller advanced some arguments but we do not think that the findings of fact recorded by the Courts of fact namely the Motor Accident Claims Tribunal and upheld by the learned Single Judge as well as the Division Bench can be re-opened to re-assess the evidence on the point. | 1[ds]10. From the provisions quoted above, it is clear that a claim under Section 166 covers cases of all kinds of bodily injuries or damage to the property of third party or both. Under the explanation to1 of Section 165 it has been indicated that the provision includes the claims for compensation under Section 140 and Section 163A but it is nowhere provided that the amount of compensation is to be assessed or calculated according to the second Schedule. On the other hand, Section 168 provides the key leading to determination of amount of compensation under Section 166 of the Act.It thus makes it clear that it is for the Tribunal to arrive at an amount of compensation, which it may consider to be just in the facts and circumstances of the case. This Court however has been of the view that structured formula as provided under the Second Schedule be a safe guide to calculate the amount of just compensation. Division though permissible, may only be resorted to for some special reasons to do so. So far structured formula is concerned, it provides for a maximum multiplier of 18. The application of the multiplier depends upon the age of the deceased, age of his dependents, number of his dependents, the amount of dependency etc. Again we find that the structured formula relates to victim whose income is up to a sum of Rs. 40,000/per annum. It may be clarified that in the present case, it is not in dispute that the multiplier method, which is accepted and prevalent method, would be applicable and has been applied. The question of setting apart 1/3rd of the income on account of expenditure on the self by the deceased is also not in dispute, i.e. to say that the amount of multiplicand and shall be the 2/3rd of annual income of the deceased. The annual income of the deceased, as found by the learned Single Judge and the Division Bench namely $3,39445 is also not in dispute, nor the amount of dependency 2,26297 US Dollars.It was reiterated in para 16 that the multiplier method is logically sound and legally well established as compared to other methods indicated in the other decisions in which different methods of computation was applied. It was observed that those cases cannot be said to have laid any principle of computation of compensation.In the case in hand it is amply clear that it is not the case of any party that proper method of computing the amount of compensation, namely the multiplier method has not been applied. We have already seen that in the decisions referred to, in the earlier part of this judgment it is clearly stated that except in very rare cases, multiplier system should not be deviated from. The other methods, which were in vogue prior to introduction of multiplier system have been held to be no more good system. The choice of multiplier may differ to some degree as observed in the case of Jyoti Kaul (supra) depending upon various facts and circumstances of the case. Though, normally the multiplier as indicated in 2nd schedule should be applied as it is as found to be a safe guide for the purpose of calculation of amount ofSecond Schedule may provide a guide for application of multiplier but for valid and proper reasons, different multiplier can be applied, indeed not exceeding 18 in any case on the upper side. As indicated in the case of Susamma Thomas (supra) itself the Court gave an example of a situation where the age of the victim may be 45 years, but who may be a bachelor with his parents alone as dependents, obviously, meaning thereby that lesser multiplier could be applied in such a case. By applying a multiplier other than the schedule multiplier does not mean that any method other than multiplier method has been applied. For some special reasons some deviation from the scheduled multiplier can be made.17. In the present case we find that the parents of the deceased were 69/73 years. Two daughters were age 17 and 19 years. Main question, which strikes to us in this case is that in the given circumstances the amount of multiplicant also assumes relevance. The total amount of dependency as found by the learned Single Judge and also rightly upheld by the Division Bench comes to 226297 Dollars. Applying multiplier of 10, the amount with interest and the conversion rate of Rs.comes to Rs. 10.38 crores and with multiplier of 13 at the conversion rate of Rs. 30/the amount came to Rs. 16.12 crores with interest. These amounts are huge indeed. Looking to the Indian economy, fiscal and financial situation, the amount is certainly a fabulous amount though in the background of American conditions it may not be so. Therefore, where there is no much of disparity in the economic conditions and affluence of the two places viz. the place to which the victim belongs and the place where the compensation is to be paid, a golden balance must be struck somewhere, to arrive at a reasonable and fair mesne. Looking by the Indian standards they may not be much too overcompensated and similarly not very much under compensated as well, in the background of the country where most of the dependent beneficiaries reside. Two of the dependents namely, parents aged 69/73 years live in India, but four of them are in the United States. Shri Soli J. Sorabjee submitted that the amount of multiplicand shall surely be relevant and in case it is a high amount, a lower multiplier can appropriately be applied. We find force in this submission. Considering all the facts and factors an indicated above, to us it appears that application of multiplier of 7 is definitely on the lower side. Some deviation in the figure of multiplier would not mean that there may be a wide different between the multiplier applied and the scheduled multiplier which in this case is 13. The difference between 7 and 13 is too wide. As observed earlier, looking to the high amount of multiplicand and the ages of the dependents and the fact that parents are residing in India, in our view application of multiplier of 10 would be reasonable and would provide a fair compensation i.e. a purchased factor of 10 years. We accordingly hold that multiplier of 10 as applied by the learned Single Judge should be restored instead of multiplier of 13 as applied by the Division Bench. We find no force in the submission made on behalf of the claimants that in no circumstances the amount of multiplicand would be a relevant consideration for application of appropriate multiplier. We have already given our reasons in the discussion heldthe above passage it is clear that the deductions are admissible from the amount of compensation in case the claimant receives the benefit as a consequences of injuries sustained, which otherwise he would not have been entitled to. It does not cover cases where the payment received is not dependent upon an injury sustained on meeting with an accident. The other observation to which our attention has been drawn at Page 876 plassitam F also does not help the contention raised on behalf of the Insurance Company for deduction of amounts in the present case. The Court was considering a situation where due to the injuries received the victim was claiming cost of care necessary in future in respect of which statutory provision, provided for attendants allowance. It was found that the statutory benefit and the damages claimed were designed to meet the identical expenses. This is however not so, at least not shown, to be so in the case in hand.A perusal of the recommendations of the Royal Commission headed by Lord Pearson as referred to and relied upon on behalf of the Insurance Company also does not indicate that, all kinds of receipts or benefits as may be payable to the claimants from whatever source and under whatever statutory provisions have to be deducted. The recommendations made specific mention about non deductibility of amount of pension the benefit on account of Life Insurance, Child benefit and maternity benefit etc. It is also specifically provided under para 482 quoted above that the recommendation is for deducting full value of social security benefits payable as a result of injury for which damages are awarded. That is to say benefits not related to the injury are not to be taken into account for deductions.We are in full agreement with the observations made in the case of Helen Rebello (supra) that principle of balancing between losses and gains, by reason of death, to arrive at amount of compensation is a general rule, but what is more important is that such receipts by the claimants must have somewith the accidental death by reason of which alone the claimants have received the amounts. We do not think it would be necessary for us to go into the question of distinction made between the provisions of the Fatal Accident Act and the Motor Vehicles Act. According to the decisions referred to in the earlier part of this Judgment, it is clear that amount on account of social security as may have been received must have nexus of relation with the accidental injury or death, so far to be deductible from the amount of compensation. There must be somebetween the amount received and the accidental death or it may be in the same sphere, absence the amount received shall not be deducted from the amount of compensation. Thus the amount received on account of insurance policy of the deceased cannot be deducted from the amount compensation though no doubt the receipt of the insurance amount is accelerated due todeath of the insured. So far other items in respect of which learned counsel for the Insurance Company has vehemently urged for example some allowance paid to the children and Mrs. Patricia Mahajan under the social security system noof those receipts with the accidental death has been shows much less established. Apart from the fact that contribution comes from different sources for constituting the fund out of which, payment on account of social security system is made one of the constituent of found is tax which is deducted from income for the purpose. We feel that the High Court has rightly disallowed any deduction on account of receipts under the Insurance Policy and other receipts under social security system which the claimant would have also otherwise entitled to receive irrespective of accidental death of Dr. Mahajan. If the proposition "receipts from whatever source" is interpreted so widely that it may cover all the receipts, which may come into the hands of the claimants, in view of the mere death of the victim, it would only defeat the purpose of the Act providing for just compensation on account of accidental death. Such gains may be on account of savings or other investment etc. made by the deceased would not go to the benefit of wrong doer and the claimant should not be left worse of, if he had never taken an Insurance Policy or had not made investments for future returns.37. We therefore, do not allow any deduction as pressed by the Insurance Company on account of receipts of Insurance Policy and social security benefits received by the claimants.Learned senior counsel for the respondent Shri P.P. Rao took an objection that the question relating to rate of interest was not under challenge before the High Court. He has referred to the observations made by the Divisions Bench in its judgment to the effect "in any case, the rate of interest is not in dispute before us". Thereafter it is observed that the Tribunal had awarded interest @ 12% per annum which was maintained by the learned Single Judge. Consequently, the Division Bench also did not think it appropriate to interfere with the award of interest @ 12% per annum. It is however refuted by the learned counsel for the Insurance Company that the rate of interest was not in dispute. The learned counsel for the respondent has however submitted that the factual position as recorded by the Court that the rate of interest was not in dispute before the Court, should not be allowed to be disputed and it should be treated conclusive of the fact that the rate of interest was not in dispute before the Division Bench. He has in support of his contention referred to decision of this Court, reported in (1982 2 S.C.C. 463State of Maharashtra versus Ramdas Shrinivas Nayak and another and 1992 Supp. (1) S.C.C. Apar (P) Ltd. and another versus Union of India and others in which it has been held a that concession made by a party and an observation made to that effect in the judgment, cannot be allowed to be denied. Only the Court which recorded the statement itself was competent to rectify the error if the Court recording the statement was approached to consider the matter without delay. The position as indicated in thedecisions is undoubtedly correct and cannot be doubted. But in certain cases where a stay remark or observation made by the Court which is not very clear and is vague, and a different picture emerges from other part of judgment it may be open for this Court to ascertain to correct position on the basis of totality of the observations made in the judgment itself. In that light we may see the observations of the Division Bench in its judgment. It is nowhere indicated that the counsel appearing for the Insurance Company had made any statement conceding the rate of interest nor it is indicated how the concession was made. Then the observation that the "rate of interest was not in dispute before the Court" may only lead to an inference that the rate of interest was not disputed before the Court in the arguments advanced on behalf of the party concerned. But we, on the other hand find that, on behalf of the Insurance Company, the learned counsel had cited the decisions to indicate that the lower rate of interest was awarded in certain decisions, which had been relied upon by him. This is enough to indicate that the rate of interest was actually disputed. More than one case, a reference of which has been made in the judgment of the Division Bench itself, has been relied upon by the counsel for the Insurance Company for reducing the rate ofthe observations made in the case of Kanshnuma Begum (Supra) have been quoted. After so much discussion on the point of rate of interest and after mentioning the decisions relied upon by both the sides on their part, it could not be said that rate of interest was not in dispute before the Court. As indicated earlier the observation is not indicated to have been made in reference to any statement of the counsel for the party nor it comes out that the respective parties may not have advanced arguments for maintaining the rate of interest as awarded and the other party for reducing the rate of interest. In the light of the position indicated above, we do not think it will be possible to shut out the Insurance Company from urging before us that lesser rate of interest should have been awarded in place of 12% as awarded by the High Court. Before us also, learned counsel for the Insurance Company has referred the decision of this Court reported in 1999 (8) S.C.C. 226A Robert versus Insurance Company Limited to indicate that interest at the rate of 6% was awarded in that case. Another case cited awarding 6% interest is reported in 2001 A.C.C. 540, particularly paragraph 35 has been referred. [1970 All ER 1202R.D. Hattangadi versus Pest Control (India) Pvt. Ltd. and others, more particularly Para 18 of the judgment where it has been held that no interest is awardable on the amount of future expenditure. It is further observed: "It need nor be pointed out that interest is to be paid over the amount which has become payable on the date of award and not which is to be paid for expenditures to be incurred in future" But it is not indicated by the learned counsel for the appellant Insurance Company as to which is that amount out of the amount awarded which is on account of future expenditure yet to be incurred by the claimants. The interest is to be awarded on the amount which is payable on the date of the award. It is also to be noted that in some cases interest at the rate of 6% was awarded. This case however does not help the appellant Insurance Company. The next case which has been cited is reported in 2001 (2) S.C.C. 9Kaushnuma Begum (Smt.) and others versus New India Assurance Company Ltd. In this case interest at the rate of 9% wasour view the reason indicated in the case of Kaushnuma Begum (supra) is a valid reason and it may be noticed that the rate of interest is already on the decline. We therefore, reduce the rate of interest to 9% in place of 12% as awarded by the High Court.40.The next point which remains to be considered is in relation to the exchange rate of the Dollar in Rupee.The Motor Accident Claims Tribunal allowed the exchange rate of the Dollar at Rs.30. The learned Single Judge allowed it at the then current rate of Rs.47. The Division Bench restored the exchange rate at Rs. 30 observing that the matter was closed since the claimants had withdrawn the amount as awarded by the Tribunal and the matter was now on the second stage relating to enhanced amount of compensation. Shri P.P. Rao, learned senior counsel appearing for the appellants has vehemently urged that it is only the current rate which should be allowed since the value of the Rupee has fallen in exchange of Dollar after the application for claim was made and award was given. Therefore, the amount of Rupees as arrived at the exchange rate of Rs.47 should be allowed. In connection with his submission about rate of conversion, a reference to a case reported in 1984 Supp. SCC 263Oil and Natural Gas Commission versus Forasal has been made. This Court held that rate of conversion as on the date of passing of the decree should be taken on the basis of which conversion should be allowed. We however find that the facts in that case are different. According to the contract itself, a part of the payment was to be made in French currency. The question then arose as to what rate of conversion should be allowed. The Court was of the view that there would be three relevant dates of the purpose, namely, the date on which the amount became payable, the date of the filing of the suit and the date of the judgment and it was further held that it would be fairer to both the parties to take the latest of these dates, namely, the date of passing the decree as the relevant date for applying the conversion rate. In the present case since the deceased was an American citizen, settled there and income accrued to him in America in terms of Dollars, details of income etc, have been given in Dollars but so far the prayer for passing a decree is concerned, it was for a a sum indicated in Rupees which figure was arrived at by the claimants applying Rs.30 as the conversion rate. Therefore, in the present case there is no such dispute as to what rate of conversion was to be applied. As a matter of fact, whatever rate may have been applied by claimants, the fact remains that the decree in terms of Rupees specified for a sum of Rs.54 crores was prayed for. In terms of the prayer whatever amount in rupee was found to be payable to the claimants was decreed. In the present case the exchange rate of Dollar against Rupee was relevant for the purpose of arriving at a fair assessment of the loss of the dependency of the claimants at the relevant time. In such a situation we are of the view that no such question as in the case of Oil and Natural Gas Commission (supra) is involved. The decree was for a definite sum in terms of Rupees, a part of which was found admissible which amount was decreed. There is no occasion to convert the amount of decree in Rupees into Dollars applying Rs.30 as rate of conversion and thenit in Rupees at the rate of Rs. 47. The claimants cannot ask for more than what was prayed for in the claim petition. We are therefore not inclined to accede to the request made for calculation of the amount of award at the conversion rate of Rs.47.41.Shri T.R. Rajagopalan, learned senior counsel appearing for the Insurance Company in SLP (c) 20874/2001 preferred on the question of rash and negligent driving against the driver of the Troller advanced some arguments but we do not think that the findings of fact recorded by the Courts of fact namely the Motor Accident Claims Tribunal and upheld by the learned Single Judge as well as the Division Bench can bess the evidence on the point. | 1 | 11,198 | 3,842 | ### 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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of the amount awarded which is on account of future expenditure yet to be incurred by the claimants. The interest is to be awarded on the amount which is payable on the date of the award. It is also to be noted that in some cases interest at the rate of 6% was awarded. This case however does not help the appellant Insurance Company. The next case which has been cited is reported in 2001 (2) S.C.C. 9 - Kaushnuma Begum (Smt.) and others versus New India Assurance Company Ltd. In this case interest at the rate of 9% was awarded. The reason indicated in Paragraph 24 of the Judgment, we quote hereunder: "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 enconomy and the policy of Reserve Bank of India the interest rate has been lowered. The nationalized banks are now granting interest at the rate of 9% on fixed deposit 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....." In our view the reason indicated in the case of Kaushnuma Begum (supra) is a valid reason and it may be noticed that the rate of interest is already on the decline. We therefore, reduce the rate of interest to 9% in place of 12% as awarded by the High Court.40. The next point which remains to be considered is in relation to the exchange rate of the Dollar in Rupee. The Motor Accident Claims Tribunal allowed the exchange rate of the Dollar at Rs.30. The learned Single Judge allowed it at the then current rate of Rs.47. The Division Bench restored the exchange rate at Rs. 30 observing that the matter was closed since the claimants had withdrawn the amount as awarded by the Tribunal and the matter was now on the second stage relating to enhanced amount of compensation. Shri P.P. Rao, learned senior counsel appearing for the appellants has vehemently urged that it is only the current rate which should be allowed since the value of the Rupee has fallen in exchange of Dollar after the application for claim was made and award was given. Therefore, the amount of Rupees as arrived at the exchange rate of Rs.47 should be allowed. In connection with his submission about rate of conversion, a reference to a case reported in 1984 Supp. SCC 263 - Oil and Natural Gas Commission versus Forasal has been made. This Court held that rate of conversion as on the date of passing of the decree should be taken on the basis of which conversion should be allowed. We however find that the facts in that case are different. According to the contract itself, a part of the payment was to be made in French currency. The question then arose as to what rate of conversion should be allowed. The Court was of the view that there would be three relevant dates of the purpose, namely, the date on which the amount became payable, the date of the filing of the suit and the date of the judgment and it was further held that it would be fairer to both the parties to take the latest of these dates, namely, the date of passing the decree as the relevant date for applying the conversion rate. In the present case since the deceased was an American citizen, settled there and income accrued to him in America in terms of Dollars, details of income etc, have been given in Dollars but so far the prayer for passing a decree is concerned, it was for a a sum indicated in Rupees which figure was arrived at by the claimants applying Rs.30 as the conversion rate. Therefore, in the present case there is no such dispute as to what rate of conversion was to be applied. As a matter of fact, whatever rate may have been applied by claimants, the fact remains that the decree in terms of Rupees specified for a sum of Rs.54 crores was prayed for. In terms of the prayer whatever amount in rupee was found to be payable to the claimants was decreed. In the present case the exchange rate of Dollar against Rupee was relevant for the purpose of arriving at a fair assessment of the loss of the dependency of the claimants at the relevant time. In such a situation we are of the view that no such question as in the case of Oil and Natural Gas Commission (supra) is involved. The decree was for a definite sum in terms of Rupees, a part of which was found admissible which amount was decreed. There is no occasion to convert the amount of decree in Rupees into Dollars applying Rs.30 as rate of conversion and then re-convert it in Rupees at the rate of Rs. 47. The claimants cannot ask for more than what was prayed for in the claim petition. We are therefore not inclined to accede to the request made for calculation of the amount of award at the conversion rate of Rs.47.41. Shri T.R. Rajagopalan, learned senior counsel appearing for the Insurance Company in SLP (c) 20874/2001 preferred on the question of rash and negligent driving against the driver of the Troller advanced some arguments but we do not think that the findings of fact recorded by the Courts of fact namely the Motor Accident Claims Tribunal and upheld by the learned Single Judge as well as the Division Bench can be re-opened to re-assess the evidence on the point.
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awarded by the High Court. Before us also, learned counsel for the Insurance Company has referred the decision of this Court reported in 1999 (8) S.C.C. 226A Robert versus Insurance Company Limited to indicate that interest at the rate of 6% was awarded in that case. Another case cited awarding 6% interest is reported in 2001 A.C.C. 540, particularly paragraph 35 has been referred. [1970 All ER 1202R.D. Hattangadi versus Pest Control (India) Pvt. Ltd. and others, more particularly Para 18 of the judgment where it has been held that no interest is awardable on the amount of future expenditure. It is further observed: "It need nor be pointed out that interest is to be paid over the amount which has become payable on the date of award and not which is to be paid for expenditures to be incurred in future" But it is not indicated by the learned counsel for the appellant Insurance Company as to which is that amount out of the amount awarded which is on account of future expenditure yet to be incurred by the claimants. The interest is to be awarded on the amount which is payable on the date of the award. It is also to be noted that in some cases interest at the rate of 6% was awarded. This case however does not help the appellant Insurance Company. The next case which has been cited is reported in 2001 (2) S.C.C. 9Kaushnuma Begum (Smt.) and others versus New India Assurance Company Ltd. In this case interest at the rate of 9% wasour view the reason indicated in the case of Kaushnuma Begum (supra) is a valid reason and it may be noticed that the rate of interest is already on the decline. We therefore, reduce the rate of interest to 9% in place of 12% as awarded by the High Court.40.The next point which remains to be considered is in relation to the exchange rate of the Dollar in Rupee.The Motor Accident Claims Tribunal allowed the exchange rate of the Dollar at Rs.30. The learned Single Judge allowed it at the then current rate of Rs.47. The Division Bench restored the exchange rate at Rs. 30 observing that the matter was closed since the claimants had withdrawn the amount as awarded by the Tribunal and the matter was now on the second stage relating to enhanced amount of compensation. Shri P.P. Rao, learned senior counsel appearing for the appellants has vehemently urged that it is only the current rate which should be allowed since the value of the Rupee has fallen in exchange of Dollar after the application for claim was made and award was given. Therefore, the amount of Rupees as arrived at the exchange rate of Rs.47 should be allowed. In connection with his submission about rate of conversion, a reference to a case reported in 1984 Supp. SCC 263Oil and Natural Gas Commission versus Forasal has been made. This Court held that rate of conversion as on the date of passing of the decree should be taken on the basis of which conversion should be allowed. We however find that the facts in that case are different. According to the contract itself, a part of the payment was to be made in French currency. The question then arose as to what rate of conversion should be allowed. The Court was of the view that there would be three relevant dates of the purpose, namely, the date on which the amount became payable, the date of the filing of the suit and the date of the judgment and it was further held that it would be fairer to both the parties to take the latest of these dates, namely, the date of passing the decree as the relevant date for applying the conversion rate. In the present case since the deceased was an American citizen, settled there and income accrued to him in America in terms of Dollars, details of income etc, have been given in Dollars but so far the prayer for passing a decree is concerned, it was for a a sum indicated in Rupees which figure was arrived at by the claimants applying Rs.30 as the conversion rate. Therefore, in the present case there is no such dispute as to what rate of conversion was to be applied. As a matter of fact, whatever rate may have been applied by claimants, the fact remains that the decree in terms of Rupees specified for a sum of Rs.54 crores was prayed for. In terms of the prayer whatever amount in rupee was found to be payable to the claimants was decreed. In the present case the exchange rate of Dollar against Rupee was relevant for the purpose of arriving at a fair assessment of the loss of the dependency of the claimants at the relevant time. In such a situation we are of the view that no such question as in the case of Oil and Natural Gas Commission (supra) is involved. The decree was for a definite sum in terms of Rupees, a part of which was found admissible which amount was decreed. There is no occasion to convert the amount of decree in Rupees into Dollars applying Rs.30 as rate of conversion and thenit in Rupees at the rate of Rs. 47. The claimants cannot ask for more than what was prayed for in the claim petition. We are therefore not inclined to accede to the request made for calculation of the amount of award at the conversion rate of Rs.47.41.Shri T.R. Rajagopalan, learned senior counsel appearing for the Insurance Company in SLP (c) 20874/2001 preferred on the question of rash and negligent driving against the driver of the Troller advanced some arguments but we do not think that the findings of fact recorded by the Courts of fact namely the Motor Accident Claims Tribunal and upheld by the learned Single Judge as well as the Division Bench can bess the evidence on the point.
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Sree Gajanana Motor Transport Co. Ltd Vs. The State Of Karnataka And Ors | its quasi-judicial powers. The attack on the validity of the Government direction is thus two fold: firstly, that it falls outside the scope of Section 43(1) of the Act as charges for carrying mail are not "freight" on goods carried; and, secondly, that no directions could be given to a quasi-judicial authority as to how it should perform its functions."4. So far as the first argument is concerned, we do not find much substance in it. The term "charge" is a broad one. As used here, it is not a technical term and has not been defined by the Act. It has, therefore, its ordinary dictionary meaning. It means any amount which may be demanded as a price for the rendering of some service or as price of some goods. The argument of the learned Counsel for the appellant that the Act uses the term "freight" to. indicate the charge made on carriage of goods, whereas the term "fare" is used for the charge made for carrying passengers, itself rests on the assumption that the term charge is a wide one. It includes both freights and fares. It is true that the term "fare" is used in relation to charges made for carriage of passengers and the term freight is used for charges made for the carriage of goods. Nevertheless, both are charges. It may be that stage carriages are meant for the carriage of passengers. But, as is a matter of common knowledge, they also carry the luggage of passengers. In other words, they also carry some goods incidentally. The mail bags in which the postal goods are sent are only a type of goods which are not so bulky as to require trucks Or special vans. It is possible to carry them in stage carriages together with the luggage of the passengers. In any case, this is a condition which is probably imposed only in those areas where mail vans of the State are not found to be necessary or economical to run. In the villages in the interior of some rural areas, there may not be so much mail to carry as to justify sending a mail van. Therefore, power is given to the Regional Transport Authority to attach the condition that postal goods should be carried in stage carriages at rates fixed by the Government. The real grievance of the operators is not that they have to carry postal goods as a condition o f their permits but that the rates fixed are too low. The proper remedy for such a grievance is, as the High Court rightly pointed out, to apply to the Government for revision of rates fixed.Coming to the second sub mission, we may observe that, although, there is ample authority for the proposition that the grant of stage carriage permits is a quasi-judicial function, with which the State Government cannot interfere by giving directions which may impede the due performance of such functions, yet, when Section 48(3) speaks of the power to attach conditions after the decision to grant the permit, it really deals with what lies past the quasi judicial stage of decision to grant the permit. At that stage, the decision to grant the permit is already there and only conditions have to be attached to the permit, such as the necessity to carry postal goods on certain routes at rates fixed by the Government. On the face of it, these rates cannot be properly determined by the Regional Transport Authority. They have to be uniform throughout the State. A decision on what t hey should be must rest on considerations of policy and on facts which are not quite relevant to the grant of stage carriage permits.- In any case, it is the State Government which has the data and the legal power, under Section 43(1).of the Act, to fix freights for carriage of postal goods in various types of carriages, mentioned there, including stage carriages. We think that such charges are merely a species of freight on postal goods about which the State Government can issue appropriate directions to the State Transport Authority. The Regional Transport Authority has only to. annex the condition automatically in areas where such a condition may be required to be annexed to the permits granted.5. A reference to Section 59, sub. s. (3)(c) would show that acceptance of the fixed rates of fares and freights, after their notification under Section 43, becomes a condition which has to be automatically attached to a permit. The Regional Transport Authority has no option on this matter. This is what this Court held in S. Srikantiah &Ors. v. The Regional Transport Authority, Anantapur &Ors.([1971] Supp. S.C.R. 816.) In other words, the Regional Transport Authority has to act mainly mechanically after considering matters on which it has to form an opinion and take a decision quasi-judicially. We think that there is no scope for argument that there is any interference here with the quasi-judicial functions of the Regional Transport Authority. The annexation of a condition like this is a part of the purely executive Activities of the Regional Transport Authority.By Civil Miscellaneous Petition No. 4023 of 1976, learned Counsel for the appellant sought to add two further grounds of appeal. These were: that, the special provisions of Section 49(3)(xv) over-ride the general provisions of Section 43(I)(d) (i) on the principle of interpretation generalia specialibus non derogant: and, that, in view of the special provision of Section 48(3)(xv), the impugned notification of the State Government was ultra vires. The second ground is what follows if the first is good. But as we have already explained above, the first ground itself is not sound. There is no question of any special provision over-riding the general. The provisions are complementary. Section 48(3)(xv) is really meant to carry out the direction which can legally be given under section 43(1)(d)(i) of the Act. Therefore, although we allow the miscellaneous application and have permitted the grounds to be argued, we reject them as untenable.6. | 0[ds]A reference to Section 59, sub. s. (3)(c) would show that acceptance of the fixed rates of fares and freights, after their notification under Section 43, becomes a condition which has to be automatically attached to a permit. The Regional Transport Authority has no option on this matter. This is what this Court held in S. Srikantiah &Ors. v. The Regional Transport Authority, Anantapur &Ors.([1971] Supp. S.C.R. 816.) In other words, the Regional Transport Authority has to act mainly mechanically after considering matters on which it has to form an opinion and take a decision quasi-judicially. We think that there is no scope for argument that there is any interference here with the quasi-judicial functions of the Regional Transport Authority. The annexation of a condition like this is a part of the purely executive Activities of the Regional Transport Authority.By Civil Miscellaneous Petition No. 4023 of 1976, learned Counsel for the appellant sought to add two further grounds of appeal. These were: that, the special provisions of Section 49(3)(xv) over-ride the general provisions of Section 43(I)(d) (i) on the principle of interpretation generalia specialibus non derogant: and, that, in view of the special provision of Section 48(3)(xv), the impugned notification of the State Government was ultra vires. The second ground is what follows if the first is good. But as we have already explained above, the first ground itself is not sound. There is no question of any special provision over-riding the general. The provisions are complementary. Section 48(3)(xv) is really meant to carry out the direction which can legally be given under section 43(1)(d)(i) of the Act. Therefore, although we allow the miscellaneous application and have permitted the grounds to be argued, we reject them as untenable. | 0 | 1,914 | 373 | ### Instruction:
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its quasi-judicial powers. The attack on the validity of the Government direction is thus two fold: firstly, that it falls outside the scope of Section 43(1) of the Act as charges for carrying mail are not "freight" on goods carried; and, secondly, that no directions could be given to a quasi-judicial authority as to how it should perform its functions."4. So far as the first argument is concerned, we do not find much substance in it. The term "charge" is a broad one. As used here, it is not a technical term and has not been defined by the Act. It has, therefore, its ordinary dictionary meaning. It means any amount which may be demanded as a price for the rendering of some service or as price of some goods. The argument of the learned Counsel for the appellant that the Act uses the term "freight" to. indicate the charge made on carriage of goods, whereas the term "fare" is used for the charge made for carrying passengers, itself rests on the assumption that the term charge is a wide one. It includes both freights and fares. It is true that the term "fare" is used in relation to charges made for carriage of passengers and the term freight is used for charges made for the carriage of goods. Nevertheless, both are charges. It may be that stage carriages are meant for the carriage of passengers. But, as is a matter of common knowledge, they also carry the luggage of passengers. In other words, they also carry some goods incidentally. The mail bags in which the postal goods are sent are only a type of goods which are not so bulky as to require trucks Or special vans. It is possible to carry them in stage carriages together with the luggage of the passengers. In any case, this is a condition which is probably imposed only in those areas where mail vans of the State are not found to be necessary or economical to run. In the villages in the interior of some rural areas, there may not be so much mail to carry as to justify sending a mail van. Therefore, power is given to the Regional Transport Authority to attach the condition that postal goods should be carried in stage carriages at rates fixed by the Government. The real grievance of the operators is not that they have to carry postal goods as a condition o f their permits but that the rates fixed are too low. The proper remedy for such a grievance is, as the High Court rightly pointed out, to apply to the Government for revision of rates fixed.Coming to the second sub mission, we may observe that, although, there is ample authority for the proposition that the grant of stage carriage permits is a quasi-judicial function, with which the State Government cannot interfere by giving directions which may impede the due performance of such functions, yet, when Section 48(3) speaks of the power to attach conditions after the decision to grant the permit, it really deals with what lies past the quasi judicial stage of decision to grant the permit. At that stage, the decision to grant the permit is already there and only conditions have to be attached to the permit, such as the necessity to carry postal goods on certain routes at rates fixed by the Government. On the face of it, these rates cannot be properly determined by the Regional Transport Authority. They have to be uniform throughout the State. A decision on what t hey should be must rest on considerations of policy and on facts which are not quite relevant to the grant of stage carriage permits.- In any case, it is the State Government which has the data and the legal power, under Section 43(1).of the Act, to fix freights for carriage of postal goods in various types of carriages, mentioned there, including stage carriages. We think that such charges are merely a species of freight on postal goods about which the State Government can issue appropriate directions to the State Transport Authority. The Regional Transport Authority has only to. annex the condition automatically in areas where such a condition may be required to be annexed to the permits granted.5. A reference to Section 59, sub. s. (3)(c) would show that acceptance of the fixed rates of fares and freights, after their notification under Section 43, becomes a condition which has to be automatically attached to a permit. The Regional Transport Authority has no option on this matter. This is what this Court held in S. Srikantiah &Ors. v. The Regional Transport Authority, Anantapur &Ors.([1971] Supp. S.C.R. 816.) In other words, the Regional Transport Authority has to act mainly mechanically after considering matters on which it has to form an opinion and take a decision quasi-judicially. We think that there is no scope for argument that there is any interference here with the quasi-judicial functions of the Regional Transport Authority. The annexation of a condition like this is a part of the purely executive Activities of the Regional Transport Authority.By Civil Miscellaneous Petition No. 4023 of 1976, learned Counsel for the appellant sought to add two further grounds of appeal. These were: that, the special provisions of Section 49(3)(xv) over-ride the general provisions of Section 43(I)(d) (i) on the principle of interpretation generalia specialibus non derogant: and, that, in view of the special provision of Section 48(3)(xv), the impugned notification of the State Government was ultra vires. The second ground is what follows if the first is good. But as we have already explained above, the first ground itself is not sound. There is no question of any special provision over-riding the general. The provisions are complementary. Section 48(3)(xv) is really meant to carry out the direction which can legally be given under section 43(1)(d)(i) of the Act. Therefore, although we allow the miscellaneous application and have permitted the grounds to be argued, we reject them as untenable.6.
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A reference to Section 59, sub. s. (3)(c) would show that acceptance of the fixed rates of fares and freights, after their notification under Section 43, becomes a condition which has to be automatically attached to a permit. The Regional Transport Authority has no option on this matter. This is what this Court held in S. Srikantiah &Ors. v. The Regional Transport Authority, Anantapur &Ors.([1971] Supp. S.C.R. 816.) In other words, the Regional Transport Authority has to act mainly mechanically after considering matters on which it has to form an opinion and take a decision quasi-judicially. We think that there is no scope for argument that there is any interference here with the quasi-judicial functions of the Regional Transport Authority. The annexation of a condition like this is a part of the purely executive Activities of the Regional Transport Authority.By Civil Miscellaneous Petition No. 4023 of 1976, learned Counsel for the appellant sought to add two further grounds of appeal. These were: that, the special provisions of Section 49(3)(xv) over-ride the general provisions of Section 43(I)(d) (i) on the principle of interpretation generalia specialibus non derogant: and, that, in view of the special provision of Section 48(3)(xv), the impugned notification of the State Government was ultra vires. The second ground is what follows if the first is good. But as we have already explained above, the first ground itself is not sound. There is no question of any special provision over-riding the general. The provisions are complementary. Section 48(3)(xv) is really meant to carry out the direction which can legally be given under section 43(1)(d)(i) of the Act. Therefore, although we allow the miscellaneous application and have permitted the grounds to be argued, we reject them as untenable.
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Asst.Engineer,Rajasthan Dev.Corp Vs. Gitam Singh | month’s pay and allowances in lieu of notice as per the requirement of Section 25-F(a) of the ID Act. On industrial dispute being raised, the Labour Court found that there was compliance of Section 25-F but it was found that the termination was violative of Section 25-G of the ID Act and, accordingly, Labour Court passed an award for reinstatement of the workman with 50 per cent back wages. The Single Judge of that High Court did not approve the award of reinstatement on the premise that the initial appointment of the workman was not in consonance with the statutory regulations and Articles 14 and 16 of the Constitution and accordingly, substituted the award of reinstatement with 50 per cent back wages by directing that the workman shall be paid a sum of Rs. 87,582/- by way of compensation. It is this order of the Single Judge that was set aside by this Court and order of the Labour Court restored. We are afraid the facts in Harjinder Singh2 are quite distinct. That was not a case of a daily-rated worker. It was held that Single Judge was wrong in entertaining an unfounded plea that workman was employed in violation of Articles 14 and 16. Harjinder Singh2 turned on its own facts and is not applicable to the facts of the present case at all.28. In Devinder Singh3 , the workman was engaged by Municipal Council, Sanaur on 01.08.1994 for doing the work of clerical nature. He continued in service till 29.09.1996. His service was discontinued with effect from 30.09.1996 in violation of Section 25-F of ID Act. On industrial dispute being referred for adjudication, the Labour Court held that the workman had worked for more than 240 days in a calendar year preceding the termination of his service and his service was terminated without complying with the provisions of Section 25-F. Accordingly, Labour Court passed an award for reinstatement of the workman but without back wages. Upon challenge being laid to the award of the Labour Court, the Division Bench set aside the order of the Labour Court by holding that Labour Court should not have ordered reinstatement of the workman because his appointment was contrary to the Recruitment Rules and Articles 14 and 16 of the Constitution. In the appeal before this Court from the order of the Division Bench, this Court held that the High Court had neither found any jurisdictional infirmity in the award of the Labour Court nor it came to the conclusion that the award was vitiated by an error of law apparent on the face of the record and notwithstanding these the High Court set aside the direction given by the Labour Court for reinstatement of the workman by assuming that his initial appointment was contrary to law. The approach of the High Court was found to be erroneous by this Court. This Court, accordingly, set aside the order of the High Court and restored the award of the Labour Court. In Devinder Singh3 , the Court had not dealt with the question about the consequential relief to be granted to the workman whose termination was held to be illegal being in violation of Section 25-F.29. In our view, Harjinder Singh2 and Devinder Singh3 do not lay down the proposition that in all cases of wrongful termination, reinstatement must follow. This Court found in those cases that judicial discretion exercised by the Labour Court was disturbed by the High Court on wrong assumption that the initial employment of the employee was illegal. As noted above, with regard to the wrongful termination of a daily wager, who had worked for a short period, this Court in long line of cases has held that the award of reinstatement cannot be said to be proper relief and rather award of compensation in such cases would be in consonance with the demand of justice. Before exercising its judicial discretion, the Labour Court has to keep in view all relevant factors, including the mode and manner of appointment, nature of employment, length of service, the ground on which the termination has been set aside and the delay in raising the industrial dispute before grant of relief in an industrial dispute.30. We may also refer to a recent decision of this Court in Bharat Sanchar Nigam Limited v. Man Singh [(2012) 1 SCC 558] . That was a case where the workmen, who were daily wagers during the year 1984-85, were terminated without following Section 25-F. The industrial dispute was raised after five years and although the Labour Court had awarded reinstatement of the workmen which was not interfered by the High Court, this Court set aside the award of reinstatement and ordered payment of compensation. In paragraphs 4 and 5 (pg.559) of the Report this Court held as under: “4. This Court in a catena of decisions has clearly laid down that although an order of retrenchment passed in violation of Section 25-F of the Industrial Disputes Act may be set aside but an award of reinstatement should not be passed. This Court has distinguished between a daily wager who does not hold a post and a permanent employee.5. In view of the aforementioned legal position and the fact that the respondent workmen were engaged as “daily wagers” and they had merely worked for more than 240 days, in our considered view, relief of reinstatement cannot be said to be justified and instead, monetary compensation would meet the ends of justice.” 31. In light of the above legal position and having regard to the facts of the present case, namely, the workman was engaged as daily wager on 01.03.1991 and he worked hardly for eight months from 01.03.1991 to 31.10.1991, in our view, the Labour Court failed to exercise its judicial discretion appropriately. The judicial discretion exercised by the Labour Court suffers from serious infirmity. The Single Judge as well as the Division Bench of the High Court also erred in not considering the above aspect at all. | 0[ds]It has always been the view of this Court that there could be circumstance(s) in a case which may make it inexpedient to order reinstatement. Therefore, the normal rule that dismissed employee is entitled to reinstatement in cases of wrongful dismissal has been held to be not without exception. Insofar as wrongful termination of daily-rated workers is concerned, this Court has laid down that consequential relief would depend on host of factors, namely, manner and method of appointment, nature of employment and length of service. Where the length of engagement as daily wager has not been long, award of reinstatement should not follow and rather compensation should be directed to be paid. A distinction has been drawn between a daily wager and an employee holding the regular post for the purposes of consequential relief.27. We shall now consider two decisions of this Court in Harjinder Singh2 and Devinder Singh3 upon which heavy reliance has been placed by the learned counsel for the respondent. In Harjinder Singh2 , this Court did interfere with the order of the High Court which awarded compensation to the workman by modifying the award of reinstatement passed by the Labour Court. However, on close scrutiny of facts it transpires that that was a case where a workman was initially employed by Punjab State Warehousing Corporation as work-charge motor mate but after few months he was appointed as work munshi in the regular pay-scale for three months. His service was extended from time to time and later on by onenotice given by the Managing Director of the Corporation his service was brought to end on 05.07.1988. The workman challenged the implementation of the notice in a writ petition and by an interim order the High Court stayed the implementation of that notice but later on the writ petition was withdrawn with liberty to the workman to avail his remedy under the ID Act. After two months, the Managing Director of the Corporation issued notice dated 26.11.1992 for retrenchment of the workman along with few others by giving them onepay and allowances in lieu of notice as per the requirement of Section 25-F(a) of the ID Act. On industrial dispute being raised, the Labour Court found that there was compliance of Section 25-F but it was found that the termination was violative of Section 25-G of the ID Act and, accordingly, Labour Court passed an award for reinstatement of the workman with 50 per cent back wages. The Single Judge of that High Court did not approve the award of reinstatement on the premise that the initial appointment of the workman was not in consonance with the statutory regulations and Articles 14 and 16 of the Constitution and accordingly, substituted the award of reinstatement with 50 per cent back wages by directing that the workman shall be paid a sum of Rs. 87,582/- by way of compensation. It is this order of the Single Judge that was set aside by this Court and order of the Labour Court restored. We are afraid the facts in Harjinder Singh2 are quite distinct. That was not a case of a daily-rated worker. It was held that Single Judge was wrong in entertaining an unfounded plea that workman was employed in violation of Articles 14 and 16. Harjinder Singh2 turned on its own facts and is not applicable to the facts of the present case at all.28. In Devinder Singh3 , the workman was engaged by Municipal Council, Sanaur on 01.08.1994 for doing the work of clerical nature. He continued in service till 29.09.1996. His service was discontinued with effect from 30.09.1996 in violation of Section 25-F of ID Act. On industrial dispute being referred for adjudication, the Labour Court held that the workman had worked for more than 240 days in a calendar year preceding the termination of his service and his service was terminated without complying with the provisions of Section 25-F. Accordingly, Labour Court passed an award for reinstatement of the workman but without back wages. Upon challenge being laid to the award of the Labour Court, the Division Bench set aside the order of the Labour Court by holding that Labour Court should not have ordered reinstatement of the workman because his appointment was contrary to the Recruitment Rules and Articles 14 and 16 of the Constitution. In the appeal before this Court from the order of the Division Bench, this Court held that the High Court had neither found any jurisdictional infirmity in the award of the Labour Court nor it came to the conclusion that the award was vitiated by an error of law apparent on the face of the record and notwithstanding these the High Court set aside the direction given by the Labour Court for reinstatement of the workman by assuming that his initial appointment was contrary to law. The approach of the High Court was found to be erroneous by this Court. This Court, accordingly, set aside the order of the High Court and restored the award of the Labour Court. In Devinder Singh3 , the Court had not dealt with the question about the consequential relief to be granted to the workman whose termination was held to be illegal being in violation of Section 25-F.29. In our view, Harjinder Singh2 and Devinder Singh3 do not lay down the proposition that in all cases of wrongful termination, reinstatement must follow. This Court found in those cases that judicial discretion exercised by the Labour Court was disturbed by the High Court on wrong assumption that the initial employment of the employee was illegal. As noted above, with regard to the wrongful termination of a daily wager, who had worked for a short period, this Court in long line of cases has held that the award of reinstatement cannot be said to be proper relief and rather award of compensation in such cases would be in consonance with the demand of justice. Before exercising its judicial discretion, the Labour Court has to keep in view all relevant factors, including the mode and manner of appointment, nature of employment, length of service, the ground on which the termination has been set aside and the delay in raising the industrial dispute before grant of relief in an industrial dispute.30. We may also refer to a recent decision of this Court in Bharat Sanchar Nigam Limited v. Man Singh [(2012) 1 SCC 558] . That was a case where the workmen, who were daily wagers during the year 1984-85, were terminated without following Section 25-F. The industrial dispute was raised after five years and although the Labour Court had awarded reinstatement of the workmen which was not interfered by the High Court, this Court set aside the award of reinstatement and ordered payment of compensation. In paragraphs 4 and 5 (pg.559) of the Report this Court held asThis Court in a catena of decisions has clearly laid down that although an order of retrenchment passed in violation of Section 25-F of the Industrial Disputes Act may be set aside but an award of reinstatement should not be passed. This Court has distinguished between a daily wager who does not hold a post and a permanent employee.5. In view of the aforementioned legal position and the fact that the respondent workmen were engaged asnd they had merely worked for more than 240 days, in our considered view, relief of reinstatement cannot be said to be justified and instead, monetary compensation would meet the ends of justice.In light of the above legal position and having regard to the facts of the present case, namely, the workman was engaged as daily wager on 01.03.1991 and he worked hardly for eight months from 01.03.1991 to 31.10.1991, in our view, the Labour Court failed to exercise its judicial discretion appropriately. The judicial discretion exercised by the Labour Court suffers from serious infirmity. The Single Judge as well as the Division Bench of the High Court also erred in not considering the above aspect at all. The award dated 28.06.2001 directing reinstatement of the respondent with continuity of service and 25% back wages in the facts and circumstances of the case cannot be sustained and has to be set aside and is set aside. In our view, compensation of Rs. 50,000/- by the appellant to the respondent shall meet the ends of justice. We order accordingly. Such payment shall be made to the respondent within six weeks from today failing which the same will carry interest @ 9 per cent per annum.32. The appeal is partly allowed to the above extent with no order as to costs. | 0 | 4,825 | 1,539 | ### Instruction:
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### Input:
month’s pay and allowances in lieu of notice as per the requirement of Section 25-F(a) of the ID Act. On industrial dispute being raised, the Labour Court found that there was compliance of Section 25-F but it was found that the termination was violative of Section 25-G of the ID Act and, accordingly, Labour Court passed an award for reinstatement of the workman with 50 per cent back wages. The Single Judge of that High Court did not approve the award of reinstatement on the premise that the initial appointment of the workman was not in consonance with the statutory regulations and Articles 14 and 16 of the Constitution and accordingly, substituted the award of reinstatement with 50 per cent back wages by directing that the workman shall be paid a sum of Rs. 87,582/- by way of compensation. It is this order of the Single Judge that was set aside by this Court and order of the Labour Court restored. We are afraid the facts in Harjinder Singh2 are quite distinct. That was not a case of a daily-rated worker. It was held that Single Judge was wrong in entertaining an unfounded plea that workman was employed in violation of Articles 14 and 16. Harjinder Singh2 turned on its own facts and is not applicable to the facts of the present case at all.28. In Devinder Singh3 , the workman was engaged by Municipal Council, Sanaur on 01.08.1994 for doing the work of clerical nature. He continued in service till 29.09.1996. His service was discontinued with effect from 30.09.1996 in violation of Section 25-F of ID Act. On industrial dispute being referred for adjudication, the Labour Court held that the workman had worked for more than 240 days in a calendar year preceding the termination of his service and his service was terminated without complying with the provisions of Section 25-F. Accordingly, Labour Court passed an award for reinstatement of the workman but without back wages. Upon challenge being laid to the award of the Labour Court, the Division Bench set aside the order of the Labour Court by holding that Labour Court should not have ordered reinstatement of the workman because his appointment was contrary to the Recruitment Rules and Articles 14 and 16 of the Constitution. In the appeal before this Court from the order of the Division Bench, this Court held that the High Court had neither found any jurisdictional infirmity in the award of the Labour Court nor it came to the conclusion that the award was vitiated by an error of law apparent on the face of the record and notwithstanding these the High Court set aside the direction given by the Labour Court for reinstatement of the workman by assuming that his initial appointment was contrary to law. The approach of the High Court was found to be erroneous by this Court. This Court, accordingly, set aside the order of the High Court and restored the award of the Labour Court. In Devinder Singh3 , the Court had not dealt with the question about the consequential relief to be granted to the workman whose termination was held to be illegal being in violation of Section 25-F.29. In our view, Harjinder Singh2 and Devinder Singh3 do not lay down the proposition that in all cases of wrongful termination, reinstatement must follow. This Court found in those cases that judicial discretion exercised by the Labour Court was disturbed by the High Court on wrong assumption that the initial employment of the employee was illegal. As noted above, with regard to the wrongful termination of a daily wager, who had worked for a short period, this Court in long line of cases has held that the award of reinstatement cannot be said to be proper relief and rather award of compensation in such cases would be in consonance with the demand of justice. Before exercising its judicial discretion, the Labour Court has to keep in view all relevant factors, including the mode and manner of appointment, nature of employment, length of service, the ground on which the termination has been set aside and the delay in raising the industrial dispute before grant of relief in an industrial dispute.30. We may also refer to a recent decision of this Court in Bharat Sanchar Nigam Limited v. Man Singh [(2012) 1 SCC 558] . That was a case where the workmen, who were daily wagers during the year 1984-85, were terminated without following Section 25-F. The industrial dispute was raised after five years and although the Labour Court had awarded reinstatement of the workmen which was not interfered by the High Court, this Court set aside the award of reinstatement and ordered payment of compensation. In paragraphs 4 and 5 (pg.559) of the Report this Court held as under: “4. This Court in a catena of decisions has clearly laid down that although an order of retrenchment passed in violation of Section 25-F of the Industrial Disputes Act may be set aside but an award of reinstatement should not be passed. This Court has distinguished between a daily wager who does not hold a post and a permanent employee.5. In view of the aforementioned legal position and the fact that the respondent workmen were engaged as “daily wagers” and they had merely worked for more than 240 days, in our considered view, relief of reinstatement cannot be said to be justified and instead, monetary compensation would meet the ends of justice.” 31. In light of the above legal position and having regard to the facts of the present case, namely, the workman was engaged as daily wager on 01.03.1991 and he worked hardly for eight months from 01.03.1991 to 31.10.1991, in our view, the Labour Court failed to exercise its judicial discretion appropriately. The judicial discretion exercised by the Labour Court suffers from serious infirmity. The Single Judge as well as the Division Bench of the High Court also erred in not considering the above aspect at all.
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was not in consonance with the statutory regulations and Articles 14 and 16 of the Constitution and accordingly, substituted the award of reinstatement with 50 per cent back wages by directing that the workman shall be paid a sum of Rs. 87,582/- by way of compensation. It is this order of the Single Judge that was set aside by this Court and order of the Labour Court restored. We are afraid the facts in Harjinder Singh2 are quite distinct. That was not a case of a daily-rated worker. It was held that Single Judge was wrong in entertaining an unfounded plea that workman was employed in violation of Articles 14 and 16. Harjinder Singh2 turned on its own facts and is not applicable to the facts of the present case at all.28. In Devinder Singh3 , the workman was engaged by Municipal Council, Sanaur on 01.08.1994 for doing the work of clerical nature. He continued in service till 29.09.1996. His service was discontinued with effect from 30.09.1996 in violation of Section 25-F of ID Act. On industrial dispute being referred for adjudication, the Labour Court held that the workman had worked for more than 240 days in a calendar year preceding the termination of his service and his service was terminated without complying with the provisions of Section 25-F. Accordingly, Labour Court passed an award for reinstatement of the workman but without back wages. Upon challenge being laid to the award of the Labour Court, the Division Bench set aside the order of the Labour Court by holding that Labour Court should not have ordered reinstatement of the workman because his appointment was contrary to the Recruitment Rules and Articles 14 and 16 of the Constitution. In the appeal before this Court from the order of the Division Bench, this Court held that the High Court had neither found any jurisdictional infirmity in the award of the Labour Court nor it came to the conclusion that the award was vitiated by an error of law apparent on the face of the record and notwithstanding these the High Court set aside the direction given by the Labour Court for reinstatement of the workman by assuming that his initial appointment was contrary to law. The approach of the High Court was found to be erroneous by this Court. This Court, accordingly, set aside the order of the High Court and restored the award of the Labour Court. In Devinder Singh3 , the Court had not dealt with the question about the consequential relief to be granted to the workman whose termination was held to be illegal being in violation of Section 25-F.29. In our view, Harjinder Singh2 and Devinder Singh3 do not lay down the proposition that in all cases of wrongful termination, reinstatement must follow. This Court found in those cases that judicial discretion exercised by the Labour Court was disturbed by the High Court on wrong assumption that the initial employment of the employee was illegal. As noted above, with regard to the wrongful termination of a daily wager, who had worked for a short period, this Court in long line of cases has held that the award of reinstatement cannot be said to be proper relief and rather award of compensation in such cases would be in consonance with the demand of justice. Before exercising its judicial discretion, the Labour Court has to keep in view all relevant factors, including the mode and manner of appointment, nature of employment, length of service, the ground on which the termination has been set aside and the delay in raising the industrial dispute before grant of relief in an industrial dispute.30. We may also refer to a recent decision of this Court in Bharat Sanchar Nigam Limited v. Man Singh [(2012) 1 SCC 558] . That was a case where the workmen, who were daily wagers during the year 1984-85, were terminated without following Section 25-F. The industrial dispute was raised after five years and although the Labour Court had awarded reinstatement of the workmen which was not interfered by the High Court, this Court set aside the award of reinstatement and ordered payment of compensation. In paragraphs 4 and 5 (pg.559) of the Report this Court held asThis Court in a catena of decisions has clearly laid down that although an order of retrenchment passed in violation of Section 25-F of the Industrial Disputes Act may be set aside but an award of reinstatement should not be passed. This Court has distinguished between a daily wager who does not hold a post and a permanent employee.5. In view of the aforementioned legal position and the fact that the respondent workmen were engaged asnd they had merely worked for more than 240 days, in our considered view, relief of reinstatement cannot be said to be justified and instead, monetary compensation would meet the ends of justice.In light of the above legal position and having regard to the facts of the present case, namely, the workman was engaged as daily wager on 01.03.1991 and he worked hardly for eight months from 01.03.1991 to 31.10.1991, in our view, the Labour Court failed to exercise its judicial discretion appropriately. The judicial discretion exercised by the Labour Court suffers from serious infirmity. The Single Judge as well as the Division Bench of the High Court also erred in not considering the above aspect at all. The award dated 28.06.2001 directing reinstatement of the respondent with continuity of service and 25% back wages in the facts and circumstances of the case cannot be sustained and has to be set aside and is set aside. In our view, compensation of Rs. 50,000/- by the appellant to the respondent shall meet the ends of justice. We order accordingly. Such payment shall be made to the respondent within six weeks from today failing which the same will carry interest @ 9 per cent per annum.32. The appeal is partly allowed to the above extent with no order as to costs.
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Ahmedabad Manufacturing & Calico Printing Company Limited Vs. Commissioner of Excess Profits Tax, Bombay North Kutch & Saurashtra | was paid, percentage of bonus to salary ranged between 412 to 884%, if payment was calculated before deducting the excess profits tax. In the case of the fifth employee to whom no salary was paid in the year, a sum of no less than Rs. 2,46,260 was paid as bonus in the relevant year. He also showed that the percentage of the Provident Fund contribution of salary ranged from 56 % to 553% and this, according to him, was also excessive. He therefore concluded as follows:"From the figures supplied in the attached lists, it may kindly be seen that the contribution by the Company as bonus not only exceeds the contributions of the employees but is several times more than the annual salaries paid to the employees. If such excessive payments as claimed were foreseen at the time when the recognition was given, the C.I.T. while recognising the Fund would not have recognised the Fund without this rule (R. 10 of the Provident Fund Rules) and basis being changed.From the above facts, it is clear that the payments made to the five employees and the 53 employees admitted to the benefits of the Provident Fund are clearly excessive having regard to the requirements of the business and the actual services rendered by the powers concerned within the meaning of Rule 12(1) of Sch. I."13. Learned counsel for the assessee Company contended that there was no evidence whatever, on which the conclusion that the payments were unreasonable could be justified, and that the matter was wrongly apprehended by the authorities. According to him, the Excess Profits Tax Officer could have acted on one of the two and only two grounds, viz.,(a) That the payment of percentage without deduction of Excess Profits Tax was per se unreasonable and unnecessary; or(b) That a payment to an individual employee or to his Provident Fund by the Company was unreasonable or unnecessarily large, having regard to the requirements of the business.He contended that the Excess Profits Tax Officer had acted solely on the first ground and had thus acted, not under R. 12 of Sch. I but on a rule of thumb which led to rather inconsistent and startling results in that a few hundreds of rupees paid to one employee came to be considered unreasonable but not tens of thousands of rupees paid to another employee. He stated that there was no enquiry made as to whether the emoluments paid to any of these employees were unreasonable.14. In our opinion, none of these arguments can avail the assessee Company. To begin with, it was never the case of the assessee Company that there was no evidence to support the findings of the Tribunal. In the thirteen questions proposed by the assessee Company, none relates to the existence or even the quantum of the evidence. The assessee Company was more interested in relying on the agreements and the Regulations as embodying a provisions that income-tax, super-tax and excess profits tax should not be deducted before applying the percentages, or, in the alternative, in showing that profits indicate the ordinary trading profits and not what is left over after payment of these taxes. Question No. 8 of these proposed questions does not involve any consideration whether the decision proceeded on evidence or material.15. Further, the assessee Company seems to have acquiesced in the modified questions because it did not seek special leave of this Court at that stage. Even in the statement of the case filed here, there is no mention of the Tribunal having acted on no evidence. We are also of the opinion that there was evidence on which the Tribunal could reach the conclusion that the payments were unreasonably high, having regard to the requirements of the business. The Excess Profits Tax Officer had prepared schedules showing the proportion of bonus or additional payments to the salary of these employees and also the proportion of the Provident Fund contributions to salary and had stated that in no other concern such extraordinarily high payments were being made. The Tribunal also examined one of the employees of the assessee Company who was present, and collected data in relation to some typical cases. All this material was before the Tribunal when it gave its finding.16. The schedules which are appended to the order of the Excess Profits Tax Officers remand report speak volumes. The payments even in the lowest cases seem extraordinarily high, and cannot be justified as dictated by the requirements of the business. There was again the practice of other concerns similarly situated to make a comparative study.The Excess Profits Tax Officer on a view of the matter held that it was not reasonable to apply the percentage before deducting the taxes. The process of his reasoning was that looking to the facts above stated the payments to the five employees and the contributions to the Provident Fund were unnecessarily large and also unreasonable, having regard to the requirements of the business, and he proceeded to prune them, not by taking up each individual case but by insisting that the percentage be applied only after all the taxes were paid by the assessee Company. It was open to the Excess Profits Tax Officer to say that payment to an employee or contributions to the Provident Fund, before deducting the excess profits tax were unreasonable and led to an unnecessarily large payment to the employees, having regard to the needs of the business. In other words, the Excess Profits Tax Officer having come to conclusion (b), viz., that payment to an individual employee or to his Provident Fund by the Company was unreasonable or unnecessarily large, having regard to the requirements of the business, applied conclusion (a), viz., that the payment of percentage without deduction of Excess Profits Tax was per se unreasonable and unnecessary, to reduce these large payments and contributions.In our opinion, there was material on which he could proceed, and the Tribunal in affirming that finding had further material to act upon. | 1[ds]From the above facts, it is clear that the payments made to the five employees and the 53 employees admitted to the benefits of the Provident Fund are clearly excessive having regard to the requirements of the business and the actual services rendered by the powers concerned within the meaning of Rule 12(1) of Sch. I.In our opinion, none of these arguments can avail the assessee Company. To begin with, it was never the case of the assessee Company that there was no evidence to support the findings of the Tribunal. In the thirteen questions proposed by the assessee Company, none relates to the existence or even the quantum of the evidence. The assessee Company was more interested in relying on the agreements and the Regulations as embodying a provisions thatx and excess profits tax should not be deducted before applying the percentages, or, in the alternative, in showing that profits indicate the ordinary trading profits and not what is left over after payment of these taxes. Question No. 8 of these proposed questions does not involve any consideration whether the decision proceeded on evidence or material.15. Further, the assessee Company seems to have acquiesced in the modified questions because it did not seek special leave of this Court at that stage. Even in the statement of the case filed here, there is no mention of the Tribunal having acted on no evidence. We are also of the opinion that there was evidence on which the Tribunal could reach the conclusion that the payments were unreasonably high, having regard to the requirements of the business. The Excess Profits Tax Officer had prepared schedules showing the proportion of bonus or additional payments to the salary of these employees and also the proportion of the Provident Fund contributions to salary and had stated that in no other concern such extraordinarily high payments were being made. The Tribunal also examined one of the employees of the assessee Company who was present, and collected data in relation to some typical cases. All this material was before the Tribunal when it gave its finding.16. The schedules which are appended to the order of the Excess Profits Tax Officers remand report speak volumes. The payments even in the lowest cases seem extraordinarily high, and cannot be justified as dictated by the requirements of the business. There was again the practice of other concerns similarly situated to make a comparative study.The Excess Profits Tax Officer on a view of the matter held that it was not reasonable to apply the percentage before deducting the taxes. The process of his reasoning was that looking to the facts above stated the payments to the five employees and the contributions to the Provident Fund were unnecessarily large and also unreasonable, having regard to the requirements of the business, and he proceeded to prune them, not by taking up each individual case but by insisting that the percentage be applied only after all the taxes were paid by the assessee Company. It was open to the Excess Profits Tax Officer to say that payment to an employee or contributions to the Provident Fund, before deducting the excess profits tax were unreasonable and led to an unnecessarily large payment to the employees, having regard to the needs of the business. In other words, the Excess Profits Tax Officer having come to conclusion (b), viz., that payment to an individual employee or to his Provident Fund by the Company was unreasonable or unnecessarily large, having regard to the requirements of the business, applied conclusion (a), viz., that the payment of percentage without deduction of Excess Profits Tax was per se unreasonable and unnecessary, to reduce these large payments and contributions.In our opinion, there was material on which he could proceed, and the Tribunal in affirming that finding had further material to act upon | 1 | 4,300 | 697 | ### 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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was paid, percentage of bonus to salary ranged between 412 to 884%, if payment was calculated before deducting the excess profits tax. In the case of the fifth employee to whom no salary was paid in the year, a sum of no less than Rs. 2,46,260 was paid as bonus in the relevant year. He also showed that the percentage of the Provident Fund contribution of salary ranged from 56 % to 553% and this, according to him, was also excessive. He therefore concluded as follows:"From the figures supplied in the attached lists, it may kindly be seen that the contribution by the Company as bonus not only exceeds the contributions of the employees but is several times more than the annual salaries paid to the employees. If such excessive payments as claimed were foreseen at the time when the recognition was given, the C.I.T. while recognising the Fund would not have recognised the Fund without this rule (R. 10 of the Provident Fund Rules) and basis being changed.From the above facts, it is clear that the payments made to the five employees and the 53 employees admitted to the benefits of the Provident Fund are clearly excessive having regard to the requirements of the business and the actual services rendered by the powers concerned within the meaning of Rule 12(1) of Sch. I."13. Learned counsel for the assessee Company contended that there was no evidence whatever, on which the conclusion that the payments were unreasonable could be justified, and that the matter was wrongly apprehended by the authorities. According to him, the Excess Profits Tax Officer could have acted on one of the two and only two grounds, viz.,(a) That the payment of percentage without deduction of Excess Profits Tax was per se unreasonable and unnecessary; or(b) That a payment to an individual employee or to his Provident Fund by the Company was unreasonable or unnecessarily large, having regard to the requirements of the business.He contended that the Excess Profits Tax Officer had acted solely on the first ground and had thus acted, not under R. 12 of Sch. I but on a rule of thumb which led to rather inconsistent and startling results in that a few hundreds of rupees paid to one employee came to be considered unreasonable but not tens of thousands of rupees paid to another employee. He stated that there was no enquiry made as to whether the emoluments paid to any of these employees were unreasonable.14. In our opinion, none of these arguments can avail the assessee Company. To begin with, it was never the case of the assessee Company that there was no evidence to support the findings of the Tribunal. In the thirteen questions proposed by the assessee Company, none relates to the existence or even the quantum of the evidence. The assessee Company was more interested in relying on the agreements and the Regulations as embodying a provisions that income-tax, super-tax and excess profits tax should not be deducted before applying the percentages, or, in the alternative, in showing that profits indicate the ordinary trading profits and not what is left over after payment of these taxes. Question No. 8 of these proposed questions does not involve any consideration whether the decision proceeded on evidence or material.15. Further, the assessee Company seems to have acquiesced in the modified questions because it did not seek special leave of this Court at that stage. Even in the statement of the case filed here, there is no mention of the Tribunal having acted on no evidence. We are also of the opinion that there was evidence on which the Tribunal could reach the conclusion that the payments were unreasonably high, having regard to the requirements of the business. The Excess Profits Tax Officer had prepared schedules showing the proportion of bonus or additional payments to the salary of these employees and also the proportion of the Provident Fund contributions to salary and had stated that in no other concern such extraordinarily high payments were being made. The Tribunal also examined one of the employees of the assessee Company who was present, and collected data in relation to some typical cases. All this material was before the Tribunal when it gave its finding.16. The schedules which are appended to the order of the Excess Profits Tax Officers remand report speak volumes. The payments even in the lowest cases seem extraordinarily high, and cannot be justified as dictated by the requirements of the business. There was again the practice of other concerns similarly situated to make a comparative study.The Excess Profits Tax Officer on a view of the matter held that it was not reasonable to apply the percentage before deducting the taxes. The process of his reasoning was that looking to the facts above stated the payments to the five employees and the contributions to the Provident Fund were unnecessarily large and also unreasonable, having regard to the requirements of the business, and he proceeded to prune them, not by taking up each individual case but by insisting that the percentage be applied only after all the taxes were paid by the assessee Company. It was open to the Excess Profits Tax Officer to say that payment to an employee or contributions to the Provident Fund, before deducting the excess profits tax were unreasonable and led to an unnecessarily large payment to the employees, having regard to the needs of the business. In other words, the Excess Profits Tax Officer having come to conclusion (b), viz., that payment to an individual employee or to his Provident Fund by the Company was unreasonable or unnecessarily large, having regard to the requirements of the business, applied conclusion (a), viz., that the payment of percentage without deduction of Excess Profits Tax was per se unreasonable and unnecessary, to reduce these large payments and contributions.In our opinion, there was material on which he could proceed, and the Tribunal in affirming that finding had further material to act upon.
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### Explanation:
From the above facts, it is clear that the payments made to the five employees and the 53 employees admitted to the benefits of the Provident Fund are clearly excessive having regard to the requirements of the business and the actual services rendered by the powers concerned within the meaning of Rule 12(1) of Sch. I.In our opinion, none of these arguments can avail the assessee Company. To begin with, it was never the case of the assessee Company that there was no evidence to support the findings of the Tribunal. In the thirteen questions proposed by the assessee Company, none relates to the existence or even the quantum of the evidence. The assessee Company was more interested in relying on the agreements and the Regulations as embodying a provisions thatx and excess profits tax should not be deducted before applying the percentages, or, in the alternative, in showing that profits indicate the ordinary trading profits and not what is left over after payment of these taxes. Question No. 8 of these proposed questions does not involve any consideration whether the decision proceeded on evidence or material.15. Further, the assessee Company seems to have acquiesced in the modified questions because it did not seek special leave of this Court at that stage. Even in the statement of the case filed here, there is no mention of the Tribunal having acted on no evidence. We are also of the opinion that there was evidence on which the Tribunal could reach the conclusion that the payments were unreasonably high, having regard to the requirements of the business. The Excess Profits Tax Officer had prepared schedules showing the proportion of bonus or additional payments to the salary of these employees and also the proportion of the Provident Fund contributions to salary and had stated that in no other concern such extraordinarily high payments were being made. The Tribunal also examined one of the employees of the assessee Company who was present, and collected data in relation to some typical cases. All this material was before the Tribunal when it gave its finding.16. The schedules which are appended to the order of the Excess Profits Tax Officers remand report speak volumes. The payments even in the lowest cases seem extraordinarily high, and cannot be justified as dictated by the requirements of the business. There was again the practice of other concerns similarly situated to make a comparative study.The Excess Profits Tax Officer on a view of the matter held that it was not reasonable to apply the percentage before deducting the taxes. The process of his reasoning was that looking to the facts above stated the payments to the five employees and the contributions to the Provident Fund were unnecessarily large and also unreasonable, having regard to the requirements of the business, and he proceeded to prune them, not by taking up each individual case but by insisting that the percentage be applied only after all the taxes were paid by the assessee Company. It was open to the Excess Profits Tax Officer to say that payment to an employee or contributions to the Provident Fund, before deducting the excess profits tax were unreasonable and led to an unnecessarily large payment to the employees, having regard to the needs of the business. In other words, the Excess Profits Tax Officer having come to conclusion (b), viz., that payment to an individual employee or to his Provident Fund by the Company was unreasonable or unnecessarily large, having regard to the requirements of the business, applied conclusion (a), viz., that the payment of percentage without deduction of Excess Profits Tax was per se unreasonable and unnecessary, to reduce these large payments and contributions.In our opinion, there was material on which he could proceed, and the Tribunal in affirming that finding had further material to act upon
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Kailash Shahra Vs. Idbi Bank Limited | the Review Committee.41. The judgment of the Honble Supreme Court in the case of State Bank of India (supra), though not directly on the point, still, while negating the contention of the respondents that services of a lawyer ought to be mandatorily provided while meeting the allegations in the show cause notice, in para 24, the Honble Supreme Court clinched the issue and held as under:-"24. Given the above conspectus of case law, we are of the view that there is no right to be represented by a lawyer in the-in-house proceedings contained in Para 3 of the Revised Circular dated 1-7-2015, as it is clear that the events of wilful default as mentioned in Para 2.1.3. would only relate to the individual facts of each case. What has typically to be discovered is whether a unit has defaulted in making its payment obligations even when it has the capacity to honour the said obligations; or that it has borrowed funds which are diverted for other purposes, or siphoned off funds so that the funds have not been utilised for the specific purpose for which the finance was made available. Whether a default is intentional, deliberate, and calculated is again a question of fact which the lender may put to the borrower in a showcause notice to elicit the borrowers submissions on the same. However, we are of the view that Article 19(1)(g) is attracted in the facts of the present case as the moment a person is declared to be a wilful defaulter, the impact on its fundamental right to carry on business is direct and immediate. This is for the reason that no additional facilities can be granted by any bank/financial institutions, and entrepreneurs/promoters would be barred from institutional finance for five years. Banks/financial institutions can even change the management of the wilful defaulter, and a promoter/director of a wilful defaulter cannot be made promoter or director of any other borrower company. Equally, under Section 29-A of the Insolvency and Bankruptcy Code, 2016, a wilful defaulter cannot even apply to be a resolution applicant. Given these drastic consequences, it is clear that the Revised Circular, being in public interest, must be construed reasonably. This being so, and given the fact that Para 3 of the Master Circular dated 1-7-2013 permitted the borrower to make a representation within 15 days of the preliminary decision of the First Committee, we are of the view that first and foremost, the Committee comprising of the Executive Director and two other senior officials, being the First Committee, after following Para 3(b) of the Revised Circular dated 1-7-2015, must give its order to the borrower as soon as it is made. The borrower can then represent against such order within a period of 15 days to the Review Committee. Such written representation can be a full representation on facts and law (if any). The Review Committee must then pass a reasoned order on such representation which must then be served on the borrower. Given the fact that the earlier Master Circular dated 1-7-2013 itself considered such steps to be reasonable, we incorporate all these steps into the Revised Circular dated 1-7-2015. The impugned judgment is, therefore, set aside, and the appeals are allowed in terms of our judgment. We thank the learned Amicus Curiae, Shri Parag Tripathi, for his valuable assistance to this Court.42. There is no merit in the contention of Mr.Pandit that this judgment is delivered in the year 2019, whereas, the impugned decision is taken in the year 2017. The circular is of 2015. That has been interpreted by the Honble Supreme Court and also in a Division Bench judgment of this court. It is, therefore, no point telling us on affidavit in these proceedings that the petitioner is not prejudiced at all. True it is that the petitioner cannot demand, as of right, a fresh opportunity to appear before the Identification Committee or to give a reply to the show cause notice and place his version before the Identification Committee now. However, when tentative and prima facie findings of the Identification Committee as enumerated and recorded in its reasoned order are placed before the Review Committee, at least the petitioner must know what is the opinion of the Identification Committee. The petitioner must know how the order of the Identification Committee reads.43. The bank, in the affidavit in reply categorically says that it is not obliged to provide copies of the Identification Committee report and the Review Committee report to the petitioner as they are internal private documents. This cannot be a valid ground on which the petitioner is denied the copies of these two vital documents. That the petitioner had with him a copy of the special audit report and that was sufficient to answer the queries of the bank is thus an afterthought and is not a sound reason assigned in the affidavit in reply to deny the petitioner access to the relevant documents.44. We do not think that the petitioner intentionally avoided to attend the personal hearing. In the facts and circumstances of the case, the petitioner was genuinely handicapped. The petitioner had sought answers to several queries, some of which may be general and irrelevant. The petitioner need not be provided with names and designation of the members of the Identification Committee for its composition is set out in the Master Circular of the RBI itself. Apart therefrom, the designation by itself is not decisive. This hyper technical approach of the petitioner need not be countenanced, but when the petitioner says that there is no confidentiality attached to the orders an reports of the Identification Committee and that of the Review Committee, but Mr. Pandit says otherwise, then, we have a serious quarrel with the stand of the IDBI Bank Limited. Ordinarily, we would have been justified in setting aside the order of 8th December, 2017, but it would mean the benefit would accrue to all those proceeded against. We do not wish to do that. | 1[ds]10. Since the arguments before us are revolving around the adherence to the principles of natural justice, we do not wish to make detailed reference to the correspondence on record. All that we have is a grievance that the notice dated 8th December, 2017 informs the petitioner that the Review Committee has passed an order, inter-alia, against the petitioner, confirming that the Identification Committee has declared the borrower company along with its Directors as wilful defaulters and their names would be reported to the concerned credit institutions and the RBI.The show cause notice makes serious charges. A perusal of the same would reveal that the charges are under two broad heads, namely, that the unit has defaulted in meeting its payment/ repayment obligation to the lender and has not utilised the finance from the loan for the specific purpose for which it was availed of, but it has diverted the funds for other purpose. All acts of omission and commission are attributed to the borrower company. However, the notice is addressed to the Directors as well. The second head is of siphoning of funds and that the unit has defaulted in meeting its payment/ repayment obligations and has siphoned of all the funds so that the funds have not been utilised for the specific purpose for which the finance was availed of. Therefore, the petitioner amongst others was called upon to show cause why the company and the Promoter Directors, whole-time Directors should not be reported as wilful defaulters.A perusal of the same reveals that the bank asserts that it had extended an opportunity of personal hearing. After careful examination of the contents of the show cause notice, the Master Circular, the Wilful Default Committee issued an order recording the fact of the wilful default, which was reviewed and confirmed by another committee (Review Committee) of the bank constituted in accordance with the RBI Circular at its meeting held on 27th November, 2017. Based on the above, the bank has taken a decision to declare the petitioner as wilful defaulter.From the order, it is not revealed that any reference is made to a communication of 10th August, 2017 addressed to IDBI Bank Limited purportedly in reply or response to the show causeare not making reference to all these communications simply because the bank maintains that the subject audit report has been forwarded, whereas, the Ruchi Soya Industries Limited claims that it has not been forwarded. All that we have on record are the contents of these special audit reports, which are specifically relied upon. The borrower companys version is reiterated by the petitioner from time to time apart from his assertion that he was only a non-executive Director.With the above material, we must now note the stand of the bank in issuing the notice to the guarantors of the loan. The guarantors include the petitioner. The RBI Circular and which is the most relevant document has specific provisions to declare parties like the petitioner as wilful defaulter. The same has not been specifically annexed, but a copy is provided by Mr.Jain during the course of arguments.A perusal of the same would reveal that though the term ‘lender appearing in the circular covers all banks/ financial institutions to which any amount is due, it is specifically then saying that the dues must be on account of any banking transaction, including off balance sheet transactions such as derivatives, guarantee and letter of credit. The term ‘unit appearing in para 2.1 is to be taken to include individuals, juristic persons and all other forms of business enterprises, whether incorporated or not. In case of business enterprises, other than companies, banks/ financial institutions may also report the names of those persons who are in charge and responsible for the management of the affairs of the business enterprise.Then, amended para 2.6 says that the bank should consider the track record of the individual company with reference to its repayment performance to its lenders and the guarantees furnished by the companies within the group on behalf of the wilfully defaulting units, if not honoured, then, they should also be reckoned as wilful defaulters. However, in connection with guarantors, a clarification in the parent circular is given. The clarification is that when the default is made by the principal debtor, the banker will be able to proceed against the guarantor/ surety even without exhausting the remedies against the principal debtor. That is clear from section 128 of the Indian Contract Act, 1872. As such, where a banker has made a claim on the guarantor on account of the default made by the principal debtor, the liability of the guarantor is immediate. In case the said guarantor refuses to comply with the demand made by the creditor/ banker, despite having sufficient means to make payment of the dues, such guarantor would also be treated as a wilful defaulter. The default, however, should occur after the date of issuance of theis apparent from a perusal of these paragraphs that in addition to the penal measures, the wilful defaulters must suffer the consequences following the definitions and the details set out in the ingredients of this circular. It is evident that the whole process must go by the mechanism for identification of wilful defaulters.Therefore, it is this aspect of the matter which is relevant for our purpose. It is true that there is a power to pronounce even a Director as a wilful defaulter and that such a declaration is not confined to the borrower company alone. Firstly and importantly, a mere default is not enough. Secondly, only an intentional, deliberate act brings in the Declaration. Lastly and thirdly, other than the borrower company, its promoter/ whole-time Director can be subjected to such a declaration, but for that there should be evidence. The other Director is covered only when clause (d) of para 3 is attracted. However, there ought to be established and proven acts attributable to each, before such a drastic step is taken. To our mind, therefore, some of the documents and records may be relevant for enabling the Director like the petitioner to effectively defend himself. Further, before a personal hearing is granted to him, he should be aware of the allegations in the show cause notice with specific details so that he is able to recollect or the bank is in a position to refresh his memory. It will then alone be able to establish whether there is any consent with the acts of omission and commission of the borrower company by such Director. That he has participated in the meeting and that when the proceedings are recorded in the minutes of the meeting of Board, this gentleman has not recorded his objection to the same in the minutes or, the wilful default had taken place with his consent or connivance. This is therefore, understood by a Division bench of this court to mean that the Master Circular has an inbuilt mechanism. The inbuilt mechanism or safety valve is that the identification of the wilful defaulter is to be done in accordance with the Master Circular. Secondly, after the identification is done, a show cause notice has to be issued based on the order of the Identification Committee and which must be a reasoned order. After that show cause notice is issued, an opportunity has to be given to deal with the allegations in the show cause notice. The materials then have to be placed before a Review Committee and as and when that Review Committee applies its mind and gives its approval to the order of the Identification Committee that a finality is attached to it.The judgment delivered in the case of Finolex Industries (supra), with great respect, rightly concludes that this Master Circular contemplates a two stage inquiry by the bank.We respectfully concur with the above views. The whole exercise is not a mere ritual nor the paras are to be chanted as mantras. The presence of the word evidence is crucial.We do not see any substance in the argument of Mr.Pandit that in this case the Master Circular need not be given an interpretation as placed by the Honble Supreme Court in a decision of the year 2019 [State Bank of India (supra)]. As early as on 24th August, 2011, this court interpreted the Master Circular in Finolex case (supra). Therefore, it was always the understanding of this court that this Master Circular to be implemented, enforced and imposed effectively and efficiently requires compliance with the principles of natural justice. True it is that mere allegation of breach of principles of natural justice is not enough. The breach will have to be established and proved. The findings in the order of the Identification Committee may be tentative and prima facie and no finality is attached to it unless a review of the same by a high power committee is taken. But, at least at that stage, it is necessary that principles of natural justice are complied with. The paragraphs of the circular, therefore, are interpreted by the banks to conclude that no breach occurs of such principles even if the relevant and germane materials are withheld and the version of the alleged wilful defaulters is not taken into consideration or brushed aside by the Review Committee. These are not empty formalities. There is no paper compliance contemplated by law. A serious deliberation and due consideration is required at the hands of this high power committee. It must identify the wilful defaulter all over again and afresh by bearing in mind the definitions in the Companies Act, 2013, particularly of the term officer in default. There has to be a clear default attributable to the Director. If he is not a whole-time Director, then, there is a requirement in the definition itself of alleging, establishing and proving his consent by not raising any objection and by active participation in deliberations and discussions of the Board of Directors of that particular company. In the event there is a case made out of collusion, then, details, particulars of the same are required to be referred to and thereafter, the allegations should be established and proved with cogent and satisfactory materials. The reasons assigned by the Identification Committee are open for independent scrutiny of the the Review Committee.There is no merit in the contention of Mr.Pandit that this judgment is delivered in the year 2019, whereas, the impugned decision is taken in the year 2017. The circular is of 2015. That has been interpreted by the Honble Supreme Court and also in a Division Bench judgment of this court. It is, therefore, no point telling us on affidavit in these proceedings that the petitioner is not prejudiced at all. True it is that the petitioner cannot demand, as of right, a fresh opportunity to appear before the Identification Committee or to give a reply to the show cause notice and place his version before the Identification Committee now. However, when tentative and prima facie findings of the Identification Committee as enumerated and recorded in its reasoned order are placed before the Review Committee, at least the petitioner must know what is the opinion of the Identification Committee. The petitioner must know how the order of the Identification Committee reads.The bank, in the affidavit in reply categorically says that it is not obliged to provide copies of the Identification Committee report and the Review Committee report to the petitioner as they are internal private documents. This cannot be a valid ground on which the petitioner is denied the copies of these two vital documents. That the petitioner had with him a copy of the special audit report and that was sufficient to answer the queries of the bank is thus an afterthought and is not a sound reason assigned in the affidavit in reply to deny the petitioner access to the relevant documents.We do not think that the petitioner intentionally avoided to attend the personal hearing. In the facts and circumstances of the case, the petitioner was genuinely handicapped. The petitioner had sought answers to several queries, some of which may be general and irrelevant. The petitioner need not be provided with names and designation of the members of the Identification Committee for its composition is set out in the Master Circular of the RBI itself. Apart therefrom, the designation by itself is not decisive. This hyper technical approach of the petitioner need not be countenanced, but when the petitioner says that there is no confidentiality attached to the orders an reports of the Identification Committee and that of the Review Committee, but Mr. Pandit says otherwise, then, we have a serious quarrel with the stand of the IDBI Bank Limited. Ordinarily, we would have been justified in setting aside the order of 8th December, 2017, but it would mean the benefit would accrue to all those proceeded against. We do not wish to do that. | 1 | 12,424 | 2,341 | ### Instruction:
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the Review Committee.41. The judgment of the Honble Supreme Court in the case of State Bank of India (supra), though not directly on the point, still, while negating the contention of the respondents that services of a lawyer ought to be mandatorily provided while meeting the allegations in the show cause notice, in para 24, the Honble Supreme Court clinched the issue and held as under:-"24. Given the above conspectus of case law, we are of the view that there is no right to be represented by a lawyer in the-in-house proceedings contained in Para 3 of the Revised Circular dated 1-7-2015, as it is clear that the events of wilful default as mentioned in Para 2.1.3. would only relate to the individual facts of each case. What has typically to be discovered is whether a unit has defaulted in making its payment obligations even when it has the capacity to honour the said obligations; or that it has borrowed funds which are diverted for other purposes, or siphoned off funds so that the funds have not been utilised for the specific purpose for which the finance was made available. Whether a default is intentional, deliberate, and calculated is again a question of fact which the lender may put to the borrower in a showcause notice to elicit the borrowers submissions on the same. However, we are of the view that Article 19(1)(g) is attracted in the facts of the present case as the moment a person is declared to be a wilful defaulter, the impact on its fundamental right to carry on business is direct and immediate. This is for the reason that no additional facilities can be granted by any bank/financial institutions, and entrepreneurs/promoters would be barred from institutional finance for five years. Banks/financial institutions can even change the management of the wilful defaulter, and a promoter/director of a wilful defaulter cannot be made promoter or director of any other borrower company. Equally, under Section 29-A of the Insolvency and Bankruptcy Code, 2016, a wilful defaulter cannot even apply to be a resolution applicant. Given these drastic consequences, it is clear that the Revised Circular, being in public interest, must be construed reasonably. This being so, and given the fact that Para 3 of the Master Circular dated 1-7-2013 permitted the borrower to make a representation within 15 days of the preliminary decision of the First Committee, we are of the view that first and foremost, the Committee comprising of the Executive Director and two other senior officials, being the First Committee, after following Para 3(b) of the Revised Circular dated 1-7-2015, must give its order to the borrower as soon as it is made. The borrower can then represent against such order within a period of 15 days to the Review Committee. Such written representation can be a full representation on facts and law (if any). The Review Committee must then pass a reasoned order on such representation which must then be served on the borrower. Given the fact that the earlier Master Circular dated 1-7-2013 itself considered such steps to be reasonable, we incorporate all these steps into the Revised Circular dated 1-7-2015. The impugned judgment is, therefore, set aside, and the appeals are allowed in terms of our judgment. We thank the learned Amicus Curiae, Shri Parag Tripathi, for his valuable assistance to this Court.42. There is no merit in the contention of Mr.Pandit that this judgment is delivered in the year 2019, whereas, the impugned decision is taken in the year 2017. The circular is of 2015. That has been interpreted by the Honble Supreme Court and also in a Division Bench judgment of this court. It is, therefore, no point telling us on affidavit in these proceedings that the petitioner is not prejudiced at all. True it is that the petitioner cannot demand, as of right, a fresh opportunity to appear before the Identification Committee or to give a reply to the show cause notice and place his version before the Identification Committee now. However, when tentative and prima facie findings of the Identification Committee as enumerated and recorded in its reasoned order are placed before the Review Committee, at least the petitioner must know what is the opinion of the Identification Committee. The petitioner must know how the order of the Identification Committee reads.43. The bank, in the affidavit in reply categorically says that it is not obliged to provide copies of the Identification Committee report and the Review Committee report to the petitioner as they are internal private documents. This cannot be a valid ground on which the petitioner is denied the copies of these two vital documents. That the petitioner had with him a copy of the special audit report and that was sufficient to answer the queries of the bank is thus an afterthought and is not a sound reason assigned in the affidavit in reply to deny the petitioner access to the relevant documents.44. We do not think that the petitioner intentionally avoided to attend the personal hearing. In the facts and circumstances of the case, the petitioner was genuinely handicapped. The petitioner had sought answers to several queries, some of which may be general and irrelevant. The petitioner need not be provided with names and designation of the members of the Identification Committee for its composition is set out in the Master Circular of the RBI itself. Apart therefrom, the designation by itself is not decisive. This hyper technical approach of the petitioner need not be countenanced, but when the petitioner says that there is no confidentiality attached to the orders an reports of the Identification Committee and that of the Review Committee, but Mr. Pandit says otherwise, then, we have a serious quarrel with the stand of the IDBI Bank Limited. Ordinarily, we would have been justified in setting aside the order of 8th December, 2017, but it would mean the benefit would accrue to all those proceeded against. We do not wish to do that.
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that the Master Circular has an inbuilt mechanism. The inbuilt mechanism or safety valve is that the identification of the wilful defaulter is to be done in accordance with the Master Circular. Secondly, after the identification is done, a show cause notice has to be issued based on the order of the Identification Committee and which must be a reasoned order. After that show cause notice is issued, an opportunity has to be given to deal with the allegations in the show cause notice. The materials then have to be placed before a Review Committee and as and when that Review Committee applies its mind and gives its approval to the order of the Identification Committee that a finality is attached to it.The judgment delivered in the case of Finolex Industries (supra), with great respect, rightly concludes that this Master Circular contemplates a two stage inquiry by the bank.We respectfully concur with the above views. The whole exercise is not a mere ritual nor the paras are to be chanted as mantras. The presence of the word evidence is crucial.We do not see any substance in the argument of Mr.Pandit that in this case the Master Circular need not be given an interpretation as placed by the Honble Supreme Court in a decision of the year 2019 [State Bank of India (supra)]. As early as on 24th August, 2011, this court interpreted the Master Circular in Finolex case (supra). Therefore, it was always the understanding of this court that this Master Circular to be implemented, enforced and imposed effectively and efficiently requires compliance with the principles of natural justice. True it is that mere allegation of breach of principles of natural justice is not enough. The breach will have to be established and proved. The findings in the order of the Identification Committee may be tentative and prima facie and no finality is attached to it unless a review of the same by a high power committee is taken. But, at least at that stage, it is necessary that principles of natural justice are complied with. The paragraphs of the circular, therefore, are interpreted by the banks to conclude that no breach occurs of such principles even if the relevant and germane materials are withheld and the version of the alleged wilful defaulters is not taken into consideration or brushed aside by the Review Committee. These are not empty formalities. There is no paper compliance contemplated by law. A serious deliberation and due consideration is required at the hands of this high power committee. It must identify the wilful defaulter all over again and afresh by bearing in mind the definitions in the Companies Act, 2013, particularly of the term officer in default. There has to be a clear default attributable to the Director. If he is not a whole-time Director, then, there is a requirement in the definition itself of alleging, establishing and proving his consent by not raising any objection and by active participation in deliberations and discussions of the Board of Directors of that particular company. In the event there is a case made out of collusion, then, details, particulars of the same are required to be referred to and thereafter, the allegations should be established and proved with cogent and satisfactory materials. The reasons assigned by the Identification Committee are open for independent scrutiny of the the Review Committee.There is no merit in the contention of Mr.Pandit that this judgment is delivered in the year 2019, whereas, the impugned decision is taken in the year 2017. The circular is of 2015. That has been interpreted by the Honble Supreme Court and also in a Division Bench judgment of this court. It is, therefore, no point telling us on affidavit in these proceedings that the petitioner is not prejudiced at all. True it is that the petitioner cannot demand, as of right, a fresh opportunity to appear before the Identification Committee or to give a reply to the show cause notice and place his version before the Identification Committee now. However, when tentative and prima facie findings of the Identification Committee as enumerated and recorded in its reasoned order are placed before the Review Committee, at least the petitioner must know what is the opinion of the Identification Committee. The petitioner must know how the order of the Identification Committee reads.The bank, in the affidavit in reply categorically says that it is not obliged to provide copies of the Identification Committee report and the Review Committee report to the petitioner as they are internal private documents. This cannot be a valid ground on which the petitioner is denied the copies of these two vital documents. That the petitioner had with him a copy of the special audit report and that was sufficient to answer the queries of the bank is thus an afterthought and is not a sound reason assigned in the affidavit in reply to deny the petitioner access to the relevant documents.We do not think that the petitioner intentionally avoided to attend the personal hearing. In the facts and circumstances of the case, the petitioner was genuinely handicapped. The petitioner had sought answers to several queries, some of which may be general and irrelevant. The petitioner need not be provided with names and designation of the members of the Identification Committee for its composition is set out in the Master Circular of the RBI itself. Apart therefrom, the designation by itself is not decisive. This hyper technical approach of the petitioner need not be countenanced, but when the petitioner says that there is no confidentiality attached to the orders an reports of the Identification Committee and that of the Review Committee, but Mr. Pandit says otherwise, then, we have a serious quarrel with the stand of the IDBI Bank Limited. Ordinarily, we would have been justified in setting aside the order of 8th December, 2017, but it would mean the benefit would accrue to all those proceeded against. We do not wish to do that.
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M/S. Telestar Travels Pvt. Ltd. Vs. Special Director Of Enforcement | contravention of the Customs Duty Act and also FERA. When the petitioner seeks for cross-examination of the witnesses who have said that the recovery was made from the petitioner, necessarily an opportunity requires to be given for the cross-examination of the witnesses as regards the place at which recovery was made. Since the dispute concerns the confiscation of the jewellery, whether at conveyor belt or at the green channel, perhaps the witnesses were required to be called. But in view of confession made by him, it binds him and, therefore, in the facts and circumstances of this case the failure to give him the opportunity to cross-examine the witnesses is not violative of principle of natural justice. It is contended that the petitioner had retracted within six days from the confession. Therefore, he is entitled to crossexamine the panch witnesses before the authority takes a decision on proof of the offence. We find no force in this contention. The customs officials are not police officers. The confession, though retracted, is an admission and binds the petitioner. So there is no need to call panch witnesses for examination and cross-examination by the petitioner. 19. We may also refer to the decision of this Court in M/s Kanungo & Company v. Collector of Customs and Ors. (1973) 2 SCC 438. The appellant in that case was carrying on business as a dealer, importer and repairer of watches in Calcutta. In the course of a search conducted by Customs Authorities on the appellants premises, 280 wrist watches of foreign make were confiscated. When asked to show cause against the seizure of these wrist watches, the appellants produced vouchers to prove that the watches had been lawfully purchased by them between 1956 and 1957. However, upon certain enquiries, the Customs Authorities found the vouchers produced to be false and fictitious. The results of these enquiries were made known to the appellant, after which they were given a personal hearing before the adjudicating officer, the Additional Collector of Customs. Citing that the appellant made no attempt in the personal hearing to substantiate their claim of lawful importation, the Additional Collector passed an order confiscating the watches under Section 167(8), Sea Customs Act, read with Section 3(2) of the Imports and Exports (Control) Act, 1947. The writ petition filed by the appellant to set aside the said order was allowed by a Single Judge of the High Court on the ground that the burden of proof on the Customs Authorities had not been discharged by them. The Division Bench of the High Court reversed this order on appeal stating that the burden of proving lawful importation had shifted upon the firm after the Customs Authorities had informed them of the results of their enquiries. In appeal before this Court, one of the four arguments advanced on behalf of the appellant was that the adjudicating officer had breached the principles of natural justice by denying them the opportunity to cross-examine the persons from whom enquiries were made by the Customs Authorities. The Supreme Court rejected this argument stating as follows: 12. We may first deal with the question of breach of natural justice. On the material on record, in our opinion, there has been no such breach. In the show-cause notice issued on August 21, 1961, all the material on which the Customs Authorities have relied was set out and it was then for the appellant to give a suitable explanation. The complaint of the appellant now is that all the persons from whom enquiries were alleged to have been made by the authorities should have been produced to enable it to cross-examine them. In our-opinion, the principles of natural justice do not require that in matters like this the persons who have given information should be examined in the presence of the appellant or should be allowed to be cross-examined by them on the statements made before the Customs Authorities. Accordingly we hold that there is no force in the third contention of the appellant. 20. Coming to the case at hand, the Adjudicating Authority has mainly relied upon the statements of the appellants and the documents seized in the course of the search of their premises. But, there is no dispute that apart from what was seized from the business premises of the appellants the Adjudicating Authority also placed reliance upon documents produced by Miss Anita Chotrani and Mr. Raut. These documents were, it is admitted disclosed to the appellants who were permitted to inspect the same. The production of the documents duly confronted to the appellants was in the nature of production in terms of Section 139 of the Evidence Act, where the witness producing the documents is not subjected to cross examination. Such being the case, the refusal of the Adjudicating Authority to permit cross examination of the witnesses producing the documents cannot even on the principles of Evidence Act be found fault with. At any rate, the disclosure of the documents to the appellants and the opportunity given to them to rebut and explain the same was a substantial compliance with the principles of natural justice. That being so, there was and could be no prejudice to the appellants nor was any demonstrated by the appellants before us or before the Courts below. The third limb of the case of the appellants also in that view fails and is rejected. 21. Mr. Diwan lastly argued that the penalty imposed was disproportionate to the nature of the violation and that this Court could at least, interfere to that extent. We do not see any reason much less a compelling one to interfere with the quantum of penalty imposed upon the appellants by the Tribunal. The Adjudicating Authority had, as noticed earlier, imposed a higher penalty. The Tribunal has already given relief by reducing the same by 50%. Keeping in view the nature of the violations and the means adopted by the respondent to do that, we see no room for any further leniency. | 0[ds]18. There is, in our opinion, no merit even in that submission of the learned counsel. It is evident from Rule 3 of the Adjudication Rules framed under Section 79 of the FERA that the rules of procedure do not apply to adjudicating proceedings. That does not, however, mean that in a given situation, cross examination may not be permitted to test the veracity of a deposition sought to be issued against a party against whom action is proposed to be taken. It is only when a deposition goes through the fire of cross-examination that a Court or Statutory Authority may be able to determine and assess its probative value. Using a deposition that is not so tested, may therefore amount to using evidence, which the party concerned has had no opportunity to question. Such refusal may in turn amount to violation of the rule of a fair hearing and opportunity implicit in any adjudicatory process, affecting the right of the citizen. The question, however, is whether failure to permit the party to cross examine has resulted in any prejudice so as to call for reversal of the orders and a de novo enquiry into the matter. The answer to that question would depend upon the facts and circumstances of each case. For instance, a similar plea raised in Surjeet Singh Chhabra v. Union of India and Ors. (1997) 1 SCC 508 before this Court did not cut much ice, as this Court felt that cross examination of the witness would make no material difference in the facts and circumstances of that case. The Court observed:3. It is true that the petitioner had confessed that he purchased the gold and had brought it. He admitted that he purchased the gold and converted it as a kara. In this situation, bringing the gold without permission of the authority is in contravention of the Customs Duty Act and also FERA. When the petitioner seeks for cross-examination of the witnesses who have said that the recovery was made from the petitioner, necessarily an opportunity requires to be given for the cross-examination of the witnesses as regards the place at which recovery was made. Since the dispute concerns the confiscation of the jewellery, whether at conveyor belt or at the green channel, perhaps the witnesses were required to be called. But in view of confession made by him, it binds him and, therefore, in the facts and circumstances of this case the failure to give him the opportunity to cross-examine the witnesses is not violative of principle of natural justice. It is contended that the petitioner had retracted within six days from the confession. Therefore, he is entitled to crossexamine the panch witnesses before the authority takes a decision on proof of the offence. We find no force in this contention. The customs officials are not police officers. The confession, though retracted, is an admission and binds the petitioner. So there is no need to call panch witnesses for examination and cross-examination by the petitioner19. We may also refer to the decision of this Court in M/s Kanungo & Company v. Collector of Customs and Ors. (1973) 2 SCC 438. The appellant in that case was carrying on business as a dealer, importer and repairer of watches in Calcutta. In the course of a search conducted by Customs Authorities on the appellants premises, 280 wrist watches of foreign make were confiscated. When asked to show cause against the seizure of these wrist watches, the appellants produced vouchers to prove that the watches had been lawfully purchased by them between 1956 and 1957. However, upon certain enquiries, the Customs Authorities found the vouchers produced to be false and fictitious. The results of these enquiries were made known to the appellant, after which they were given a personal hearing before the adjudicating officer, the Additional Collector of Customs. Citing that the appellant made no attempt in the personal hearing to substantiate their claim of lawful importation, the Additional Collector passed an order confiscating the watches under Section 167(8), Sea Customs Act, read with Section 3(2) of the Imports and Exports (Control) Act, 1947. The writ petition filed by the appellant to set aside the said order was allowed by a Single Judge of the High Court on the ground that the burden of proof on the Customs Authorities had not been discharged by them. The Division Bench of the High Court reversed this order on appeal stating that the burden of proving lawful importation had shifted upon the firm after the Customs Authorities had informed them of the results of their enquiries. In appeal before this Court, one of the four arguments advanced on behalf of the appellant was that the adjudicating officer had breached the principles of natural justice by denying them the opportunity to cross-examine the persons from whom enquiries were made by the Customs Authorities. The Supreme Court rejected this argument stating as follows:12. We may first deal with the question of breach of natural justice. On the material on record, in our opinion, there has been no such breach. In the show-cause notice issued on August 21, 1961, all the material on which the Customs Authorities have relied was set out and it was then for the appellant to give a suitable explanation. The complaint of the appellant now is that all the persons from whom enquiries were alleged to have been made by the authorities should have been produced to enable it to cross-examine them. In our-opinion, the principles of natural justice do not require that in matters like this the persons who have given information should be examined in the presence of the appellant or should be allowed to be cross-examined by them on the statements made before the Customs Authorities. Accordingly we hold that there is no force in the third contention of the appellant20. Coming to the case at hand, the Adjudicating Authority has mainly relied upon the statements of the appellants and the documents seized in the course of the search of their premises. But, there is no dispute that apart from what was seized from the business premises of the appellants the Adjudicating Authority also placed reliance upon documents produced by Miss Anita Chotrani and Mr. Raut. These documents were, it is admitted disclosed to the appellants who were permitted to inspect the same. The production of the documents duly confronted to the appellants was in the nature of production in terms of Section 139 of the Evidence Act, where the witness producing the documents is not subjected to cross examination. Such being the case, the refusal of the Adjudicating Authority to permit cross examination of the witnesses producing the documents cannot even on the principles of Evidence Act be found fault with. At any rate, the disclosure of the documents to the appellants and the opportunity given to them to rebut and explain the same was a substantial compliance with the principles of natural justice. That being so, there was and could be no prejudice to the appellants nor was any demonstrated by the appellants before us or before the Courts below. The third limb of the case of the appellants also in that view fails and is rejected21. Mr. Diwan lastly argued that the penalty imposed was disproportionate to the nature of the violation and that this Court could at least, interfere to that extent. We do not see any reason much less a compelling one to interfere with the quantum of penalty imposed upon the appellants by the Tribunal. The Adjudicating Authority had, as noticed earlier, imposed a higher penalty. The Tribunal has already given relief by reducing the same by 50%. Keeping in view the nature of the violations and the means adopted by the respondent to do that, we see no room for any further leniency | 0 | 6,617 | 1,427 | ### Instruction:
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contravention of the Customs Duty Act and also FERA. When the petitioner seeks for cross-examination of the witnesses who have said that the recovery was made from the petitioner, necessarily an opportunity requires to be given for the cross-examination of the witnesses as regards the place at which recovery was made. Since the dispute concerns the confiscation of the jewellery, whether at conveyor belt or at the green channel, perhaps the witnesses were required to be called. But in view of confession made by him, it binds him and, therefore, in the facts and circumstances of this case the failure to give him the opportunity to cross-examine the witnesses is not violative of principle of natural justice. It is contended that the petitioner had retracted within six days from the confession. Therefore, he is entitled to crossexamine the panch witnesses before the authority takes a decision on proof of the offence. We find no force in this contention. The customs officials are not police officers. The confession, though retracted, is an admission and binds the petitioner. So there is no need to call panch witnesses for examination and cross-examination by the petitioner. 19. We may also refer to the decision of this Court in M/s Kanungo & Company v. Collector of Customs and Ors. (1973) 2 SCC 438. The appellant in that case was carrying on business as a dealer, importer and repairer of watches in Calcutta. In the course of a search conducted by Customs Authorities on the appellants premises, 280 wrist watches of foreign make were confiscated. When asked to show cause against the seizure of these wrist watches, the appellants produced vouchers to prove that the watches had been lawfully purchased by them between 1956 and 1957. However, upon certain enquiries, the Customs Authorities found the vouchers produced to be false and fictitious. The results of these enquiries were made known to the appellant, after which they were given a personal hearing before the adjudicating officer, the Additional Collector of Customs. Citing that the appellant made no attempt in the personal hearing to substantiate their claim of lawful importation, the Additional Collector passed an order confiscating the watches under Section 167(8), Sea Customs Act, read with Section 3(2) of the Imports and Exports (Control) Act, 1947. The writ petition filed by the appellant to set aside the said order was allowed by a Single Judge of the High Court on the ground that the burden of proof on the Customs Authorities had not been discharged by them. The Division Bench of the High Court reversed this order on appeal stating that the burden of proving lawful importation had shifted upon the firm after the Customs Authorities had informed them of the results of their enquiries. In appeal before this Court, one of the four arguments advanced on behalf of the appellant was that the adjudicating officer had breached the principles of natural justice by denying them the opportunity to cross-examine the persons from whom enquiries were made by the Customs Authorities. The Supreme Court rejected this argument stating as follows: 12. We may first deal with the question of breach of natural justice. On the material on record, in our opinion, there has been no such breach. In the show-cause notice issued on August 21, 1961, all the material on which the Customs Authorities have relied was set out and it was then for the appellant to give a suitable explanation. The complaint of the appellant now is that all the persons from whom enquiries were alleged to have been made by the authorities should have been produced to enable it to cross-examine them. In our-opinion, the principles of natural justice do not require that in matters like this the persons who have given information should be examined in the presence of the appellant or should be allowed to be cross-examined by them on the statements made before the Customs Authorities. Accordingly we hold that there is no force in the third contention of the appellant. 20. Coming to the case at hand, the Adjudicating Authority has mainly relied upon the statements of the appellants and the documents seized in the course of the search of their premises. But, there is no dispute that apart from what was seized from the business premises of the appellants the Adjudicating Authority also placed reliance upon documents produced by Miss Anita Chotrani and Mr. Raut. These documents were, it is admitted disclosed to the appellants who were permitted to inspect the same. The production of the documents duly confronted to the appellants was in the nature of production in terms of Section 139 of the Evidence Act, where the witness producing the documents is not subjected to cross examination. Such being the case, the refusal of the Adjudicating Authority to permit cross examination of the witnesses producing the documents cannot even on the principles of Evidence Act be found fault with. At any rate, the disclosure of the documents to the appellants and the opportunity given to them to rebut and explain the same was a substantial compliance with the principles of natural justice. That being so, there was and could be no prejudice to the appellants nor was any demonstrated by the appellants before us or before the Courts below. The third limb of the case of the appellants also in that view fails and is rejected. 21. Mr. Diwan lastly argued that the penalty imposed was disproportionate to the nature of the violation and that this Court could at least, interfere to that extent. We do not see any reason much less a compelling one to interfere with the quantum of penalty imposed upon the appellants by the Tribunal. The Adjudicating Authority had, as noticed earlier, imposed a higher penalty. The Tribunal has already given relief by reducing the same by 50%. Keeping in view the nature of the violations and the means adopted by the respondent to do that, we see no room for any further leniency.
### Response:
0
### Explanation:
the authority is in contravention of the Customs Duty Act and also FERA. When the petitioner seeks for cross-examination of the witnesses who have said that the recovery was made from the petitioner, necessarily an opportunity requires to be given for the cross-examination of the witnesses as regards the place at which recovery was made. Since the dispute concerns the confiscation of the jewellery, whether at conveyor belt or at the green channel, perhaps the witnesses were required to be called. But in view of confession made by him, it binds him and, therefore, in the facts and circumstances of this case the failure to give him the opportunity to cross-examine the witnesses is not violative of principle of natural justice. It is contended that the petitioner had retracted within six days from the confession. Therefore, he is entitled to crossexamine the panch witnesses before the authority takes a decision on proof of the offence. We find no force in this contention. The customs officials are not police officers. The confession, though retracted, is an admission and binds the petitioner. So there is no need to call panch witnesses for examination and cross-examination by the petitioner19. We may also refer to the decision of this Court in M/s Kanungo & Company v. Collector of Customs and Ors. (1973) 2 SCC 438. The appellant in that case was carrying on business as a dealer, importer and repairer of watches in Calcutta. In the course of a search conducted by Customs Authorities on the appellants premises, 280 wrist watches of foreign make were confiscated. When asked to show cause against the seizure of these wrist watches, the appellants produced vouchers to prove that the watches had been lawfully purchased by them between 1956 and 1957. However, upon certain enquiries, the Customs Authorities found the vouchers produced to be false and fictitious. The results of these enquiries were made known to the appellant, after which they were given a personal hearing before the adjudicating officer, the Additional Collector of Customs. Citing that the appellant made no attempt in the personal hearing to substantiate their claim of lawful importation, the Additional Collector passed an order confiscating the watches under Section 167(8), Sea Customs Act, read with Section 3(2) of the Imports and Exports (Control) Act, 1947. The writ petition filed by the appellant to set aside the said order was allowed by a Single Judge of the High Court on the ground that the burden of proof on the Customs Authorities had not been discharged by them. The Division Bench of the High Court reversed this order on appeal stating that the burden of proving lawful importation had shifted upon the firm after the Customs Authorities had informed them of the results of their enquiries. In appeal before this Court, one of the four arguments advanced on behalf of the appellant was that the adjudicating officer had breached the principles of natural justice by denying them the opportunity to cross-examine the persons from whom enquiries were made by the Customs Authorities. The Supreme Court rejected this argument stating as follows:12. We may first deal with the question of breach of natural justice. On the material on record, in our opinion, there has been no such breach. In the show-cause notice issued on August 21, 1961, all the material on which the Customs Authorities have relied was set out and it was then for the appellant to give a suitable explanation. The complaint of the appellant now is that all the persons from whom enquiries were alleged to have been made by the authorities should have been produced to enable it to cross-examine them. In our-opinion, the principles of natural justice do not require that in matters like this the persons who have given information should be examined in the presence of the appellant or should be allowed to be cross-examined by them on the statements made before the Customs Authorities. Accordingly we hold that there is no force in the third contention of the appellant20. Coming to the case at hand, the Adjudicating Authority has mainly relied upon the statements of the appellants and the documents seized in the course of the search of their premises. But, there is no dispute that apart from what was seized from the business premises of the appellants the Adjudicating Authority also placed reliance upon documents produced by Miss Anita Chotrani and Mr. Raut. These documents were, it is admitted disclosed to the appellants who were permitted to inspect the same. The production of the documents duly confronted to the appellants was in the nature of production in terms of Section 139 of the Evidence Act, where the witness producing the documents is not subjected to cross examination. Such being the case, the refusal of the Adjudicating Authority to permit cross examination of the witnesses producing the documents cannot even on the principles of Evidence Act be found fault with. At any rate, the disclosure of the documents to the appellants and the opportunity given to them to rebut and explain the same was a substantial compliance with the principles of natural justice. That being so, there was and could be no prejudice to the appellants nor was any demonstrated by the appellants before us or before the Courts below. The third limb of the case of the appellants also in that view fails and is rejected21. Mr. Diwan lastly argued that the penalty imposed was disproportionate to the nature of the violation and that this Court could at least, interfere to that extent. We do not see any reason much less a compelling one to interfere with the quantum of penalty imposed upon the appellants by the Tribunal. The Adjudicating Authority had, as noticed earlier, imposed a higher penalty. The Tribunal has already given relief by reducing the same by 50%. Keeping in view the nature of the violations and the means adopted by the respondent to do that, we see no room for any further leniency
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Vithal Tukaram Kadam And Anr Vs. Vamanrao Sawalaram Bhosale And Ors | the present case. It was held that limited transfer of title with option for reconveyance in one document, qualified the agreement as mortgage by conditional sale.11. In Indira Kaur v. Sheo Lal Kapoor, (1988) 2 SCC 488 , it was held that the inordinately long period of time for ten years, under the agreement to seek reconveyance, was indicative of the intention of the parties to create a mortgage by conditional sale, observing as follows:-"5. There is no manner of doubt that the transaction in question was one of mortgage in essence and substance though it was clothed in the garb of a transaction of ostensible sale. The factors adumbrated hereinunder leave no room for doubt on this score:(2) The stipulated period for conveying the property was a very long period of 10 years. The very length of the period is suggestive of a transaction of mortgage and not a transaction of absolute sale with a stipulation to reconvey the property in such peculiar circumstances, bearing on the relationship between the parties or some other relevant consideration.(5) The obvious reason for entering into such a transaction of ostensible sale coupled with a contemporaneous agreement to sell within 10 years was that if it was not garbed with this paraphernalia and was given the nomenclature of a mortgage the period of redemption would have been 30 years. This period could not have been curtailed without attracting the doctrine of clog on equity of redemption. This was obvious reason for resorting to this device."12. In Patel Ravjibhai Bhulabhai (D) thr. Lrs. v. Rahemanbhai M. Shaikh (D) thr. Lrs. and ors., (2016) 12 SCC 216 , the document was held to be a mortgage by conditional sale, in view of the clause for reconveyance contained in the same in view of Section 58 (c) of the Act, and the existence of a debtor and creditor relationship.13. Tamboli Ramanlal Motilal (dead) by Lrs. (supra) is distinguishable on facts. It was held therein that there existed no relationship of debtor and creditor. The absence of any right in the mortgagee to foreclose the mortgage was also noticed observing:-"20. The further clause in the document is to the effect that the executant shall repay the amount within a period of five years and in case he fails to repay neither he nor his heirs or legal representatives will have any right to take back the said properties. Here only the right of the transferor is emphasised, while the right of the transferee to foreclose the mortgage is not spoken to...."14. The essentials of an agreement, to qualify as a mortgage by conditional sale, can succinctly be broadly summarised. An ostensible sale with transfer of possession and ownership, but containing a clause for reconveyance in accordance with Section 58 (c) of the Act, will clothe the agreement as a mortgage by conditional sale. The execution of a separate agreement for reconveyance, either contemporaneously or subsequently, shall militate against the agreement being mortgage by conditional sale. There must exist a debtor and creditor relationship. The valuation of the property, and the transaction value, along with the duration of time for reconveyance, are important considerations to decide the nature of the agreement. There will have to be a cumulative consideration of these factors, along with the recitals in the agreement, intention of the parties, coupled with other attendant circumstances, considered in a holistic manner.15. The agreement, Exhibit 62, though styled as a sale deed, for a consideration of Rs. 700/- is but an ostensible sale, containing a clause for reconveyance. The agreement concludes as follows:-"If I repay your amount of Rs. 700/- in any year (at any time) during the period of ten years from now then you have to return my said land to me, subject to this condition I have sold land to you."The significance of the words "repay", "return" and "subject to this condition" cannot be overlooked. They are not commensurate with a deed of absolute sale. The language used, conveys the distinct impression that the plaintiff did not intend to relinquish all rights, title and claims to his lands. The defendant was aware of the limited nature of right conveyed and had agreed to a conditional sale along with an obligation to return the lands if the amount was repaid.16. The plaintiff initially filed Civil Suit no. 89/1975 for specific performance to transfer the lands back to him. It was withdrawn with liberty to file a fresh suit for redemption. The filing of the fresh suit in 1986, beyond the period of ten years is hardly relevant. The limitation for the right to redeem, under Section 60 of the Act is thirty years.17. The parties were admittedly well known to each other since before. The plaintiff had been borrowing money from the defendant even earlier from time to time according to need, and even at the time of execution of the agreement he was in need of money. The value of the land was Rs. 3500/- far in excess of the amount of Rs. 700/- mentioned in the agreement. The defendant in cross-examination did not deny the recital in Exhibit 66, dated 11.6.1975 in reply to notice, that he had demanded the sum of Rs. 3500/-with interest for reconveyance. The relationship of debtor and creditor cannot be faulted with. The respondent did not take any steps for mutation for three long years after the execution of the deed. The plaintiff had specifically objected to mutation in the name of the defendant, by Exhibits 33 and 34. The period for reconveyance provided in the agreement itself was inordinately long for ten years. The clause for reconveyance was in requirement with Section 58 (c) of the Act. The High Court failed to consider the aforesaid factors in totality and in a holistic manner, while arriving at the finding that there was no debtor and creditor relationship between the parties, and that the agreement was a sale deed with an option to repurchase. The findings are clearly unsustainable. | 1[ds]There can be no hard and fast rule for determining the nature of the document devoid of these circumstances.The essentials of an agreement, to qualify as a mortgage by conditional sale, can succinctly be broadly summarised. An ostensible sale with transfer of possession and ownership, but containing a clause for reconveyance in accordance with Section 58 (c) of the Act, will clothe the agreement as a mortgage by conditional sale. The execution of a separate agreement for reconveyance, either contemporaneously or subsequently, shall militate against the agreement being mortgage by conditional sale. There must exist a debtor and creditor relationship. The valuation of the property, and the transaction value, along with the duration of time for reconveyance, are important considerations to decide the nature of the agreement. There will have to be a cumulative consideration of these factors, along with the recitals in the agreement, intention of the parties, coupled with other attendant circumstances, considered in a holistic manner.15. The agreement, Exhibit 62, though styled as a sale deed, for a consideration of Rs. 700/is but an ostensible sale, containing a clause for reconveyance. The agreement concludes asI repay your amount of Rs. 700/in any year (at any time) during the period of ten years from now then you have to return my said land to me, subject to this condition I have sold land tosignificance of the words "repay", "return" and "subject to this condition" cannot be overlooked. They are not commensurate with a deed of absolute sale. The language used, conveys the distinct impression that the plaintiff did not intend to relinquish all rights, title and claims to his lands. The defendant was aware of the limited nature of right conveyed and had agreed to a conditional sale along with an obligation to return the lands if the amount was repaid.16. The plaintiff initially filed Civil Suit no. 89/1975 for specific performance to transfer the lands back to him. It was withdrawn with liberty to file a fresh suit for redemption. The filing of the fresh suit in 1986, beyond the period of ten years is hardly relevant. The limitation for the right to redeem, under Section 60 of the Act is thirty years.17. The parties were admittedly well known to each other since before. The plaintiff had been borrowing money from the defendant even earlier from time to time according to need, and even at the time of execution of the agreement he was in need of money. The value of the land was Rs. 3500/far in excess of the amount of Rs. 700/mentioned in the agreement. The defendant indid not deny the recital in Exhibit 66, dated 11.6.1975 in reply to notice, that he had demanded the sum of Rs.interest for reconveyance. The relationship of debtor and creditor cannot be faulted with. The respondent did not take any steps for mutation for three long years after the execution of the deed. The plaintiff had specifically objected to mutation in the name of the defendant, by Exhibits 33 and 34. The period for reconveyance provided in the agreement itself was inordinately long for ten years. The clause for reconveyance was in requirement with Section 58 (c) of the Act. The High Court failed to consider the aforesaid factors in totality and in a holistic manner, while arriving at the finding that there was no debtor and creditor relationship between the parties, and that the agreement was a sale deed with an option to repurchase. The findings are clearly unsustainable. | 1 | 2,344 | 660 | ### Instruction:
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the present case. It was held that limited transfer of title with option for reconveyance in one document, qualified the agreement as mortgage by conditional sale.11. In Indira Kaur v. Sheo Lal Kapoor, (1988) 2 SCC 488 , it was held that the inordinately long period of time for ten years, under the agreement to seek reconveyance, was indicative of the intention of the parties to create a mortgage by conditional sale, observing as follows:-"5. There is no manner of doubt that the transaction in question was one of mortgage in essence and substance though it was clothed in the garb of a transaction of ostensible sale. The factors adumbrated hereinunder leave no room for doubt on this score:(2) The stipulated period for conveying the property was a very long period of 10 years. The very length of the period is suggestive of a transaction of mortgage and not a transaction of absolute sale with a stipulation to reconvey the property in such peculiar circumstances, bearing on the relationship between the parties or some other relevant consideration.(5) The obvious reason for entering into such a transaction of ostensible sale coupled with a contemporaneous agreement to sell within 10 years was that if it was not garbed with this paraphernalia and was given the nomenclature of a mortgage the period of redemption would have been 30 years. This period could not have been curtailed without attracting the doctrine of clog on equity of redemption. This was obvious reason for resorting to this device."12. In Patel Ravjibhai Bhulabhai (D) thr. Lrs. v. Rahemanbhai M. Shaikh (D) thr. Lrs. and ors., (2016) 12 SCC 216 , the document was held to be a mortgage by conditional sale, in view of the clause for reconveyance contained in the same in view of Section 58 (c) of the Act, and the existence of a debtor and creditor relationship.13. Tamboli Ramanlal Motilal (dead) by Lrs. (supra) is distinguishable on facts. It was held therein that there existed no relationship of debtor and creditor. The absence of any right in the mortgagee to foreclose the mortgage was also noticed observing:-"20. The further clause in the document is to the effect that the executant shall repay the amount within a period of five years and in case he fails to repay neither he nor his heirs or legal representatives will have any right to take back the said properties. Here only the right of the transferor is emphasised, while the right of the transferee to foreclose the mortgage is not spoken to...."14. The essentials of an agreement, to qualify as a mortgage by conditional sale, can succinctly be broadly summarised. An ostensible sale with transfer of possession and ownership, but containing a clause for reconveyance in accordance with Section 58 (c) of the Act, will clothe the agreement as a mortgage by conditional sale. The execution of a separate agreement for reconveyance, either contemporaneously or subsequently, shall militate against the agreement being mortgage by conditional sale. There must exist a debtor and creditor relationship. The valuation of the property, and the transaction value, along with the duration of time for reconveyance, are important considerations to decide the nature of the agreement. There will have to be a cumulative consideration of these factors, along with the recitals in the agreement, intention of the parties, coupled with other attendant circumstances, considered in a holistic manner.15. The agreement, Exhibit 62, though styled as a sale deed, for a consideration of Rs. 700/- is but an ostensible sale, containing a clause for reconveyance. The agreement concludes as follows:-"If I repay your amount of Rs. 700/- in any year (at any time) during the period of ten years from now then you have to return my said land to me, subject to this condition I have sold land to you."The significance of the words "repay", "return" and "subject to this condition" cannot be overlooked. They are not commensurate with a deed of absolute sale. The language used, conveys the distinct impression that the plaintiff did not intend to relinquish all rights, title and claims to his lands. The defendant was aware of the limited nature of right conveyed and had agreed to a conditional sale along with an obligation to return the lands if the amount was repaid.16. The plaintiff initially filed Civil Suit no. 89/1975 for specific performance to transfer the lands back to him. It was withdrawn with liberty to file a fresh suit for redemption. The filing of the fresh suit in 1986, beyond the period of ten years is hardly relevant. The limitation for the right to redeem, under Section 60 of the Act is thirty years.17. The parties were admittedly well known to each other since before. The plaintiff had been borrowing money from the defendant even earlier from time to time according to need, and even at the time of execution of the agreement he was in need of money. The value of the land was Rs. 3500/- far in excess of the amount of Rs. 700/- mentioned in the agreement. The defendant in cross-examination did not deny the recital in Exhibit 66, dated 11.6.1975 in reply to notice, that he had demanded the sum of Rs. 3500/-with interest for reconveyance. The relationship of debtor and creditor cannot be faulted with. The respondent did not take any steps for mutation for three long years after the execution of the deed. The plaintiff had specifically objected to mutation in the name of the defendant, by Exhibits 33 and 34. The period for reconveyance provided in the agreement itself was inordinately long for ten years. The clause for reconveyance was in requirement with Section 58 (c) of the Act. The High Court failed to consider the aforesaid factors in totality and in a holistic manner, while arriving at the finding that there was no debtor and creditor relationship between the parties, and that the agreement was a sale deed with an option to repurchase. The findings are clearly unsustainable.
### Response:
1
### Explanation:
There can be no hard and fast rule for determining the nature of the document devoid of these circumstances.The essentials of an agreement, to qualify as a mortgage by conditional sale, can succinctly be broadly summarised. An ostensible sale with transfer of possession and ownership, but containing a clause for reconveyance in accordance with Section 58 (c) of the Act, will clothe the agreement as a mortgage by conditional sale. The execution of a separate agreement for reconveyance, either contemporaneously or subsequently, shall militate against the agreement being mortgage by conditional sale. There must exist a debtor and creditor relationship. The valuation of the property, and the transaction value, along with the duration of time for reconveyance, are important considerations to decide the nature of the agreement. There will have to be a cumulative consideration of these factors, along with the recitals in the agreement, intention of the parties, coupled with other attendant circumstances, considered in a holistic manner.15. The agreement, Exhibit 62, though styled as a sale deed, for a consideration of Rs. 700/is but an ostensible sale, containing a clause for reconveyance. The agreement concludes asI repay your amount of Rs. 700/in any year (at any time) during the period of ten years from now then you have to return my said land to me, subject to this condition I have sold land tosignificance of the words "repay", "return" and "subject to this condition" cannot be overlooked. They are not commensurate with a deed of absolute sale. The language used, conveys the distinct impression that the plaintiff did not intend to relinquish all rights, title and claims to his lands. The defendant was aware of the limited nature of right conveyed and had agreed to a conditional sale along with an obligation to return the lands if the amount was repaid.16. The plaintiff initially filed Civil Suit no. 89/1975 for specific performance to transfer the lands back to him. It was withdrawn with liberty to file a fresh suit for redemption. The filing of the fresh suit in 1986, beyond the period of ten years is hardly relevant. The limitation for the right to redeem, under Section 60 of the Act is thirty years.17. The parties were admittedly well known to each other since before. The plaintiff had been borrowing money from the defendant even earlier from time to time according to need, and even at the time of execution of the agreement he was in need of money. The value of the land was Rs. 3500/far in excess of the amount of Rs. 700/mentioned in the agreement. The defendant indid not deny the recital in Exhibit 66, dated 11.6.1975 in reply to notice, that he had demanded the sum of Rs.interest for reconveyance. The relationship of debtor and creditor cannot be faulted with. The respondent did not take any steps for mutation for three long years after the execution of the deed. The plaintiff had specifically objected to mutation in the name of the defendant, by Exhibits 33 and 34. The period for reconveyance provided in the agreement itself was inordinately long for ten years. The clause for reconveyance was in requirement with Section 58 (c) of the Act. The High Court failed to consider the aforesaid factors in totality and in a holistic manner, while arriving at the finding that there was no debtor and creditor relationship between the parties, and that the agreement was a sale deed with an option to repurchase. The findings are clearly unsustainable.
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Vr. M. Sm. Karuppan Chettiar and Others Vs. Commissioner of Income Tax, Madras | 889 and $85, 479 constitute income of the assessee for assessment in the years 1954-55 and 1956-57 respectively ?(2) Whether replantation dividend receipts of $20, 272 and $14, 408 constitute income of the assessee for assessment in the years 1954-55 and 1956-57 respectively ? "The answer to the second question will be governed by judgment in Civil Appeals Nos. 157-158 of 1965, V. S. S. V. Meenakshi Achi v. Commissioner of Income-tax, and need not be considered in these appeals. The only question which has to be decided is the first question2. Facts which are material are briefly these. The assessee is a firm carrying on business in real estates at Kualakangsar in the Federated States of Malaya. Some of the properties belonging to the assessee and which constituted its stock-in-trade suffered damage during the second world war. On August 14, 1947, the Government of India notified a scheme to give relief to Indian nationals doing business in the Federated States of Malaya who had sustained loss when the territory was under Japanese occupation. An assessee who opted for the scheme was entitled to have his losses incurred or suffered during five years relevant to the assessment years 1942-43 to 1946-47 to be aggregated and to set off the losses against his profits for the two years relevant to the assessment years 1942-43 and 1941-42, and to claim refund of any excess tax for those two years after adjustment. Under the scheme, losses suffered by the assessee in Malaya during the war period were allowed to be set off against the assessment years 1942-43 and 1941-42 and the assessee obtained the benefit of Rs. 65, 197 and Rs. 1, 29, 028 in the two years in reduction of tax liability. The Government of Malaya set up a war damage commission to compensate persons whose properties had sustained damage due to war conditions, and under the scheme devised by the Government of Malaya the assessee received compensation amounting to $14, 169 and $5, 479 in the previous years relevant to the assessment years 1954-55 and 1956-57The Income-tax Officer, Tiruchirappalli, in proceedings for assessment years 1954-55 and 1956-57 brought to tax the amounts received by the assessee as war damages from the Government of Malaya. The order of the Income-tax Officer was confirmed by the Appellate Assistant Commissioner. The Income-tax Appellate Tribunal confirmed the order of the Appellate Assistant Commissioner, subject to a slight modification, which is not material for the purpose of this appeal. Thereafter, at the instance of the assessee, the Tribunal referred the questions, which have been already set out, to the High Court for their opinion3. The assessee had opted for the special scheme formulated by the Central Board of Revenue and losses incurred by it had been allowed to be set off against the tax assessed in the years 1942-43 and 1941-42. Properties in Malaya belonging to the assessee were damaged during the war. Payments received by the assessee to compensate for the loss to those properties were subject to tax on the income included therein. That is conceded by counsel for the assessee. Bat counsel for the assessee submitted that under the scheme framed by the Central Board of Revenue, full compensation for loss suffered by the assessee was not paid, and therefore from the amount of compensation received from the Government of Malaya under the War Damage Compensation Scheme, in ascertaining the taxable income the book value of the assets should be deducted, and only the balance should be brought to tax. It was urged that since under the scheme framed by the Central Board of Revenue, only a fraction of the value of the property lost was allowed as compensation to the assessee and the current book value of the properties was the market value less the compensation received from the Central Government, only the excess over that book value received from the Government of Malaya was taxableIn our view this contention is not open to the assessee. Before the Income-tax Officer it was urged that the compensation received from the Government of Malaya was a capital receipt of a casual and non-recurring nature, and on that account not liable to be brought to tax. The Income-tax Officer rejected the contention and held that the receipt was revenue in that it represented recovery of a revenue loss. In appeals to the Appellate Assistant Commissioner and to the Appellate Tribunal the same contention was raised and negatived.4. The only contention raised before the revenue authorities and the Tribunal was therefore that the receipts were not taxable because they fell within section 4(3)(vii) of the Income-tax Act: it was never pleaded that only the excess over the book value was liable to be taxed. The first question referred to the High Court was also on the footing that the entire amount claimed was capital receipt. It was for the first time argued before the High Court that since the assets lost or damaged retained a certain value in the books of account, only the difference between the amounts received by the assessee and the book value of the assets should be brought to tax. Even if that contention was open to the assessee, in our judgment, when the assessee put forward the claim for compensation under the scheme framed by the Central Board of Revenue that its entire property had been lost through enemy action and it obtained relief under the special scheme on that basis, the value of the assets must after receipt of compensation be taken to be nil, and the assessee by not writing off the value in his books of account on and after accepting the benefits of the special scheme could not invest those assets for the purpose of assessment to tax with any book value which was liable to be taken into account. Compensation received in replacement of those assets by the assessee from the war damage commission must therefore be treated in its entirety as profit liable to tax | 0[ds]It was for the first time argued before the High Court that since the assets lost or damaged retained a certain value in the books of account, only the difference between the amounts received by the assessee and the book value of the assets should be brought to tax. Even if that contention was open to the assessee, in our judgment, when the assessee put forward the claim for compensation under the scheme framed by the Central Board of Revenue that its entire property had been lost through enemy action and it obtained relief under the special scheme on that basis, the value of the assets must after receipt of compensation be taken to be nil, and the assessee by not writing off the value in his books of account on and after accepting the benefits of the special scheme could not invest those assets for the purpose of assessment to tax with any book value which was liable to be taken into account. Compensation received in replacement of those assets by the assessee from the war damage commission must therefore be treated in its entirety as profit liable to tax | 0 | 1,128 | 202 | ### 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:
889 and $85, 479 constitute income of the assessee for assessment in the years 1954-55 and 1956-57 respectively ?(2) Whether replantation dividend receipts of $20, 272 and $14, 408 constitute income of the assessee for assessment in the years 1954-55 and 1956-57 respectively ? "The answer to the second question will be governed by judgment in Civil Appeals Nos. 157-158 of 1965, V. S. S. V. Meenakshi Achi v. Commissioner of Income-tax, and need not be considered in these appeals. The only question which has to be decided is the first question2. Facts which are material are briefly these. The assessee is a firm carrying on business in real estates at Kualakangsar in the Federated States of Malaya. Some of the properties belonging to the assessee and which constituted its stock-in-trade suffered damage during the second world war. On August 14, 1947, the Government of India notified a scheme to give relief to Indian nationals doing business in the Federated States of Malaya who had sustained loss when the territory was under Japanese occupation. An assessee who opted for the scheme was entitled to have his losses incurred or suffered during five years relevant to the assessment years 1942-43 to 1946-47 to be aggregated and to set off the losses against his profits for the two years relevant to the assessment years 1942-43 and 1941-42, and to claim refund of any excess tax for those two years after adjustment. Under the scheme, losses suffered by the assessee in Malaya during the war period were allowed to be set off against the assessment years 1942-43 and 1941-42 and the assessee obtained the benefit of Rs. 65, 197 and Rs. 1, 29, 028 in the two years in reduction of tax liability. The Government of Malaya set up a war damage commission to compensate persons whose properties had sustained damage due to war conditions, and under the scheme devised by the Government of Malaya the assessee received compensation amounting to $14, 169 and $5, 479 in the previous years relevant to the assessment years 1954-55 and 1956-57The Income-tax Officer, Tiruchirappalli, in proceedings for assessment years 1954-55 and 1956-57 brought to tax the amounts received by the assessee as war damages from the Government of Malaya. The order of the Income-tax Officer was confirmed by the Appellate Assistant Commissioner. The Income-tax Appellate Tribunal confirmed the order of the Appellate Assistant Commissioner, subject to a slight modification, which is not material for the purpose of this appeal. Thereafter, at the instance of the assessee, the Tribunal referred the questions, which have been already set out, to the High Court for their opinion3. The assessee had opted for the special scheme formulated by the Central Board of Revenue and losses incurred by it had been allowed to be set off against the tax assessed in the years 1942-43 and 1941-42. Properties in Malaya belonging to the assessee were damaged during the war. Payments received by the assessee to compensate for the loss to those properties were subject to tax on the income included therein. That is conceded by counsel for the assessee. Bat counsel for the assessee submitted that under the scheme framed by the Central Board of Revenue, full compensation for loss suffered by the assessee was not paid, and therefore from the amount of compensation received from the Government of Malaya under the War Damage Compensation Scheme, in ascertaining the taxable income the book value of the assets should be deducted, and only the balance should be brought to tax. It was urged that since under the scheme framed by the Central Board of Revenue, only a fraction of the value of the property lost was allowed as compensation to the assessee and the current book value of the properties was the market value less the compensation received from the Central Government, only the excess over that book value received from the Government of Malaya was taxableIn our view this contention is not open to the assessee. Before the Income-tax Officer it was urged that the compensation received from the Government of Malaya was a capital receipt of a casual and non-recurring nature, and on that account not liable to be brought to tax. The Income-tax Officer rejected the contention and held that the receipt was revenue in that it represented recovery of a revenue loss. In appeals to the Appellate Assistant Commissioner and to the Appellate Tribunal the same contention was raised and negatived.4. The only contention raised before the revenue authorities and the Tribunal was therefore that the receipts were not taxable because they fell within section 4(3)(vii) of the Income-tax Act: it was never pleaded that only the excess over the book value was liable to be taxed. The first question referred to the High Court was also on the footing that the entire amount claimed was capital receipt. It was for the first time argued before the High Court that since the assets lost or damaged retained a certain value in the books of account, only the difference between the amounts received by the assessee and the book value of the assets should be brought to tax. Even if that contention was open to the assessee, in our judgment, when the assessee put forward the claim for compensation under the scheme framed by the Central Board of Revenue that its entire property had been lost through enemy action and it obtained relief under the special scheme on that basis, the value of the assets must after receipt of compensation be taken to be nil, and the assessee by not writing off the value in his books of account on and after accepting the benefits of the special scheme could not invest those assets for the purpose of assessment to tax with any book value which was liable to be taken into account. Compensation received in replacement of those assets by the assessee from the war damage commission must therefore be treated in its entirety as profit liable to tax
### Response:
0
### Explanation:
It was for the first time argued before the High Court that since the assets lost or damaged retained a certain value in the books of account, only the difference between the amounts received by the assessee and the book value of the assets should be brought to tax. Even if that contention was open to the assessee, in our judgment, when the assessee put forward the claim for compensation under the scheme framed by the Central Board of Revenue that its entire property had been lost through enemy action and it obtained relief under the special scheme on that basis, the value of the assets must after receipt of compensation be taken to be nil, and the assessee by not writing off the value in his books of account on and after accepting the benefits of the special scheme could not invest those assets for the purpose of assessment to tax with any book value which was liable to be taken into account. Compensation received in replacement of those assets by the assessee from the war damage commission must therefore be treated in its entirety as profit liable to tax
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D. Shanmukha Sundaramma Vs. D. Suneetha | Dr. Arijit Pasayat, J. 1. Leave granted. 2. Heard learned counsel for the appellant. 3. None appears on behalf of the respondents in spite of service of notice. 4. Challenge in these appeals is to the order passed by a learned Single Judge of the Andhra Pradesh High Court. 5. The background facts in a nutshell are as follows:One Sudhakar Rao (hereinafter referred to as the ‘deceased) lost his life in a vehicular accident on 13.11.1998. He was an Auto-driver who was driving Auto Rickshaw No.AP 26 6164. A lorry bearing No. ATC-1035 dashed against the auto rickshaw resulting in the death of the deceased. The claimant filed a claim petition under Section 166 of the Motor Vehicles Act, 1988. A sum of Rs.4,00,000/- was claimed as compensation by respondent No.1 who is the widow of the deceased. One E. Lokanadham Naidu was the owner of the offending vehicle. In the claim petition, the owner as well as M/s United India Insurance Company Ltd. (hereinafter referred to as the ‘insurer) were impleaded as parties along with the present appellant, who is the mother of the deceased. It was indicated in the claim petition that both the claimant and the present appellant were entitled to compensation. Appellant filed a counter affidavit before the Motor Accident Claims Tribunal, cum-IVth Additional District Judge, Tirupathi (hereinafter referred to as ‘MACT) taking the stand that after the death of the deceased the claimant had deserted her and was not looking after her welfare and, therefore, she was also entitled to compensation in equal measure along with the claimant. The MACT, by award dated 21.8.2000 in O.P. No.101 of 1999 awarded compensation of Rs.3,40,068/- along with 12% interest. Costs were also awarded. The MACT directed that the amount should be paid equally to the claimant and the present appellant. Any amount paid under Section 140 of the Act was to be adjusted from the amount payable on the basis of the award. The matter was challenged in appeal by the claimant. Basic question was whether the Tribunal was justified in directing equal opportunity. The present appellant took the stand that the claimant was engaged as a Home guard and that she was living separately. But she denied the stand that she was getting Rs.80/- per day. It was stated that she was receiving much less. The appellants stand was that she was solely dependant for her livelihood on the earning of her son. The High Court was of the view that the claimant was hardly 20 years of age and, therefore, a sum of Rs.50,000/- was directed to be paid to the present appellant and the balance to the claimant widow.6. Learned counsel for the appellant submitted that the approach of the High Court is clearly erroneous.7. It is pointed out that total amount deposited by the Insurance Company is Rs.4,22,438/-. On the basis of the High Courts order, both the appellant and the widow of the deceased have withdrawn one fourth amount each. The insurer has filed an affidavit indicating that it has no role on the question of apportionment which has to be decided by the court. In any event, the interest as awarded, is much higher than what is normally awarded.8. Stand of the claimant before the MACT and the High Court appears to be that the present appellant is being maintained by her son, but she has no one to depend upon.9. Though there appears to be some substance in the plea of the insurer regarding the rate of interest, in the absence of any appeal by it, there is no scope for interfering with the rate. Had there been any appeal, there would be certainly scope for interference. 10. The only issue in the present appeal is the amount to which the present appellant i.e. the mother of the deceased would be entitled. | 1[ds]7. It is pointed out that total amount deposited by the Insurance Company is Rs.4,22,438/-. On the basis of the High Courts order, both the appellant and the widow of the deceased have withdrawn one fourth amount each. The insurer has filed an affidavit indicating that it has no role on the question of apportionment which has to be decided by the court. In any event, the interest as awarded, is much higher than what is normally awarded.8. Stand of the claimant before the MACT and the High Court appears to be that the present appellant is being maintained by her son, but she has no one to depend upon.9. Though there appears to be some substance in the plea of the insurer regarding the rate of interest, in the absence of any appeal by it, there is no scope for interfering with the rate. Had there been any appeal, there would be certainly scope for interference. | 1 | 715 | 176 | ### 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:
Dr. Arijit Pasayat, J. 1. Leave granted. 2. Heard learned counsel for the appellant. 3. None appears on behalf of the respondents in spite of service of notice. 4. Challenge in these appeals is to the order passed by a learned Single Judge of the Andhra Pradesh High Court. 5. The background facts in a nutshell are as follows:One Sudhakar Rao (hereinafter referred to as the ‘deceased) lost his life in a vehicular accident on 13.11.1998. He was an Auto-driver who was driving Auto Rickshaw No.AP 26 6164. A lorry bearing No. ATC-1035 dashed against the auto rickshaw resulting in the death of the deceased. The claimant filed a claim petition under Section 166 of the Motor Vehicles Act, 1988. A sum of Rs.4,00,000/- was claimed as compensation by respondent No.1 who is the widow of the deceased. One E. Lokanadham Naidu was the owner of the offending vehicle. In the claim petition, the owner as well as M/s United India Insurance Company Ltd. (hereinafter referred to as the ‘insurer) were impleaded as parties along with the present appellant, who is the mother of the deceased. It was indicated in the claim petition that both the claimant and the present appellant were entitled to compensation. Appellant filed a counter affidavit before the Motor Accident Claims Tribunal, cum-IVth Additional District Judge, Tirupathi (hereinafter referred to as ‘MACT) taking the stand that after the death of the deceased the claimant had deserted her and was not looking after her welfare and, therefore, she was also entitled to compensation in equal measure along with the claimant. The MACT, by award dated 21.8.2000 in O.P. No.101 of 1999 awarded compensation of Rs.3,40,068/- along with 12% interest. Costs were also awarded. The MACT directed that the amount should be paid equally to the claimant and the present appellant. Any amount paid under Section 140 of the Act was to be adjusted from the amount payable on the basis of the award. The matter was challenged in appeal by the claimant. Basic question was whether the Tribunal was justified in directing equal opportunity. The present appellant took the stand that the claimant was engaged as a Home guard and that she was living separately. But she denied the stand that she was getting Rs.80/- per day. It was stated that she was receiving much less. The appellants stand was that she was solely dependant for her livelihood on the earning of her son. The High Court was of the view that the claimant was hardly 20 years of age and, therefore, a sum of Rs.50,000/- was directed to be paid to the present appellant and the balance to the claimant widow.6. Learned counsel for the appellant submitted that the approach of the High Court is clearly erroneous.7. It is pointed out that total amount deposited by the Insurance Company is Rs.4,22,438/-. On the basis of the High Courts order, both the appellant and the widow of the deceased have withdrawn one fourth amount each. The insurer has filed an affidavit indicating that it has no role on the question of apportionment which has to be decided by the court. In any event, the interest as awarded, is much higher than what is normally awarded.8. Stand of the claimant before the MACT and the High Court appears to be that the present appellant is being maintained by her son, but she has no one to depend upon.9. Though there appears to be some substance in the plea of the insurer regarding the rate of interest, in the absence of any appeal by it, there is no scope for interfering with the rate. Had there been any appeal, there would be certainly scope for interference. 10. The only issue in the present appeal is the amount to which the present appellant i.e. the mother of the deceased would be entitled.
### Response:
1
### Explanation:
7. It is pointed out that total amount deposited by the Insurance Company is Rs.4,22,438/-. On the basis of the High Courts order, both the appellant and the widow of the deceased have withdrawn one fourth amount each. The insurer has filed an affidavit indicating that it has no role on the question of apportionment which has to be decided by the court. In any event, the interest as awarded, is much higher than what is normally awarded.8. Stand of the claimant before the MACT and the High Court appears to be that the present appellant is being maintained by her son, but she has no one to depend upon.9. Though there appears to be some substance in the plea of the insurer regarding the rate of interest, in the absence of any appeal by it, there is no scope for interfering with the rate. Had there been any appeal, there would be certainly scope for interference.
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